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Colvin v. Peterson Industrial, Inc.

United States District Court, N.D. Alabama, Middle Division

July 2, 2015

DEBBIE COLVIN, individually and as Personal Representative of the Estate of Oscar Colvin, Deceased Plaintiffs,



This is a civil action filed by the plaintiff, Debbie Colvin, individually and as personal representative of the estate of Oscar Colvin, deceased. The plaintiff sues Peterson Industrial, Inc., her deceased husband's former employer, for alleged violations of the notice provisions of the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. ยง 1162, et seq.

The case comes before the court on the defendant's motion for summary judgment. (Doc. 37). For the reasons stated herein, the motion will be GRANTED, and this case will be DISMISSED.


Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.


Pursuant to Rule 56(c)(2) of the Federal Rules of Civil Procedure, the defendant objects to and/or moves to strike certain evidence presented by the plaintiff in opposition to the motion for summary judgment. (Doc. 45 at 3-4). No response to the objections/motion has been filed by the plaintiff.[1]

It has long been the law in this circuit that, when deciding a motion for summary judgment, a district court may not consider evidence which could not be reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2), which provides:

A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

Fed. R. Civ. P. 56(c)(2). The advisory committee's note to Rule 56(c)(2) provides that:

[An] objection [under Rule 56(c)(2)] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Fed. R. Civ. P. 56 advisory committee's note to 2010 amendments (emphasis added).

Here, the defendant states:

The following excerpts of the Affidavit of Dewayne Colvin are presented in a form which not be admissible ([d]oc 42...):
- "On the day in January of 2012[, ] [that] this incident occurred, my [f]ather called me and told me he was about to talk with Sonny about bonus checks/commission[s] that Sonny promised [the] men for working jobs in Mississippi, and for bonus checks/commission[s] he promised to my [f]ather for working in South Carolina, Arkansas and Mississippi[, ] but had refused to pay[;]"
- "He [Oscar] told me Sonny is about to fire me' because he was going to ask for money that was owed to him and to the other employees[;]"
- "[M]y dad was calling Sonny a lying thief' and "[m]y dad was telling Sonny you fired me[.]"
Furthermore, the transcript of a telephone conversation with a Blue Cross Blue Shield representative ([d]oc. 42 [at] 32-33) and Ms. Colvin's testimony regarding an alleged conversation with a representative of Gadsden Regional Medical Center ([d]oc. 40 [at] 9-10) would constitute inadmissible hearsay.

(Doc. 45 at 4-5). In addition,

the [d]efendant objects to the extent that the [p]laintiffs rely upon excerpts from the [a]ffidavit of Dewayne Colvin which constitute improper lay opinion testimony, speculation[, ] and are not based upon personal knowledge. Specifically, the affidavit stated the following:
- "I do believe that Sonny thought I would also quit because he knew I was angry with both of them[;]"[] and
- "[T]here was no misconduct in the way that they dealt with each other because this was common place [sic] between my [f]ather and Sonny[.]"

(Doc. 45 at 5-6).

The plaintiff has not responded to the defendant's objections. Therefore, the plaintiff has not met his burden to show that the evidence is admissible (or can be reduced to an admissible form) at trial. Because the plaintiff has failed to meet his evidentiary burden, the defendant's motion will be GRANTED, and this evidence will be STRICKEN.[2]


Peterson Industrial, Inc. ("Peterson Industrial") is an Alabama corporation located in Ashville, Alabama. Peterson Industrial installs equipment in poultry and meat plants. Peterson Industrial's shareholders are of Sonny Peterson ("Sonny") and Paula Peterson ("Paula"), who are married. Paula is the secretary/treasurer and handles the accounting and finances. As a part of her job, Paula handles most of the insurance issues. Peterson Industrial makes health insurance available to all of its employees. If, after a six month ...

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