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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law.

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Chapter 7 - Pre-Trial Practice
7.300 Motion practice
7.320 Summary judgment
7.322 Survival of summary judgment

7.322.30 Whether self-serving affidavits can defeat a motion for summary judgment?

1st Circuit

In Quinones v. Houser Buick, 436 F.3d 284 (1st Cir. 2006), the court explained:

Quinones appears to rely on Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000), in which we held that a self-serving affidavit could defeat summary judgment if the affidavit "contains more than the allegations made in [his] complaint [and] provides specific factual information based upon [his] personal knowledge." Id.

7th Circuit

In Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659 (7th Cir. 2006), the court explained:

   We have long held that a plaintiff may defeat summary judgment with his or her own deposition. Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003); see also Payne, 337 F.3d at 771-73 (evidence presented in a "self-serving" affidavit or deposition is enough to thwart a summary judgment motion provided it meets the usual requirements for evidence at summary judgment stage); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (plaintiff can present deposition testimony demonstrating the existence of a genuine issue of material fact to ward off the grant of summary judgment).

However, the plaintiff must have personal knowledge in Smith v. Potter, 445 F.3d 1000 (7th Cir. 2006), the court explained:

it is well settled that "self-serving statements contained in an affidavit will not defeat a motion for summary judgment when those statements are without factual support in the record." Evans v. City of Chicago, 434 F.3d 916, 933 (7th Cir. 2006) (quoting Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004)) (internal citations omitted).

In Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004), the court explained:

   Self-serving statements in affidavits without factual support in the record carry no weight on summary judgment. But a court may consider self-serving statements in affidavits if they are based on personal knowledge and set forth specific facts.

9th Circuit

In Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006), the court explained:

"self-serving affidavits are cognizable . . . so long as they state facts based on personal knowledge and are not too conclusory." Id.

 

 



 

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