United States District Court, W.D. Washington, Seattle
ORDER DEFERRING RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' SUPPLEMENTAL DECLARATION
JAMES L. ROBART, District Judge.
Before the court are Defendants James Young and Carolyn Tooley-Young's motion for summary judgment (Dkt. # 7) and motion to strike (Dkt. # 12) Plaintiff Paul Colvin's supplemental declaration (Dkt # 11). The court has reviewed Defendants' motions, all submissions filed in support of and in opposition thereto, the balance of the record, and the applicable law. Being fully advised, the court GRANTS Defendants' motion to strike and DEFERS RULING on Defendants' motion for summary judgment until after the parties conduct a limited amount of discovery pursuant to Federal Rule of Civil Procedure 56(d).
This action arises out of an alleged violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2522, which prohibits the interception of oral communications. (Compl. (Dkt. # 1) ¶¶ 3.1-3.2.) Plaintiffs and Defendants own and reside on adjoining properties and have been engaged in prior litigation in state court regarding the boundary line between their properties. (Young Decl. (Dkt. # 7) ¶¶ 3-19.) Between July 2011 and August 2012, Defendants operated a security camera on their property. ( Id. at ¶¶ 13-16.) On June 16, 2012, Plaintiffs complained to local law enforcement that the Defendants' security camera was pointed at Plaintiffs' home. (Compl. Ex. B. ("Incident Report") at 20.) Defendants removed the security camera before June 21, 2012. ( See id. at 24.)
On December 24, 2014, Plaintiffs filed this action for damages and declaratory relief. ( See Compl.) Pursuant to Federal Rule of Civil Procedure 26 and this court's scheduling order, the parties were not permitted to begin discovery until March 24, 2015. (Sched. Ord. (Dkt. # 6) at 1.) Defendants filed their motion for summary judgment on February 13, 2015, more than a month prior to that date. ( See Mot. (Dkt. # 7).) Defendants' motion for summary judgment was noted for consideration on March 13, 2015. ( See id. at 1.)
Mr. Colvin submitted a supplemental declaration in response to Defendants' motion for summary judgment on March 17, 2015. (Supp. Colvin Decl. (Dkt. # 11).) Defendants moved to strike this supplemental declaration. (Mot. to Strike (Dkt. # 12).) Plaintiffs filed no response to Defendants' motion to strike. ( See generally Dkt.) Defendants' motion for summary judgment and motion to strike are now before the court.
A. Defendants' Motion to Strike
Defendants move to strike the supplemental declaration filed by Mr. Colvin on the grounds that (1) Plaintiffs filed the declaration after March 13, 2015, which was the noting date for Defendants' motion for summary judgment, and (2) Mr. Colvin failed to sign and date the declaration. (Mot. to Strike at 1-2.) The court need not consider the timeliness of Mr. Colvin's supplemental declaration because the lack of his signature is dispositive of Defendants' motion.
Declarations must be signed and certified as true under penalty of perjury. See 28 U.S.C. § 1746. Unsworn declarations must at least substantially comply with the requirements of 28 U.S.C. § 1746. See Commodity Futures Trading Comm'n v. Topworth Int'l, Ltd., 205 F.3d 1107, 1112 (9th Cir. 1999). Furthermore, pursuant to Federal Rule of Civil Procedure 11(a), "[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention." Fed.R.Civ.P. 11(a).
Mr. Colvin submitted his supplemental declaration on March 17, 2015. ( See Supp. Colvin Decl.) Defendants filed their motion to strike on March 18, 2015, calling Mr. Colvin's attention the omission of his signature. (Mot. to Strike at 2.) Mr. Colvin failed to remedy this omission. To date, he has not filed a properly signed copy of his supplemental declaration. ( See generally Dkt.) Indeed, as noted above, Plaintiffs did not respond at all to Defendants' motion to strike. The supplemental declaration does not comply with either 28 U.S.C. § 1746 or Rule 11(a). Accordingly, the court grants Defendants' motion to strike Mr. Colvin's supplemental declaration.
B. Defendants' Motion for Summary Judgment
Defendants move for summary judgment with respect to Plaintiffs' claim under the ECPA. (Mot. at 1 (citing Fed.R.Civ.P. 56(a)).) Defendants further argue that if the court grants summary judgment over this claim, which is Plaintiffs' only federal claim, then the court should decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. ( Id. at 4-5); see also 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over [other claims]... if... the district court has dismissed all claims over which it has original jurisdiction.") For ...