govinfo:USCOURTS-tnwd-2_23-cv-02456-1

IN THE UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
JANICE M. CRAWFORD, 
 
Plaintiff, 
) 
) 
) 
) 
) 
) 
 
 
 
  
v. ) No. 2:23-cv-02456-SHM-atc 
 ) 
) 
) 
) 
) 
 
PAMELA BONDI, ATTORNEY 
GENERAL, U.S. DEPARTMENT OF 
JUSTICE 
  
Defendant. 
 
 
  
ORDER 
 Before the Court is Defendant’s “Motion to Strike or 
Disregard Paragraphs 2-3 and 12-15 of Steve Moody’s Sham 
Declaration.” (ECF No. 94.) For the reasons below, the Court 
GRANTS IN PART and DENIES IN PART Defendant’s Motion.  
 
I. Background 
Plaintiff’s Complaint alleges employment discrimination 
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 
2000e, as amended by §1981a (“Title VII”). (ECF No. 1.) Plaintiff 
alleges that the U.S. Department of Justice discriminated against 
her by retaliating against her for engaging in a protected 
activity as defined by Title VII. (Id.) Specifically, Plaintiff 
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alleges that the Department of Justice refused to hire her for 
an Administrative Officer (“AO”) position in Seattle because of 
her prior EEO activity. (Id.) On August 20, 2025, Defendant moved 
for summary judgment. (ECF No. 75.) On October 7, 2025, Plaintiff 
filed her Response, including an additional declaration by a 
witness, Steven Moody (the “Moody Declaration”). (ECF Nos. 83 
and 83-1.) On December 4, 2025, Defendant filed the “Motion to 
Strike or Disregard Paragraphs 2-3 and 12-15 of Steve Moody’s 
Sham Declaration.” (ECF No. 94.) Plaintiff responded to the 
Motion on December 22, 2025. (ECF No. 98.) 
 
II. Law 
 Defendant titles its Motion “Motion to Strike or Disregard…” 
portions of the Moody Declaration. (ECF No 94.) Defendant cites 
relevant caselaw, but does not cite the rules of civil procedure 
under which it brings its Motion. (Id.)  
The Federal Rules of Civil Procedure provide no grounds to 
strike documents that are not pleadings. See Fed. R. Civ. P. 
12(f) (“The court may strike from a pleading…”); see also Fox v. 
Michigan State Police Dep’t, 173 F. App’x 372, 375 (6th Cir. 
2006) (“Under Fed. R. Civ. P. 12(f), a court may strike only 
material that is contained in the pleadings”); and Benoist v. 
Titan Med. Mfg., LLC, No. 219CV02704SHMTMP, 2021 WL 1723235, at 
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*1 (W.D. Tenn. Apr. 30, 2021) (“The Federal Rules of Civil 
Procedure do not provide for a motion to strike documents or 
portions of documents other than pleadings”). 
The Rules of Civil Procedure define “pleading” as a 
complaint, an answer to a complaint, an answer to a counterclaim 
designated as a counterclaim, an answer to a crossclaim, a third-
party complaint, an answer to a third-party complaint, and, if 
the court orders one, a reply to an answer.  Fed. R. Civ. P. 
7(a).  
Declarations attached as exhibits to summary judgment 
responses are not pleadings.  Therefore, the Court cannot 
“strike” the paragraphs Defendant contests. 
The Motion also asks the Court to “disregard” select 
paragraphs of Moody’s Declaration. (ECF No. 94.) In the body of 
the Motion, Defendant appears to limit its request to the Court’s 
consideration of Defendant’s summary judgment motion. “Because 
¶¶ 2-3 and 12-15 of Moody’s declaration directly contradict his 
deposition testimony, the Court should strike or disregard these 
paragraphs when it considers the [Defendant’s] motion for summary 
judgment.” (ECF No. 94 at 7.)  
Federal Rule of Civil Procedure 56 governs summary judgment.  
Fed. R. Civ. P. 56.  Rule 56(c)(2) allows parties to “object 
that material cited to support or dispute a fact cannot be 
presented in a form that would be admissible in evidence.”  Fed. 
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R. Civ. P. 56(c)(2).  The 2010 amendment notes provide that Rule 
56(c)(2) objections “[f]unction much as an objection at trial, 
adjusted for the pretrial setting…There is no need to make a 
separate motion to strike.”  Fed. R. Civ. P. 56.  Nonetheless, 
courts considering similar motions have held that, “[i]f a party 
does file a separate motion to strike, the motion should be 
construed as an objection under Rule 56(c)(2).” P.F. v. Gordon, 
No. 3:15CV01923, 2018 WL 2149280, at *3 (N.D. Ohio May 10, 2018), 
citing Stillwagon v. City of Delaware, 274 F. Supp. 3d 714, 737 
(S.D. Ohio 2017).  In P.F. v. Gordon, the Court decided a similar 
motion that asked the court to “strike” allegedly contradictory 
or “sham” declarations that the plaintiff included in the 
response to a defendant’s motion for summary judgment.  2018 WL 
2149280.  There, the Court construed the “motion to strike” as 
an objection under Rule 56(c)(2) and decided which paragraphs of 
the declarations could be considered when the court decided the 
summary judgment motion. Id.  
The Court construes Defendant’s “Motion to Strike or 
Disregard” as an objection under Rule 56(c)(2) and will determine 
whether to consider the disputed paragraphs of the Moody 
Declaration when it decides Defendant’s motion for summary 
judgment. 
Although Defendant’s motion for summary judgment was filed 
first, “[g]enerally, a district court should dispose of motions 
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that affect the record on summary judgment before ruling on the 
parties' summary judgment motions.”  Brainard v. Am. Skandia 
Life Assur. Corp., 432 F.3d 655, 667 (6th Cir. 2005).  The Court 
will decide Defendant’s “Motion to Strike or Disregard…” before 
ruling on Defendant’s motion for summary judgment.  
 
III. Analysis - Sham Affidavit 
Rule 56(c)(1)(A) allows parties seeking or opposing summary 
judgment to cite materials in the record, including “affidavits 
or declarations.”  Fed. R. Civ. P. 56(c)(1)(A).  The Moody 
Declaration, which Plaintiff attaches to her response to 
Defendant’s motion for summary judgment, would ordinarily be 
allowable under this rule. 
Defendant argues, however, that the Moody Declaration 
violates the “sham affidavit” rule. (ECF No. 94 at 2.) That rule 
“embodies the common-sense conclusion that a party may not create 
a factual issue by filing an affidavit, after a motion for 
summary judgment has been made, which contradicts his earlier 
deposition testimony.”  Cox v. Ruckel, No. 23-5698, 2025 WL 
2603787, at *8 (6th Cir. Sept. 9, 2025) (cleaned up).  The Sixth 
Circuit has said that the rule applies in two situations.  It 
can apply when a witness’s affidavit “directly contradicts the 
witness’s prior testimony,” and it can apply when the witness’s 
affidavit is “in tension with that prior testimony” so as to 
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create a “sham issue.”  Boykin v. Fam. Dollar Stores of Michigan, 
LLC, 3 F.4th 832, 842 (6th Cir. 2021) (citing Aerel, S.R.L. v. 
PCC Airfoils, L.L.C., 448 F.3d 899 (6th Cir. 2006)).  Courts in 
the Sixth Circuit “generally apply the sham affidavit doctrine 
against a party who attempts to avoid summary judgment by filing 
his own affidavit that directly contradicts his own prior sworn 
testimony.  France v. Lucas, 836 F.3d 612, 622–23 (6th Cir. 
2016).  However, the doctrine has been expanded to include 
witnesses and other parties to the case.  See Id. (holding that 
the doctrine applied to another defendant’s affidavit); and Pogue 
v. Nw. Mut. Life Ins. Co., No. 18-5291, 2019 WL 1376032, at *4 
(6th Cir. Feb. 7, 2019) (applying the doctrine to a witness).  
The purpose of the doctrine is straightforward: “If a party who 
has been examined at length under oath could raise an issue of 
fact simply by submitting an affidavit contradicting his own 
prior testimony, this would greatly diminish the utility of 
summary judgment as a procedure for screening out sham issues of 
fact.”  France, 836 F.3d at 622 (cleaned up). 
Defendant argues that paragraphs 2, 3, and 12-15 are 
directly contradictory and should not be considered for purposes 
of summary judgment under the sham affidavit rule. (ECF No. 94 
at 2-7.) Defendant argues, in the alternative, that if paragraphs 
12-15 are not contradictory, they are in tension with Moody’s 
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prior deposition testimony and should be similarly excluded from 
consideration for purposes of summary judgment. (Id. at 7-11.)  
Plaintiff responds that the new affidavit does not contradict 
prior testimony, but “merely clarifies his testimony.” (ECF No. 
98 at 2-3.) Plaintiff offers no explanation for potential changes 
in Moody’s statements. (Id.) 
In resolving the Motion, “the Court must use a scalpel, not 
a butcher knife, striking only those portions of affidavits that 
do not satisfy the requirements” of Rule 56(c).  Jacqueline Prado 
v. Mazeika, No. 3:16-CV-320, 2019 WL 1301729, at *4 (S.D. Ohio 
Mar. 21, 2019) (citing Upshaw v. Ford Motor Co., 576 F.3d 576, 
593 (6th Cir. 2009)). 
The Court must analyze each contested portion of the Moody 
Declaration, deciding first whether the statements are 
contradictory and, if any are not contradictory, whether they 
should be excluded for purposes of summary judgment under the 
“sham affidavit” rule.  
A. Contradiction Analysis 
District courts “deciding the admissibility of a post-
deposition affidavit at the summary judgment stage must first 
determine whether the affidavit directly contradicts the 
nonmoving party's prior sworn testimony.”  Aerel, 448 F.3d at 
908.  A directly contradictory affidavit “should be stricken 
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unless the party opposing summary judgment provides a persuasive 
justification for the contradiction.”  Id., see also France, 836 
F.3d at 622.  The affidavit in question must “directly 
contradict[]” prior witness testimony.  Boykin, 3 F.4th at 842.  
Sixth Circuit “ precedent[] suggest[s] a relatively narrow 
definition of contradiction.”  Reich v. City of Elizabethtown, 
Kentucky, 945 F.3d 968, 976 (6th Cir. 2019) (internal quotations 
omitted).  “Statements are not directly contradictory if they 
can be simultaneously true.”  Francis v. ProMedica Health Sys., 
Inc., 601 F. Supp. 3d 258, 262 (N.D. Ohio 2022).   
This standard “is a far cry…from preventing a party who was 
not directly questioned about an issue from supplementing 
incomplete deposition testimony with a sworn affidavit.”  Aerel, 
448 F.3d at 907. 
1. Paragraph 2 
Defendant argues that paragraph 2 of the Moody Declaration 
is contradictory and should be ignored because Moody says that 
he worked “in the United States District Court” in Shelby County, 
Tennessee. (ECF No. 94 at 3.) Defendant compares paragraph 2 to 
Moody’s prior testimony in which he states that he worked in 
Memphis, but never in the United States District Court  
specifically. (Id.) Defendant also cites testimony in which, 
when Moody was asked if he had left anything out of his work 
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history as he described it in a different deposition, he replied 
“not that I can think of right now.” (Id.) Defendant cites no 
testimony in which Moody expressly denied working in the U.S. 
District Court. (Id.)  
Moody’s testimony is not contradictory because Moody never 
expressly denied working in the U.S. District Court in Shelby 
County.  Moody describes where he worked more specifically than 
in his prior testimony.  He does not contradict it.  Both 
statements can be simultaneously true.  Paragraph 2 
“supplement[s] incomplete deposition testimony with a sworn 
affidavit” and is therefore allowable.  Aerel, 448 F.3d at 907.  
Defendant also admits that, even if it were contradictory, 
paragraph 2 would “not create any dispute of material fact that 
would preclude summary judgment.” (ECF No. 94 at 8.) Paragraph 
2 of the Moody Declaration does not directly contradict Moody’s 
prior testimony. 
2. Paragraph 3 
Defendant argues that paragraph 3 of Moody’s Declaration 
contradicts his prior testimony. (ECF No. 94 at 3.) In paragraph 
3, Moody says that he “performed AO duties in other 
jurisdictions, including…Arkansas.” (Id.) In paragraph 2 of the 
Moody Declaration, Moody says he had worked as an AO in Memphis. 
(Id.) Defendant cites Moody’s prior testimony referenced above, 
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where when asked if he had “left out” any part of his work 
history, Moody replied “not that I can think of right now. No.” 
(Id. at 3.) In his prior testimony, Moody mentioned working as 
an AO in Arkansas and Memphis, but no other locations. (ECF No. 
94-2 at 3-4.) Defendant focuses on the plural of the word 
“jurisdictions,” arguing that, because Moody appears to refer to 
at least one jurisdiction other than Memphis and Arkansas, he 
contradicts his prior testimony. (ECF No. 94 at 3.)  
The cited sentence sentence fails to directly contradict 
his prior testimony because Moody stated in prior deposition 
testimony that he could not think of anything he had left out  
“right now.”  It is possible that he later remembered other 
jurisdictions.  It is also possible that he “performed AO duties 
in other jurisdictions” on an ad hoc or temporary basis, despite 
being officially employed in other roles.  It is also possible 
that Moody merely imprecisely and improperly used the plural 
form of the word. 
Defendant cites no prior testimony that directly 
contradicts paragraph 3 of the Moody Declaration where he states 
he performed AO duties in two locations.  Paragraph 3, like 
paragraph 2 above, merely supplements prior testimony.  Defendant 
also admits that, even if it were contradictory, paragraph 3 
would “not create any dispute of material fact that would 
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preclude summary judgment.” (Id. at 8.) Paragraph 3 of the Moody 
Declaration does not directly contradict his prior deposition 
testimony.  
3. Paragraph 12 
Defendant argues that paragraph 12 of the Moody Declaration 
contradicts his prior testimony. (Id. at 3.) In paragraph 12, 
Moody says:  
The Chief Financial Officer in my area (Holley O’Brien) 
required that my team review resumes of candidates for the  
Seattle AO position and rank them to ensure critical financial 
positions were filled by local district managers to applicants 
that had experience and could likely perform the job and did not 
fill critical financial positions with friends of friends or, 
for example, other court employees that were nice but didn’t 
have proper qualifications or experience 
 
(ECF No. 94 at 3-4.) Defendant cites various sections of Moody’s 
prior testimony that discuss the process for rating applicants  
to the Seattle AO position and that show Moody used the word “I” 
to refer to the rankings. (ECF No. 94 at 3-4.) Defendant argues 
that this testimony directly contradicts his Declaration because 
Moody used the word “I” rather than referring to a “team.” (Id.) 
This paragraph of Moody’s Declaration does not directly 
contradict Moody’s prior testimony for multiple reasons.  There 
is no direct contradiction between saying that “I” did something 
and saying my “team” did something if the individual “I” is part 
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of that team.  The former statement could be a more specific or 
exact version of the latter.  People often refer to achievements 
as their own when in reality they were the result of a team’s  
work.  Defendant cites no prior testimony in which Moody was 
asked directly about whether he or a team produced the rankings.  
Even if there were a contradiction, however, the Moody 
Declaration says that the Chief Financial Officer “required that” 
the team review the applicants.  The Declaration does not say  
that Moody or the team followed the requirement.  Paragraph 12 
states the Chief Financial Officer’s requirement and nothing 
more.  Defendant cites no prior testimony that directly 
contradicts what Moody understood the Chief Financial Officer’s 
requirement to be.  Paragraph 12 does not directly contradict 
Moody’s prior testimony.  
4. Paragraph 13 
Defendant argues that paragraph 13 of Moody’s declaration 
contradicts his prior testimony. (ECF No. 94 at 4.) That 
paragraph consists of three sentences.  Defendant argues that 
they should not be considered for purposes of summary judgment 
because they contradict prior testimony. (Id. at 4-6.) 
In sentence one, Moody says that he “forwarded to the Human 
Resources Division (HRD) the recommendations of the team,” 
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apparently referring to the Seattle AO position. (Id. at 4.)  
Defendant cites a passage in a deposition in which Moody agrees 
with the proposition from the questioner that “you forwarded 
your ratings to Mr. Green, Right?” (Id.) This is not directly 
contradictory for the reasons described above.  Team leaders 
often take individual credit for their team’s accomplishments, 
or refer to the team when they acted alone.  This sentence does 
not directly contradict Moody’s prior testimony. 
Defendant analyzes sentences two and three together, 
arguing that both contradict prior testimony. (Id.) They read:  
Because of HRD distinction it was varied as to whether or 
not I already knew what the district wanted, whether or not 
interviewing had already ranked the applicants, and often the 
HRD would run down and ask me to rank because they had forgotten 
and needed to make an official offer. This was our process at 
the time not specific to the Seattle AO position. 
 
(Id.) Defendant cites two parts of Moody’s prior testimony that 
Defendant argues contradict these sentences.  The first is a 
statement, likely referring to the candidate rankings for the 
Seattle AO position, that Moody “forgot that [he] even did this 
as part of [his] job.” (Id.) Stripped from context, this may 
appear to contradict Moody’s Declaration.  In full context, 1 
 
1 Courts consider the context of the disputed testimony when parties 
allege a sham affidavit. See Francis, 601 F. Supp. 3d at 263 
(stating that the court “cannot examine the words in a vacuum but 
must examine them in the context of the testimony in this case”). 
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however, Moody’s failure to remember appears limited to specific 
times during which candidates for the Seattle AO position were 
ranked. (ECF No. 75-7 at 28.) Moody refers to other parts of the 
selection process generally throughout the deposition Defendant 
cites.2  Although Moody’s memory in the prior deposition may have 
been inexact about specific details of the selection process for 
the Seattle AO position, his memory of the process generally is 
not.  The third sentence of Paragraph 13 states that the second 
sentence describes the “process at the time and not specific to 
the Seattle AO position.” (ECF No. 94 at 4.) A statement about 
general process does not directly contradict a failure of memory 
in prior testimony about a specific process. That is especially 
so when the deponent appears to speak about process generally at 
other points in his prior deposition.  
 Defendant cites another sentence in Moody’s prior testimony 
in which Moody says that “it looks like” the resume review 
happened before the interview for the Seattle AO position. (ECF 
No. 94 at 4.) This also does not directly contradict the second 
and third sentences of paragraph 13 of Moody’s Declaration.  As 
stated above, the relevant sentences in the Moody Declaration 
 
2 See, e.g., “Q. Why did you send your ratings to Mr. Green? A. Oh, 
just so he would know. We kept the chief informed of every single 
step along the way. Almost any vacancy that would have happened, I 
would have sent it like that, copied the chief.” (ECF No. 75-7 at 
28.) 
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speak to the general process of candidate ranking, rather than 
the specific ranking for the Seattle AO position.  
 Paragraph 13 does not directly contradict Moody’s prior 
testimony.  
5. Paragraph 14 
Defendant argues that paragraph 14 of Moody’s Declaration 
contradicts his prior testimony. (Id. at 4-5.) That paragraph 
consists of three sentences.  Defendant argues that the first 
two should not be considered for summary judgment. (Id. at 4-6.) 
The first sentence reads, “At that time, I do not think I 
even knew district leadership saw the ranking the team put 
together.” (Id. at 4.) Defendant claims that this directly 
contradicts the following exchange in Moody’s deposition: “Q. 
Why did you send your ratings to Mr. Green? A. Oh, just so he 
would know. We kept the chief informed of every single step along 
the way. Almost any vacancy that would have happened, I would 
have sent it like that, copied the chief.” (Id.) These two 
statements are not directly contradictory.  In the Declaration, 
Moody is opining about whether he thought the district leadership 
saw the ranking.  In his Deposition, he says that he intended to 
send his ratings to leadership so that they would know.  The 
prior deposition also appears to address a general practice, but 
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the Declaration appears to address a specific candidate.  Moody 
says in his deposition that he intended that leadership would 
know his rankings, not that he knew whether they in fact saw his 
rankings.  Both statements can be simultaneously true. The first 
sentence of paragraph 14 does not directly contradict Moody’s 
prior testimony.  
The second sentence reads, “I did not and still do not think 
Green used the rankings in his decision process.” (Id.) Defendant 
argues that two exchanges in Moody’s prior testimony directly 
contradict this statement. (Id.) The first is an exchange that 
reads: “Q. Did you have any conversations with Jacob Green after 
you sent him these rankings about the Seattle AO selection? A. 
I don’t remember at all.” (Id.) The second exchange reads: “Q. 
You don’t know what importance [Green] placed on those ratings, 
do you? A. No, I don’t.” (Id.) Defendant appears to argue that 
these two exchanges directly contradict Moody’s Declaration 
because he appears to lack a foundation for his belief that Green 
did not use the rankings in his decision process.  This argument 
fails.  Moody’s Declaration states an opinion, that he “did not 
and still [does] not think Green used the rankings.” (Id.) That 
is an opinion, not a statement of fact.  Defendant does not cite 
any prior testimony in which Moody offers a contradictory 
opinion.  Instead, Defendant cites testimony that may undermine 
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the basis for Moody’s apparent belief.  These two statements are 
not directly contradictory.  One can have an opinion about a 
fact without having a well-founded basis for that opinion.  The 
second sentence of paragraph 14 of the Moody Declaration does 
not directly contradict his prior testimony.  
6. Paragraph 15 
In first part of the first sentence in paragraph 15 in 
Moody’s Declaration, Moody says that he does “not have any 
personal knowledge about Green and any behavioral problems he 
may have with his former AO Blue.” (Id. at 5.) Defendant cites 
a series of statements that detail some of the issues that arose 
between Blue and Green as Moody heard them from Blue. (Id.) 
Although the statements at first appear contradictory, Moody’s 
Declaration makes a narrow point about personal knowledge Moody 
had about behavioral problems Green had with Blue from the 
Green’s perspective.  This is confirmed by Moody’s prior 
testimony that Defendant cites: “Q. Do you know if Jacob Green 
had any problems with Steve Blue? A. I don’t know.” (Id.) Moody’s 
statement in his Declaration appears to repeat a statement from 
his prior testimony.  The first part of the first sentence in 
paragraph 15 does not directly contradict Moody’s prior 
testimony.  
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 The rest of the first sentence in paragraph 15 reads, “I do 
know that Blue did not receive any training for his position in 
keeping track of budgets or expenditures in his position.” (Id. 
at 6.) Defendant cites statements that show Blue did receive 
training - from Moody himself.3 (Id.) In his Declaration, Moody 
may have been attempting to convey that Blue did not receive any 
formal training before Moody intervened to give the training he 
describes in his prior testimony.  However, Moody makes no such 
clarification.  Plaintiff has made no argument about this 
statement supporting her position that the statement is not 
directly contradictory.
4 (Id., and ECF No. 98 at 3.) This portion 
of the first sentence of paragraph 15 is directly contradictory 
and will not be considered for the purposes of ruling on 
Defendant’s motion for summary judgment.  
 In the last sentence in paragraph 15, Moody says that, “As 
I recall, Green preferred to do these tasks himself.” (Id. at 
5.) “These tasks” refers to keeping track of budgets or 
expenditures.  Defendant cites prior testimony that appears to 
show Green “wanted [Blue] to do” some of this work. (Id.) 
 
3 In his prior testimony, Moody says, “I have also tried to train 
Steve Blue” and “I began doing Skype sessions with Steve Blue to 
train him on how to use UFMS, the unified financial management 
system, to run his budget.” (ECF No. 94 at 6.) 
4 Moody’s use of the words “any training” also cuts against a non-
contradictory interpretation. 
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Although there is some tension between the Declaration and the 
prior testimony, the two are not directly contradictory.   
Moody’s Declaration speaks to Green’s general preference about 
a type of work, not his specific practice of delegating the 
budget and expenditure tasks at particular times.  Defendant 
cites no prior testimony in which Moody explicitly describes 
Green’s general preferences about whom he wanted to do this work.  
The final sentence in paragraph 15 of Moody’s Declaration does 
not directly contradict his prior testimony. 
 The only directly contradictory statement in Moody’s 
Declaration is: “I do know that Blue did not receive any training 
for his position in keeping track of budgets or expenditures in 
his position.” (Id. at 6.) That statement will not be considered 
when the Court rules on Defendant’s motion for summary judgment.  
None of the other statements is directly contradictory.   
B. Sham Issues 
“If…there is no direct contradiction, then the district 
court should not strike or disregard that affidavit unless the 
court determines that the affidavit constitutes an attempt to 
create a sham fact issue.”  Aerel, 448 F.3d at 908 (internal 
quotations omitted).  That occurs when the affidavit is “in 
tension with…prior testimony.”  Cox, 2025 WL 2603787, at *9.  “In 
that situation, the key question is whether the circumstances 
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show that the party filed the affidavit merely to manufacture a 
sham fact issue.”  Id. (internal citations omitted). 
The Sixth Circuit has held that a “useful starting point 
for this inquiry is the nonexhaustive list of factors articulated 
by the Tenth Circuit in Franks [v. Nimmo, 796 F.2d 1230, 1237 
(10th Cir.1986)].”  Aerel, 448 F.3d at 908.  Those factors 
include “[1] whether the affiant was cross-examined during his 
earlier testimony, [2] whether the affiant had access to the 
pertinent evidence at the time of his earlier testimony or 
whether the affidavit was based on newly discovered evidence, 
and [3] whether the earlier testimony reflects confusion [that] 
the affidavit attempts to explain.” Id. at 909; see also In re 
Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. 
Liab. Litig., No. 2:18-CV-01509, 2020 WL 3048190, at *8 (S.D. 
Ohio June 8, 2020) (applying the Franks factors). “A party who 
is cross-examined but nevertheless offers unequivocal testimony, 
only to be contradicted by a later affidavit, has indeed tried 
to create a sham fact issue.”  Miller v. Food Concepts Int'l, 
LP, No. 2:13-CV-00124, 2017 WL 1163850, at *7 (S.D. Ohio Mar. 
29, 2017) (citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 
567, 593 (6th Cir. 2009)). 
The nonexhaustive factors above slightly favor Defendant.  
Moody was subject to cross-examination during his prior testimony 
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(ECF No. 94-1 at 12), and neither Plaintiff nor Moody contends 
that Moody had access to new evidence. (ECF No. 98.) Moody’s 
testimony cited by Defendant was not generally “confused.” (ECF 
No. 94 at 3-6.)  
However, the Franks factors are “nonexhaustive.”  Aerel, 
448 F.3d at 908.  Deponents are “under no obligation to volunteer 
information not fairly sought by the questioner.”  Id. at 907.  
In the absence of direct contradiction, the sham affidavit rule 
requires “tension” between a contested affidavit and prior 
testimony.  Cox, 2025 WL 2603787, at *9.  
Here, the non- contradictory portions of the Moody 
Declaration are not sufficiently in tension with Moody’s prior 
testimony to warrant striking them from consideration for 
purposes of summary judgment. The Declaration is not a “sham 
declaration” filed to manufacture “sham issues.”  As discussed 
above, the Declaration adds context to the case or offers Moody’s 
opinions.  When an affidavit adds information, “such an affidavit 
fills a gap left open by the moving party and thus provides the 
district court with more information, rather than less, at the 
crucial summary judgment stage.”  Aerel, 448 F.3d at 907 (holding 
that an affidavit so described should not be considered a sham 
affidavit). 
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The Court today merely holds that it will consider those 
parts of Moody's Declaration that do not directly contradict his 
prior testimony.   
 
IV. Conclusion 
For the reasons above, the portion of the first sentence of 
paragraph 15 in Moody’s Declaration that reads, “I do know that 
Blue did not receive any training for his position in keeping 
track of budgets or expenditures in his position” directly 
contradicts his prior testimony.  The Cout will not consider 
that statement when the Court considers Defendant’s motion for 
summary judgment.  The Court will consider all other parts of 
the Declaration.  The Court  GRANTS IN PART and DENIES IN PART 
Defendant’s Motion. 
 
So ordered this 29th day of January, 2026. 
 
/s/ Samuel H. Mays, Jr. 
SAMUEL H. MAYS, JR.  
UNITED STATES DISTRICT JUDGE 
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