Legal Memorandum: Affidavits Supporting Summary Judgment Motions

Issue: What are the applicable rules regarding use of affidavits to support summary judgment motions in Minnesota?

Area of Law: Litigation & Procedure
Keywords: Summary judgment motions; Affidavits; Rules applicable
Jurisdiction: Federal
Cited Cases: 728 F.2d 1020; 920 F.2d 493; 533 F. Supp. 145; 285 F.3d 764; 271 F. Supp. 90; 855 F. Supp. 2d 871; 474 N.W.2d 209; 255 F.3d 644; 673 N.W.2d 843; 392 F. Supp. 2d 1246; 663 F.3d 336
Cited Statutes: Fed. R. Civ. P. 56(c); Fed. R. Civ. P. 56; 10B Fed. Prac. & Proc. Civ. § 2738; Fed. R. Evid. 801(c); Fed. R. Evid. 803(6); Fed. R. Evid. 902(11)
Date: 02/01/2013

When affidavits are used to support a motion for summary judgment, they must (1) be made on the affiant’s personal knowledge, (2) set forth facts that would be admissible in evidence, and (3) show affirmatively that the affiant is competent to testify as to the matters stated therein.  Fed. R. Civ. P. 56(c); 10B Charles A. Wright, Arthur R. Miller, Mary K. Kane & Richard L. Marcus, Federal Practice & Procedure Civil (“Fed. Prac. & Proc. Civ.”) § 2738 (3d ed. 2012) (citing, inter alia, Walling v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943) (“When affidavits are offered in support of a motion for summary judgment, they must present admissible evidence, and must not only be made on the personal knowledge of the affiant, but must show that the affiant possesses the knowledge asserted.”).  Attorneys’ affidavits are subject to the same rules that apply to other affidavits under Fed. R. Civ. P. 56.  10B Fed. Prac. & Proc. Civ. § 2738.  Accordingly, an attorney’s affidavit is admissible only to prove facts within the attorney’s personal knowledge and as to which the attorney is competent to testify.  Id.  A party may move to strike an affidavit that fails to comply with Fed. R. Civ. P. 56.  See id.; see also Am. Med. Sys., Inc. v. Laser Peripherals, LLC, 712 F. Supp. 2d 885 (D. Minn. 2010) (granting motion to strike an expert report submitted in support of a summary judgment motion where it did not meet admissibility requirements).  


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