United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
Rose Bauer, commenced this action in the Circuit Court of
Lauderdale County, Alabama, asserting claims of breach of
contract and bad faith against The Travelers Home and Marine
Insurance Company (“Travelers”), which had issued
a homeowners insurance policy to plaintiff. Travelers denied
a claim for property damages caused by vandalism to
plaintiff's home, and awarded plaintiff only a limited
amount for loss of personal property due to theft, asserting
that plaintiff's extended vacancy of the home had
rendered her ineligible for coverage under the policy.
Travelers filed a timely removal of the case, asserting
federal jurisdiction based upon satisfaction of the
requirements of the diversity statute, 28 U.S.C.
§1332(a). The controversy now is before the court on
Travelers' motion for summary judgment,  and
Travelers' motion to strike the affidavit submitted by
plaintiff in opposition to summary judgment. Upon
consideration of the motions, briefs, and evidentiary
submissions, the court concludes that the motion to strike
should be granted, but only in part, and that the motion for
summary judgment should be granted in its entirety.
MOTION TO STRIKE
requests the court to strike the affidavit plaintiff
submitted in support of her response to Travelers' motion
for summary judgment. Without question, plaintiff's summary
judgment response failed to comply with the Uniform Initial
Order, which requires parties opposing summary judgment to
set forth their objections to the moving party's claimed
undisputed facts, and their own proposed disputed and
undisputed facts, in separately numbered paragraphs, and to
provide precise record citations to support each disputed and
proposed fact. Moreover, plaintiff's brief consists
of only four pages,  but her attached affidavit, which contains
most of her factual contentions and legal arguments, is
forty-six pages long.Together, the two documents exceed the
thirty-page limit for summary judgment response
briefs. Even so, plaintiff unnecessarily added to
the length of her affidavit by employing wide page margins
and retyping each of defendant's proffered facts. Without
those superfluous additions, plaintiff's submission
likely would have fallen within the page limitation. For that
reason, the court concludes that it will be more efficient to
accept plaintiff's submission, despite its non-compliance
with the Uniform Initial Order, than to require
plaintiff's attorney to re-format the submission. The
court also does not find it necessary to address every
objection raised by defendant. To do so would take more pages
than addressing the merits of plaintiff's claims. In
addition, the court simply will disregard affidavit
statements that are conclusory, hearsay, speculation, not
within plaintiff's personal knowledge, or improper
opinion testimony. Such statements will not be stricken, but
they will not be considered in ruling on defendant's
motion for summary judgment.
the only objections that need to be addressed in any detail
are those based upon inconsistencies between plaintiff's
deposition and affidavit testimony.
support such objections, Travelers has invoked the
“sham affidavit” rule, which provides that a
may determine that an affidavit is a sham when it contradicts
previous deposition testimony and the party submitting the
affidavit does not give any valid explanation for the
contradiction. See Van T. Junkins & Assocs., Inc. v.
U.S. Indus., Inc., 736 F.2d 656 (11th Cir. 1984).
However, “[t]his rule is applied sparingly because of
the harsh effect it may have on a party's case.”
Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d
1306, 1316 (11th Cir. 2007). As such, courts must “find
some inherent inconsistency between an affidavit and a
deposition before disregarding the affidavit.”
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237
(11th Cir. 2010) (alteration in original).
first portion of plaintiff's affidavit challenged by
Travelers is a response to Travelers' statement that
“[p]laintiff lived in a rental house in Los Angeles
from October 2013 to the present.” Plaintiff
stated that she “did not rent the Los Angeles house.
Rather, I assisted my friend, the Los Angeles homeowner, in
getting out of foreclosure, in exchange for accommodating
myself and my dogs. The cost was approximately the
same.” Travelers asserts that those statements
contradict the following passages from plaintiff's
previous deposition testimony:
Q. Okay. All right. We are going to go through these in
I just wanted to make sure that we're on the same page -
Q. - but these are your documents in support of your damages
in this case?
Q. With the understanding, as you explained previously, that
you are still living in the home in California and so
therefore you still are incurring rent every month -
Q. - correct? All right. What I want to do before we go
through these documents is cover some other things, okay? But
we will talk about these because I want to understand what
you've given us here today.
Q. Now, based on the discovery responses that you've
previously given us and filed in the case, it is my
understanding that you are currently residing at this
Q. And, again, that's [redacted] in Los Angeles?
Q. Now, who is Barbara S. Brody?
A. She is the elderly lady that I rent from.
Q. How long have you lived at [redacted] Avenue?
A. I moved from [redacted] to there [during] October of 2013.
no. 55-5 (Deposition of Rosalee Stella Bauer), at 45-46
(alterations and emphasis supplied). Plaintiff also testified
that she had paid $2, 100 a month in rent for the California
property since October 1, 2013. Finally, she testified
that she sometimes mailed her rent checks to the conservator
who manages the estate of Ms. Barbara S. Brody, and
sometimes mailed them directly to Ms. Brody's
affidavit testimony that she did not rent the home in Los
Angeles is inherently contradictory to her testimony that she
did rent the home. Simply because plaintiff sometimes made
her payments directly to her landlord's mortgage company
does not change the nature of the rental agreement. The
challenged statements will be stricken from plaintiff's
other portions of plaintiff's affidavit challenged by
Travelers all relate to the contents that remained in
plaintiff's Florence, Alabama home after she moved to
California. The first contested statements are found in the
After closing my art and antiques gallery in Florence,
Alabama, in 2008, I brought many pieces of high-quality
antique furniture from my gallery to my home. However, before
departing for California, when I needed to raise funds for my
business travel, my dear friend Judy Sizemore offered to
purchase my high-quality 8-seater mahogany dining room set.
I, who am in the business of buying and selling furniture
incessantly, often acquire or sell furniture, sometimes
including personal furniture. Ms. Sizemore additionally
purchased a few other items of furniture (a sofa and chairs)
from me for Ms. Sizemore and for her son's home at that
time. Nonetheless, I continued to maintain personal property,
furniture, and other contents of my home in my home after
departing for destinations including California, and all of
that personal property, furniture, and other contents
remained in my home in Florence, Alabama until January 28,
2013, when my Florence home was burglarized, resulting in the
theft of many items of personal property, furniture, and
other contents of my home. Travelers recognized this and paid
me $18, 749.16 for some of it.
Doc. no. 61-2 (Affidavit of Rose Bauer), at ECF 5.
also made the following statements in response to
Travelers' assertion that, “[i]n August 2012, Ms.
[Carmen] Erdmann [plaintiff's neighbor] and Mr. [Clint]
[a potential renter] walked through [plaintiff's
Florence] house and noted only a few items of furniture and
that the house contained no toiletries or
Disputed that there were “only a few items of
furniture” to be seen and that there were no linens to
be seen. Just prior to this period of my medical
convalescence, Deborah Ford Rogers had lived in my house for
many months. I do not know one way or another whether or not
Deborah replenished the toiletries before departing the
house. I do know Deborah used my towels and linens while
staying there. Ms. Erdman had not been present in my house
for several years prior to her visit that day with Mr.
Pittman. (Ms. Erdman did not know how much or little
furniture I normally maintained in my home in this period or
in other periods.) I submit that present in the house were my
queen-size bed, my multimedia entertainment center (including
television set), my antique chest of drawers, my chairs, my
writing desk, office furniture, dishes, silverware, a very
large refrigerator in the kitchen, a gourmet gas stove, pots
and pans, and other items of personal furniture, domestic
furnishings, culinary equipment, and pieces of framed artwork
and art-quality framed photographs. Nonetheless, . . . I
freely concede that I had sold some personal furniture
(particularly the dining room set) to my friend Judy
Sizemore, as well as items of surplus furniture. It is not
very surprising if the lack of a dining room set was noticed
by visitors unfamiliar with my recent financial straits.
Doc. no. 61-2 (Affidavit of Rose Bauer), at ECF 7 (ellipsis
supplied). Travelers asserts that plaintiff's affidavit
testimony is inconsistent with both her prior deposition
testimony, and the sworn “Examination Under Oath”
to which she submitted during the claims investigation
her Examination Under Oath, plaintiff was asked why she
stored jewelry in a box in her closet when she left for
California if she was not planning to be away from home for
very long. She responded:
A. Because I was living in the den in the cottage room, and
all the other rooms, the back room was empty. Nothing was
there. Nothing was left. Judy bought most of the living room
A. So I was pretty much selling everything.
Q. For income?
A. I needed to make some money. I was being foreclosed.
Q. I was just confirming.
A. And Judy can take pictures. I hated that I had to sell my
dining room table. I know somewhere I'll show you. It
went from my house to Judy's house, all my lamps,
everything. But she was the only one who was willing to buy
it. And I think sometimes she brought [sic] it just
to help me.
Q. So because you were just living basically in one room, you
decided to box items up and store them in a closet?
A. Okay. My house costs a fortune to heat. Imagine I
can't sell anything. I'm getting sick. The only way I
can do anything is to try to get some of the antiques back to
LA now. That was the only hope, otherwise I would have
A. So if I stayed in the two side rooms - like I stayed in
the den - the den and the little cottage room and one little
bathroom, I could keep those rooms warm because I had those
little heaters. If I used the big heater, it was like $600 a
month and I didn't have it.
A. So eventually they were going to turn me off because I
couldn't afford it.
Q. So you were using like little space heaters in those
A. Yes. It was great because I had the den, the sofa. She
bought all the living room sofa and all of that.
Q. Who did?
Q. Judy bought all of that?
A. You can see all of that. She can send us pictures. She
bought that. The living room and dining room was huge
[sic], and the living room also had these huge
French doors. There was all this air. It was just so hard to
keep - so I just - that is how I did it. It was the smartest
thing for me to do, to consolidate.
Q. So when you left the home in February 2012, essentially
the only rooms that were still set up were the den?
A. Yes. Except I did have the entertainment - Deborah at one
point stayed in my cottage room but she had her own TV. But I
did then put the big TV back into the living room.
Q. What do you call the cottage room? I don't understand.
A. That was a little bedroom by the den in the middle of the
Q. Not your bedroom?
A. That was - I made that my bedroom because I kept the den -
there was a little cottage room, a bathroom and den.
A. I just kind of - that became more of how I consolidated.
Q. You just sort of packed up everything else in the attic?
A. I sold everything I could.
Q. You sold - A. I sold tons of things.
Doc. no. 55-4 (Examination Under Oath of Rose Bauer), at
315-18. During plaintiff's deposition, she confirmed that
she “had essentially sold all of [her] items except for
what [she] had in the cottage room.”
court does not find any inherent inconsistencies in
plaintiff's testimony. Even though plaintiff testified
during her examination that she sold many of her personal
items, she never stated that she sold everything she
owned. In fact, she testified that there were still items
remaining in her “cottage room.” That is not
inconsistent with her subsequent affidavit testimony that she
retained a bed, entertainment center, chest of drawers,
chairs, writing desk, and office furniture, along with other
decorative items, or that she maintained ...