MARY ELLEN COSTER WILLIAMS, District Judge.
This matter comes before the Court on Plaintiffs' "objections to and motion to strike Cindi A. Straup's declaration filed by the Government in support of its motion for summary judgment." Defendant opposes this motion. For the reasons stated below, Plaintiffs' motion is denied.
Plaintiffs claim that the Government effected a taking of their property when the Surface Transportation Board ("STB") issued a Notice of Interim Trail Use or Abandonment ("NITU") on August 19, 2013, pursuant to the National Trails System Act Amendments of 1983 ("Trails Act"). Plaintiffs claim that their predecessor owners granted easements to the Middle Georgia & Atlantic Railway ("MGAR") for the sole purpose of operating a railroad, and that once these rights-of-way were no longer used for railroad operations, Plaintiffs obtained the exclusive right to ownership, possession, and use of this property. Plaintiffs further claim that the August 19, 2013 NITU prevented the rights-of-way from being abandoned and reverting to the fee simple landowners and gave MGAR's successor railroad authorization to negotiate trail use with a non-railroad trail sponsor, thus imposing a new easement for railbanking and recreational use on their land. Defendant asserts that Plaintiffs have no property interest as Plaintiffs' predecessor owners granted the railroad a fee simple interest in their land, or, if easements were granted, these easements were broad enough to encompass use of the land as a recreational trail.
Currently before the Court are the parties' cross-motions for summary judgment on liability. In support of their motions, both parties submitted maps depicting the location of Plaintiffs' properties overlaid by parcels from early 20th century railroad Valuation Maps filed with the Interstate Commerce Commission.
Plaintiffs move the Court to strike the declaration of Cindi Straup, Exhibit B to Defendant's cross-motion for summary judgment. In this declaration, Ms. Straup, the Managing Director of Straup Solutions, LLC, stated that she was retained by the Government in this case "to perform review, research and mapping for named [P]laintiffs' properties and the abandoned railroad right-of-way adjacent to those properties." Def.'s Mot. Partial Summ. J. App. B at ¶¶ 1-2. As stated in her curriculum vitae, Ms. Straup has a background in accounting and litigation services and is not a surveyor or engineer. The Government did not proffer Ms. Straup as an expert.
The declaration of Ms. Straup sets forth how she and her company, Straup Solutions, LLC, created the maps upon which Defendant relies in seeking summary judgment. Ms. Straup explained the process of creating the Government's maps as follows:
Def.'s Mot. Partial Summ. J. App. B at ¶¶ 3-4.
Plaintiffs, invoking Rule 56(c), assert that Ms. Straup's declaration should be stricken because Ms. Straup lacks sufficient qualifications in surveying and title examination. Pls'. Mot. to Strike 1-2. Plaintiffs assert that Ms. Straup is not qualified to offer an opinion "to establish the factual location of the original conveyances to the railroad right-of-way and the location of the original conveyances relative to the present-day Georgia landowners' parcels."
After Plaintiffs filed their motion to strike, Defendant submitted a second declaration of Ms. Straup with its reply to its cross-motion. This second declaration provides increased detail about Ms. Straup's background and the mapping process. Ms. Straup explained that her staff includes mapping professionals with over 15 years of experience, "Bachelors of Science in Geographic Information System and Masters in Geospatial Information Science," and an engineer "with over 30 years of service and direct experience in railroad right of way matters who is a licensed surveyor in the State of Georgia." Def's. Reply Ex. F ¶ 3. Ms. Straup further detailed how the maps were created, explaining the mileposts, sources, and techniques used to identify the locations and associate Plaintiffs' properties with those of original grantors.
Plaintiffs do not address this second declaration in their reply. Instead, Plaintiffs contend that they have established the accuracy of their map because they hired Stantec, "a national land-planning and land surveying firm" and their map was created by Stantec employee Jennie Brannon, "a registered surveyor possessing experience and training in land-planning and land mapping." Pls'. Reply to Mot. to Strike 2. While Plaintiffs assert that their map was created by "a respected and experienced national land surveying firm," they do not proffer Ms. Brannon as an expert. At the same time, Plaintiffs seem to urge the Court to impose a requirement that Ms. Straup be qualified as an expert in "mapping property boundaries, surveying, and cartography" and construe Ms. Straup's maps to reflect an expert opinion on both the locations of the properties described in the original conveyances and the locations of the properties Plaintiffs owned at the time of the alleged taking.
Plaintiffs move to strike Ms. Straup's declaration under Rule 56(c)(2) and Rule 56(c)(4). However, neither of these rules provide a basis for striking Ms. Straup's testimony. Under Rule 56(c)(2), a party may object to material cited to support or dispute a fact on the basis that it cannot be presented "in a form that would be admissible as evidence." RCFC 56(c)(2). Other than arguing that Ms. Straup lacks the requisite qualifications to opine on the property locations, Plaintiffs have not raised any reason why the contents of her declaration, including information about herself, her company, and how the maps were created, could not be presented in a form admissible as evidence. The testimony of Ms. Straup is not so deficient that it is inadmissible or warrants being stricken.
Under Rule 56(c)(4), "[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." RCFC 56(c)(4). Plaintiffs argue that Ms. Straup is not competent to testify because she "has no education or training as a surveyor or title examiner." Pls'. Mot. to Strike ¶ 3. Plaintiffs confuse the notion of competency with expertise. In essence, Plaintiffs' motion to strike Ms. Straup's declaration is a veiled
Plaintiffs ask this Court to adopt their map and reject Defendant's, arguing that their map definitively "provides the factual predicate upon which this Court can apply the Federal Circuit's liability analysis." Pl's. Reply to Mot. to Strike 3-4. In so arguing, Plaintiffs ask the Court to exceed the bounds of summary judgment procedure and find as a matter of fact that their map, but not Defendant's, is accurate. In a similar vein, by arguing that Ms. Straup does not have the requisite experience to create Defendant's maps, Plaintiffs posit that their map is the only one the Court should find credible. However, credibility determinations are beyond the province of summary judgment. In adjudicating a motion for summary judgment, the Court may not make credibility determinations or weigh the evidence.
Because the declaration of Ms. Straup and the maps her company created illuminate potential genuine issues of material fact, it is appropriate for the Court to consider these materials in ruling on summary judgment. As such, Plaintiffs' motion to strike Ms. Straup's first declaration is
Alternatively, Plaintiffs request that the Court permit discovery into the contents of Ms. Straup's declaration. Pls'. Mot. to Strike 2. Plaintiffs do not state a specific purpose for conducting such discovery, but only request the "opportunity to conduct discovery into those matters alleged by [Ms.] Straup in her declaration and to take the deposition of [Ms.] Straup under oath . . . concerning those assertions she makes in her declaration."