Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00630-DJS

Document 56

Filed 12/03/2003

Page 1 of 5

UNITED STATES DISTRICT COURT for the DISTRICT OF CONNECTICUT __________________________________________ : MARIO RICHARDS, : Plaintiff, : : : v. : : : COMPUTER SCIENCES CORPORATION. : Defendant. : __________________________________________: CIVIL NO. 303CV00630 (DJS)

DECEMBER 3, 2003

DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE OR DISREGARD PORTIONS OF MARIO RICHARDS' AFFIDAVIT

Plaintiff's memorandum in opposition is no opposition at all. He simply argues that he was competent to testify under Fed. R. Evid. 601 and so the court should buy whatever he says in his affidavit as "competent." Defendant will not belabor discussing the different meanings of competent that Richards confuses. The challenged portions of his affidavit lack any facts to show his personal knowledge. Rule 56 governs Richards' affidavit, and he fails that rule abjectly. Richards argues that "it cannot be said that the plaintiff could not have perceived or observed that which he testified to." That is exactly what Defendant is saying. It was Richards' burden to prove, with competent facts, that he knows what he says he knows. He did not. Simply being employed at the Norwich, Connecticut location did not give Richards personal knowledge of the work habits of others there, or of their prior work experience or education, or of Defendant's hiring criteria at Norwich. And, if simply being employed at Norwich is the basis for his personal knowledge

Case 3:03-cv-00630-DJS

Document 56

Filed 12/03/2003

Page 2 of 5

about what others there do or know, it defeats his contention that he knows he is similarly situated to those employees who work or worked in California, Maryland or Texas because Richards has never worked at those facilities. Richards' bare allegation in his affidavit to the effect that "everyone does the same thing I do" is not competent testimony, both because it is undisputed that they do not do what Richards does, and because he offers nothing to show that he does know what others do. Richards also makes the implicit argument that his lack of personal knowledge is Defendant's fault because Defendant objected to some of his company-wide discovery requests. But if it is Defendant's fault, then it undermines Richards' contention that he has the personal knowledge about what others do at Norwich (or anywhere else) simply because he works there. Richards should not have to conduct discovery to testify to things about which he contends he has personal knowledge in the first place. Moreover, if discovery was his problem, Richards should have requested additional time to file his 216(b) motion until the discovery dispute was resolved. What he cannot do is file his class motion and then when it founders blame Defendant for its flaws. The whole point behind making a motion for a 216(b) class, is that plaintiff has what facts he needs, shown by way of affidavits and not discovery, to conditionally certify such a class. Mike v. Safeco Ins. Co. of America, 274 F. Supp.2d 216, 219 (D. Conn. 2003). Richards did not make this showing in his motion. "A party may not obtain d[iscovery] in order to discover whether it has a cause of action." Caliper Technologies v. Molecular Devices, 213 F.R.D. 555, 558 (N.D. Cal. 2003). Richards makes a final argument that he has fixed whatever was wrong with his motion by adding new affidavits with his reply. In Richards' view of this litigation, he should be allowed to keep submitting evidence until he gets it right. In other words, he was not required

2

Case 3:03-cv-00630-DJS

Document 56

Filed 12/03/2003

Page 3 of 5

like everyone else to submit whatever evidence he had with his opening motion, even if it could have been obtained then. He can simply read Defendant's opposition to each round of his submissions and file more submissions, in a perpetual cycle of sur-replies. Defendant disagrees and these tardy affidavits that should have been submitted with Plaintiff's original motion should be stricken. Defendant has shown that the challenged portions of Richards' affidavit are inadmissible and should be struck or disregarded.

DEFENDANT, COMPUTER SCIENCES CORPORATION

By: Tasos C. Paindiris (ct 16739) William J. Anthony (ct 17865) Jackson Lewis LLP 55 Farmington Avenue, Suite 1200 Hartford, CT 06105 Tel. (860) 522-0404 Fax. (860) 247-1330 Lisa A. Schreter (ct 17647) Jackson Lewis LLP 245 Peachtree Center Avenue, N.E. 1900 Marquis One Tower Atlanta, GA 30303-1226 Tel. (404) 525-8200 Fax. (404) 525-1173

3

Case 3:03-cv-00630-DJS

Document 56

Filed 12/03/2003

Page 4 of 5

CERTIFICATION OF SERVICE This is to certify that a copy of the foregoing was sent by first class mail, postage prepaid, on this 3rd day of December, 2003, to the following:

Michael J. Melly 143 Oneco Avenue New London, CT 06320

___________________________ Tasos C. Paindiris

4

Case 3:03-cv-00630-DJS

Document 56

Filed 12/03/2003

Page 5 of 5

H:\Client Folder\C\Computer Sciences Corp\Richards\Reply to Motion to Strike Richards' Aff.doc

5