The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Defendants' motion to strike the affidavits of Plaintiff Gloria Lytle and Plaintiff Roger Morrison filed in support of Plaintiffs' cross-motion for summary judgment on whether Plaintiffs were employees or independent contractors. The court has reviewed the parties submissions and will now rule on the motion.
Plaintiffs' claims arise out of the relationship between Defendant Capital Area Intermediate Unit ("CAIU") as educational and transportation service providers and Plaintiffs as transportation contractors hired to provide transportation services for CAIU. On January 19, 2005, Plaintiffs filed a complaint, alleging, among other things, that Defendants violated the False Claims Act ("FCA"), 31 U.S.C. § 3729, et seq., by engaging in harassment, intimidation, discrimination, humiliation, and retaliation to punish Plaintiffs for reporting Defendants unlawful conduct. (Doc. 66 at 2--3.) Plaintiffs also allege six additional state law claims arising out of the same common set of facts and transactions under the umbrella of supplemental jurisdiction. (Doc. 53.) Defendants filed motions to dismiss (Docs. 40, 42), and the court stayed disposition of these motions pending completion of discovery regarding the question of whether Lytle and Morrison were employees for purposes of the False Claims Act or independent contractors, a threshold issue. (Doc. 53 at 3--4.) Defendants submitted a motion for summary judgment on October 22, 2008 (Doc. 64), and Plaintiffs filed a cross-motion for summary judgment that same day (Doc. 67). Both parties have filed supporting documents, and the summary judgment motions are ripe for disposition. (See Docs. 65--67, 74--76, 77--79, 83--86, 90.) On November 21, 2008, Defendants filed a motion to strike the affidavits of Plaintiffs Lytle and Morrison along with a supporting brief. (Doc. 83--84.) On December 6, 2008, Plaintiffs filed a brief in opposition to the motion to strike (Doc. 89), and Defendants filed a reply on December 22, 2008 (Doc. 90). Accordingly, the motion to strike is ripe for disposition. The court will now rule on the motion.
In ruling on a motion for summary judgment, a court may consider, among other things, affidavits when determining whether no genuine issue of material fact exists such that a party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Saldana v. Kmart Corp., 260 F.3d 228, 231--32 (3d Cir. 2001). Affidavits filed in support of a motion for summary judgment may be considered for the purpose of ascertaining whether a party has raised an issue of fact. Frederick Hart & Co. v. Recordograph Corp., 169 F.2d 580, 581 (3d Cir. 1948).
A party, however, may not escape summary judgment by attempting to create a material issue of fact "by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict." Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). Indeed, trial courts have a "practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition." Id. Courts disregard such "sham affidavits" when the affidavit "flatly contradicts" a deposition "without satisfactory explanation." Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 705--06 (3d Cir. 1988). Disregarding "sham affidavits" serves the important purpose of preventing the serious impairment of the "objectives of summary judgment." Id. at 706 (citing Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986); Miller v. A. H. Robins Co., 766 F.2d 1102 (7th Cir. 1985); Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656 (11th 1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540 (9th Cir. 1975); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)).
Nonetheless, in certain situations, a subsequent affidavit may correct sworn testimony where "the witness was confused at the earlier deposition or for some other reason misspoke." Id. at 705. Situations may arise where an affidavit does not "raise a new or distinct matter," but rather explains certain aspects of a deposition testimony that caused confusion. Baer, 392 F.2d at 625. Courts will generally not declare an affidavit a sham if it helps to correct a mistake or resolve "ambiguous testimony." See, e.g., St. Paul Mercury Ins. Co. v. Capital Sprinkler Inspection, Inc., 573 F. Supp. 2d 152, 160--161 (D.D.C. 2008); Knauf Realty, LLC v. Prudential Real Estate Affiliates, Inc., 486 F. Supp 2d 855, 857 (noting that the "sham affidavit rule" does not apply to "elaboration on ambiguous testimony that the other party failed to clarify during a deposition").
In determining whether an affidavit constitutes a sham, courts will consider "whether corroborating evidence" ameliorates the concerns that gave rise to the "sham affidavit" doctrine. Baer, 392 F.3d at 625. For example, as a general rule, "[w]hen there is independent evidence in the record to bolster an otherwise questionable affidavit, courts generally have refused to disregard the affidavit." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 254 (3d Cir. 2007). "Such corroborating evidence may establish that the affiant was 'understandably' mistaken, confused, or not in possession of all the facts during the previous deposition." Id. (quoting Baer, 392 F.3d at 625).
Defendants argue that the court should strike the affidavits of both Plaintiff Lytle and Plaintiff Morrison because they amount to "sham affidavits" that contradict earlier deposition testimony. Defendants argue that Lytle's affidavit contradicts her deposition testimony on two grounds: first, Lytle's deposition testimony contradicts the claim in her affidavit that she drove a vehicle, and a route, for the CAIU, as a full time driver from 1974 through 2001 and second, her deposition testimony along with Morrison's deposition testimony contradict the clarification of the phrase "changing routes" provided in her affidavit. Defendants also argue that Lytle's deposition testimony contradicts the statement in Morrison's affidavit that he drove a vehicle, and a route, for CAIU as a driver for Lytle Transportation. The court will review each of these three arguments individually.
A. Lytle as Full Time Driver
Defendants urge the court to strike Lytle's affidavit because her statements regarding driving vehicles and routes for CAIU contradict her prior deposition testimony. Lytle's affidavit affirms the following statements regarding driving:
2. From 1974 through 2006, I provided services as a transportation contractor to the Capital Area Intermediate Unit.
3. From 1974 to 2001, I drove a vehicle, and a route, for the CAIU, as a full time driver.
4. From 2001 to 2004, I drove a vehicle, and a route, for the CAIU as a long term substitute for Lytle Transportation; and as a short term substitute for Lytle Transportation, as necessary. (Doc. 83 ex. A.)
Defendants argue that two aspects of Lytle's deposition testimony contradict these statements. First, Defendants argue that Lytle testified that she provided the same services for the CAIU when she operated as a sole proprietor and under Lytle Transportation, but never testified that she drove during this earlier time period. Defendants cite to the following passage in Lytle's deposition testimony:
A: . . . well, Lytle Transportation, Incorporated. I started working in 1974 for the Intermediate Unit. I was 18.
Q: What did you do from '74?
A: I started-I became a contractor in '74.
Q: So from '74 to '95, you did it as a sole proprietor?
Q: Similar to what you did and what you have described for me from '95 to '96. (Id.)
Along these same lines, Defendants point to Lytle's response "[t]hat's fair" to the question "[a]nd when we talk about this '95 when Lytle Transportation, Inc. came into existence through July of '06, I assumed what you're telling me there for that time frame, how you ran the corporation, is the same practice you did in the prior period from '74 to '95. Is that a fair statement?" (Id.) Defendants argue that this testimony contradicts Lytle's affidavit because ""[n]one of Lytle's prior testimony regarding her services for, or role as owner of the transportation contractor, even referenced the fact that she actually drove vehicles." (Doc. 83 at 6.)
Second, Defendants argue that Lytle testified that she drove "periodically" from 1995 through 2004 and "only when she did not have a substitute driver." Defendants cite to the following passage:
Q: Were you driving at all [from 2004--06]?
Q: Did you ever drive from, say, '95 through July of '06?
A: Periodically. No, not until July of '06. In '04, I was finished driving.
Q: Okay. And during those time frames where you would periodically drive, if one of your drivers couldn't make it for whatever ...