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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Legal
Satisfied Customers: 19297
Experience:  B.A.; M.B.A.; J.D.
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I am a plaintiff in a civil lawsuit representing myself in

Customer Question

Hello - I am a plaintiff in a civil lawsuit representing myself in US District Court - diversity case. In a Motion to Oppose Defendants' Response, I submitted affidavits of support. My Brother and his wife who were to provide affidavits were traveling overseas at the time and I stated such in my pleading and wrote that I would submit their affidavits when they returned home.
I did submit them about 3 weeks later but I made the mistake of stating in the Affidavit title, that the Affidavit was in support of my complaint. The Defendants' attorney made a motion to strike these affidavits because according to her the local rules state that affidavits can be submitted only if they are filed in "support of, or in opposition to, a motion or petition" or "such materials are necessary for use in a court proceeding". I think their testimony satisfies the latter and if the title were changed their affidavits would support the former.
I was going to respond to this motion and explain it was a copy/paste error and ask the court to accept the affidavits as intended -in support of my motion, or argue the point that the contents of the affidavits, despite the title should be considered by the court. My brother and his wife are not available to sign a new affidavit if I were to rewrite the title, so I was wondering what course of action you would suggest – is it that important? If we go to trial they will testify anyway. We have yet to have the Initial Attorney Conference (CIAC).
One other question is a witness' affidavit in support of my complaint’ considered 'initial discovery' or not?
Submitted: 10 months ago.
Category: Legal
Expert:  Phillips Esq. replied 10 months ago.

Hello: This isCustomer Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 10 months ago.

You can proceed with your response to the Motion to Strike and state your reason why the Court should deny the Motion to Strike, just like you did in your post here. Even if the Court grants the Motion to Strike, if the witnesses are going to testify, then the granting of the Motion would not be fatal to your case.

One other question is a witness' affidavit in support of my complaint’ considered 'initial discovery' or not?

Response 2: No, it is not. See Rule 26 of Federal Rules of Civil Procedure for what falls under initial discovery.