Legal Memorandum: Motion to Strike

Issue: Under federal law as applied in Minnesota, when an affidavit is submitted in conjunction with a motion for summary judgment in federal district court that violates the requirements of Fed. R. Civ. P. 56(c), how may it be opposed?

Area of Law: Litigation & Procedure
Keywords: Motion to strike; Strike an affidavit; Waiver of the objection
Jurisdiction: Federal, Minnesota
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 56(c); 10B Fed. Prac. & Proc. Civ. § 2738 & n. 51
Date: 02/01/2013

A party must move to strike an affidavit that violates Fed. R. Civ. P. 56(c).  See 10B Fed. Prac. & Proc. Civ. § 2738 & n. 51(citing cases).  The failure to do so results in waiver of the objection, and the court may then consider the defective affidavit, even if the evidence would not be admissible at trial.  Id.  The motion to strike must be timely, but the rules do not prescribe a specific period within which it must be made, so the decision on timeliness is left to the discretion on the trial judge.   Id.     


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