Whether plaintiff's counter statement sworn under 28 U.S.C. § 1746 can be used to show lack of compliance with OWBPA statute despite local rule violation

QUESTIONS PRESENTED oo. _ In preparation for summary judgement the ; defendant seeking summary judgment provided a list of Statement of Material Facts. The plaintiff replied along with a corresponding list of counter statement of facts. For example if the defendant statement was the manager gave the employee two documents: a separation Agreement, a chart containing job titles and ages of eligible and ineligible employees. The plaintiffs counter statement was that the manager ; gave the plaintiff a separation Agreement, a chart containing job titles and ages of eligible and ineligible employees, and a letter. In addition, the counter statement of the plaintiff was sworn under penalty of perjury using 28 U.S.C. § 1746. The judge considered the Plaintiffs counter statements not compliant with : Local Rule 7.1(a)(3) and hence Deemed the Defendant statements admitted. : Question 1: Even though the Plaintiffs counter statement is not accepted because of local rule violation, can the Plaintiffs counter statement still be used to show lack of compliance with OWBPA statute simply because the counter statement is sworn under penalty of : perjury using 28 U.S.C. § 1746? Starting with the 2010 F.R.C.P. 56 or Summary Judgment amendment, a formal affidavit is no longer needed for summary judgement purposes. See Summary Judgement committee notes on rules-2010 ; amendment, subdivision (c)(4). 28 U.S.C. § 1746 allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under ii penalty of perjury to substitute for an affidavit. This co eee ._. was. used-in-the declaration-of Melanie-Carr (App.33a)-—-__. _ 7" The district court judge deemed the Defendant’s statements admitted because the Plaintiffs counter ; statements did not comply with Local Rule 7.1.(a)(3). In the interest of justice, it at this time the judge should have checked to make sure the Defendant ; provided a valid affidavit since the Local Role 7.1.(a)(3) does not allow declaration statements. Question 2: , Does the Melanie Carr sworn declaration apply to just the first statement in the list or does it apply to all 8 statements? LIST OF PROCEEDINGS United States Court of Appeals for the Second Circuit No. 18-2695 ~ Amadou Sowe v. Pall Corporation Decision Date: July 9, 2019 United States District Court Northern District of : New York : No. 3:17-CV-449 ' Amadou Sowe v. Pall Corporation Decision Date: August 14, 2018