motion. For the reasons set forth below, Defendant's motion to strike is granted.
This is a civil RICO claim. Plaintiffs allege that Defendant (a.k.a. "Fishman"), owner of a currency exchange, knowingly cashed a series of checks for $ 184,000 written by Plaintiffs' employee to phony payees. Plaintiffs allege that Defendant co-conspired with Nicholas Favia ("Favia"), who worked for the Plaintiffs as a project manager for residential real estate developments.
According to Plaintiffs, Favia went to Loyola "L" Currency Exchange, which Defendant owns and operates, and, with Defendant's knowledge and approval, began cashing Plaintiffs' checks made out to various phony and/or fictitious payees.
Defendant has filed a motion for summary judgment. Defendant essentially argues that Plaintiffs' entire cause of action against Defendant relies upon a series of averments made by Favia. Defendant asserts that Plaintiffs cannot demonstrate such a conspiracy with Favia occurred, however, chiefly because Favia refused to answer questions at his deposition after asserting the Fifth Amendment.
Plaintiffs responded to Defendant's summary judgment motion with a memorandum attaching sworn "declarations" by Mark Emalfarb and Robert S. Levin, Plaintiff's attorney. These declarations set forth statements allegedly made by Favia to Emalfarb and Levin. Pursuant to Fed. R. Civ. P. 12(f), Defendant moves to strike these declarations.
The heart of the declarations fails to qualify for admissibility under Fed. R. Evid. 804(b)(3) governing the hearsay exception entitled "Statement against Interest." An explicit requirement of that rule is that:
A statement tending to expose the declarant to criminal liability and offered to [inculpate] the accused is not admitted unless corroborating circumstances clearly indicate the trustworthiness of the statement.