defendants make no showing as to the potential substance of Debbie Creel's testimony.
Defendants claim that Benona Gillette has forgotten many details of the evictions. However, defendants have submitted a copy of a facsimile dated the same day this claim was made, purportedly from the Gillettes, that is entitled "Reasons for evicting Johnsgard/Corley and Sanchez/Brown" and contains numerous details regarding their evictions. Neumeyer Dec., Ex. B, Letter from Warren and Benona Gillette to Chris Neumeyer at 1-2. Thus, defendants' own evidence negates their claim of prejudice that too much time has passed for the Gillettes' to recall relevant details.
Lastly, defense counsel asserts that Benona Gillette informed him that the Gillettes are now 76 and 77 years old "and that both Gillettes have heart problems and other ailments which make travel difficult." Neumeyer Dec. P 11. Counsel baldly reasserts these statements in the motion and again in the reply, and claims that the Gillette's ages and health "would not allow their participation in this case." The unsworn statements of Benona Gillette are insufficient to support defendants' claim of substantial prejudice, and do not constitute a basis for summary judgment. See Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1980). Furthermore, witnesses who may not be able to attend a trial in this district may testify by way of deposition.
Although the court recognizes there has been some delay on the part of HUD, the evidence fails to show that the prejudice to defendants is so substantial as to warrant summary judgment on this basis. However, defendants also argue that the Gillettes managed Nally's RV Park only from October 1990 to October 1991 and have since moved hundreds of miles away. These facts are not disputed by the government, and it is apparent that the government's complaint erroneously alleges that the Gillettes have been the resident managers of Nally's RV Park from October 1990 to the present. Complaint P 5. Therefore, there may be a question as to the practicality of the Gillettes remaining as defendants in this litigation, instead of merely being witnesses.
For the foregoing reasons, it is hereby ordered that defendants' motion for summary judgment is DENIED; within twenty (20) days of the date of this order, the court will grant summary judgment in favor of plaintiff on the issues of notice and jurisdiction as set forth above, unless defendants submit evidence placing these issues in material dispute.
The court further ORDERS defendants to submit a declaration within twenty (20) days of the date of this order clarifying the current relationship of defendants Gillettes to the subject property, Nally's RV Park, and a declaration from plaintiff as to why, if the Gillettes are no longer involved with the property, they should remain party-defendants.
IT IS SO ORDERED.
Dated: OCT 6 - 1994
MARILYN HALL PATEL
United States District Judge