The Court of Appeals for the Sixth Circuit held that affidavits based on “personal knowledge and belief” were not sufficient to prevent summary judgment from being entered. In Ondo v. City of Cleveland, 795 F.3d. 597 (6th Cir. 2015) the plaintiffs brought a ?1983 action against the city, police officers and corrections officers alleging excessive force in violation of the Fourth Amendment, violation of the Equal Protection Clause and intentional affliction of emotional distress under Ohio law. The defendants moved for summary judgment and to strike the affidavits filed by plaintiffs in response to their summary judgment motion. The affidavits were based on personal knowledge and belief and the court struck them holding that the court did not know which statements were based solely on personal knowledge as required by the Federal Rules of Civil Procedure and which were based only upon belief. The trial court then entered summary judgment for defendants and plaintiffs appealed claiming that the court erred in striking the affidavits.
The Court of Appeals first noted that affidavits defeat summary judgment only if they are made on personal knowledge and set out facts that would be admissible in evidence (Federal Rule of Civil Procedure 56(c)(4)). In ruling that the district court correctly struck the affidavits the court said:
“We hold that when affidavits based on knowledge and belief are submitted to support or oppose a motion for summary judgment, the district court has discretion to determine whether it can differentiate between knowledge and belief for each averment in the affidavit. If the court can distinguish between the two, then, as was the case in Upshaw, the court should excuse the affiant”?s stylistic error, and must admit the parts based solely upon personal knowledge, while striking the parts based upon belief. If the court cannot differentiate between the two, then consistent with the rationale in Wright & Miller, the court must strike the affidavit in its entirety, as in Totman. We review for abuse of discretion the district court”?s decision on whether it could distinguish between knowledge and belief for each of the affidavit”?s averments, and thus whether to strike in part or to strike in toto. The district court here found that it could not make those determinations regarding the affidavits filed by Ondo and Simcox, and so struck both affidavits in their entirety. We conclude that the district court did not abuse its discretion in doing so.”