Estate of Eleanor Jacoby, Charlotte Leff, Executor v. Akbari-Shahmirzadi

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
NANCY AKBARI-SHAHMIRZADI,
Case No. 7-11-15351 TL
Debtor.
ESTATE OF ELEANOR JACOBY,
CHARLOTTE NEFF, Executor,
Plaintiff,
v. 	Adversary No. 12-1021 T
NANCY AKBARI-SHAHMIRZADI,
Defendant.
MEMORANDUM OPINION ON PLAINTIFF’S MOTION TO STRIKE
This matter is before the Court on Plaintiff’s Motion to Strike Inadmissible
Hearsay Contained in John E. Jacoby’s Affidavit and Dr. Desmond’s Letter to the Extent
That the Hearsay Statements are Relied on in Defendant’s Response to Plaintiff’s Motion
for Partial Summary Judgment, filed April 18, 2013 (the “Motion to Strike”). Defendant
filed a response to the Motion to Strike on May 7, 2013 (the “Response”). This is a core
proceeding to determine dischargeability of a debt. 	28 U.S.C. § 157(b)(2)(I). 	For the
reasons set forth below the Motion to Strike will be granted in part and denied in part.
I. 	PROCEDURAL CONTEXT
The Motion to Strike concerns an affidavit and a letter, both attached to
Defendant’s Motion to Reconsider Partial Summary Judgment and Consider Defendant’s
Factual Offer, filed February 15, 2013 (the “Motion to Reconsider”). 	On March 15,
2013, the Court granted the Motion to reconsider and set aside its January 18, 2013
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Partial Judgment Against Defendant. The reasons for the Court’s action are set forth in a
Memorandum Opinion entered March 15, 2013.
Because 	the 	partial 	judgment 	was 	set 	aside, Plaintiff’s Motion 	for 	Partial
Summary 	Judgment, 	filed 	November 	29, 	2012 	(the 	“Partial 	Summary 	Judgment
Motion”), is still pending. 	Defendant filed a Supplemental Response to the Motion for
Partial Summary Judgment on April 4, 2013. 	Previously, Defendant also filed a
Memorandum of Law in Support of Defendant’s Motion to Reconsider. In ruling on the
Partial Summary Judgment Motion, the Court may consider materials in the record such
as the affidavit and letter addressed in the Motion to Strike. Fed.R.Civ.P. 56(c)(3). Thus,
as part of evaluating the (now) fully briefed Partial Summary Judgment Motion, the
Court will rule on the Motion to Strike.1
I. 	THE JACOBY AFFIDAVIT
Attached to the Motion to Reconsider is an “Affidavit in Support of Extension of
Time,” signed by John E. Jacoby (the “Jacoby Affidavit”). The Jacoby Affidavit contains
the following six statements Plaintiff objects to as inadmissible hearsay:
Affidavit paragraph
number
Statement
6 	A few days later, I understand from my sister that
she searched the condo also and did not find an
original will nor a copy.
9 	My sister told me at length how much my mother
did not like her lawyer who represented her in a
previous lawsuit, Gerard 	J. Sweeney, Esq., and
that she did not understand much of what he said,
1 It is not strictly necessary to do so, because Fed.R.Civ.P. 56 makes clear that the Court must base any
ruling on summary judgment on admissible evidence. Thus, the Court has a duty, whether or not a party
objects, to limit its consideration of the submitted materials to admissible evidence. 	A better practice
would have been to raise evidence admissibility issues in a reply in support of the Partial Summary
Judgment Motion.
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that he forced her to sign documents she did not
understand or want to, that he intimidated her and
that he had multiple lawyers as well as a court
report (sic) at each meeting.
10 	My sister also told me that my mother told her
that she had removed all her documents from
Sweeney's firm.
13 	The attorney told us that we did not have to call
him.
14 	The attorney also told us that wills are often
registered at the Surrogate's Courthouse.
17 	She advised us that it was customary to hold the
monies seven months before distribution but that
it was not required.
Plaintiff asserts that each of these statements contains “inadmissible hearsay and
[is] asserted for the truth of the matter.” Motion to Strike, p. 2. 	Plaintiff further argues
that some of the statements contain “hearsay within hearsay.” 	Motion to Strike, p. 2
(paragraphs 9 and 10). Plaintiff cites Federal Rule of Evidence (“FRE”) 804, and argues
that that rule contains no exceptions that would allow these statements to be admitted.
Motion to Strike, p. 2.
Defendant responds that Rule 804 is inapplicable because Mr. Jacoby will be
available for trial. Furthermore, Defendant argues that none of the statements is hearsay.
There is no question that affidavits may be submitted in support of or opposition
to a motion for summary judgment. Fed.R.Civ.P. 56(c)(1)(A). This rule is considered an
exception to the general prohibition against using hearsay testimony as evidence. 	See
FRE 802. However, while Mr. Jacoby’s affidavit can be considered, his statements in the
affidavit have to be admissible if Mr. Jacoby were testifying at trial. See Garner v. Shier
(In re Garner), 246 B.R. 617, 626 (9 th Cir. BAP 2000) (even if use of an affidavit is
permitted, the affidavit must not contain “hearsay within hearsay”); Fed.R.Civ.P. 56(c)(4)
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(affidavit must be based on personal knowledge and set out facts that would be
admissible in evidence). Defendant acknowledges that this is the rule. Response, p. 2.
A. 	Paragraphs 6, 9 and 10 of the Jacoby Affidavit.
Paragraphs 6, 9, and 10 of the Jacoby affidavit contain statements by Mr. Jacoby,
setting forth alleged facts related to him by Defendant. 	Defendant argues that the
paragraphs do not contain inadmissible hearsay because of FRE 801(d)(1)(B), which
provides:
(d) 	Statements 	That 	Are 	Not 	Hearsay. 	A 	statement 	that 	meets 	the
following conditions is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies
and is subject to cross-examination about a prior statement, and the
statement: ...
(B) is consistent with the declarant's testimony and is offered to rebut an
express or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying[.]
Defendant cites Tome v. United States, 513 U.S. 150 (1995) in support of this assertion.
In general, the Court agrees with Defendant that, if Plaintiff had “express[ly] or
implied[ly] charge[d]” that Plaintiff’s affidavit testimony was “recently fabricated,” then
John Jacoby’s testimony regarding Defendant’s prior consistent statements would be
admissible under FRE 801(d)(1)(B). See e.g., United States v. Rohrer, 708 F.2d 429, 433
(9th Cir. 1983). However, the Court is not aware of any allegation made by Plaintiff that
Defendant’s affidavit testimony submitted in this adversary proceeding (i.e. Defendant’s
Affidavit filed February 15, 2013, doc. 41-1) contains recently fabricated testimony.
Because of that, the prior consistent statements in the Jacoby Affidavit are not admissible
under FRE 801. 	See United States v. Stuart, 718 F.2d 931, 934 (9th Cir. 1983) (the
fabrication of which the rule speaks concerns the witness’s trial testimony, not a prior
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inconsistent out-of-court statement). 	Furthermore, paragraphs 9 and 10 contain hearsay
within hearsay, because Mr. Jacoby testifies about what Defendant told him about what
their mother told her. 	This second level of hearsay renders the paragraphs inadmissible
under 802(d).
As an alternative, Defendant also argues that paragraphs 6, 9 and 10 are
admissible to show Defendant’s state of mind when she undertook to apply for letters of
administration and distributed the estate. Defendant cites FRE 803(3), which provides:
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
...
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement
of the declarant's then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory, or physical condition (such as mental feeling,
pain, or bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the validity or
terms of the declarant's will.
Defendant may be right about paragraph 6—the fact that Defendant told Mr.
Jacoby that she searched their mother’s condominium and did not find a will could be
relevant to Defendant’s state of mind, whether or not the statement is true or offered to
prove whether such a search in fact ever took place. However, Defendant testified in her
own affidavit that she searched her mother’s condominium for a will, and did not find
one. 	Defendant’s Affidavit, ¶ 4. 	Plaintiff has not submitted any admissible evidence
disputing Defendant’s assertion about this fact. The Court will rely on Defendant’s direct
testimony in her affidavit and will disregard Mr. Jacoby’s second-hand testimony as
duplicative. 	See FRE 403 (court may exclude evidence that is, inter alia, needlessly
cumulative).
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With respect to paragraphs 9 and 10, the hearsay within hearsay problem persists,
so the paragraphs will not be considered by the Court.
In sum, the Court finds that paragraphs 6, 9 and 10 of the Jacoby Affidavit should
not be considered by the Court when ruling on the Partial Summary Judgment Motion.
B. 	Paragraphs 13, 14 and 17 of the Jacoby Affidavit.
Defendant argues that paragraphs 13, 14, and 17 of the Jacoby Affidavit are not
hearsay because they were not offered for the truth of the matters asserted. 	Defendant
cites Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1556 (10th Cir. 1995), and the definition
of hearsay found in FRE 801(c). Starr holds that a statement offered not for its truth, but
only for the mere fact that it was uttered, is not hearsay. 	54 F.3d at 1556. 	The Court
finds Defendant’s argument is well taken and will be sustained. The three paragraphs are
not offered for their truth, but only to show, from declarant’s personal knowledge, that
his and Defendant’s New York attorney made the statements. 	And, these statements
would be relevant to Defendant’s state of mind and intent. 	The Court therefore will
consider paragraphs 13, 14, and 17 of the Jacoby Affidavit when ruling on the Partial
Summary Judgment Motion.
II. 	THE DESMOND LETTER
Also attached to the Motion to Reconsider is a letter dated July 2, 2012 signed by
Dr. Robert E. Desmond (the “Desmond Letter”). 	In the letter Dr. Desmond states “It
became obvious to her [Nancy Akbari] that her mother was suffering from dementia.”
Plaintiff objects to this statement as inadmissible hearsay. Motion to Strike, p. 3.
Defendant admits that “the letter has never been introduced as evidence in
connection with any pleading in this matter.” 	Response, p. 5. 	Nevertheless, Defendant
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argues that the statement in question goes to Defendant’s state of mind and is not hearsay
because it is not offered to prove the truth of the matter asserted. 	Response, p. 5.
Alternatively she argues that Dr. Desmond is an expert in psychiatry and he based his
opinion on what he was aware of or personally observed.
The Court will not consider any statements made in the Desmond Letter. 	The
letter is not in the form of an affidavit or declaration, and is not otherwise admissible in
evidence. See, e.g., Outlaw v. Regis Corp., 2013 WL 499519 (S.D. Ind. 2013), affirmed,
2013 WL 2349788 (7th Cir. 2013) (court declined to consider letters submitted by party in
opposition to a summary judgment motion because they were not in the form of affidavits
or declarations); Montgomery v. Ion Media Management Co., 2011 WL 1791294, at *6
(M.D. Fla. 2011) (while affidavits are no longer required, unsworn declarations must
comply with the requirements of 28 U.S.C. § 1746). 	The Desmond Letter is not an
affidavit or unsworn declaration, has not been authenticated, and would not be admissible
at trial. To the extent the letter contains alleged expert opinions, no proper foundation for
such opinions has been laid.
Finally, Dr. Desmond’s statement that “It became obvious to her [Defendant] that
her mother was suffering from dementia” may or may not be hearsay (what is the basis
for Dr. Desmond’s statement? It is what he was told by Defendant, or something else?),
but the source of his information is sufficiently unclear that the Court could not entertain
consideration of the statement under the 	“state of mind” exception to the hearsay rule.
FRE 803(3).
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III. 	CONCLUSION
The Court will enter an Order sustaining Plaintiff’s objection to paragraphs 6, 9
and 10 of the Jacoby Affidavit, sustaining Plaintiff’s objection to the Desmond Letter,
and overruling Plaintiff’s objection to paragraphs 13, 14 and 17 of the Jacoby Affidavit.
The Court will not base its ruling on the Partial Summary Judgment Motion on any
portion of the Desmond Letter. 	The Court’s consideration of paragraphs 13, 14, and 17
of the Jacoby Affidavit will be limited to the extent, if any, the statements are relevant to
Defendant’s state of mind.
____________________________________
Hon. David T. Thuma
United States Bankruptcy Judge
Date entered on docket: June 26, 2013.
Copies to:
Bonnie Bassan Gandarilla
Moore, Berkson & Gandarilla, P.C.
3800 Osuna Rd NE, STE #2
Albuquerque, NM 87109
William P Gordon/Steve Mazer
2501 Yale Blvd SE Ste 204
Albuquerque, NM 87106-4357
Alice Nystel Page
Office of U.S. Trustee
PO Box 608
Albuquerque, NM 87103-0608
Ronald E Holmes
112 Edith Blvd NE
Albuquerque, NM 87102-3524
Steven Tal Young
20 First Plaza Center NW
Suite 500
Albuquerque, NM 87102
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