Macuba v. DeBoer, Federal Court of Appeals, 11th Circuit (1999)
Author: Bram

Cause of action: The following is a cause of action for retaliation claims in relation to a 1st Amendment claim.

Procedural History: Trial court denied SJ for DF's; this court reversed (district court erred in considering the hearsay testimony).

Facts: PL claims he was squeezed out by DF and another member of commission after DF's brother was fired due to an allegation of impropriety by PL.  When new commission was elected DF ran and won, and together with another person instituted a plan to consolidate the office of city manager, in which PL's position was taken away after he was forced to interview candidates

Issue(s): Under FRCP, are statements made in a deposition which are not directly heard by deposed party, available to PL in trying to interpose DF's motion to SJ?

Court's Rationale/Reasoning: The courts, including this one, had previously erred in including the depositions which were more hearsay than not, as long as the nonmoving party could reduce the statement to admissible evidence at trial or reduced to admissible form.  These ideas came from Celotex, which held a nonmoving party in opposing a motion for SJ may refer the district court to the pleadings, depos, answers to interrogatories and admissions on file, as per FRCP 56(c).

But the phrases "reduced to admissible evidence at trial" and "reduced to admissible form" are used by the courts to explain that the out-of-court statement made to the witness (the FRCP 56(c) affiant or deponent)must be admissible at trial for some purpose.  The statement could fall under the hearsay exception or be used for impeachment purposes.

Rule: Inadmissible hearsay cannot be considered on a motion for SJ.

FRCP 56(e) requires that "affidavits" that support or oppose SJ motions "shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence."  This rule also applies to depositions.

Holding: No.  Since the testimony cannot be considered, PL has nothing to refute DF's claims and thus SJ is allowable when PL has not brought up a genuine issue as to a material fact.