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Wye Oak Technology, Inc. v. Republic of Iraq

United States District Court, District of Columbia

November 14, 2018

WYE OAK TECHNOLOGY, INC., Plaintiff,
v.
REPUBLIC OF IRAQ et al., Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         Wye Oak and the Republic of Iraq (Iraq) and the Ministry of Defense of the Republic of Iraq (MoD) have been engaged in this litigation based on an. alleged breach of contract for nearly a decade. The Court now examines plaintiff Wye Oak's motion for summary judgment, defendants Iraq and MoD's cross-motion for summary judgment, Wye Oak's motion to strike Iraq and MoD's cross-motion for summary judgment, various motions to strike filings related to Wye Oak's motion for summary judgment and Iraq and MoD' cross-motion for summary judgment, and multiple motions for extension of time. Pl's Mot. Summ. J., ECF No. 234 [hereinafter ECF No. 234]; Defs.' Opp'n & Cross-Mot. Summ J., ECF No. 242 [hereinafter ECF No. 242]; Defs.' Cross-Mot. Summ J., ECF No. 244 [hereinafter ECF No. 244]; Pl's Mot. Strike Defs.' Cross-Mot. Summ J., ECF No. 252 [hereinafter ECF No. 252]; Defs.' Mot. Strike Pl's Two Statements Additional Facts, ECF No. 290 [hereinafter ECF No. 290]; Defs.' Mot. Extension of Time, ECF No. 282 [hereinafter ECF No. 282]; Defs.' Mot. Extension of Time, ECF No. 284 [hereinafter ECF No. 284]; Defs.'' Mot. Extension of Time, ECF No. 288 [hereinafter ECF No. 288]; Def. Iraq's Am. Mot. Extension of Time, ECF No. 294 [hereinafter ECF No. 294]; Pl's Mot. Strike Decls., ECF No. 327 [hereinafter ECF No. 327]. The Court will GRANT IN PART and DENY IN PART Wye Oak's motion for summary judgment. ECF No. 234. The Court will DENY Iraq and MoD's cross-motion for summary judgment, ECF No. 244, and GRANT IN PART and DENY IN PART Wye Oak's motion to strike Iraq and MoD's cross-motion for summary judgment, ECF No. 252, because Iraq and MoD filed this motion after the deadline for filing dispositive motions set by this Court in its scheduling order. Omnibus Order, ECF No. 191 [hereinafter ECF No. 191]. The Court will only treat Iraq and MoD's cross-motion for summary judgment as an opposition to Wye Oak's motion for summary judgment. The Court will DISMISS AS MOOT the motions to strike various filings related to Iraq and MoD's cross-motion for summary judgment and DISMISS AS MOOT Iraq * and MoD's motions for extension of time to file their reply regarding Iraq and MoD's cross-motion for summary judgment because the Court will GRANT IN PART plaintiffs motion to strike defendants' cross-motion for summary judgment. ECF No. 290; ECF No. 282; ECF No. 284; ECF No. 288; ECF No. 294; ECF No. 327.

         I. Background

         A. Factual Background

         The parties dispute a significant portion of the relevant facts in this case. Wye Oak, entered into the Broker Services Agreement (BSA) with MoD on August 16, 2004. Under the BSA, MoD was required to "work exclusively with [Wye Oak] regarding furnishing of Military Refurbishment Services, Scrap Sales and the sale of Refurbished Military Equipment with respect to all Military Equipment." Broker Services Agreement, ECF No. 122-2. The BSA contained a compensation provision, which stated that "[MoD] shall pay [Wye Oak] a commission of minimum often percent (10%) based on the Contract Value set out in each Sales Contract entered into by the Ministry, pursuant to this Agreement. With respect to Refurbished Military Equipment, the Ministry will pay [Wye Oak] ten percent (10%) of such equipment's refurbishment cost." Id. The BSA declared that the "Agreement shall not be amended or supplemented except in writing, signed by both parties." Id. The parties dispute whether the BSA was validly amended and supplemented by a document signed by both parties.

         On September 28, 2004, Wye Oak granted Mr. Raymond Zayna of General Investment Group sal (GIG) a "limited power of attorney to arrange financing and the [sic] request banking guarantees for and on behalf of the Wye Oak Iraqi Military Equipment Recovery Program ('IMERP Contract')" signed between Wye Oak and MoD. Letter from Dale C. Stoffel (Sept. 28, 2004), ECF No. 122-5. In October 2004, Wye Oak presented three invoices to MoD regarding the construction of military vehicle repair facilities, purchasing parts for repairing military vehicles, hiring and training maintenance workers, and repairing military vehicles. ECF No. 122-7. On October 19, 2004, there was a meeting between Dale Stoffel (Wye Oak's president), Mr. Zayna of GIG, and representatives of MoD. Talib Certificate Authenticity Business Records, Memorandum from Mr. Patrick Marr, at Attachment B, ECF No. 242-5 [hereinafter Memorandum from Mr. Patrick Marr, ECF No. 242-5]. The parties vigorously dispute what occurred at this meeting and whether an agreement was reached to determine how MoD would pay Wye Oak for the three invoices. MoD subsequently paid Mr. Zayna amounts mirroring the invoiced totals.

         Dale Stoffel was killed while traveling in Iraq on December 8, 2004. Following Mr. Stoffel's death, Wye Oak at least temporarily recalled American personnel from Iraq, at least temporarily. The invoiced work for repair and refurbishment of a sufficient number of armored vehicles to be effective leading up to the Iraqi election was completed in January 2005. The parties dispute whether it was Wye Oak or GIG who completed this work.

         B. Procedural Background

         Wye Oak filed its motion for summary judgment regarding selected affirmative defenses proffered by Iraq and MoD on July 2, 2018. ECF No. 234. July 2, 2018 was the due date for dispositive motions as set by this Court in its scheduling order. ECF No. 191. Iraq and MoD subsequently filed a single document styled as an opposition to Wye Oak's motion for summary judgment and a cross-motion for summary judgment as to certain defenses raised by Iraq and MoD on July 16, 2018. ECF No. 242; ECF No. 244. This cross-motion for summary judgment was therefore filed after the Court's due date for dispositive motions. Wye Oak filed a motion to strike Iraq and MoD's cross-motion for summary judgment based on the fact that Iraq and MoD did not file this motion until after the July 2, 2018 deadline. Iraq and MoD filed a motion to strike Wye Oak's statements of additional material facts, which were filed in opposition to Iraq and MoD's cross-motion for summary judgment. ECF No. 290. Iraq and MoD also filed several motions for extensions of time to file their reply to Wye Oak's opposition to their cross-motion for summary judgment. ECF. No. 282; ECF No. 284; ECF No. 288; ECF No. 294. Finally, Wye Oak filed a motion to strike four declarations that accompany Iraq and MoD's reply in support of defendants' cross-motion for summary judgment. ECF No. 327.

         II. Legal Standard for Summary Judgment

         Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A material fact is a fact that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).

         In making a summary judgment determination, the court must believe the evidence of the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. However, "the mere existence of a scintilla of evidence in support of the non-moving party" is insufficient to create a genuine dispute of material fact. Id. at 252. Instead, evidence must exist on which the decision-maker could reasonably find for the non-moving party. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.

         III. Discussion

         A. Defendants' untimely filed cross-motion for summary judgment will not be considered as a motion for summary judgment, but will be considered as an opposition to plaintiffs motion for summary judgment.

         Iraq and MoD filed their cross-motion for summary judgment on July 16, 2018, which was two weeks after this Court's July 2, 2018 deadline for filing dispositive motions as set forth in the scheduling order. ECF No. 191. District courts have broad discretion in deciding whether to consider summary judgment filings that have been submitted in an untimely manner. Federal Rule of Civil Procedure 6 provides that

when an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

Fed. R. Civ. P. 6(b)(1). Iraq and MoD did not seek leave to file their cross-motion for summary judgment late, and they have not demonstrated good cause or excusable neglect to justify the untimely filing of this motion. Federal Rule of Civil Procedure 16 permits a court to issue "any just orders ... if a party... fails to obey a scheduling or other pretrial order." Fed.R.Civ.P. 16(f). The Court will not consider Iraq and MoD's untimely filing as a cross-motion for summary judgment. See Shekoyan v. Sibley Int'l, 409 F.3d 414, 424-25 (D.C. Cir. 2005) (finding that a district court did not abuse its discretion in denying a motion to allow plaintiff to file a motion for summary judgment more than nine months after the district court's scheduling order deadline for filing dispositive motions had passed); see also B & J Enterprises, Ltd. v. Giordano, 329 Fed.Appx. 411, 415 (4th Cir. 2009) ("Although a district court possesses broad discretion on whether to consider a tardy filing of summary judgment materials, see Fed. R. Civ. P. 6, a late filing should be authorized 'only if cause or excusable neglect has been shown by the party failing to comply with the time provisions."') (quoting Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.1993)); Dedge v. Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (holding that a district court properly denied a motion for summary judgment as untimely because the motion was filed after the deadline set in the scheduling order); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985) (holding that a district court properly denied a motion as untimely where it was filed after the applicable scheduling order deadline and the movant "never requested a modification" of the scheduling order), superseded by statute on other grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996).

         The Court will not strike Iraq and MoD's filing completely. Instead, the Court will consider the arguments raised in this filing as part of an opposition to Wye Oak's summary judgment motion. Iraq and MoD's opposition and cross-motion for summary judgment was filed in a timely manner as an opposition to Wye Oak's motion for summary judgment. L.Cv.R. 7(b) (opposing points and authorities must be filed within 14 days of service of a motion). Iraq and MoD's filing also complied with the page limitation requirements for opposition filings. Id. 7(e). Therefore, the Court will consider this filing as an opposition to Wye Oak's motion for summary judgment even though the Court will not consider the untimely filing as a cross-motion for summary judgment. See, e.g., Glenn v. Moss, No. 15-cv-165, 2017 WL 8950429, at *1 (D. Utah Mar. 1, 2017) (striking a cross-motion for summary judgment as untimely, but still considering the arguments raised in the cross-motion as part of an opposition to summary judgment); Fin. Res. Network, Inc. v. Brown & Brown, Inc., 867 F.Supp.2d 153, 176 (D. Mass. 2012) (same); Folk v. Wells Fargo Bank, No. 09-cv-678, 2011 WL 3702666, at *3 (N.D. Tex. Aug. 19, 2011), affd sub nom. Estate of Falk v. Wells Fargo Bank, N.A., 541 Fed.Appx. 481 (5th Cir. 2013) (same).

         B. Defendants' motions for extensions of time to file reply to plaintiffs opposition to defendants' cross-motion for summary judgment will be dismissed as moot.

         Iraq and MoD filed multiple motions requesting extensions of time to file replies to Wye Oak's opposition to their cross-motion for summary judgment. ECF No. 282; ECF No. 284; ECF No. 288; ECF No. 294. But, as discussed supra, the Court will not consider Iraq and MoD's cross-motion for summary judgment as a motion for summary judgment because it was filed after the deadline set by this Court's scheduling order for filing dispositive motions. See ECF No. 191. The Court will only consider Iraq and MoD's cross-motion for summary judgment as an opposition to . Wye Oak's motion for summary judgment. Therefore, the Court will not consider any of Iraq and MoD's reply filings that were made in response to Wye Oak's opposition to their cross-motion for summary judgment because the Court has struck their cross-motion for summary judgment and such filings are not applicable to Wye Oak's motion for summary judgment. Accordingly, Iraq and MoD's motions for extensions of time to make reply filings in response to Wye Oak's opposition to their cross-motion for summary judgment will be dismissed as moot.

         C. Motions to strike various filings related to defendants' cross-motion for summary judgment will be dismissed as moot.

         Both sides have filed motions to strike various opposition and reply filings related to Iraq and MoD's cross-motion for summary judgment. ECF No. 290; ECF No. 327. But, as discussed supra, the Court will not consider Iraq and MoD's cross-motion for summary judgment as a motion for summary judgment because it was filed after the deadline set by this Court's scheduling order for filing dispositive motions. See ECF No. 191. The Court will only consider Iraq and MoD's cross-motion for summary judgment as an opposition to Wye Oak's motion for summary judgment. Therefore, the Court will not consider any of Wye Oak's filings made in opposition to Iraq and MoD's cross-motion for summary judgment; the Court will obviously still consider Wye Oak's reply, Pl's Reply, ECF No. 249, in support of its own motion for summary judgment. The Court will also not consider any of Iraq and MoD's reply filings that were made in response to Wye Oak's opposition to their cross-motion for summary judgment because the Court has struck their cross-motion for summary judgment and such filings are not applicable to Wye Oak's motion for summary judgment. Accordingly, the Court will dismiss as moot Iraq and MoD's motion to strike Wye Oak's statements of material facts filed as part of Wye Oak's opposition to Iraq and MoD's cross-motion for summary judgment. Further, the Court will dismiss as moot Wye Oak's motion to strike certain declarations submitted with Iraq and MoD's reply in support of their cross-motion for summary judgment.

         D. Plaintiffs motion for summary judgment is granted in pail and denied in part.

         Wye Oak moved for summary judgment on a number of Iraq and MoD's affirmative defenses. ECF No. 234. Wye Oak argues that Iraq and MoD have not provided evidence to support most of their proffered affirmative defenses. This argument is primarily based on Wye Oak's belief that Iraq and MoD provided insufficient Rule 26 disclosures. Wye Oak alleges that Iraq and MoD are precluded from calling any witnesses and offering any evidence under Federal Rule of Civil Procedure 37 because their failure to provide sufficient information or identify witnesses as required by Rule 26 was not harmless or substantially justified.

         Iraq and MoD answer that summary judgment is not an appropriate remedy for alleged discovery failures. Iraq and MoD contend that the appropriate means to remedy the alleged discovery failure would have been for Wye Oak to make a motion to compel during the discovery period. They also point out that Wye Oak did not submit "a statement of material fact as to which the moving party contends there is no genuine issue," as called for in the local rules. L.Cv.R. 7(h). Further, Iraq and MoD argue that their Rule 26 disclosures were adequate and that evidence supporting their affirmative defenses actually warrants summary judgment in their favor. As discussed supra, although the Court will not treat Iraq and MoD's cross-motion for summary judgment as a motion for summary judgment, the Court will consider the arguments raised in this filing as an opposition to Wye Oak's motion for summary judgment.

         Wye Oak is correct that it was not required to produce evidence to support its motion for summary judgment because this motion was based on the argument that Iraq and MoD had not provided sufficient evidence in support of their proffered affirmative defenses to avoid summary judgment determinations. The Supreme Court in Celotex explained that

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp., 477 U.S. at 322-23. The Supreme Court did acknowledge that a party seeking summary judgment still bears the responsibility of informing the district court of the basis for its motion and identifying the materials that the party believes demonstrate the absence of a genuine issue of material fact. Id. at 323. This "burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Rule 56(c) specifically states that a "party asserting that a fact cannot be .. . genuinely disputed must support the assertion by ... showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c). Wye Oak has met this requirement by alleging that the inadequacy of Iraq and MoD's Rule 26 disclosures prevents them from supporting their affirmative defenses with any evidence. ECF No. 234; Def. Iraq Rule 26 Disclosures, ECF No. 234-2.

         Wye Oak is not asking for a discovery sanction; instead, Wye Oak is arguing that there is an absence of admissible evidence by which Iraq and MoD can prove their affirmative defenses.

         The Court is not overly troubled by Wye Oak's lack of a statement of material facts because Wye Oak's motion for summary judgment is solely premised on the argument that Iraq and MoD cannot present admissible evidence to support their affirmative defenses, on which they bear the burden of proof at trial. Therefore, the Court does not agree with Iraq and MoD's argument that Wye Oak did not adequately support its motion for summary judgment. Cf. Cray Commc 'ns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994) (approvingly citing Wright and Miller's Federal Practice & Procedure treatise's conclusion that under Celotex, "the moving party on a summary judgment motion need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case") (quoting Wright et al., 10A Fed. Prac. & Proc. Civ. § 2720.1 (4th ed.)). Further, the D.C. Circuit in Grimes recognized that '"a district court must always determine for itself whether the record and any undisputed material facts justify granting summary judgment' ... When such independent scrutiny confirms fatal shortfalls in the evidence necessary to support a verdict in a nonmoving [party]'s favor, the motion may be granted." Grimes v. D.C., 794 F.3d 83, 94-95 (D.C. Cir. 2015) (internal citations omitted). Thus, the Court will fully analyze Wye Oak's motion for summary judgment on numerous affirmative defenses proffered by Iraq and MoD.

         The Court addresses whether the evidence submitted by Iraq and MoD is sufficient to be considered at the summary judgment stage and whether summary judgment should be granted in Wye Oak's favor in regards to each challenged affirmative defense below.

1. The evidence submitted by Iraq and MoD is sufficient to be considered at the summary judgment stage.
a. The Court will not prohibit Iraq and MoD from calling any witnesses or offering any evidence under Rule 37.

         Wye Oak argues that Iraq and MoD provided insufficient Rule 26 disclosures and should therefore be prohibited from calling any witnesses and offering any evidence. ECF No. 234. Specifically, Wye Oak alleges that Iraq provided inadequate Rule 26 disclosures and MoD did not provide any Rule 26 disclosures. Id. Under Rule 37, a party is not allowed to use information or witnesses to supply evidence on a motion, at a hearing, or at trial if the party fails to provide the information or identity of the witness as required by Rule 26(a) or (e), unless the failure was - substantially justified or is harmless. Fed.R.Civ.P. 37(c). A court may also impose an alternative sanction upon a motion for a party's failure to disclose or supplement disclosure under Rule 26.

         Iraq provided its Rule 26 disclosures on September 16, 2013. Def. Iraq Rule 26 Disclosures, ECF No. 234-2. Wye Oak has described this disclosure as "bare bones," but has not described to the Court with particularity why this disclosure is insufficient warranting that Iraq be "precluded from calling any witnesses and from offering any evidence." ECF No. 234. Upon examining Iraq's disclosures, the Court does not believe that the disclosures were deficient. Iraq named individuals that were likely to have discoverable information and disclosed the "subject matter of that information that Iraq thought it might use to support its defenses. Further, the Court believes that Iraq adequately described the categories of documents that it had in its possession, custody, or control and may use to support its defenses. Although Wye Oak appears to take issue with the fact that Iraq did not provide documents in their initial disclosures, a party is not required to provide documents under Rule 26-a party is solely required to describe the documents it has in its possession, custody, or control that it may use to support its defenses by category and' location. Fed. R. Civ'. P. 26(ii). Thus, the Court finds that Iraq submitted adequate Rule 26 disclosures and will not prohibit Iraq from calling any witnesses or offering any evidence, MoD was not added as a defendant until Wye Oak's First Amended Complaint on March 5, 2015. MoD did not file Rule 26 disclosures and adopted Iraq's Rule 26 disclosures on July 23, 2018 nunc pro tunc to April 29, 2015. Notice Def. MoD Joinder in Iraq Rule 26 Disclosures, ECF No. 267-1. The Court must express its displeasure that MoD did not either file its own Rule 26 disclosures or expressly adopt Iraq's disclosures at an earlier time. Iraq and MoD have both missed various deadlines during this litigation and have skirted the Federal Rules of Civil Procedure's requirements. However, the Court finds that any potential failure on the part of MoD to serve Rule 26 disclosures was harmless. The individuals likely to have discoverable information known to MoD and documents in MoD's possession that may be used to support its defenses are the same as those put forward by Iraq in its Rule 26 disclosures. Therefore, the Court finds that any deficiency on the part of MoD was harmless because Wye Oak had already been alerted to the relevant individuals, subject matter, and documents that defendants may use to support their defenses. Accordingly, the Court will not prohibit MoD from calling any witness or offering any evidence.

b. The declarations submitted by Iraq and MoD from Mr. Ali Talib and Ms. Wafaa Muneer are sufficient to be considered at the summary judgment stage.

         Rule 56 sets out the rules for summary judgment. Specifically, Rule 56(c)(4) states that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Wye Oak argues that Iraq and MoD submitted declarations from Mr. Ali Talib and Ms. Wafaa Muneer that do not satisfy Rule 56 and should therefore be disregarded. Iraq and MoD rely heavily on the Talib and Muneer declarations to authenticate documents and to qualify the documents as business records. The documents submitted with these declarations are extremely important to many of Iraq and MoD's affirmative defenses at issue in Wye Oak's summary judgment motion. Although these declarations may not be sufficient to admit these documents as evidence at trial, the Court finds that these declarations are sufficient to be considered at the summary judgment stage.

i. The Talib and Muneer declarations satisfy the low bar set forth in Rule 56's personal knowledge requirement.

         The D.C. Circuit has been clear that the personal knowledge requirement of Rule 56 "is unequivocal, and cannot be circumvented." Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981). The D.C. Circuit in Londrigan elaborated that an "affidavit based merely on information and belief is unacceptable." Id. The Court in Londrigan found that a portion of a Federal Bureau of Investigation (FBI) special agent's affidavit that discussed "assumptions made by persons interviewed by other FBI agents" could not possibly have been based on personal knowledge. Id. at 1175. This led the D.C. Circuit to order the district court to disregard the impugned part of the affidavit upon remand. Id.

         This Court has previously examined instances in which declarations did not establish that they were based on adequate personal knowledge to satisfy Rule 56. In Govplace, one declaration stated that the facts in the declaration were "true and correct to the best of [the declarant's] knowledge," and did not state that the declarant had personal knowledge of the facts in the declaration. U.S. ex rel. Folliard v. Govplace, 930 F.Supp.2d 123, 128 (D.D.C. 2013), aff'd sub nom. U.S. ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d 19 (D.C. Cir. 2014). This Court determined that this declaration did not satisfy Rule 56's personal knowledge requirement and therefore could not be considered at summary judgment. In Judicial Watch, this Court held that portions of a declaration that were opinion statements based on another person's notes and admittedly concerned procedures the declarant was unaware of must be struck for lack of personal knowledge. Judicial Watch, Inc. v. U.S. Dep 't of Commerce, 224 F.R.D. 261, 264 (D.D.C. 2004).

         Here, neither Mr. Talib nor Ms. Muneer specifically state that their declarations are based on personal knowledge. See Talib Certificate Authenticity Business Records, ECF No. 242-5; Muneer Certificate Authenticity Business Records, ECF No. 242-12. Instead, Mr. Talib states that he is the Senior Legal Advisor in the MoD and that he is authorized and qualified to make the declaration based on his position. Talib Certificate Authenticity Business Records, ECF No. 242-5. Similarly, Ms. Muneer states that she is the Senior Manager of Foreign Litigation in the Ministry of Justice (MoJ) and is authorized and qualified to make the declaration based on her position. Muneer Certificate Authenticity Business Records, ECF No. 242-12. Further, they both declare the documents included in their declarations

         are true copies of original records which:

A. Were made at or near the time of the occurrence of the matters set forth therein, by (or from information transmitted by) a person with knowledge of those matters;
B. Were kept in the course of regularly conducted business activity of the Ministry of Defense;
C. Were made by the said business activity as a regular ...

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