Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
FREDERIC D. OSTROVE,
Appellant,
JEFFREY MALKAN,
Plaintiff,
v.
DICK BAILEY SERVICE (212) 6087666 (718) 5224363 (516) 2222470 (914) 6820848 Fax: (718) 5224024
18005312028 Email: appeals@dickbailey.com Website: www.dickbailey.com
Case 17-228, Document 29-1, 04/26/2017, 2020450, Page2 of 136
TABLE OF CONTENTS
Page(s)
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Case: 1:12-cv-236 As of: 04/19/2017 02:37 PM EDT 1 of 11
APPEAL,CLOSED_2016,MEDIATION
U.S. DISTRICT COURT
U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:12cv00236MATHKS
Frederic D. Ostrove
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY 11514
(516) 8739550
Fax: (516) 7475024
Email: rostrove@lmblaw.com
TERMINATED: 07/16/2015
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bryan Arbeit
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY 11514
5168739550
Fax: 5167475420
Email: barbeit@leedsbrownlaw.com
TERMINATED: 07/16/2015
V.
Defendant
Makau W. Mutua represented by David J. Sleight
Office of the Attorney General
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
7168526274
Fax: 7168538428
Email: david.sleight@ag.ny.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Christopher L. Boyd
NYS Attorney General's Office
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
7168538457
Fax: 7168538428
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Email: christopher.boyd@ag.ny.gov
ATTORNEY TO BE NOTICED
Defendant
Charles P. Ewing represented by Abigail Deirdre FlynnKozara
in their individual capacities Barclay Damon, LLP
TERMINATED: 09/23/2014 200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
7168565500
Fax: 7168565510
Email: akozara@barclaydamon.com
TERMINATED: 10/17/2014
LEAD ATTORNEY
Randolph C. Oppenheimer
Damon Morey LLP
200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
7168565500
Fax: 716855510
Email: roppenheimer@damonmorey.com
TERMINATED: 10/17/2014
LEAD ATTORNEY
David J. Sleight
(See above for address)
TERMINATED: 01/28/2013
Movant
Jessica M. Baker represented by Jessica M. Baker
(as counsel for certain nonparty SUNY Office of General Counsel
witnesses who are employees of the University at Buffalo
University at Buffalo) 3435 Main Street
216 Harriman Hall
Buffalo, NY 14214
Email: jbaker4@buffalo.edu
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Robert E. Ruggeri
SUNY Office of General Counsel
University Plaza
Albany, NY 12246
5183201400
Fax: 5184435137
Email: robert.ruggeri@suny.edu
PRO HAC VICE
ATTORNEY TO BE NOTICED
in support of the motion and finds no good cause to opt out of ADR. The individual
request of plaintiff that the Court order nonparties to attend the mediation is also
denied. Because the Court did not decide the joint opt out motion sooner, an extension
of time to confer and select a Mediator, confirm availability of the Mediator, ensure
the Mediator does not have a conflict with any parties, identify a date and time for the
initial mediation session, and to file the stipulation confirming the selection of the
Mediator, is granted nunc pro tunc to January 18, 2013. The action remains committed
to Magistrate Judge Schroeder pursuant to the Courts October 5, 2012 Text Order 22 .
Issued by Hon. Richard J. Arcara on December 12, 2012. (WJG) (Entered:
12/12/2012)
01/22/2013 29 StipulationSelection of Mediator by Charles P. Ewing, Makau W. Mutua(Sleight,
David) (Entered: 01/22/2013)
01/25/2013 30 CONSENT to Substitute Attorney by Charles P. Ewing.(Oppenheimer, Randolph)
Modified on 1/28/2013 (DZ). (Entered: 01/25/2013)
01/28/2013 EFiling Notification: 30 * Text modified to indicate entry is a CONSENT to
Substitute Attorney * (DZ) (Entered: 01/28/2013)
01/29/2013 31 TEXT ORDER: The 30 Consent Motion to Substitute Attorney filed by Charles P.
Ewing is hereby SO ORDERED. Issued by the Hon. H. Kenneth Schroeder, Jr. on
1/29/13. (LMG) (Entered: 01/29/2013)
01/30/2013 32 MOTION to Amend/Correct 24 Answer to Complaint by Charles P. Ewing.
(Attachments: # 1 Declaration to Motion, # 2 Exhibit)(Oppenheimer, Randolph)
(Entered: 01/30/2013)
02/01/2013 33 TEXT ORDER re 32 MOTION to Amend/Correct 24 Answer to Complaint filed by
Charles P. Ewing: Responses due by 3/1/2013. Replies due by 3/22/2013. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 2/1/2013. (KER) (Entered:
02/01/2013)
03/01/2013 34 Mediation Certification by Hugh M. Russ, III(Russ, Hugh) (Entered: 03/01/2013)
04/02/2013 35 Mediation Certification by Hugh M. Russ, III(Russ, Hugh) (Entered: 04/02/2013)
05/10/2013 36 MOTION to Amend/Correct 26 Scheduling Order,, by Charles P.
Ewing.(Oppenheimer, Randolph) (Entered: 05/10/2013)
05/13/2013 37 TEXT ORDER granting 32 Motion to Amend Answer. SO ORDERED. Issued by
Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER) (Entered: 05/13/2013)
05/13/2013 38 TEXT ORDER granting 36 Motion to Amend Case Management Order. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER) (Entered:
05/13/2013)
05/13/2013 Set/Reset Scheduling Order Deadlines: Fact Depositions completed by 8/30/2013.
Plaintiff Expert Witness ID completed by 8/30/2013. Defendant Expert Witness ID
completed by 9/27/2013. Expert Depositions completed by 11/29/2013. Discovery
completed by 11/29/2013. Dispositive Motions due by 1/10/2014. Mediation may
continue through 1/10/2014. (KER) (Entered: 05/13/2013)
05/13/2013 39 AMENDED ANSWER to 1 Complaint by Charles P. Ewing. (Oppenheimer,
Randolph) (Entered: 05/13/2013)
08/22/2013 40 Joint MOTION to Amend/Correct 26 Scheduling Order,, by Charles P.
Ewing.(Oppenheimer, Randolph) (Entered: 08/22/2013)
08/22/2013 41 TEXT ORDER granting 40 Motion to Amend or Correct. Signed by Hon. H. Kenneth
Schroeder, Jr on 8/22/2013. (KER) (Entered: 08/22/2013)
08/22/2013 Set/Reset Scheduling Order Deadlines: Fact Discovery completed by 11/29/2013.
Plaintiff Expert Witness ID due by 11/29/2013. Defendant Expert Witness ID due by
1/10/2014. Expert Depositions completed by 3/14/2014. All Discovery completed by
3/14/2014. Dispositive Motions due by 4/25/2014. Mediation may continue through
4/25/2014. NO FURTHER EXTENSIONS WILL BE GRANTED. (KER) (Entered:
08/22/2013)
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10/23/2013 42 NOTICE of Appearance by Bryan Arbeit on behalf of Jeffrey Malkan (Arbeit, Bryan)
(Entered: 10/23/2013)
11/07/2013 43 Joint MOTION to Amend/Correct Scheduling Order by Jeffrey Malkan.(Arbeit,
Bryan) (Entered: 11/07/2013)
11/08/2013 44 TEXT ORDER granting 43 Motion to Amend or Correct Case Management Order
solely with respect to deadline for completing fact depositions. SO ORDERED. Issued
by Hon. H. Kenneth Schroeder, Jr on 11/8/2013. (KER) (Entered: 11/08/2013)
11/19/2013 45 TEXT ORDER: The Court having been advised of a potential conflict between
counsel to nonparty deponents Satish Tripathi and Susan Mangold, it is hereby
ORDERED that the nonparty deponents may defer their currently scheduled
depositions to a mutually convenient date within the deadline of the current case
management order to afford them the opportunity to obtain alternate representation.
Issued by Hon. H. Kenneth Schroeder, Jr on 11/19/2013. (KER) (Entered: 11/19/2013)
12/02/2013 46 NOTICE of Appearance by Jessica M. Baker on behalf of Makau W. Mutua (Baker,
Jessica) (Entered: 12/02/2013)
12/02/2013 47 MOTION to appear pro hac vice ( Filing fee $ 150 receipt number 02091928296.) by
Makau W. Mutua. (Attachments: # 1 Supplement Admission Sponsor Affidavit, # 2
Supplement Attorney Oath, # 3 Supplement Civility Principles Oath, # 4 Supplement
Attorney Database Form, # 5 Supplement CM ECF Form)(Baker, Jessica) (Entered:
12/02/2013)
12/04/2013 EFiling Notification: 47 MOTION to appear pro hac vice for Robert E. Ruggeri, Esq.
A Notice of Motion is required for all motions (See Local Rule 7(a)(1)). ACTION
REQUIRED: Please file a Notice of Motion using the "Motion" event and select
"appear" to avoid a second fee payment. Please refile all attachments required for pro
hac vice admission together with a Certificate of Service. (CMD) (Entered:
12/04/2013)
12/11/2013 48 MOTION for Leave to Appear On behalf of certain nonparty witnesses for Robert E.
Ruggeri by Jessica M. Baker. (Attachments: # 1 Supplement Motion for Admission
pro hoc vice, # 2 Supplement Sponsoring Affidavit, # 3 Supplement Attorney's Oath, #
4 Supplement Civility Principles Oath, # 5 Supplement Attorney Database Information
Form, # 6 Supplement ECF Registration Form, # 7 Supplement Attorney Petition
Form, # 8 Certificate of Service)(Baker, Jessica) (Entered: 12/11/2013)
01/10/2014 49 CLERK TO FOLLOW UPTEXT ORDER granting 48 Robert E. Ruggeri's Motion
for Leave to Appear Pro Hac Vice. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 1/10/2014. (KER) (Entered: 01/10/2014)
03/21/2014 50 TEXT ORDER. Defendants' letter request seeking an extension of the deadline for the
completion of discovery is granted. All discovery shall be complete by April 14, 2014.
All other dates in this Court's Case Management Order and any prior modifications
thereto shall remain in place. SO ORDERED. Issued by Hon. H. Kenneth Schroeder,
Jr. on March 21, 2014. (APG) (Entered: 03/21/2014)
04/22/2014 51 TEXT ORDER. Based upon the extraordinary circumstances (trial schedule) outlined
in counsel for the defendants' April 22, 2014 letter, defendants' request seeking an
extension of the deadline for the filing of dispositive motions is granted. Dispositive
motions shall be filed by May 23, 2014. Mediation may also continue to May 23,
2014. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on April 22, 2014.
(APG) (Entered: 04/22/2014)
05/22/2014 52 NOTICE of Appearance by Abigail Deirdre FlynnKozara on behalf of Charles P.
Ewing (FlynnKozara, Abigail) (Entered: 05/22/2014)
05/22/2014 53 TEXT ORDER re 51 Text Order, Set Deadlines. Defendant Mutua's May 22, 2014
letter request for an extension of the dispositive motion filing deadline is granted.
Dispositive Motions are due by 6/6/2014. Responses to any and all dispositive motions
are due by 7/18/2014. Replies are due by 8/8/2014. If necessary, oral argument will be
scheduled at a later date. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on
May 22, 2014. (APG) (Entered: 05/22/2014)
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05/23/2014 54 MOTION for Summary Judgment by Charles P. Ewing. (Attachments: # 1 Declaration
in Support, # 2 Statement of Undisputed Facts, # 3 Appendix, # 4 Exhibit Exhibit A, #
5 Exhibit Exhibit B, # 6 Exhibit Exhibit C, # 7 Exhibit Exhibit D, # 8 Exhibit Exhibit
E, # 9 Exhibit Exhibit F, # 10 Exhibit Exhibit G, # 11 Exhibit Exhibit H Part 1, # 12
Exhibit Exhibit H Part 2, # 13 Exhibit Exhibit I, # 14 Exhibit Exhibit J, # 15
Memorandum in Support)(Oppenheimer, Randolph) (Entered: 05/23/2014)
06/07/2014 55 MOTION for Summary Judgment by Makau W. Mutua.(Sleight, David) (Entered:
06/07/2014)
06/07/2014 56 STATEMENT OF FACTS by Makau W. Mutua Related document: 55 Motion for
Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, #
10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15
Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit
T, # 21 Exhibit U)(Sleight, David) (Entered: 06/07/2014)
06/07/2014 57 MEMORANDUM IN SUPPORT re 55 MOTION for Summary Judgment byMakau
W. Mutua. (Sleight, David) (Entered: 06/07/2014)
07/15/2014 58 TEXT ORDER re 54 MOTION for Summary Judgment filed by Charles P. Ewing, 55
MOTION for Summary Judgment filed by Makau W. Mutua. Plaintiff's July 14, 2014
letter requesting a one month extension of time to file responses to defendants' motions
for summary judgment is granted. Responses due by 8/18/2014. Replies due by
9/12/2014. If necessary, oral argument will be scheduled at a later date. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on July 15, 2014. (APG)
(Entered: 07/15/2014)
08/13/2014 59 MOTION to Sever Separate Trials by Charles P. Ewing. (Attachments: # 1
Declaration of Randolph C. Oppenheimer, # 2 Memorandum in Support, # 3
Appendix, # 4 Exhibit AO)(Oppenheimer, Randolph) (Entered: 08/13/2014)
08/15/2014 60 TEXT ORDER re 54 MOTION for Summary Judgment filed by Charles P. Ewing, 55
MOTION for Summary Judgment filed by Makau W. Mutua. The plaintiff's letter
request for additional time to submit his opposition to the motions for summary
judgment is granted. The plaintiff's opposition is due August 29, 2014. Replies, if any,
are due September 24, 2014. If necessary, oral argument will be scheduled at a later
date. The plaintiff's request to file a single memorandum of law with respect to both
motions and for that memorandum not to exceed 50 pages is also granted. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on August 15, 2014. (APG)
(Entered: 08/15/2014)
08/30/2014 61 MEMORANDUM in Opposition re 55 MOTION for Summary Judgment filed by
Jeffrey Malkan. (Arbeit, Bryan) (Entered: 08/30/2014)
08/30/2014 62 MEMORANDUM in Opposition re 54 MOTION for Summary Judgment filed by
Jeffrey Malkan. (Arbeit, Bryan) (Entered: 08/30/2014)
08/30/2014 63 DECLARATION re 57 Memorandum in Support, 56 Statement of Facts, filed by
Jeffrey Malkan filed by Jeffrey Malkan. (Attachments: # 1 Exhibit 19 (Deposition
Testimony), # 2 Exhibit Exs. 1019, # 3 Exhibit Exs. 2029, # 4 Exhibit Exs. 3034, #
5 Exhibit Exs. 35, # 6 Exhibit Exs. 3647, # 7 Exhibit Exs. 4849, # 8 Statement of
Undisputed Facts)(Arbeit, Bryan) (Entered: 08/30/2014)
09/24/2014 64 STIPULATION of Dismissal by Charles P. Ewing. (Oppenheimer, Randolph)
(Entered: 09/24/2014)
09/25/2014 65 TEXT ORDER: the Stipulation of Dismissal as to Defendant Charles P. Ewing 64 is
approved. The Clerk shall reform the caption of the case to remove defendant Ewing
and shall terminate all pending motions filed by defendant Ewing as moot. Counsel for
plaintiff Jeffrey Malkan and defendant Makau W. Mutua shall confer about whether
returning to mediation is appropriate before the presiding Magistrate Judge considers
the pending motion for summary judgment 55 , and shall advise the Court whether
they request time to return to mediation in a short joint filing no later than October 1,
2014. Issued by Hon. Richard J. Arcara on September 25, 2014. (WJG) CLERK TO
FOLLOW UP (Entered: 09/25/2014)
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09/25/2014 66 TEXT ORDER amending 60 Scheduling Order: Replies due by 10/16/2014. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 9/25/2014. (KER) Modified
on 9/25/2014 (KER). (Entered: 09/25/2014)
10/01/2014 67 STATUS REPORT regarding mediation by Makau W. Mutua. (Sleight, David)
(Entered: 10/01/2014)
10/16/2014 68 STATEMENT OF FACTS , Supplemental by Makau W. Mutua Related document: 55
Motion for Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3
Exhibit C)(Sleight, David) (Entered: 10/16/2014)
10/16/2014 69 MEMORANDUM in Support re 55 MOTION for Summary Judgment filed by Makau
W. Mutua. (Sleight, David) (Entered: 10/16/2014)
04/14/2015 70 MOTION for Sanctions by Jeffrey Malkan. (Attachments: # 1 Affidavit Declaration of
Rick Ostrove, # 2 Exhibit AJ, # 3 Exhibit KN, # 4 Exhibit O, # 5 Exhibit PQ, # 6
Exhibit R, # 7 Memorandum in Support)(Ostrove, Frederic) (Entered: 04/14/2015)
05/29/2015 71 TEXT ORDER re 70 MOTION for Sanctions filed by Jeffrey Malkan: Responses due
by 6/26/2015. Replies due by 7/24/2015. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 5/29/2015. (KER) (Entered: 05/29/2015)
06/26/2015 72 DECLARATION signed by David J. Sleight re 70 MOTION for Sanctions filed by
Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service)(Sleight, David)
(Entered: 06/26/2015)
06/26/2015 73 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit G, #
2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L, # 7 Exhibit M, #
8 Exhibit N, # 9 Exhibit O, # 10 Certificate of Service)(Sleight, David) (Entered:
06/26/2015)
06/26/2015 74 DECLARATION signed by Makau Matua re 70 MOTION for Sanctions filed by
Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Certificate of Service)(Sleight, David) (Entered: 06/26/2015)
06/26/2015 75 MEMORANDUM IN OPPOSITION re 70 MOTION for Sanctions by Makau W.
Mutua. (Sleight, David) (Entered: 06/26/2015)
06/29/2015 76 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit Q, #
2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Exhibit U, # 6 Exhibit V, # 7 Certificate
of Service)(Sleight, David) (Entered: 06/29/2015)
06/29/2015 EFiling Notification: 76 CONTINUATION OF EXHIBITS to 72 Declaration, ; 73
CONTINUATION OF EXHIBITS to 72 Declaration, (Sleight, David) **Exhibits N of
#73 and Exhibits R, S, T, of Item #76 to be refiled as pages are blank** (DZ)
(Entered: 06/30/2015)
06/30/2015 77 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit P, #
2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Certificate of Service)(Sleight, David)
(Entered: 06/30/2015)
06/30/2015 78 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit P, #
2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Certificate of Service)(Sleight, David)
(Entered: 06/30/2015)
07/14/2015 79 TEXT ORDER denying request for leave to file a memorandum in excess of the
standard page limits. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on
7/14/2015. (KER) (Entered: 07/14/2015)
07/15/2015 80 MOTION to Withdraw as Attorney by Jeffrey Malkan. (Attachments: # 1
Affidavit)(Ostrove, Frederic) (Entered: 07/15/2015)
07/16/2015 81 CLERK TO FOLLOW UPTEXT ORDER granting in part and denying in part
plaintiff's 80 Motion to Withdraw as Counsel and for Further Relief. The Clerk of the
Court shall terminate attorney Bryan Arbeit and identify Frederic D. Ostrove as an
Interested Party so that he continues to receive notice of electronic filings. Plaintiff's
request to deem the 70 motion for sanctions as filed by plaintiff nunc pro tunc is
denied. As the affiant to the 70 Motion for Sanctions, Mr. Ostrove is granted
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permission to respond to defendant's anticipated motion for sanctions to the extent that
such motion may challenge Mr. Ostrove's conduct as counsel on behalf of plaintiff
prior to his withdrawal from this action. The Clerk of the Court shall identify Plaintiff
as proceeding pro se and direct correspondence to plaintiff at 12 Valleywood Court
West, Saint James, New York 11780. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 7/16/2015. (KER) (Entered: 07/16/2015)
07/16/2015 Remark: This is a TEST entry on the docket to confirm email notification to interested
party Frederic Ostrove. No action is required by any parties. (JMM) (Entered:
07/16/2015)
07/16/2015 Remark: Dkt. #81 mailed to pro se plaintiff (KER) (Entered: 07/16/2015)
07/22/2015 82 DECLARATION by Jeffrey Malkan in support re 70 MOTION for Sanctions.
(Attachments: # 1 notice of appearance pro se)(DZ) (Entered: 07/22/2015)
07/23/2015 83 MOTION for Sanctions by Makau W. Mutua. (Attachments: # 1 Memorandum in
Support)(Boyd, Christopher) (Entered: 07/23/2015)
07/23/2015 84 DECLARATION signed by David J. Sleight re 83 MOTION for Sanctions filed by
Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service)(Sleight, David)
(Entered: 07/23/2015)
07/27/2015 85 TEXT ORDER re 83 MOTION for Sanctions filed by Makau W. Mutua: Responses
due by 8/28/2015. Replies due by 9/18/2015. SO ORDERED. Issued by Hon. H.
Kenneth Schroeder, Jr on 7/27/2015. (KER) (Entered: 07/27/2015)
07/27/2015 Remark: Dkt. #86 mailed to pro se plaintiff (KER) (Entered: 07/27/2015)
08/24/2015 86 MOTION for Extension of Time to File Response/Reply by Frederick Ostrove.
(Attachments: # 1 Exhibit Motion to Extend Time, # 2 Affidavit)(Ostrove, Frederic)
(Entered: 08/24/2015)
08/24/2015 88 MEMORANDUM in Opposition re 83 MOTION for Sanctions filed by Jeffrey
Malkan. (Attachments: # 1 document continued, # 2 document continued, # 3
document continued)(KM) (Entered: 08/27/2015)
08/25/2015 87 TEXT ORDER granting 86 Motion for Extension of Time to File Response/Reply re
83 MOTION for Sanctions. Responses due by 9/11/2015. Replies due by 10/2/2015.
SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on August 25, 2015. (APG)
(Entered: 08/25/2015)
09/11/2015 89 MEMORANDUM in Opposition re 83 MOTION for Sanctions filed by Frederick
Ostrove. (Ostrove, Frederic) (Entered: 09/11/2015)
09/11/2015 90 DECLARATION re 89 Memorandum in Opposition to Motion filed by Frederick
Ostrove filed by Frederick Ostrove. (Attachments: # 1 Exhibit 115)(Ostrove,
Frederic) (Entered: 09/11/2015)
09/18/2015 91 REPLY/RESPONSE to re 83 MOTION for Sanctions , 88 Memorandum in
Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered:
09/18/2015)
09/18/2015 92 DECLARATION signed by David J. Sleight re 83 MOTION for Sanctions filed by
Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Sleight,
David) (Entered: 09/18/2015)
10/02/2015 93 REPLY/RESPONSE to re 83 MOTION for Sanctions , 89 Memorandum in
Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered:
10/02/2015)
10/02/2015 94 DECLARATION signed by David Sleight re 83 MOTION for Sanctions filed by
Makau W. Mutua . (Attachments: # 1 Exhibit A)(Sleight, David) (Entered:
10/02/2015)
10/27/2015 95 TEXT ORDER: the parties are reminded undocketed letters are not accepted as a
motion. Issued by Hon. Richard J. Arcara on October 27, 2015. (WJG) (Entered:
10/27/2015)
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12/01/2015 96 REPORT AND RECOMMENDATIONS re 55 MOTION for Summary Judgment
filed by Makau W. Mutua. Objections due fourteen days from receipt. Signed by Hon.
H. Kenneth Schroeder, Jr on 12/1/2015. (KER) (Entered: 12/01/2015)
12/01/2015 97 REPORT AND RECOMMENDATIONS re 83 MOTION for Sanctions filed by
Makau W. Mutua and 70 MOTION for Sanctions filed by Jeffrey Malkan: Objections
due fourteen days from receipt. Signed by Hon. H. Kenneth Schroeder, Jr on
12/1/2015. (KER) (Entered: 12/01/2015)
12/01/2015 Remark: Copy of Dkt. #96 and Dkt. #97 mailed to plaintiff (KER) (Entered:
12/01/2015)
12/14/2015 99 DECLARATION IN SUPPORT OF OBJECTIONS TO REPORT AND
RECOMMENDATIONS filed by Jeffrey Malkan. (KM) (Entered: 12/17/2015)
12/14/2015 100 MEMORANDUM OF LAW IN SUPPORT OF OBJECTIONS TO REPORT AND
RECOMMENDATION OPPOSITION re 99 Declaration by Jeffrey Malkan.
(Attachments: # 1 Apppendix A)(KM) (Entered: 12/17/2015)
12/15/2015 98 OBJECTION to 96 , 97 Report and Recommendations by Frederick Ostrove.
(Attachments: # 1 Memorandum in Support Memo of Law, # 2 Exhibit exhibits
115)(Ostrove, Frederic) (Entered: 12/15/2015)
12/21/2015 101 CONTINUATION OF EXHIBITS by Jeffrey Malkan. to 100 Memorandum in
Opposition, 99 Declaration filed by Jeffrey Malkan. (KM) (Entered: 12/28/2015)
01/08/2016 102 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
Recommendation 96 regarding the motion for summary judgment filed by defendant
55 shall be due January 21, 2016. A reply by plaintiff Malkan shall be due February 3,
2016. Oral argument will be February 18, 2016 at 2:00 p.m. SO ORDERED. Issued by
Hon. Richard J. Arcara on 1/8/16. (LAS) (Entered: 01/08/2016)
01/08/2016 103 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
Recommendation 97 regarding the motion for sanctions filed by defendant 83 shall be
due January 28, 2016. Replies by plaintiff Malkan and former counsel shall be due
February 10, 2016. Oral argument will be scheduled after the response and replies are
filed, if necessary. SO ORDERED. Issued by Hon. Richard J. Arcara on 1/8/16. (LAS)
(Entered: 01/08/2016)
01/08/2016 104 Remark: Copies of text orders 102 and 103 have been mailed to Jeffrey Malkan, 12
Valleywood Court West, Saint James, NY 11780 (LAS) (Entered: 01/08/2016)
01/21/2016 105 MEMORANDUM IN OPPOSITION re 100 Memorandum in Opposition, 99
Declaration by Makau W. Mutua. (Sleight, David) (Entered: 01/21/2016)
01/28/2016 106 REPLY/RESPONSE to re 101 Continuation of Exhibits, 98 Objection to Report and
Recommendations, 100 Memorandum in Opposition, 99 Declaration filed by Makau
W. Mutua. (Boyd, Christopher) (Entered: 01/28/2016)
01/28/2016 107 SECOND DECLARATION in further support to re 99 Declaration filed by Jeffrey
Malkan. (KM) (Entered: 01/30/2016)
02/04/2016 108 THIRD DECLARATION in further support of re 99 Declaration filed by Jeffrey
Malkan. (KM) (Entered: 02/04/2016)
02/10/2016 109 REPLY/RESPONSE to re 105 Memorandum in Opposition to Leeds Brown Law
objections filed by Frederick Ostrove. (Ostrove, Frederic) (Entered: 02/10/2016)
02/11/2016 110 TEXT ORDER. The time of the February 18, 2016 Oral Argument as to the
Objections to 96 Report and Recommendation is changed by the Court to 9:00 AM on
February 18, 2016 before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon.
Richard J. Arcara on February 11, 2016. (DJD) (Entered: 02/11/2016)
02/11/2016 Remark: A copy of Text Order 110 has been mailed to Jeffrey Malkan12 Valleywood
Court West, Saint James, NY 11780. (DJD) (Entered: 02/11/2016)
02/18/2016 Minute Entry for proceedings held 2/18/2016 before Hon. Richard J. Arcara. Oral
Argument is held as to the 99 Objections filed by Plaintiff, Jeffrey Malkan to 96
Report and Recommendation (summary judgment motion). Decision is reserved.
Appearances: Pltf Jeffrey Malkan, pro se; Deft David Sleight (Court Reporter
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A11
Case: 1:12-cv-236 As of: 04/19/2017 02:37 PM EDT 11 of 11
JEFFREY MALKAN,
Plaintiff,
Defendants.
alleging that defendants Makau W . Mutua and Charles P. Ewing deprived him of
the United States Constitution. U.S. Const. XIV. Plaintiff Malkan was a Clinical
Professor at the State University of New York at Buffalo Law School. Defendant
Mutua is the Dean of the Law School. Defendant Ewing is the chair of the faculty
terminated the plaintiffs contract as a Clinical Professor on the faculty of the Law
School. The plaintiff alleges that defendants Mutua and Ewing intentionally
Defendants Mutua and Ewing have moved to stay this action until a breach
of contract action that plaintiff Malkan filed against the State University of New
York in the New York State Court of Claims is resolved. The defendants argue
Defendants Mutua and Ewing have also moved pursuant to Fed. R. Civ. P.
12(b) partially to dismiss plaintiff Malkans claims. The defendants do not seek
dismissal of the due process cause of action in the complaint, and only challenge
some remedies sought by the plaintiff. They argue that the remedies are either
alleged in the complaint. For the reasons stated below, the defendants motions
are denied.
BACKGROUND 1
The plaintiff, Jeffrey Malkan, joined the faculty of the State University of
New York at Buffalo Law School in June, 2000 as a Clinical Associate Professor
and as Director of the Legal Research and W riting Program. On April 28, 2006,
plaintiff Malkan was promoted by the dean at the time, R. Nils Olsen, upon the
of Clinical Professor.
1
W hen addressing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), the Court assumes the
well-pleaded allegations in a complaint are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2
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Clinical Professor on November 16, 2006. The contract provided for a three-year
extension to be made at the end of the three-year term. The contract provided
plaintiffs rank, State University of New York (SUNY) policies, by which the Law
automatic. It specifically promised that the Dean will extend your contract for
The November 16, 2006 contract also provided that plaintiff Malkans
3
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On March 13, 2008, shortly after being appointed interim Dean of the Law
Legal Research and W riting Program, effective March 14, 2008. The plaintiffs
the plaintiff to discuss the plaintiffs termination as Director of the Legal Research
However, six months later, on August 28, 2008, defendant Mutua, who was
appointed Dean of the Law School in May, 2008, notified plaintiff Malkan by letter
that the plaintiffs contract as a Clinical Professor would expire at the end of the
next academic year and that the contract would not be renewed. Defendant
Mutua stated in the letter that under ABA Standard 405, an instructor was subject
and that the termination of the Legal Research and W riting program at the Law
Plaintiff Malkan asked to meet with defendant Mutua about his termination,
but defendant Mutua refused. Defendant Mutua later refused similar requests.
Charles P. Ewing. The protest was on the ground that defendant Mutua had
refused to consult with the Law School faculty Committee on Clinical Promotion
4
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was terminating the plaintiff without consultation with the CCPR and without a
Committee, orally acknowledged that the protest was within the Grievance
spoke to defendant Mutua about the plaintiffs termination and protest to the
through the Grievance Committee. The plaintiff requested that defendant Ewing
report the plaintiffs unaddressed Grievance Committee protest to the Law School
The CCPR convened for its only meeting of the 2008-2009 academic year
on April 21, 2009, to discuss the reappointment of two other Law School clinical
professors with contracts that were to expire on August 31, 2009. Defendant
5
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Malkans reappointment. The Grievance Committee did not address the plaintiffs
protest after the April 21, 2009 CCPR meeting. On September 1, 2009, the
New York State Court of Claims for breach of his employment contract. The
Professor before the expiration of the five-year term of his contract, SUNY
breached the terms of the contract as agreed to on November 16, 2006. The
plaintiff seeks damages from SUNY in the state court action, including past and
SUNY has answered in the New York State Court of Claims that plaintiff
term that he served. SUNY alleges that, no matter what ABA accreditation
standards may require, the former dean of the Law School lacked authority to
enter into a contract with the plaintiff to extend the initial three-year term of the
6
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DISCUSSION
Courts inherent authority to stay this action until resolution of plaintiff Malkans
breach of contact action against SUNY in the New York State Court of Claims.
The defendants argue that this action is entirely duplicative of the Court of
The law upon which defendants Mutua and Ewing rely in support of their
motion to stay this action governs the entry of a discretionary stay where parallel
actions are pending in federal courts. See, e.g., Landis v. North Am. Co., 299
U.S. 248 (1936). However, the defendants motion to stay this action in favor of
F.3d 72, 77 (2d Cir. 1996) (a district court must balance the relevant factors in
A motion to stay a federal court action such as this one in favor of an action
litigation. It is well settled that a federal court may stay an action that is within its
7
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U.S. at 23-26 (1979); Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976). The considerations that may arguably favor a federal
courts surrendering its jurisdiction to a parallel state court action by staying the
federal action must far outweigh a federal courts virtually unflagging obligation
to exercise its subject-matter jurisdiction. Colorado River, 424 U.S. at 813, 817;
Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522 (2d
Cir. 2001) (six-factor standard for entry of a stay of a federal action in favor of a
entered only if this action is genuinely parallel to plaintiff Malkans New York State
Court of Claims action. Colorado River, 424 U.S. at 818; Dittmer v. Cnty. of
Suffolk, 146 F.3d 113, 118 (2d Cir.1998). For two actions to be considered
parallel, the parties in the actions need not be the same, but they must be
substantially the same, litigating substantially the same issues in both actions.
Royal and Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, 466 F.3d 88,
Defendants Mutua and Ewing argue that this action and plaintiff Malkans
New York Court of Claims action are entirely duplicative. The defendants
Key issues in both the federal civil rights action and state breach of
8
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contract action will depend upon the construction of plaintiff Malkans employment
contract. The state law reading of the contracts duration will obviously be a
continued employment with the State an essential predicate for this action
him a property interest in continuing employment with the State sufficient to merit
due process protection, this Court will look both to the express terms of the
contract, and to the underlying policies and unwritten common law applicable
to the faculty appointment. See Perry v. Snyderman, 408 U.S. 593, 601-02
(1972); Bishop v. Wood, 426 U.S. 341, 344 (1976). The Court will assess
evidence of the relevant employment policies and practices of the Law School
and SUNY, including, among other evidence, the plaintiffs November 16, 2006
contract promising the plaintiff that: (1) the Dean will extend your contract for 2-
by the ABA; and, (2) [s]hould your appointment as Director of Research and
W riting end, you would still maintain your position as Clinical Professor. In light
of such evidence, a ruling against the plaintiff on his state law breach of contract
claim in the New York State Court of Claims would not necessarily preclude a
9
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W hen defendants Mutua and Ewing argue that this action is entirely
duplicative of the state action, they also overlook that the due process questions
at the core of plaintiff Malkans civil rights claim are unique to this action.
Assuming that the plaintiff had a property interest in his continued employment
with the State that was subject to due process protection, the questions
concerning what process he was actually due are unique to this action. See
Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004). There will be witnesses and
documentary evidence relevant to the property interest and due process issues in
this federal civil rights action that will not be relevant to the state law breach of
The Second Circuit has held that the existence of related and overlapping
Alliance of Am. Insurers v. Cuomo, 854 F.2d 591 (2d Cir. 1988) (state action
stay). In light of the federal questions that are unique to this case and which
stand to be resolved here regardless of the outcome of the plaintiff Malkans New
York State Court of Claims action against SUNY, the overlapping issues in this
case and the plaintiffs state case are not substantially the same so as to
permit consideration of a stay. See Royal and Sun Alliance Ins. Co. of Canada,
10
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In addition, the Second Circuit has held in this context that [s]imilarity of
parties is not the same as identity of parties. Alliance of Am. Insurers v. Cuomo,
854 F.2d at 603. (stay inappropriate where the plaintiff in two pending state cases
American Insurers). Defendants Mutua and Ewing are not parties to the New
York State Court of Claims proceeding. W hile the defendants are in privity with
SUNY for some purposes, and may have some interests aligned with those of
SUNY in the Court of Claims proceeding, the university is distinct from the
defendants, who are sued here in their individual capacities and face personal
differences in parties and issues are strong factors against invoking exceptional
at 603; see Burnett, 99 F.3d at 77. The Court finds that the parties in the state
action are not substantially the same as the parties in this action. See Royal
Based upon the substantial differences in this federal civil rights case and
defendants Mutua and Ewing that the two actions are entirely duplicative is
without merit. The two actions are not genuinely parallel. The Court finds that
the defendants fail even to make the preliminary, threshold showing that is
11
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circumstances motion for a stay. The defendants motion for a stay is denied.
barred by New York states sovereign immunity and the Eleventh Amendment.
U.S. Const. Amend. XI. A claim is properly dismissed for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) when the district court lacks the statutory
or constitutional power to adjudicate it. Arar v. Ashcroft, 532 F.3d 157, 168 (2d
Cir.2008).
Defendants Mutua and Ewing move to dismiss plaintiff Malkan's claims for
compensatory and punitive damages to the extent that they are asserted
against the defendants in their official capacities. The plaintiffs complaint does
not on its face seek compensatory or punitive damages from the defendants in
punitive damages from the defendants in their official capacities. The defendants'
For the reasons that follow, the Court also denies the defendants
remaining motions to dismiss. However, the Court dismisses, sua sponte, the
12
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In general, the Eleventh Amendment protects state officials from civil suits
for actions taken in their official capacities. Will v. Michigan Dept of State Police,
491 U.S. 58, 71 (1989). However, pursuant to the U.S. Supreme Courts decision
in Ex parte Young, a state official may be sued in his official capacity to enjoin an
ongoing violation of federal law. Ex parte Young, 209 U.S. 123 (1980). As the
Supreme Court has explained, where a state official seeks to enforce an allegedly
unconstitutional act or acts in violation of the federal rights of others, the state
has no power to impart to him any immunity from responsibility to the supreme
In determining whether a suit against a state official falls within the Ex parte
the nature of the relief sought. See Edelman v. Jordan, 415 U.S. 651 (1974).
Under Ex parte Young, a federal court is only permitted to grant injunctive relief
against future violations of federal law. See Green v. Mansour, 474 U.S. 64, 68
(1985) ([T]he Eleventh Amendment does not prevent federal courts from
law). The Supreme Court has declined to extend the reasoning of Ex parte
Young to claims for relief that are retrospective. See Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 102 (1984). W hen a plaintiff seeks relief in
13
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and the damages would be paid from a state treasury, the suit is barred by the
Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 667 (1974) (a suit
seeking to impose a liability which must be paid from public funds in the state
distinction the dividing line between relief permitted under Ex parte Young and
that barred by the Eleventh Amendment will not in many instances be [as
distinct as] that between day and night. Edelman, 415 U.S. at 667. W hile the
grant of prospective relief, the Eleventh Amendment does not bar the relief. See
Edelman, 415 U.S. at 667. Fiscal consequences are often a necessary result of
state compliance with injunctive relief permitted under Ex Parte Young, and their
existence is not an absolute bar to entry of such relief against a state official.
See, e.g., In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367 (2d Cir. 2005)
sovereign immunity. See Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985), modified
14
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on other grounds, 793 F.2d 457 (2d Cir. 1986). In Dwyer, a state employee
due process of law. The Second Circuit held on appeal that reinstatement is
purely prospective injunctive relief that orders the state official to return the former
parte Young. Dwyer at 836. This reasoning has been followed repeatedly. See,
e.g., Dotson v. Griesa, 398 F.3d 156, (2d Cir. 2005); Russell v. Dunston, 896
F.2d 664 (2d Cir. 1990). Plaintiff Malkans claim for reinstatement to the position
of Clinical Professor is therefore not barred by the Eleventh Amendment and the
Russell, 896 F.2d at 668. The need for prospective relief often arises out of an
injury inflicted in the past. The holding of Ex parte Young would mean nothing if
plaintiff Malkan would have an effect on the state treasury, it must be barred by
15
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funds. See In re Dairy Mart Convenience Stores, Inc., 411 F.3d at 375. In cases
where effects on the state treasury are ancillary to an order of prospective relief
permitted under Ex parte Young, the Eleventh Amendment does not bar that
require the expenditure of state funds, it appears that the expenditure would be
that plaintiff Malkans claim for the clearing of his personnel file of any wrongful
though removal of such information is arguably remedial, the Court finds the
In Elliot v. Hinds, 786 F.2d 298 (7th Cir.1986), the Seventh Circuit Court of
Appeals found a former state employees similar claim requesting that his
injunctive relief. Id. at 302. As the Seventh Circuit held, the removal of
16
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damaging information from the plaintiffs work record is not compensatory; rather,
it is to compel the state official to cease her actions in violation of federal law and
to comply with constitutional requirements. Id. Other Circuit Courts have ruled
Kentucky, 24 F.3d 1526 (6th Cir. 1994) (expungement of all references relating to
demotion was prospective); Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007) (state
university students prayer for injunctive relief clearing his school record of past
would be directed toward preventing future violations of the plaintiffs federal civil
rights. It therefore is prospective relief consistent with Ex parte Young, and is not
Malkan also seeks equitable relief in the form of back pay and front pay.
Because these forms of relief would impose a monetary liability directly on the
state treasury, they are barred by the doctrine of sovereign immunity and the
Eleventh Amendment to the United States Constitution. U.S. Const. Amend XI.2
2
Defendants Mutua and Ewing have not challenged the equitable claims in the plaintiff's
complaint for back pay and front pay. Because that relief would be available from the
defendants, if at all, only in their official capacities, it is beyond the subject-matter jurisdiction of
the Court and is therefore addressed sua sponte pursuant to Fed. R. Civ. P. 12(h)(3).
17
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A claim for back pay seeks the payment of . . . money which should have
been paid, but was not. Edelman, 415 U.S. at 664. Such an award would
necessarily require the payment of funds from the state treasury to remedy a past
injury. Applying this distinction, the Second Circuit has found a demand for back
Dwyer v. Regan, 777 F.2d 825, 835 (2d Cir. 1985). Plaintiffs claim for back pay
it would impose monetary liability on the state. See Campbell v. Arkansas Dept.
of Corr., 155 F.3d 950, 962 (8th Cir. 1998) (For purposes of the Eleventh
Amendment, front pay is not analogous to the prospective relief permitted under
Ex parte Young because it must be paid from public funds in the state
treasury.); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996)
from the state, and is barred by the Eleventh Amendment); Freeman v. Michigan
Dept. of State, 808 F.2d 1174, 1179 (6th Cir. 1987). Although the Second Circuit
does not seem to have ruled on this specific issue, the Court finds that front pay
18
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and Ewing have also moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss
plaintiff Malkans claim for punitive damages on the ground that the complaint
fails to plead facts sufficient to support a finding of the evil intent required to
under Fed. R. Civ. P. 12(b)(6), a complaint must state a claim to relief that is
plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Court generally confines its analysis of such a motion to the four corners of
the complaint. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see Fed. R.
Civ. P. 12(d).
others. Smith v. Wade, 461 U.S. 30, 56 (1983). The Second Circuit has found
prior occasions. See, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1343 (2d Cir.
conscious wrongdoing. Kolstad v. American Dental Ass'n, 527 U.S. 526, 538
119 (1999).
19
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Amendment rights to due process. The plaintiff alleges that his termination as a
November 16, 2006 employment contract. The contract, upon which the plaintiff
relies in the complaint, promised that [a] change in the structure or staffing of
the Law Schools research and writing program w[ould] not be good cause to
Nevertheless, defendant Mutuas August 28, 2008 termination letter stated that
the good cause for the plaintiffs termination was the termination of the Law
Schools Legal Research and W riting Program. The termination letter addressed
The broken promises alleged by plaintiff Malkan are not directly relevant to
the plaintiffs claim for punitive damages for violations of his rights to due process.
Law School faculty consultation and review of the plaintiffs termination in order to
20
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dismiss the plaintiff from the faculty no matter what. The complaint adequately
alleges that, when defendant Mutua refused to allow the plaintiffs status to be
addressed by the CCPR and refused to address the plaintiffs protest of the
defendant Mutua was acting in reckless and callous disregard of the plaintiffs
rights to due process. The allegations of the complaint therefore support a claim
Plaintiff Malkan alleges that defendant Ewing orally admitted that the
Mutuas refusal to consult with the CCPR, was within the jurisdiction of the faculty
that defendants Ewing and Mutua refused to address the plaintiffs protest after
defendant Ewing spoke to defendant Mutua about the plaintiffs termination and
protest, and his refusal to report the unaddressed protest to the faculty, was the
3
The Court has not considered plaintiff Malkans argum ent that defendant Mutua was retaliating against
the plaintiff for com plaining about his term ination as Director of Research and W riting in violation of the
Taylor Law, N.Y. Civil Service Law 200 et seq., as is alleged in a Public Em ployee Relations Board
proceeding, because it is not alleged in the com plaint.
21
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callously denied the plaintiff the procedural protections to which he was entitled.
Defendant Ewings motion to dismiss the plaintiffs claim for punitive damages is
III. New York Due Process. Defendants Mutua and Ewing fail to
stated under provisions of the New York State Constitution. Because such a
The New York Court of Appeals has recognized a private right of action for
violations of the state constitution, but such claims are limited to circumstances in
N.Y.2d 172, 191-92 (N.Y. 1996). Here, the plaintiff alleges a cause of action
under 1983 and the Fourteenth Amendment to the United States Constitution.
The 1983 remedies are adequate remedies. There is no reason for this Court
New York State Constitution. See Wahad v. F.B.I., 994 F.Supp. 237, 239-40
(S.D.N.Y. 1998) (no implied private right of action under New York State due
process clause where plaintiff had analogous claim under 42 U.S.C. 1983 for
federal due process violations); see Lyles v. State, 194 Misc.2d 32 (N.Y. Ct. Cl.
2002), affirmed, 3 N.Y.3d 396 (N.Y. 2004)(adequacy of common law remedy held
by Court of Claims to preclude implied private right of action under New York
22
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State Constitution). To the extent plaintiff Malkans due process claim is stated
CONCLUSION
For the foregoing reasons, the motion to stay this action in favor of a
overlapping New York State Court of Claims action and the partial motions to
and Charles P. Ewing are all denied. The Court dismisses sua sponte plaintiff
capacities for front pay in lieu of reinstatement and for back pay, because the
claims are barred by New York States sovereign immunity and the Eleventh
Amendment to the United States Constitution. U.S. Const., Amend. XI. The
Court also dismisses sua sponte so much of plaintiff Malkans claim as may be
predicated upon an implied private right of action under the New York State
Constitution.
States Magistrate Judge for the W estern District of New York, to be assigned by
the Clerk of the Court, for all proceedings necessary to a determination of the
merits of the factual and legal issues presented by this action. At the conclusion
of such proceedings, the Magistrate Judge shall prepare and submit to this Court
appropriate, and recommendations for the disposition of any motions in this case.
23
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SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
24
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A36
JEFFREY .MALKIN,
Plaintiff, ANSWER
vs.
12CV0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING,
Defendants.
Defendants, by and through their attorney, Eric T. Schneiderman, Attorney General of the
State of New York, David J. Sleight, Assistant Attorney General, of counsel, answer Plaintiff's
Complaint as follows :
1. Deny the allegations contained in paragraphs 23, 25, 26, 28, 29, 30, 31, 32, 33, 34 and 35
2. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the
allegations contained in paragraphs 4, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 21,24 and 27.
response is due as the allegations call constitute a legal conclusion, but to the extent that any
4. Neither admit nor deny the allegations in paragraph 2, except admit that Plaintiff purports
to invoke the cited statutes and base his claim of jurisdiction thereon.
5. Neither admit nor deny the allegations in paragraph 3, except admit that Plaintiff purports
to invoke the cited statute and base his claim of proper venue thereon.
6. With respect to the allegations contained in paragraph 5, admit that Defendant Mutau is
an employee of the Law School and is currently the Dean of the Law School; however, deny
knowledge or information sufficient to form a belief as to the truth or falsity ofthe remaining
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7. With respect to the allegations contained in paragraph 6, admit that Defendant Ewing is
an employee of the Law School and is currently the Vice Dean for Academic Affairs; however,
deny knowledge or information sufficient to form a belief as to the truth or falsity of the
8. Neither admits nor denies the allegations in paragraphs 13, 14, 15,20 and 22, but refers
to the documents described for the truth of the contents contained therein.
9. Defendants deny each and every allegation not admitted, denied, or otherwise responded
to above.
FIRST DEFENSE
10. The Complaint fails, in whole or in part, to state a claim upon which relief can be
granted.
SECOND DEFENSE
11. Defendants, at all times relevant hereto, acted without malice and under the reasonable
belief that their actions were proper and in accordance with existing law.
12. Defendants, at all times relevant hereto, acted in good-faith in the lawful exercise of the
discretion committed to them under federal and/or state law and are immune from liability.
13. Defendants did not violate any clearly established statutory or constitutional rights of the
plaintiff which a reasonable person would have known, and therefore, are entitled to qualified
immunity.
THIRD DEFENSE
14. The alleged conduct set forth in the Complaint, in whole or in part, was properly within
the discretionary authority committed to the defendants to perform their official functions, and
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JEFFREY MALKAN,
MEMORANDUM OF LAW
Plaintiff, IN SUPPORT OF
CHARLES P. EWINGS
v. MOTION FOR SEPARATE
TRIALS
MAKAU W. MUTUA and
CHARLES P. EWING
in their individual capacities, 12-CV-0236(A)
Defendants.
_________________________________________
PRELIMINARY STATEMENT
Motion for Separate Trials. Plaintiff Jeffrey Malkans (Malkan) claims against Dean Makau
Mutua (Mutua) should be tried separately to avoid foreseeable spill-over effect and indelible
prejudice to Ewing, who truly is an innocent bystander to the events that led to Malkans 1983
employment claim. Ewing played no role in Mutuas decision to non-renew Malkans term
appointment as Clinical Professor. Ewing entered the picture later, as part of a good faith
process within the Law School to try to resolve in a collegial fashion differences among faculty
members. Instead of getting a reward for his selfless service and professionalism, his good deed
has been punished. Lest the punishment become even worse, he asks for a separate trial.
FACTS
Malkan is a former Clinical Professor at the State University of New York at Buffalo Law
School (the Law School). Mutua is the Dean of the Law School. Malkan was hired as Clinical
Associate Professor in 2000. (Exhibit A: Malkan Dep. 35; Exhibit B: Defendants Ex. 6). On
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April 28, 2006, the Committee on Clinical Promotion and Renewal (CCPR) 1 held a meeting to
discuss Malkans promotion to Clinical Professor. (Exhibit C: Avery Dep. 22-23). Mutua
(who was not then Dean of the Law School) attended the meeting as a tenured faculty member.
Also in attendance were Professors Susan Mangold, Dianne Avery, Errol Meidinger, Elizabeth
Mensch, Fred Konefsky, George Kannar, Tony Szczygiel, Rob Steinfeld, Rebecca French, Bert
Westbrook, Shubha Ghosh, Janet Lindgren, Marcus Dubber, Stephanie Phillips, Barry Boyer,
Jim Gardner, and Guyora Binder. (Exhibit C: Avery Dep. 74-76; Exhibit D: Plaintiffs Exs. 1
& 17). Though she arrived late, Professor Isabel Marcus also attended the meeting. (Exhibit C:
Avery Dep. 76). Avery and Mangold took notes of the meeting. (Exhibit C: Avery Dep. 23;
Exhibit D: Plaintiffs Ex. 17; Exhibit E: Mangold Dep. 17-18; Exhibit D: Plaintiffs Ex. 1).
We then had a vote on [Malkans] candidacy for clinical full professor for an
appointment to promotion to the position of a clinical full professor from his
position as clinical associate professor.
That vote I can see I remember at the time the vote passed by a majority vote
and I can see from my contemporaneous notes that the vote was nine yes, seven
no and three abstentions.
Mangold, who was then Vice Dean for Academic Affairs and chaired the meeting in the
Deans absence, testified: The outcome [of the vote to promote Malkan] was that he was
appointed and, you know, to the reappointed recommendation for reappointment to full clinical
1
Under the Faculty Bylaws, the Law Schools Committee on Clinical Promotion and Renewal (CCPR) has
jurisdiction over and the power to make recommendations with respect to promotions, including the granting of an
indefinitely renewable long-term contract, renewal, dismissal, or termination of the appointment of a Faculty
Member who is on an indefinitely renewable long-term contract or on track for [one]. (Exhibit D: Plaintiffs Ex.
8, p. 8). The CCPR is comprised of all Faculty Members who are tenured or on an indefinitely renewable long-
term contract; it is chaired by the Dean. (Exhibit E: Mangold Dep. 114-115; Exhibit D: Plaintiffs Ex. 8, p. 8).
2
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professor. (Exhibit E: Mangold Dep. 17 & 68). Mangolds contemporaneous notes reflect the
same vote count as Averys. (Exhibit E: Mangold Dep. 18; Exhibit D: Plaintiffs Ex. 1).
Steinfeld testified that there was a vote in favor of Professor Malkans promotion to
clinical professor. (Exhibit F: Steinfeld Dep. 9). And French-Redwood testified: [t]he topic
of his tenure as a clinical professor was brought up and we voted on it. . . . It was not
unanimous, as I recall, but it was a majority or a significant percentage was pro, granting
Professor Malkan [full clinical professor status]. (Exhibit G: French-Redwood Dep. 6).
To date, Mangold, Avery, Steinfeld and French as well as three others who attended the
April 28, 2006 CCPR meeting (Shubha Ghosh, Alfred Konefsky, Lynn Mather and Isabel
Marcus) have also attested under penalty of perjury that the CCPR voted by secret ballot at that
Declarations of Dianne Avery, Rebecca French, Shubha Ghosh, Alfred Konefsky, Susan
Mutua testified at his deposition in this matter that the CCPR did not vote on whether
Malkan should be promoted to Clinical Professor; rather he testified that the CCPR voted to keep
Malkan as Director of the Research and Writing Program for an additional year. (Exhibit I:
Mutua Dep. 36). Mutua swore that the CCPR voted to have Malkan stay on as a caretaker of
the program while we also look for another Director and he look for another job elsewhere.
Mutua also testified that the vote he contends was taken to retain Malkan as Director of
Research and Writing for one more year was so close that someone at the meeting questioned
whether abstentions should be counted as negative votes. (Exhibit I: Mutua Dep. 39). Then
Mutua testified that former State University of New York at Buffalo President William Greiner,
3
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who was a member of the Law School faculty, spoke at the meeting and advised the CCPR on
the question of how abstentions should be counted. (Exhibit I: Mutua Dep. 39-40). Contrary to
Mutuas testimony about Greiners statement is the uncontroverted fact that it would have been
impossible for Greiner to speak at the meeting because, as is abundantly clear, Greiner was not in
attendance at this CCPR meeting. (Exhibit D: Plaintiffs Exs. 1 & 17; Exhibit H: Avery Decl.,
7).
Prior to his testimony in this action, Mutua testified under oath at the administrative
proceeding relating to Malkans nonrenewal before the Public Employment Relations Board
(PERB), There was no vote on [the promotion] issue. (Exhibit J: PERB Transcript, Vol. 3,
p. 291). According to Mutua, Malkan was not going to be promoted following that meeting
because the CCPR never voted on his promotion at the meeting. (Id.) Mutua testified that there
was no subsequent meeting to vote on Malkans promotion. (Id.) So, according to Mutua and
only Mutua Malkan was promoted to Clinical Professor without a recommendation from the
CCPR. Mutua contended, therefore, that then-Dean Nils Olsen had no authority to recommend
Malkan be promoted to Clinical Professor because he acted absent a recommendation from the
CCPR. 2 (Id.)
Mutua continues to insist that his recollection of the April 28, 2006, meeting is correct,
even after four faculty members in their depositions in this litigation have contradicted his
version of events. On December 19, 2013, he categorically maintained under oath that there was
no vote on Malkans promotion to Clinical Professor and that the only vote that took place was
on whether Malkan should be allowed to continue for an additional year as Director of Research
and Writing. Mutua testified: I remember this very clearly. (Exhibit I: Mutua Dep. 43). To
2
This seems to contradict Mutuas theory in this litigation that he has the right, absent recommendation from the
CCPR, to non-renew Malkans appointment.
4
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date, no one else who was present at the meeting remembers what Mutua claims to remember
very clearly.
For instance, shortly after the conclusion of the CCPR meeting on April 28, 2006,
Professor James Gardner (Gardner) complained to Professor Lynn Mather (Mather) that the
CCPR had voted to recommend that Malkan be promoted to Clinical Professor. His
conversation with Mather took place in an incidental encounter with her in a stairwell in the Law
School building. Mather recalls that Gardner (who had opposed Malkans promotion to Clinical
Professor), indicated his unhappiness with the result of the meeting of the CCPR, and that he was
upset at the vote to promote Malkan to Clinical Professor, deeming it a mistake, but that
he had been outvoted. (Exhibit H: Mather Decl., 4-5). After the meeting, Gardner also
talked to Vice Dean Mangold, who chaired the CCPR meeting, about the outcome of the vote.
He questioned whether there had been sufficient votes for a positive recommendation, by a
majority of those voting, that Malkan be promoted to the rank of Clinical Professor. Mangold
recalls that [f]ollowing the April 28, 2006 meeting, Gardner approached me and questioned
the way abstentions should be counted, but that [a]fter some discussion, Professor Gardner
accepted that the vote to renew and promote Professor Malkan was valid. (Exhibit H:
Mangold Decl., 6). That, of course, is more evidence that the vote actually took place.
The only rational explanation for Gardners concern about the result of the vote was that
he had failed in his attempt to block the promotion of Malkan; that is, in fact there had been a
vote and Malkan had obtained a majority of the votes necessary for promotion to Clinical
Professor. Moreover, just a few months ago, Gardner voiced his surprise when he was
informed that Mutua had testified under oath that no vote on Malkans promotion and
appointment to Clinical Professor took place at the 2006 CCPR meeting. (Exhibit K: Ewing
5
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Decl., 20). Thats not what happened, observed Gardner. He then stated his recollection that
a vote had occurred, that the vote was valid, and that Malkan had been promoted to Clinical
Mutua, therefore, has testified twice under oathat the PERB hearing and in his
deposition in this litigationas to his unique version of events at the CCPR meeting on April 28,
2006. He has not produced a single witnessfrom the eighteen other tenured faculty members
who attended the CCPR meetingto support his account, though he has had ample opportunity
to do so before, during, and after his testimony under oath in two separate legal proceedings.
Respectfully, we believe the reason he has been unable to provide evidence of his version of
events is that none exists, that is, no witness can or will come forward with an even vaguely
similar story. 3
In March 2008, shortly after Mutua became Interim Dean of the Law School, he fired
Malkan from his position as Director of the Research and Writing Program. Subsequently, on
August 28, 2008, Mutua, then Dean of the Law School, gave Malkan a one-year notice that his
appointment as Clinical Professor would not be renewed. Following Malkans notice of non-
3
In the Statement of Undisputed Facts submitted in support of Mutuas Motion for Summary Judgment (29, p. 9-
10, filed June 7, 2014), Mutuas attorney concedes the discrepancy in testimony, and thereby highlights the fact that
his client maintains a version of events sharply in contrast with all other testimony on the subject:
There is sharp disagreement regarding what occurred at the meeting and what exactly the Committee
voted on. Malkan and several third party witnesses deposed in this action claim that a vote was
taken on whether the Committee should recommend to the Dean that he be promoted to full Clinical
Professor, and that the vote was in his favor. Defendant Matua [sic], on the other [hand?], recalls
that the meeting quickly devolved to a discussion of whether Malkan should continue as Director of
the Research and Writing Program, and that a vote was eventually taken on whether the Committee
should recommend that the Dean offer Malkan a terminal one year appointment, and that vote came
out in Malkans favor.
Only Mutua and no one else subscribes to his narrative. By stipulating this sharp disagreement, Mutuas counsel
attempts to finesse the obvious and uncomfortable truth that not only is there a conflict in the testimony, but that
Mutuas version of events is uncorroborated by either other witnesses or documents. Indeed, the notion of a sharp
disagreement is a conceit since Mutua is the only person with a different version of the events.
6
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renewal, Ewing recommended to Malkan that he invoke the faculty grievance process, provided
under the Faculty Bylaws, as a way to try to amicably resolve the lack of communication
between Malkan and Mutua. (Exhibit L: Ewing Dep. 23). On January 7, 2009, Malkan
submitted a grievance against Mutua to the Grievance Committee. (Exhibit A: Malkan Dep.
105, 117; Exhibit B: Defendants Ex. 30). Whereas Malkans claim against Mutua is based on
Mutuas decision to non-renew his term appointment without a recommendation from the CCPR
and Mutuas failure to bring the issue before the CCPR at all, Malkans claim against Ewing
arises out of Malkans subsequent invocation of the Law School faculty grievance process,
administered by the Grievance Committee. Ewing is a defendant in this action solely because a
faculty committee had designated him as Chair of the Grievance Committee. After receiving his
non-renewal notice, Malkan also began pursuing various remedies though his union via PERB
administrative proceedings and in the Court of Claims. The Grievance Committee, through
Ewing, promptly began investigating the grievance in accordance with the Law Schools Faculty
Bylaws. (Exhibit L: Ewing Dep. 23). Ewing had already spoken to Malkan. (Id.) Thus, his
next step was to speak to Mutua. (Id.) Bringing the faculty grievance process to a halt, Mutua
refused to speak with Ewing because of the other pending proceedings. Mutua told Ewing that
he could not discuss the grievance because there is current litigation and threatened litigation by
Professor Malkan against the university, the law school, maybe even the dean. (Exhibit L:
Ewing Dep. 23-24). The Grievance Committees unanimous recommendation, therefore, was
that there was nothing the Grievance Committee could do until Malkans other claims had been
adjudicated and Mutua was free to speak to the Grievance Committee. (Exhibit K: Ewing Decl.
7
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On November 11, 2011, Malkan sent a letter to Lynn Vance, an attorney in the
Governors Office of Employee Relations. (Exhibit M). Vance had represented the State
University of New York at Malkans PERB hearing. In this letter, Malkan alleged: Makau
Mutua gave false testimony under oath pertaining to a material fact in the case, specifically, the
his allegations, Malkan included excerpts of Mutuas PERB testimony as well as emails he
received from former Law School professor Markus Dubber, who attended the CCPR meeting,
and former Law School Dean Nils Olsen (Olsen), who did not. Professor Dubber advised
Malkan that the majority of the faculty members attending the CCPR meeting voted to grant
[Malkan] tenure as a clinical professor. (Exhibit M). Olsen, who was Dean of the Law School
in April 2006, informed Malkan that, although he had not attended the CCPR meeting, Professor
Mangold called him shortly after the meeting ended and told him that the CCPR voted to
approve Malkans promotion to Clinical Professor. Olsen also advised Malkan that he had at
least one conversation . . . about the meeting and vote with a colleague that was entirely
Malkan then sent Vance and several SUNY employees, including Ewing, an email on
November 27, 2013, reiterating his evidence that Mutua testified falsely under oath. (Exhibit
N). In that email, Malkan contended that Mutua lied under oath at the PERB proceeding when
he testified that there was no vote on Malkans promotion to full Clinical Professor. Malkan
stated: This lie, of course, calls into question Dean Mutuas credibility on every other point of
8
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On April 20, 2014, Malkan contacted State University of New York at Buffalo President
Satish Tripathi with his concerns regarding Mutuas false testimony both before PERB and
during his deposition in this matter. (Exhibit O). In that email, Malkan applied Mutuas
conduct to the elements of 18 U.S.C. 1621, which is the federal perjury statute, and New York
On April 22, 2014, Malkan sent another email on this same topic to Liesl Zwicklbauer
and copied Vance and several SUNY employees. (Exhibit P). Malkan focused on Zwicklbauer
based on her role as co-counsel with Vance in his PERB matter. (Exhibit P). Malkan stated in
that email that Mutua lied under oath, his lies were premeditated and caused a miscarriage of
Throughout this litigation, in blogs posted on the Internet, in letters addressed to various
University officials, and in articles published by the media, Malkan has accused Mutua of lying
under oath. At the trial, Malkan will put on a parade of tenured Law School professors who will
testify to facts that support Malkans contention that Mutua has lied under oath, twice.
If this case is tried against both Defendants, the strength of the evidence against Mutua
will indelibly stain Ewing because the jury will improperly impute Mutuas bad acts to Ewing.
This foreseeable and prejudicial taint cannot be prevented by an instruction. Accordingly, Ewing
requests that Malkans claims against Mutua be tried separately from Malkans claims against
him.
Federal Rule of Civil Procedure 42(b) states: SEPARATE TRIALS. For convenience, to
avoid prejudice, or to expedite and economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or third-party claims. Fed. R. Civ. P.
9
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42(b) (emphasis added). The decision to bifurcate a trial rests within the sound discretion of the
trial court. See, e.g., Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 (2d Cir. 1990).
There is no bright-line test. Rather, courts analyze the application of Rule 42(b) on a case-by-
case basis. See, e.g., Monaghan v. SZS 33 Assocs., L.P., 827 F. Supp. 233, 245 (S.D.N.Y. 1993).
Courts consider whether separate trials will (1) promote convenience; (2) expedite the
proceedings; or (3) avoid unfair prejudice. Fed. R. Civ. P. 42(b). Only one of the issues must be
met to justify bifurcation. Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998).
Rule 21 provides that the court may also sever any claim against a party. Fed. R. Civ.
P. 21. Courts and parties frequently blur Rules 21 and 42 without maintaining the proper
distinction between the two. Keister v. Dow Chemical Co., 723 F. Supp. 117, 119 (E.D. Ark.
1989). Trial courts have broad discretion to employ either of these rules, which are determined
using the same standard. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir.),
cert. denied, 488 U.S. 848 (1988) (citations omitted). The distinction between these two rules is
that separate trials usually will result in one judgment, but severed claims become entirely
independent actions to be tried, and judgment entered thereon, independently. Gonzalez v. City
of Schenectady, No. 00-CV-0824, 2001 U.S. Dist. LEXIS 14406, at *29-30 (N.D.N.Y. Sept. 17,
Rule 20(b) provides: Protective Measures. The court may issue ordersincluding an
order for separate trialsto protect a party against embarrassment, delay, expense, or other
prejudice that arises from including a person against whom the party asserts no claim and who
asserts no claim against the party. Fed. R. Civ. P. 20(b); see also Third Degree Films v. Does
10
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Prejudice can be shown where evidence as to the specific injuries suffered by plaintiffs
might influence the jurys consideration of other issues. Corrigan v. Methodist Hosp., 160
F.R.D. 55, 57 (E.D. Pa. 1995) (citing Keister, 723 F. Supp. at 121). Thus, [t]he potential that
the jury might consider damaging evidence against one party as evidence against a co-party is
grounds for separate trials. Moores Federal Practice Civil 20.09 (citing Keister, 723 F.
Malkan plans to make his case by showing that Mutua is a liar. Ewing will be associated
with Mutua. Ewing and Mutua are not only co-defendants, but are both long-term employees of
the Law School and both have held roles in the Law Schools administration. Mutua, as Dean of
the Law School, in fact appointed Ewing to two of his administrative positions Vice Dean for
Legal Skills in 2009 and Vice Dean for Academic Affairs in 2012. If the jurors believe that
Mutua was dishonest (and it is foreseeable that they will based on the unwavering testimony of
every other witness), the jurors distrust will likely spill-over and rub off on Ewing. See, e.g.,
Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 171 (S.D.N.Y. 2009) (there is a risk that
trying all of Plaintiff's claims in a single trial could lead to guilt by association and spillover
The risk of spill-over prejudice is particularly acute where, as here, the co-defendants
have different levels of culpability. In re Blech Sec. Litig., 94 Civ. 7696 (RWS), 2003 U.S. Dist.
LEXIS 4650, at *39) (S.D.N.Y. Mar. 27, 2003) (When many defendants . . . have significantly
different levels of culpability, the risk of prejudice is heightened.) (Internal quotation marks
omitted). Here, Mutua and Mutua alone made the decision not to renew Malkans
appointment as Clinical Professor. This was done absent any recommendation from the CCPR.
Mutua contends (in his Statement of Undisputed Facts, 22, p. 7) that the Dean was not required
11
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to seek the facultys recommendation to non-renew Clinical Faculty appointments, because the
Dean had the discretion to either accept them or reject them. Mutua may or may not have been
free to ignore the facultys recommendation, but whether he was free to avoid ascertaining that
recommendation in the first instance (as part of gathering and considering the totality of the
factors that might inform his decision to terminate Malkans appointment as a Clinical Professor)
is at issue in Malkans claims against Mutua. Malkan argues these are not mere paper rights to
Ewing had nothing to do with any of Mutuas acts. Rather, Ewing has been swept up in
Malkans lawsuit simply because he happened to be Chair of the Grievance Committee. It was
Mutuas refusal to cooperate with the Grievance Committee that prevented it from
Malkans claims against Mutua and Ewing are distinct. Malkan claims Mutua violated
his rights by not having the CCPR weigh in on Mutuas non-renewal decision. Ewing was not
part of Mutuas non-renewal decision and, in fact, Ewing played no role in any employment
decision relating to Malkan. Thus, Ewing would not even be a witness regarding Malkans
Malkan claims Ewing did not properly process his grievance. Ewings alleged
wrongdoing occurred well after Mutuas decision not to renew Malkans term appointment. The
other members of the Grievance Committee, Professors Janet Lindgren and Isabel Marcus,
would be likely witnesses. Ewing does not need to call Mutua to prove that Mutuas refusal to
cooperate with the Grievance Committee is what caused the Grievance Committee to
recommend that it suspend Malkans grievance pending the conclusion of his other litigation.
12
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The distinction between Malkans claims against Mutua and Ewing and the lack of
substantial overlap in witnesses establishes that separate trials would not waste judicial
resources.
CONCLUSION
Just two months ago, writing for a unanimous Supreme Court, Justice Sotomayor
observed:
***
Unlike speech in other contexts, testimony under oath has the formality and
gravity necessary to remind the witness that his or her statements will be the basis
for official governmental action, action that often affects the rights and liberties of
others. United States v. Alvarez, 567 U. S. ___, ___ (2012) (slip op., at 89)
(plurality opinion).
Lane v. Franks, 134 S. Ct. 2369, 2379-2380, 573 U.S. ____ (June 19, 2014).
One would think that Justice Sotomayors admonition applies with particular force when
the public employee is the Dean of the only state law school in New York. False testimony
stains the legal process and the judicial system. It strips legal institutions of their integrity and
undermines their standing in the community by inhibiting their capacity to render justice. False
testimony by one co-defendant unnecessarily bears the potential to prejudice his co-defendant
and deprive him of the opportunity to fairly and truthfully offer his own defense. Defendant
13
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Ewing should not be compelled to assume the risk that a reasonable jury will: (1) readily
conclude that Mutua, his co-defendant and the Dean of a Law School, has twice offered false
testimony under oath against the interests of the plaintiff in the current action; and (2) thereafter
give Ewings defense less weight than it deserves because of his previous close working
Therefore, for the reasons set forth above, Charles P. Ewing respectfully requests that this
Court grant his Motion for Separate Trials and order that Malkans claims against Mutua be tried
separately.
Doc #1950231.1
14
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Plaintiff: DE(.LARATION
\S.
12-C\'-0236(A)
MAKAL' \\.M UTuA.
Defendant.
MAKAlJ W. MUTuA declares under penalty of perjury under the law!-> of the Umtcd
State~ of Amcnca that the followmg is true and correcttn accord::mce wtth 28 u.S.C. ~ 1746:
I. I am the Defendant in thts action. I am currently employed by the State l ni' erstt}
of Ne\\ York at Buffalo Law School (the "La\\ School") as a SL NY Distmgutshed Proti:ssor and
Floyd H. & Hilda L. Hurst Faculty Scholar. From December 2007 to \1ay 2008 I \\as the intenm
Dean of th~: La\\ <;chool In \1ay 200X I was appmntcd Dean ol the La\\ Schl'l'l and held that
1. I make tlw, Declaration 111 opposttion to Plainttffs mottun for Rule II sanctions
the hcst of my rccollcclton at both Plainltlrs PI RB heunng .uHl at m)' dcposthon tn tht-.. case. I
motion to sc\ l!t and exhibits thereto (Docket 'ln. 59) to support their argument that I
intcntinnally tcstttkd falsely at Platnttffs PLRB hearing and at my deposition mthts ca!->c. Thus.
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it is important that the Court understand the genesis of that motion and the nature of the conllict
it embodies.
5. There are longstanding internecine conllicts at the Law School amongst member!:!
of the faculty and administration. Many of these contlicts go back decades, and predate my
employment at the Law School. Plaintiff has cynically sought to exploit these conflicts tor gain
in this litigation. Among other things. he has used the intemet as his pulpit. s~.:nding e-mails tu
the entire Law School faculty ami administration on an almost daily ba~is attempting to win
sympathy for his posttion in this case and curry favor'' ith those that opposed my deanship or my
administration of the Law School. Many of the cmails contain intonnation that PlaintifTwould
only have obtained from La\\ School faculty or staff. Most of the emalis arc abust\ e. crude, and
threatening to me. Many of the cmails ha'e been copied to senior officials at the lJni\ crsity at
Buffalo. Plaintiff has also wide!) posted v. hat I regard as defamatory material about me in
connection" ith this litigation on the Web. The purpose of such posts on the Web appears to be
6. At the hcginning of this litigation, Mr. l:.wing Hnt!J were def~nding this ca~~
together pursuant to a joint defense agreement. Mr. Fwmg w::~s well aware at that time that
Pbintiffwas d;1iming that in April 20 I 0 I had testified falsely at the PFRB heanng about what
tran:.pm:d at the Apnl 28, 2006 meeting of the Promotion and 1 enure Committee. See, <.'.,!!..
eopi~.:~ of c-mails attached as EAhibit "A.'' rhe faculty memher~> whose testimony and
tl~clarations Defendant Ewmg u~etlto .support his motion ''ere lik~::wi!lc awnr~ of Plaintiff~
claims. See. '.g., letters atluched as Exhibit "B.'' Mr. hving was also well aware that I had
testified ctmsistently at my deposition in thi!i action in December 2013. Yct. Mr. [wing's
concern with heing tainted by his asso~.:iation with m~ in this action did not prompt him to 1110\'C
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to sever until 0\ er two years after this act ton was com menced and :w months after m y deposition
in thts act1on. l\or did VIr. E'' ing intimate 111 any way that either my testimony had been
inconsistent, or that In: had an) problem "ith it. Thi:-; begs the question wh) he waited so long to
sudden!) allege that I had testified falsely and then move to sever.
7. I would like to suggest a possible exp lanation. Prior to June 2014. Mr. Ewing was
thc Vice Dean ((lr Acadcmtc Affairs at the La\\ School. a positwn to which I had appointed him.
Thh ~ an administrative appointment and Vice-Deans sen cat the pleasure of the Dean. Vice
Deans arc appointed by the Dean \\ho can also remo'c them. On Vla) 27, 201-l. I remmcd VIr.
Ewing from his Vice-Deanship. At the meeting whcre I inli.lm1ed him that he would no longer be
Vice-Dean, Mr. Ewing hccame agitateJ and threatening, and told me that I would rc.brret my
action because he wouiJ take cc11ain deleterious steps against me regarding this lawsuit. He
spccJtically told me that I had ntl right to remove him as Vice Dean anJ thereafter sent a bitter
email to the entire Law School decrying his remo\ al as Vice Dean.
8. Three of the other facully members who proviJcJ affidavits in support uf"Mr.
Ewmg's motion Rchccca French, Isabel Marcus anJ Lynn Mather - also ha'vt: axes of their
0\'-'11 to gnnJ. I rcrnm cd Ms. Mather as D1 redor of the Ba!Jy Center for Law and Policy in 2008
aftt:r a widely consulta1iH: rc\ icw of the:: faculty. The review" us over\.\hdmingly in Iii\ or of
her remo' a!. \its. Mather was nut t:\ en at tht: Apn I 28. 2006 meeting of the Promo1 ion :mJ
Tt:nurc Commilll!c and nt:ithl!r wa~ t-.1r. rwing. Ms. French was present. hut she \\HS 'cry vocal
agninst 'vir. \ltnlkan 's rcapp1.1intmcnt. \1s. french \'oluntanly anJ abruptly n.::.igncd 111 p1que as
Dirccto1 ufthc Haldy Cent~r tor Lm and Policy m :WI! because of a JiiTercnec in management
st~lc~. A~ Director, she\\ as erratic. O\ erhcanng. and Jisorgani/cd. Finally. I remo\Cd Professor
Marcus as Director ot International Programs because she \\as hclligercnt and wou!J not attend
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9. Some: of the other faculty members who either submitted affida' its or whos~...
testimony \1r. E" ing cited in support of his motion to sc,er Dianne Avery. Alfred Konet~k)
and Susan Mangold strenuously .md cyn1cally opposed' irtually e' cry imllativc that 111}
administration introuuced '' hile I ''as Dean. They objcctcd to the hiring l)f junior Iacuity and
created a hostile and toxic cn\ ironmcnt between junior and senior faculty in the La'' School. It
is" iddy known that they opposctl my initial appointment as Dean. \ 1r. E'' ing anu \Is.
Mangold ha\ c both vigorously eampaig11cd tor the La'' School's deanship several times without
success.
I 0. Roughly ten \\CCks after I n:mo' cd Mr. Ewing as Vice-Dean. my counsel advised
me that on August 12. 2014. Mr. E'' ing withdrev\ from our jomt defenses agreement. The
II. On or about August 19. 1014. Mr. Ewing and seven other faculty members liled a
complaint \\ith Fourth Depa11ment Attorney Grievance Comm1ttec alleging that I knowingly
tc:slified tnlsely 111 the PERB heanng and 1n my deposition in this ca:-.c:. The other fa..:ulty
mc::mhcrs v,:erc:: most ofthe same faculty members \\IW suppo11cd Mr. Ewmg's motion to SC\cr
(one more faculty member- John Henry ~ch l cgciJoincd in the complalllt. but Shuhha Ghosh and
Robert Steinfeld did nul). Mr. Schlc::gd was a long-tenn fierce opp<1nent or my Deanship antl
opposed \ irtually C\ erything I did as Dean. I rcspondcd to their eomplai111 on Scph.:mbcr 17.
2014. A copy o!'my letter response tn the /\ttomcy Grievance Committee is attached as Exhibit
"C." Iodate. the Attomc) Grievance Committee has nut issued a dc~.:ision l)l1 Mr. Ewing and
12. On September 24. 2014, Plamtiff stipulated to dismissal of \ltr. Ewing from this
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action with prejudice and without fees or costs. Docket No. 64.
173
7 office and say , well, it was nice seeing you, see you later ,
23 Q. Who is that?
J M 01520
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174
1 Sue Mangold, because the Dean Olsen was not -- was away on a
4 not clear . The reason for that was because faculty members
16 faculty meeti ngs where emotions ran so high and , you know,
17 much of the angst was about why the dean and the facu lt y had
19 and writing program and why no one had, you know , brought up
J M 01521
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175
1 lead it, and that we should scrap the program and start from
13 particular meeting.
17 director?
22 of the program.
J M01522
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176
14 we should not give him one more year , because we did not
20 decided, you know, to give hi~ one year, and so there was
22 situation.
J M 01523
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177
1 appointment?
5 want to make that very clear, but the dean would norma l ly go
10 recommendation.
J M 01524
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3 A Clinical professor.
4 Q Full professor?
7 clinical professor.
14 clinical professors.
21 T-o-m-p-k-i-n-s.
22 Q The reappointment?
23 A The reappointment.
J M 01323
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22 Q Right .
J M 01324
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2 terminal appointment?
8 A Uh-huh.
J M 01325
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5 Q Right.
7 2006 --
J M 01326
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1 Q Okay . And --
14 clinics.
J M 01 327
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2 A Sure.
24 out of category.
J M 01 328
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2 A Yes.
4 Law School?
6 Q By the Dean?
7 A Yes.
15 you know?
J M 01329
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3 Q Fifty?
4 A Fifty Flus.
8 A Yes.
13 that committee?
24 committee accurately.
JM01330
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7 meetings .
17 tenured faculty .
20 is?
J M 01331
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5 allowed to attend?
18 "See you in the hall, " and you ' d never see them
J M 01332
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4 A Yes.
10 A Yes , I was.
14 Director?
23 offered?
24 A Absolutely. Absolutely.
J M 01333
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6 promotion?
9 Q To vote on hi s promotion?
17 professor .
19 meeting commenced?
21 Academics mentioned .
J M 01334
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3 going to be discussing.
13 A Yes.
J M 01335
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1 clinic.
6 talking about.
16 evidence here .
J M01 336
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24 Redirect.
J M 01337
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[Mutua, Cross] 28 7
12 Honor.
14 BY MS . BLUMBERG :
24 A Yes.
J M 01338
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11 Mangold?
14 requirements?
19 A I cannot reca l l.
23 Program?
JM01 339
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1 program, yeah.
6 the faculty . You can give those out and take them
8 A Sure.
10 administrative appointments?
11 A Absolutely.
13 committee?
16 i t wants to discuss.
JM 01340
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9 Writing?
21 program.
24 appointment?
J M01 341
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2 clinical appointment.
8 particular item.
12 A Yes.
15 voted on it?
16 A That's correct.
J M 01342
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5 gett i ng a vote?
7 vires.
21 A Yes.
22 Q You, specifically?
J M01 343
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1 question?
7 break.
12 back .
14 the stenographer) .
15 BY MS . SINGER-BLUMBERG:
19 specifically"?
J M 01344
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Defendant.
-------------------------------------------------------------------------X
RICK OSTROVE, an attorney duly admitted to practice law in the courts of the State of New
York, and admitted to practice in the United States District Court for the Western District of
1. I am the former attorney for the Plaintiff, Jeffrey Malkan. I am familiar with the facts
those portions of Defendants motion for sanctions (for clarity referred to as, Counter-
Motion) that pertain to myself and Leeds Brown Law, P.C. (collectively, the Firm).
2. Below are additional facts needed to dispute some of the contentions in the Counter-
of the disputed issues as they relate to the Firm, to provide some relevant background,
1
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3. On June 7, 2014, Defendant Mutua moved for summary judgment. (Dkt. 56-57). The
summary judgment motion was fully briefed as of October 2014 -- it referenced false
testimony from Mutua. See Mem in Supp. of Plaintiffs Motion for Sanctions, generally.
4. Sometime thereafter, Malkan and the Firm decided to address Mutuas perjury. We
believed Mutuas counsel, David Sleight (Sleight), had an obligation to correct his
5. I was hoping that we could resolve the issue informally. Accordingly, I contacted Sleight
6. Before our scheduled phone call, unbeknownst to me, Malkan sent a communication
knee-jerk response was to immediately contend that the contemplated sanctions motion
was frivolous. Sleight had not even heard my position about the issue, nor had he read
the case law to which I intended to direct him. Sleight also said that he would not speak
with me without assurances that the Firm would not file the motion. (Ex. 1).
1
The Firm was unaware that Malkan intended to send this communication. The Firm did not
approve, ghost-write, or know of the content of the communication, nor was the Firm pre-
informed of other communications Malkan made to Sleight and others. We learned of these
communications after-the-fact, oftentimes by Sleight informing us of same. There may be some
exception to this general rule, but I do not recall any such instance. See also, Plaintiff Malkans
Dec. in Opp. 7 (Dkt. 88-2).
2
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8. On October 27, 2014, I replied to Sleight with a detailed response outlining our
Second Circuit decision of In re Doe, as well as NYCLA Opinion No. 741. (Ex. 1). In
that email, I told Sleight that I understood he was in a difficult position, but that it was his
client that had created the situation. I urged him to carefully consider his position,
After you have carefully considered your position, please let me know
how you intend to proceed. I assure you, before I file any motion, I will
carefully consider your position and review any case law that you provide
to me. I assure you, I will not file any motion unless I think it is
meritorious and I gladly review any cases or arguments that you want me
to consider.
(Ex. 1).
9. On November 3, 2014, Sleight replied. Sleight claimed that he conducted legal research,
but provided me with no additional legal authority, merely stating that he disagreed with
my analysis, and suggesting that I re-read In re Doe. He threatened that filing a sanctions
10. I replied, requesting specific authority that supported Sleights position. (Ex. 1). I do not
see a reply to that email in my computer system and I do not recall receiving a reply.
11. Having carefully considered the issue, the Firm felt confident that its position was
correct. Nonetheless, given the gravity of the issue, the Firm assigned another associate
3
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12. Thereafter, the Firm and Malkan decided to prepare a motion for sanctions (the
Sanctions Motion) against Mutua and Sleight (for simplicity, collectively referred to as
the Defendants). The gravaman of the Sanctions Motion was that Mutua perjured
himself (twice) by denying that a vote occurred regarding Malkans tenure appointment,
and Sleight refused to address the perjury or appropriately account for it.
13. On February 20, 2015, via FedEx, the Firm served Sleight with the Sanctions Motion. I
I have not attached the exhibits because you have copies of them, but
if you cannot locate an exhibit, let me know and I can forward it to
you. Additionally, if you have any other case law or points you want
me to consider prior to filing, Im open to considering anything you
wish to present.
(Ex. 2).
14. On February 23, 2015, FedEx delivered the Sanctions Motion and it appears that Sleight
2
I recall having conversations with Sleight about the issue generally, but cannot pinpoint exact
dates. However, I would not have written this in the email had we not spoke.
3
The Memorandum in Opposition to the Sanctions Motion (Dkt. 75) argues that the Firm failed
to mail this package and Sleights Declaration swears that the package was delivered by email,
seemingly implying that it was not otherwise delivered. (Dkt. 75 p. 16-17; Dkt. 72, 15).
4
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15. On March 12, 2015, Sleight sent the Firm a letter, in which he argued the Sanctions
Motion misinterprets the Second Circuit decision of In re Doe. Sleight also cited other
cases he believed supported his position. (Ex. 4). I personally read all cases to which
Sleight cited. I also instructed two associates to carefully review these cases. We all
concluded Sleights interpretation was incorrect. These cases are discussed in the Firms
16. In Sleights March 12 letter, he reiterated his threat of sanctions, which I properly
assumed was based on the arguments he articulated in the letter. Notably absent from
this letter was any argument relating to any of the following issues which Defendants
later raised:
x Even if Sleight had a duty to amend his answer, it was frivolous for
Plaintiff to argue his failure to do so was sanctionable5 (Dkt. 75, p.
10);
4
Had Sleight raised this issue in his letter or in his safe harbor communication, I would have
modified this argument to apply only to sanctions pursuant to the Courts inherent powers. See
Mem of Law in Opp to Counter-Motion, pp. 10-12.
5
Had Sleight raised this issue in his letter or in his safe harbor communication, I likely would
have modified this argument even though there is a good faith basis upon which to advance it
given the state of the law. See Mem of Law in Opp to Counter-Motion, pp. 12-14.
5
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x Plaintiff violated his duty of candor to the court because his motion
cites to a prior version of Rule 117, and a case decided while the
prior version of Rule 11 was in effect (Dkt. 75, pp. 13-14);
x Plaintiff violated his duty of candor to the court because his motion
cites to vacated authority (Dkt. 75, p. 14);
x It was frivolous for Plaintiff to argue bad faith was not required for
sanction to be imposed pursuant to the Courts inherent power
(Dkt. 75, pp. 15-16).
17. On April 14, 2015, we filed the Sanctions Motion, without any changes as we did not see
the need to make any changes based on the arguments Sleight advanced in his March 12
letter. (Dkt. 70). Again, Sleight had not raised any of the issues listed in 16 above.
6
Had Sleight raised this issue in his letter or in his safe harbor communication, I would have
further researched the issue and determined that Sleight cannot be sanctioned under Rule 11 for
this conduct. But, he can be sanctioned pursuant to the Courts inherent sanctioning ability.
Mem of Law in Opp to Counter-Motion, pp. 18-20. Had Sleight properly provided safe harbor
regarding this issue, I would have made that minor change to the brief. Nonetheless, it remains
egregious that Sleight signed his name to a document claiming that this information was not
relevant or likely to lead to the discovery of relevant evidence.
7
My citation to a prior version of Rule 11 was an inadvertent citing error. The error was made
by an associate at the Firm, which I did not notice. It was likely the result of copying the
language of the rule from the text of an older case. Had Sleight raised this issue in his letter or
his safe harbor communication, I would have corrected this minor mistake. Nonetheless, this
error does not alter the substance of the argument. See Mem of Law in Opp to Counter-Motion,
pp. 21-22.
6
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18. On June 3, 2015, Sleight sent the Firm a letter, in which he threatened to file a cross-
motion for sanctions if our Sanctions Motion was not withdrawn. Sleights June 3 letter
did not advance any of the arguments listed in 16 above. (Ex. 5).
19. On June 19, 2015, Sleight sent me what purports to be a formal safe harbor letter
20. While the June 19 Letter stated that Sleights motion was enclosed, the only enclosures
were (a) a Notice of Motion; (b) Correspondence from Sleight to me, dated March 12,
2015 and June 3, 2015; and, (c) a certificate of service, indicating the Notice of Motion
21. Contrary to Rule 11(c)(2), Sleights safe harbor communication did not describe the
specific conduct that allegedly violates Rule 11(b). Instead it referred back to the March
12 and June 3 letters. The June 19 communication (and its enclosures) did not list any of
the arguments identified in 16 above and the Firm remained unaware of Sleights intent
7
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22. On June 26, 2015, Plaintiff informed the Firm of his desire to terminate us as counsel. I
need not reveal the details which led to the termination,8 but I am 100% certain that
23. Sleight irresponsibly speculates that the Firm saw [his] response to [the] Rule 11
motion, and realized its multiple deficiencies and wanted to withdraw it, but Plaintiff
would not consent to it, so he terminated their services. (Decl., 52). As described
below, nobody at the Firm had even read Sleights opposition to the Sanctions Motion
24. On Friday, June 26, 2015 (between 7:53 p.m. through 8:31 p.m.), Sleight filed papers in
opposition to the Sanctions Motion. (Dkt. 72-75). I was not in the office when Sleights
25. The morning after these papers were filed, I boarded a 10:00 a.m. flight to Miami, where
I then embarked upon a week-long cruise with my family. During my vacation, I had
limited internet access; I did not read the opposition papers while on vacation.
26. Upon returning to the office, on July 6, 2015, I was exceptionally busy and backlogged
with emails. I had recently lost Mr. Arbeit as an associate. As a result, I had a number of
8
RPC 1.6 (b)(5)(i) permits me to reveal communications to defend the firm to the extent that
the lawyer reasonably believes necessary I am being careful to reveal only the information I
think is reasonably necessary, but if the Court believes that more information is necessary, I can
supplement this declaration. However, I feel that I have adequately addressed this issue.
8
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massive projects that fell largely upon my shoulders. Thus, given how busy I was
professionally, I did not have the luxury of time to read Sleights opposition papers
unless and until it was necessary to do so. I had already read his prior letters, his safe
harbor communication, and emails. I assumed the bases for his opposition were
priority in the Malkan case was to either convince Malkan not to terminate the Firm or
27. I had email exchanges with Malkan, and attempted to set up a meeting with him to
discuss his concerns. I was hoping to resolve any issues. After realizing that the
termination was inevitable, I had to ascertain the withdrawal procedure and address the
unusual situation involving the outstanding Sanctions Motion and Sleights threat of a
Counter-Motion. I did not want my name associated with the Sanctions Motion unless I
was the person drafting the reply papers. I wanted to withdraw the motion under safe
harbor9 to avoid additional work and to avoid a situation where I did not prepare the reply
papers. But, Malkan did not want such withdrawal to delay the matter.
28. It seemed wasteful to withdraw the papers just to have Malkan refile them. I developed
the idea of having the papers be deemed as filed by Malkan nunc pro tunc. I thought I
9
Given how busy I was upon my return from vacation, I did not realize that the purported safe
harbor period expired after I returned and before I agreed upon a plan of action with Malkan.
9
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29. I called Sleight10 and discussed the issue. I advised Sleight of the situation and my
desire. I am reasonably sure that I read him some of the content of what I intended to
file. Sleight advised me that he would not seek sanctions against the Firm if we did not
30. It would have been easy for me to not comment about the merits of the Sanctions Motion
withdrawing based on the merits of the motion. I wanted the Court to know that I took
this matter seriously and carefully researched the issue before taking such dramatic
action. I considered whether I had a duty to continue the motion, but realized the matter
was before the Court, that Malkan would pursue it, and that the Court would evaluate the
situation and take appropriate action. Even so, I toned down the language that I had
intended to use, in the hopes that Sleight would not include the Firm in his Counter-
Motion.
31. On July 15, 2015, the Firm filed its motion to withdraw and to have the Sanctions Motion
be deemed as filed by Malkan. (Dkt. 80). I explained the situation in the declaration and
The Firm and I wish to exercise our safe harbor rights. However, I
wish to highlight that our safe harbor exercise is unrelated to the merits
of the motion. Prior to filing our sanctions motion, multiple attorneys
10
Despite the current posture, I had always had a professional relationship with Sleight. We had
granted each other numerous courtesies during this litigation and we were able to reach
compromises on multiple sensitive issues. I fervently disagree with the way he handled this
issue, but I understand that he is in this difficult position again, one created by Mutuas
obvious lies to the severe detriment and expense of Malkan.
10
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(Dkt. 80, 5). As compared to what I planned on saying, I thought this language might
be neutral enough that it might appease Sleight such that he would not include us as a
32. On July 16, 2015, the Court ordered, via text order:
The Clerk of the Court shall terminate attorney Bryan Arbeit and
identify Frederic D. Ostrove as an Interested Party so that he continues
to receive notice of electronic filings. Plaintiff's request to deem the
motion for sanctions as filed by plaintiff nunc pro tunc is denied. As
the affiant to the Motion for Sanctions, Mr. Ostrove is granted
permission to respond to defendants anticipated motion for sanctions
to the extent that such motion may challenge Mr. Ostroves conduct as
counsel on behalf of plaintiff prior to his withdrawal from this action.
The Clerk of the Court shall identify Plaintiff as proceeding pro se and
direct correspondence to plaintiff at 12 Valleywood Court West, Saint
James, New York 11780.
(Dkt. 81).
33. At the time, I did not know whether Sleight would file against the Firm or just Malkan.
Indeed, as late as July 22, 2015, I had no idea if we would be named and I still did not
11
Sleight characterizes this notation as a gratuitous addition to the motion to withdraw, thus
evidencing his displeasure that I was not silent regarding the merits of the motion. (Dkt. 83-1, p.
2). I did not believe it to be gratuitous for the reasons described above.
11
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terminated as counsel.12 I hoped I could persuade Sleight not to name me. I sent Sleight
(Ex. 7).
34. On July 23, 2015, Defendants filed the instant Counter-Motion against Plaintiff and the
Firm, alleging that the Sanctions Motion was itself frivolous, and that Plaintiff, acting by
35. I read the Counter-Motion and saw that it referred back to Sleights opposition to the
Sanctions Motion. I then read those papers for the first time and saw a host of arguments
of which I was previously unaware, including all the arguments listed above in 16. Had
I previously been aware of those arguments, we would have modified our brief, as noted
12
Also, as discussed above, I thought I knew the scope of Sleights arguments based on his prior
communications, including his purported safe harbor letter which said that his reasons were
articulated in his March 13 and June 3 letters.
13
I do not recall why at the time I was not 100% clear about the meaning of the Courts order.
However, reading it today, the meaning is clear.
12
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alleged recent attempt to relieve [myself] of responsibility for filing a frivolous Rule 11
motion, and purports to cite testimony from Malkan noting the Firm was intimidated
by Defendants response to the Rule 11 motion, which led to Malkan terminating the
Firm as counsel.
37. The Firm was not intimidated, nor was it attempting to relieve itself of responsibility
for filing a frivolous Rule 11 motion. Rather, the Firm was attempting to relieve itself
little sense to expend the Firms resources on the matter after Malkan had terminated the
the Firm. Our reasoning is addressed above and in our motion to be relieved as counsel.
Risk Premium
December 5, 2014 email to former defendant Ewing and others (the 12/5 Email),
stating it appears [the Firm] was only willing to make a Rule 11 motion if Plaintiff
would pay them a risk premium in the form of an additional $25,000.00 in fees. This is
patently false.
39. The Firm never charged or was paid a risk premium in connection with the Sanctions
Motion, nor did the Firm ask Plaintiff for any extra money in connection with it.
13
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40. Pursuant to Malkans retainer agreement, Malkan was obligated to pay the Firm on an
hourly basis.14 The hourly rate for the Firms work has always been the same rate,
regardless of whether the work related to the Sanctions Motion or any other aspect of this
litigation.
41. Malkan was mistaken in stating (in the 12/5 Email) that he had to find $25,000 by next
42. Malkan affirms in his declaration in opposition to the Counter-Motion that no risk
premium was ever demanded, and the $25,000 to which I refer in the [12/5 Email] was
the balance due as of that date for [the Firms] work on the summary judgment motion.
43. Malkan is correct that there was a balance owed at or around the time of his 12/5 Email,
and that such balance included work on the summary judgment motion. However, based
44. While I do not recall the specifics of each conversation I had with Malkan (nor would I
reveal same unless necessary), I can speculate that Malkan may have gotten the $25,000
number from my estimate about the amount of work that may be involved in the
Sanctions Motion. It also may have also related to our outstanding bill, or some
14
The retainer agreement also provided for a possible 20% contingency fee, but that was not
relevant to this issue and only applied in the event the matter concluded with an award.
14
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combination of the outstanding amount due, plus an estimate of the costs to pursue the
45. While I cannot state why Malkan said he had to pay $25,000 at that time, I know with
100% certainty that the Firm never charged him a risk premium, nor was the Firm paid
a risk premium, nor did the Firm ask for a risk premium. I am using the term risk
premium as a shorthand. So there is no room for confusion, except for our hourly
46. The Firm was paid the same hourly rate for its work on the Sanctions Motion, as for all
other work performed in this case. Further, we did not even collect full payment for our
work on the Sanctions Motion. We are not being paid for our work on these opposition
papers, unless the Court awards us fees, which we believe the Court should do, especially
given the fact that we did not have proper safe harbor notice.
47. If the Court needs further information to debunk Sleights risk premium theory, the
Firm will produce Malkans billing records and an email reflecting the amount due on
12/3/14 for an in camera review to establish that all work performed on this matter was
48. After receiving Sleights motion and reading it, on July 27, 2015, I advised Sleight of this
I want to be clear that we never charged Malkan any extra money for
the sanctions motion, nor did we ask for extra money. He has paid us
15
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Case 1:12-cv-00236-RJA-HKS Document 90 Filed 09/11/15 Page 16 of 21
by the hour and did so at the same exact rate for all the work we did in
this matter, including the sanctions motion. He did not pay us $25K
for a sanctions motion. To the extent that Malkan believed that he had
to find $25,000 by next week to finance my Rule 11 motion, that
was not accurate. He had an outstanding bill at the time, and I do not
recall the specifics of our conversation, but assume I may have said
that he had to pay the bill prior to me doing more work on the case.
Also, I may have told him that I estimated that the motion would
involve $25,000 worth of work and he should consider that in deciding
whether he wanted to make the motion given the possible expense.
That would have been nothing more than an estimate as we were
billing him on an hourly basis. I dont recall the specifics of what I
said, but I can tell you with 100% certainty that he was not charged a
risk premium and I would appreciate it if you remove that
suggestion from your papers
(Ex. 9). My correspondence notwithstanding, Sleight has not corrected his papers
regarding the risk premium, despite the fact his contention was false and speculative.
49. Sleight notes Malkan stated in the 12/5 Email that he demanded that [his] lawyers,
against their own wishes, hold the AAG personally responsible for the fraudulent
pleadings he signed, incorrectly implying this demonstrates the Firm knew the motion
was frivolous.
50. I never thought the motion was frivolous and maintain that it is meritorious, although
with proper safe harbor, I would have altered aspects of my brief as noted above.
51. I was hesitant to make the motion as I felt it may delay the ultimate resolution of this
case. Also, I am loath to file sanctions applications and I would have strongly preferred
that it not come to this. However, there is no doubt that Mutua committed perjury that
16
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severely harmed Malkan. After examining all the facts and conducting legal research, I
felt confident that Sleight knows Mutua perjured himself. I do not think any reasonable
person can think otherwise. As a result, a great injustice has been done to Malkan and I
thought it was appropriate to present this matter for the Courts consideration, especially
given that Mutua was the Dean of a law school at the time of the perjury and that Sleight
52. Sleight notes in the Counter-Motion that It is also worth noting that Mr. Ostrove and his
firm were recently referred to the Committee on Grievances by the United States District
Court for the Eastern District of New York. C.M. v. Syosset Cent. Sch. Dist., 11-cv-
1402, 2013 U.S. Dist. LEXIS 157346 (E.D.N.Y. Oct. 24, 2013) adopted in part15 by 2013
53. This matter was fully reviewed by the Eastern District Grievance Committee, and the
Firm was not so much as admonished. Our referral to the Grievance Committee was
which presumably the Grievance Committee realized upon a full review of the record.
The grievance was closed and no action was taken. (Ex. 10).
15
The District Court did not adopt the part of the R&R that related to the referral to the
Grievance Committee.
17
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54. On July 23, 2015, I advised Sleight of same via email, stating:
The referral to the grievance committee that you haphazardly cited was
fully reviewed by the federal grievance committee and we were not so
much as admonished. Instead, no action was taken as none was
warranted. See attached [attaching Ex. 10].
You should refile your motion with that false accusation deleted. It
has no relevance whatsoever to this issue and was nothing more than a
mistaken impression based on insufficient information, which the
federal grievance committee realized upon a full review of the record.
If you do not do so, I will move to strike and possibly move for
sanctions against you for including that gratuitous smear. Further,
your motion is entirely frivolous as (1) we withdrew under safe harbor,
and (2) our motion was not even close to being frivolous. Rather, it
was meritorious and I expect that we will be successful in the motion
now that Im going to be submitting briefing. I suggest you reconsider
your decision to include me and my firm in this motion.
(Ex. 11). To date, Sleight has not corrected his papers to remove this gratuitous smear.
Although Sleight should be sanctioned for this failure and for making his frivolous
Counter-Motion (including his failure to provide safe harbor which would have obviated
much of this work), I have not yet made such motion as this has involved a massive
expenditure of time and I would prefer to avoid additional work on a matter for which I
55. Defendants argue that Plaintiff failed to comply with Rule 11s safe harbor requirement,
because Sleight never consented to electronic service of the Sanctions Motion, and
Plaintiff served it on Sleight by email only. (Dkt. 75, pp. 16-17). This is false as the
Sanctions Motion was delivered via FedEx, and appears that Sleight signed for it on
18
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February 23, 2015. (Ex. 3). As the Sanctions Motion was not filed until April 14, 2015,
56. Sleight never sent us a copy of the full Cross-Motion prior to filing same.
57. Sleight never served us with (or showed us a copy of) his memorandum of law or his
x [O]n June 19, 2015, the Office of the Attorney General (OAG)
served Plaintiff and his counsel with a cross-motion seeking sanctions
against Plaintiff, Plaintiffs counsel and Plaintiffs counsels firm. This
cross-motion will be filed after the expiration of the safe harbor period
provided for in Rule 11(c)(2). (Dkt. 72, 2, Decl. in Opp. to the
Sanctions Motion).
58. Sleight cannot contend that he served his memorandum of law or his declaration with the
safe harbor letter, since his Counter-Motion discusses my subsequent motion to withdraw
(filed on July 15, 2015) (Dkt. 83-1, p. 2) and refers to other documents filed after June
19, 2015 e.g., Dkt. 74-75 (filed June 26, 2015) and Dkt. 84 (filed July 23, 2015).
19
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59. Sleight did not send a copy of his memorandum of law or his declaration. To confirm
that I was correct that we did not receive these documents, on September 1, 2015, I sent
Thanks.
(Ex. 12).
61. Thus, the Counter-Motion should be stricken for Defendants failure to comply with Rule
11(c)(2)s safe harbor requirement, since, prior to filing, the Firm (and Malkan) were
support of his Counter-Motion, and his Notice of Motion did not describe the specific
62. This is not just a technical matter -- Slights safe harbor letter informed the Firm that the
bases for his Counter-Motion was set forth in his March 13 and June 3 letters. However,
said letters did not raise numerous arguments that he now advances (as identified in 16
20
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above). Thus, the Firm (and Malkan) did not have proper notice guaranteed by Rule 11s
63. Accordingly, we should not have had to address any of the arguments that were not in the
March 13 or June 3 letters. However, out of an abundance of caution, this Firm has been
and this Court should award the Firm fees for such work.
64. In addition to the above cited numbered exhibits, annexed hereto are the following
Ex. 14 Contemporaneous notes regarding tenure vote which were taken by Avery
and Mangold, and deposition excerpts explaining same; and
____________/S/_____________
RICK OSTROVE
21
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A105
18 well?
19 A . We were reviewing a document , a compilation of his
20 docume nt s rel ating to his work at the law school.
21 Q. Okay, and he not only worked in the Research and
22 Writing program, he also tau ght other classes outside
23 the Research and Writing p r ogram as well; do you know
24 that to be true?
25 A. I know that he taught a class in intellectual property
19 that?
20 A. Well, because we felt that his initial appointment to
21 the line of Associate Clinical Professor was in error
22 and we felt that we could not compound that error by
23 committing a second error . In other words, we felt
24 that his initial position was i nvalid, so how could he
25 be promoted to another -- to a position on the basis of
1 that the program was a damn shame and that the faculty
2 should seize the program and recreate it without him.
3 Q. Okay, and then I was going to ask, so when you say near
4 consensus
5 A. Yes.
6 Q. -- can you tell me who didn't share in that view?
7 A. I can't remember, but I just recall there was this
8 overwhelming sort of sentiment in the room that he was
9 not the right person to run the program.
10 Q. When you say -- I'm trying to like quantify, was there
11 a vote on that when you say overwhelming consensus?
12 A. Well, first of all, there were very few people at the
13 meeting and I think some of us wondered whether there
14 was even a quorum for the meeting.
15 Q. Let me stop you there. So how many people do you
16 remember being at the meeting?
17 A. I think around 11.
18 Q. 11 people there, okay.
19 A. I don ' t think it was more than 11 .
20 Q. There's 1, 2, 3, 4, 5, 6 , 7, 8 people in this room, you
21 just remember about three more people?
22 A. Exactly .
23 Q. Okay.
24 A. Exactly.
25 Q. And did you raise that as an issue even at the
16 A. You know, so the vote that -- the vote was very close.
17 You know , I think it was
18 Q. Actuall y , can I stop you real quick? Can you tell me
19 the process for voting, like how did how do you
20 vote -- how did you go about voting for this issue?
21 A. So typically in these meetings which d i scuss whether
22 promotion you know , or tenure , the vote is by secret
23 ballot .
24 Q. Okay. Who - - but who mak es - - who deci des what to vote
25 on, did somebody make a motion?
1 about.
2 Q. Okay.
3 A. Yeah. There was only one vote, which was to extend him
4 for another year as Director of the program.
5 Q. And you remember this clearly?
6 A. I remember this very clearly.
7 Q. Have you had a chance to discuss this meeting with
8 anybody?
9 A. I mean, I discussed the meeting with my lawyers before
10 the Labor Court in Albany when I testified there.
11 Q. Okay. What about anybody at the law school?
12 MR. OPPENHEIMER: Form.
13
14 BY MR. A~BEIT:
11
12 BY MR. ARBEIT:
13 Q. What do you mean on tenure track? In other words
2 BY MR . ARBEIT:
3 Q. Can you tell me what that clause means? And you can
4 read in connection with the section above .
10 BY MR. ARBEI T:
17 renewal?
21 section?
22 A. Is that the faculty can recommend to the Dean whether a
24 dismissed or terminated.
25 Q. And when you say they can recommend i t , is i t your
17
18
68
89
90
91
1 A. I don't recall.
2 Q. He also references, at least from what I
3 understand, is a lack of response from
4 Mr . Malkan with respect to ti mes thaL h e had
5 tried to approach him. Did you guys talk
6 about that?
7 A. Not that I recall.
8 Q. Who else got this , this memo? Did a 11 the
9 people at the meeting get this?
10 A. Yes.
11 Q. Do you know when ?
12 A. No. I sai d before I don ' t remember if we got
13 it in advance of the meeting or at t he
14 meeting. I just don ' t remember. I didn ' t
15 make any note. Well , is there a dat e on it?
16 So, he dates it April 3rd. We wer e
17 originally meeting on Jeff''s appointment
18 earlier in April, I believe the 7th. And
19 that's when I was asked to obtain information,
20 feedback from the current research and writing
21 instructors . So I ca n ' t say whether I
22 obtained this in advance of the April 28th
23 meeting, but I know that i t ' s dated April 3rd.
24 Q. So you were aware of Mr. Gardner's position on
25 the promotion and reappointment going into the
92
1 meet ing?
2 A. Yes .
3 Q. Professor Gardner , excuse me . On 2773 he 's
4 talking about the dossier that you prepared.
5 The third full paragraph, where he says:
6 Furthermore, the dossier did not include a
7 single evaluation of Jeff's teaching for many
8 members of the P & T committee and I do not
9 recall an invitation being issued to committee
10 members to observe Jeff's classes; do you see
11 that?
12 A. Yes .
13 Q. Was. i t - - was it standard to include
14 evaluations of people that were going to --
15 were proposed for promotion in the dossier?
16 A. For tenure-track faculty, yes. For clinical
17 f'aculty , no. But --
18 Q. Go ahead.
19 A. Similar to the other -- to the other clinical
20 dossiers, I sent out l e tters to students to
21 respond, excuse me, and those were inc luded in
22 the dossier.
23 Q. Go ahead .
24 A. And I guess there we~e two other forms of
25 evaluation as well; one are the standard forms
93
94
1 Committee, yes .
2 Q. Okay. In the -- on the first page, she raises
3 questions about what action or actions are we
4 being asked to consider. And my reading of
5 this, and you can tell me if your reading is
6 different, but my reading of this is she is
7 unclear as to what it is they're supposed to
8 be voting on?
9 A. Yes.
10 Q. Is that an accurate description?
11 A. Yes . Although, we weren't voting until the
12 meeting, but that's -- that's what her memo
13 says.
14 Q. Okay . Do you know if other participants in
15 the practice (sic) and -- what does the T
16 stand for?
17 A. Tenure .
18 Q. Tenure Committee meeting had the same kind
19 of confusion about what they were voting on?
20 A. They did not.
21 Q. Did anybody ever express that to you, other
22 than Lucinda?
23 A. Well, since I had Lucinda's memo in advance of
24 the meeting, because she wasn't there, I was
25 clear in my opening - - specifically clear in
95
96
18
19
28
74
75
1 A. Rob Steinfeld.
2 Q. RF?
3 A. Rebecca French.
4 Q. SG? If you can't remember we can go on.
5 A. I'l l come back to it in a second.
6 Q. BW?
7 A. Bert Westbrook. Oh SG is Shubha Ghosh who is
8 no longer on the faculty. Bert Westbrook.
9 Q. MM?
10 A. Makau Matua.
11 Q. JL?
12 A. Janet Lindgren.
13 Q. SM?
14 A. Sue Mangold.
15 Q. MD?
16 A. Marcus Dubber.
17 Q. SP?
18 A. Stephanie Phillips .
19 Q. BB?
20 A. Bob Berger.
21 Q. JG?
22 A. Jim Gardner.
23 Q. And GB?
24 A. Oh, BB would be -- sorry, BB would be Barry
25 Boyer and let's see Jim Gardner and -- why am
76
1 I blanking.
2 Q. If you can't remember i t ' s okay.
3 A. I had looked at this before, I had looked at
4 this before and recalled all the names and
5 now --
6 Q. Tell you what if
7 A. Guyora Binder.
8 Q. And then it says late, this IM?
9 A. Isabel Marcus.
10 Q. So does that indicate that she came to the
11 meeting late?
12 A. Yes, i t does.
13 Q. Do you know even though -- well, was she there
14 at the time of the vote?
15 A. Yes .
16 Q. Okay. And you said that the meeting became
17 and you used the word acrimonious?
18 A. Yes.
19 Q. And that there was some strong opposition?
20 A. Yes.
21 Q. One of the people that you mentioned as
22 voicing opposition was Jim Gardner, is that
23 right?
24 A. Yes.
25 Q. Can you tell me if you recall any of the other
77
78
1 Malkan?
2 A. Yes.
3 Q. What do you remember of that meeting?
4 A. It was on a Friday, late in April. It was on
5 a Friday afternoon and we met in the
6 courtroom, which was unusual; I do remember
7 that. The topic of his tenure as a clinical
8 professor was brought up and we voted on it.
9 Q. Okay. Do you remember what the outcome of
10 that vote was?
11 A. Yes. It was not unanimous, as I recall, but
12 it was a majority or a significant percentage
13 was pro, granting Professor Malkan tenure.
14 Q. Do you remember if any other topics were - -
15 A. I was just trying to think about that the
16 other day and I don't unfortunately. I do
17 know that afterwards I . was either approached
18 or I suggested that I would help in putting
19 together any programs that were needed, if
20 there were such things for legal research and
21 writing, you know, if Jeff or anyone else
22 wanted help on the subject matter.
23 Q. Do you remember why you did that?
24 A. Why I did that?
25 Q. Yes.
v.
12-CV-0236{A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capacities,
Defendants.
1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo
and Renewal.
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from
5. Following the discussion, the Com.p1ittee voted by secret ballot at that meeting to
6. I took contemporaneous notes at the April 28, 2006, meeting of the Committee on
7. I recall, and my contemporaneous notes reflect, that Professor William Greiner, was
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
in()ividual eapacities;
Defendants.
.
Law School, The State University ofNew York.
and Renewal.
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from
5. Following the discussion, the Committee voted by secret ballot at that meeting to
. .. .
recommend that Jeffrey Malkan be promoted to Clinical Professor.
. .. .
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page12 of 112
A144
REBE A FRENCH
-- ' ' :,! . . . '-:..-: .- I ,. -~ ... ~"- ,.._ ';' I"-~: - -- 'b, _:. , , ~' ~ . ,.. \ -"'.:... ..... '
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page13 of 112
A145
Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 43 of 99
f. . ~
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capacities,
Defen<Jants.
SHUBHA GHOSH, pursuant to 28 U.S.C 1746 and under penalty ofpeijury, declares
1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo Law
and Renewal.
3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion and
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from Clinical
5. Following the discussion, the Committee voted by secret ballot at that meeting to
SHUBHA GHOSH
2
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page15 of 112
A147
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individ~al capacities,
Defendants.
1. On April 28, 2006, I was a tenured professor of law at the University at Buff~lo
and Renewal.
4. At that meeting, the Commi:ttee discussed the promotion of Jeffrey Malkan from
5 . Following the discussion, the Committee voted by sec:t;et ballot at that meeting to
\
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page17 of 112
A149
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLESP. EWING in their
individual capacities,
Defel\"ants.
SUSAN MANGOLD, pursuant to 28 U.S.C 1746 and under penalty of peijury, declares
and states:
1. .On Aprtl.2a, 2006,, l .):~ a ten;u,r~1 prof~ssot; of law .a t the University .at Buffalo .Law
and Renewal.
3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion and
Ren~wal at the La.w School. As Vice Dean for Academic Affairs, I chaired the meeting in the
Dean's absence.
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from Clinical
5. Following the discussion, the Committee voted by secret ballot at that meeting to
6. Following the April28~ 2006 meetin~ in which the Committee voted to recommend that
Jeffrey Malkan be promoted to Clinical Professor, Professor James Gardner approached me and
questioned the way in which abstentions should be counted with regard to the vote to renew and
promote Professor Malkan. After some discussion, Professor Gardner accepted that the vote to
2
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page19 of 112
A151
v.
12-CV-0236(A)
MAKAU W. MUTUA a.n d
CHARLES P. EWING in their
individual capacities,
Defendants.
ISABEL MARCUS, pursuant to 28 U.S.C 1746 and under penalty of petjury, declares
and states:
t. On April 28, 2006, I was a tenured professor of law at the University at Buffalo Law
and Renewal.
3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion and
4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from Clinical
5. Following the discussion, the Committee voted by secret ballot at that meeting to
ISABEL MARCUS
2
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page21 of 112
A153
,.
,.. ~ . Case 1:12-cv-00236-RJA-HKS Document 59-4 'Filed 08/13/14 Page 51 of 99
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capacities,
Defendants.
LYNN MATHER, pursuant to 28 U.S.C 1746 and under penalty of perjur:y, declares
and states:
l. On April 28, 200~, I was _a tenured. professor of law _at the U!!i~ersity at Buffalo Law
. . -
and RenewaL
3. On April 28, 2006, 1 was unable to attend a meeting of the Committee on Clinical
~ ' -- ' ''Prot1l.oti6:r{ ,a'hd:Itehewa1 at'-~e L~ selioofiegaH:ll:ilg the {iiomo'tftirl''O"! ie!f fV1aTh:an fciCliniciiC -,~-- "
Fu11 Professor because that day was the last session of my seminar, Law 725, "Law & Society:
Interdisciplinary Research on Law and Legal Institutions" in which students were presenting
their draft research papers to the class for comment and feedback.
4. As soon as my class was over (in 406 O',Brian),,I stopped at my offic~ ~d then went up the
back stairs to see if the faculty meeting was still in progress on the 5th floor. Jn the stairwell I ran
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page22 of 112
A154
into my colleague Professor Jim Gardner as he was coming down the stairs at the conclusion of
the meeting. I clearly recall my conversation with Jim about the meeting.
5. Jim had been against the promotion of Malkan and had circulated a detailed and forceful
letter of opposition just a day or two before the meeting. Jim's letter had surprised me since I
thought that everyone was in favor of Jeff. In the stairwell when I asked Jim what had happened
at the meeting. he was upset. He told me that the Committee had voted to promote Jeff. He
reported that he ~nd ~rofessor Lucinda Finley thought this was a mistake b\lt they were outvoted.
y,' :. - ; - - :,;-- .; f'. --:.__ .;J .,.: _ -: ' . ...~ .... -- ' ~; - ~1<'1 , .' -_
The majority of the faculty supported Jeff Malkan and voted for his promotion at the meeting.
L MATHER
Dated: Newbury, MA
July 28, 2014
-' . . . . :. ..
~
2
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page23 of 112
A155
> Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 53 of 99
v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLESP. EWING in their
individual capacities,
Defendants.
1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo
and Renewal.
4. At that meeting, the ComnJtt~e discussed the promotion of Jeffrey Ma1kan fro~
Clinical Associate Professor to Clinical Professor.
5. Following the discussion, the Committee voted by secret ballot at that meeting to
.
- ~ '~. ;, .. . . .
~ -\ - ':."' ._.
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page25 of 112
A157
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A160
2 clinic~l appQin~ment~
8 particular item.
12 A Yes.
15 voted on it?
16 A That' s correct.
1? Q And it had to be voted on by the committee?
18 A It had to be voted on by t.he conl.mi t t.e-e.
J M 00285!
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page29 of 112
A161
% .
Unhrerslty at lhdfala Law Scllool
Tlle~tate U11iversiiy~jN~vYork
Offlee of the Dfln
Oct9ber 19,2006
Jeffiey Malkan
lOOL Auwmn Creek Lane
East Amherst, NY 14051
Dear Jeff:
This is a 5-year contract, i~tended to comply }Yith the a-elevant ABA accreditation
standards. Becat.\Se currentSUNY policies only provide for 3-year contraCt terms, the
Dean will provide a 2:-year administrative extension at the end of every 3-year period.
The Dean for the purpose of maintaining compliance wi~ the mandate of the Jaw .
sehool's accrediting agency wil' do all such 2-year extensions routinely. If SUNY aUows
the law school to grant 5-year contracts in order to comply more dir~y wjtb the ABA,
the automatic 2-year extensions will be discontinued and all' contract'renewals will be fot
5-yems. The 5-year contnict renewals will alternate between the Dean.and the Faculty's
Ptomotion8i. Tenure Committee, unless the Facuity. in the course of updating its
persomtel proce~ttres for clinical pl'ofessors, decides to cede its role to tbe Dean, in which
case the Dean will d() all 5-year renewals.
) -. '
To accept this appointment, please sign a copy ofthis letter and return it to me as
soon as' possible. Please give me 11 call if you have any questions, or would like to
discuss anything about this o(fer.
'vi{/~tlourff .
R4nN>rsen C!t\...--
Dean &1\d Professor ofLaw
J. Hi'ILK~l - BY M~. SU:JGH'l' -- 1.:!/U/2:013 11. l'Q,!,KI'.U -- 1!'1 !.ffi. S.LtJ~H'T - - 1:!/JJ/2:01.3 ~8
over t.M cour~te ot dnce 1~'93 was I}Oin9 to '* o. ""d tb.Je ot.h1:1r it.u w:. cont:dbutlon t.o the. -
('Onl'idcred. A .a.dmlni~trat1on 1Jt!-t1t.l.ca.
10 A. o~oy. Thrc.u9hQUt t:h~ law school, tht'\y ~o a uniform 10 Q. ou.dng the 8ix years prlor to tl'l~ P .and t meet.inq, what
11 teaelu.n; avaHaati.on. tt. 1 cJtllud ~- 1<1\1'E aMet., 1l C'OIMlt Lt.'!!e& had yo\l .sal. on'l
S-t~-A-i'-E. I d?n't know ~hOlt i t $tallda tcr, but lt.'t I. A. Up unt1.l 200'7, tho:~ la-J school "fasn't CCAI!plY.lnq wlt;h tho
1> buic:ally Lwt very brod qve~Uona and the studen~ at. H A&A 3tond.Anb on faculty 9ovornancc And "' 1 vatn't
u the end ot ch :u mutu tilt lt- out .end it von iflto 1< ani9ned to .. ny c01D.1!11tu.n when 1 wn't Allowed to
~~ your flle. 'l'hy'r anon,.oua rrom l.h tud&nu ' polnt 15 11Lt.e:nd. or vot:c: e'L faculty et.ings. And 'lthf!ln tbey ~ere
16 ot view. Th!lro vere alae- sc.c st.atl~t.ical bubble 1C pte~rin.q for t tv ABA site vbit .1n 200'7 revisin; the
\7 heeta tht. roc while w, wre u:.lng, hY1fl1 ~tud'ent 17 byhws, they reaU::.~d tll.at t.he)' wexe nol Jn cotq>lu:nc
18 uto. tcachou on n sc.alo ot 1 to 5. 1\nd f!.n.l!ly, sue 1B and .Jc. .3't that point they IUZ:ted befnq UGLgnec;l to
19 H-ln;old !:eont out as tl1a dminhtrAt.ion t.radl tic:.n"'! l.y 19 COfflla1Lt:.e as. Prior to that. Whll!lneve~ le;l wdt.lnlil Cllll!l
do. lox 1 t.M nk tor all teoun cn01~Lea, encb out. ~0 up 1" so=e c:aa.ll.t~e.. LhY would just ln~t.h.c s:;e on ""
ltt.tou t.o O'Mt'J dngh: nvdent that you ve. had ovot of ad Me b.uu to sit. in nd vtve lilY teodblc-Jo:. wf'\idt t did
t ho pila:t sl.S yo .n i ! th\I:Y cen t1nd thdr addresa to 22 At. aet: lce&t:ion.
just. 1nvit:~ t.hC'.m t.o eo~Dent. And sue H.lngc.ld nlso wo.nt. 23 KP.. SLElGHT: Go ott tho record tor .a eocond.
dO?l' to dOOt And ta!.ht.t to the !n~.t.rUCt.oT to s (Brief Pf'U in proeeedi ng.)
'5
J. MAUtAU - B~' WP.. SJ.&JGHT -- l:/le/2011 J. 'K\LKJ,U -- B'/ MR. $LtlGHT -- 1:!/U/2011
aa !-:J. SL&!Gli'T: (J. So t!eUng b hld on Ap.r11 28, 2006~ ~ctl're made
Q. So i t Wito$11' t. u:ntJ 1 2007 tht -- your l.lftltl~nony is th"t wra at .a -- .an~ 'I' coro.mh.tee?
it w~um't Wltil 21>07 t.hillt you were pef'!Ditted to :Jerv
c:~n ec..Uttot:a? 0. You're:! aade '"'aH thr.1:. tt'l ")Oinq tc. t.c hUd?
J\. H9nt. A.l .,
o. 1 n '3007, what oH\11 tha !t r~\. t:OtMI::lttet you .e~rved on? o. ~era yt)u in t hu: buildif!9 t.l'.oCiot day?'
1;.. 1 t.h1nk. they pUt. tiC ri9ht on the., whAt t C"-llod t.ho A. Yes.
.MPPC which i on*' of the ond or tvo 110at iiiiiPO.r tnt o. And what: 's t.he t.ir-st that yOou heard alt.en.oa:rds, Attr
CO!Nni tt.~~ in the Jaw !lchc.ol. tl' ttl~ Aoadttic Pol ky the COIT.,.,it-ctH Mt!Urtg ~t to "'h~c haPP'Itned7
10 and Planninv Coamittee wh1eh in ot.her lt\'~~' 1ehocl11 is 10 A. My undoratandin; vns t.hn thoy wero .... t.l'ley ht'ld o
u called t.h~ C\JrrSculw. C.O.C.it.tee . 1 r:htn~ l W&.$ alao u quorwn so they wue qoin9 t-.o hold my P end It' Metlnq
1- a .. tqce6 t-C' Ui~ Ut.r.ny c.o..ittce tht year. 12 ad ottf!r tht, thoy wez:o q:oinq to ;o c.n nd coneinue
13 Q. Did you st.ay on tho$e two .... r.eep t.holt: t<JO ecrat~ittee in just ~ qenerAl faculty aoet.inq Oft another tor;.pic, so
14 auJg1\tTtent for: -.he duullon or your temn:t: ;~t UB1 l W81Ul ' t aoiu9 tu h~ar .1uythin; frou' Su Ka.ngold unt.il
H A. t -.rpt. the libury e..,:nD.itt :!!oigrur.ent .as fu aa l c.&n mayb-.l 2 or :3 in t..he att.eot:noon. Bl.lt Gt 12:31, Shubhll
10 rc:.ll. I r.tltnoed tro. th AAPPC. J at~@d r:ha Den, ~Oih who's lrlend. of aine, we W'Orkil<l on copyri9ht.
l7 perlfd:ss1on t.o todq:n !'rf)ll t:hilt ln Mrch, I tbink f.ti'U"Ch 17 lnr issu to;ether, ha cello by Y office be!:au.e he
lS 30, 2003 ~lr.lt l seid that it h<e wanud ftl$ to c cntinu\t lB wun t st.ay1nq to.r Ul6 uc:.ond meetinv And t'old 1111)
19 eorving on h., 1. 'WO\JJd. But t ga\.-e hint t.h~ option ot 19 congratulMLt.ons, you \lttue e}fproved to be proooted and
tnvitin-o ;,e tc- C:.?ntinue or not.. :o let' F Clt.lt: t? tli.nner and ct!lebrt.
~.o. fJhat- did he tall yc:-u? ~o~hinh l a the dtty ut th~ Pra<:\:h:e ~nd 'Te nure ComraHt.ee:
A. Y~toQ Jc"ncw 1 I wa~ curiou.s IJO I quasU-c-ned him prott.y i~ tflat rl.qht'
closely and 1 asked h1111 folhat. t.he vote wa'9 dnd he a.sid A . Ye..a.h, yesi'l.
il was; .9 lO 1 wl.th t hrt!e abst.e.nt:iOll!!! .a.nd i.t. W<n a Q . Oi:ay.
~'!!cret: ballot, but the plople wt\o atistlline-cJ. just Kfl . ARB1T: Art:: you .s5kirtg is tht What lt SAl.'$ or
!d~ rtt.ltlt!d r.h.,mse.lveg. '!he.:; !!Otid we tion1L '.4i\\nl t.~ VOtt! i s t..hbt whet: ha remfl'Mher,,. doing'/
em thi,. hc4HJ3e 'II(: don ' t really knCf"" very Itlllr:h .about MR. SLEIGHT: I' m aslang is A.pr..i-1 .::8, 1000 ~ht:- "ay
legal writing. Wt. ~ust wanted to be. h@re tor the- ~Jo! the 'pr.-c::titce .aod T!:!nure commit. eeu meetih(jl.
qu~u~ but. ""~ Oldl'! 1 t. really ~Nant to vote~ So r '<new- ~R. ARBE:l'l ': O'k~y. t didt! ' t know i f you wtirti
10 tho noOJr,c:s r,f thc:se tb.ree pac.ple . A3 f(lr 'the res't. of 10 tall:ing alx-out::.. thb e - mail.
II it:., t hal w~s it. 1 mean, l.ike l 8aid, a !lecre.t- ballnt: 11
1~ .so there wa.ts ncot ~t;tch to .str.y iJ'Qout that. 8\' tif\. SLEIGHT:
13 {Prt:opC\Sed &Khibit t.tu.rlber 9 ta;)rkod f<?r 13 o. And that's what tnis doc..\\m.\lnt ~~Y3' jt'tJ- datcdl
H irJ~ntir!t:.!ltion.) H COtlt;Ct:7
I' I~ t. .. Yes.
17 (..!, T ' rv going to shw YO\l ';fh.tt!J b e~n mark~d for purpo~H!r!i 17 A. l 'va aeen t his for t1 Voe:ty t ong tirnfl. I iii!:SSJJI!Ie 1 bot. 1
13 .c:f. your depc:;s!.~ion a"t 0C!(!nclant.'5 Exhibit. ~L And I l -8 don' t - ! don ' t recall c:<pren,ly but. I'm not <;~oing' t.o
ap~1coqiu !o't" t.ho&- way that. this ppears, but. these 19 question that it.. 1 $ aut..ne-nt'le.
zo a.te -- t.hie: 1:.; onl! of t.he d vc::umenL!I that c.une out_ of Q. You 'te .fa.I'QiliaT "ti.th Jt?
our ~ef'rch of e"'r:nalls a.t UB ;snd tt.ia 1~ th~ only o,~~y 21 A.. Yeah, Vaguely, yca.h.
they come!' out. They r~ llcmcwhat ha rrJ co r111ad, bUt they c. And in the body of i t you st\y, "Can 'lie tdk t~is
have the ba~ic infantatic.n in it. And I'll rcprQBt;nt aft.crnoc.n7 l )leatd that.. it went.. v:ory badly. I'fl!
tc y~u t:h.tt it appeus to file that this. h C~~n e mail trri~ly \lpsct" :
t ..n:m you tc susan l'!lahc;~old d,.ted niday, 28, i'prll 2000, 'l\ . Ye$.
Q. Art' yc.u re!errinq t o tOe ~~~et1n~:~, the P and T c011m1ittee A. 'ieflb, it was -- his !ather was .std: and ">rdinar..ily he
n\e~tinQ1 ~'Ouldn 't. havte~ let a IA"I!tt1THJ likto this 90 fot 'W.!!.rd
It 'tes . w). t'hout. tn.m be~ nq t.hetre but.. b~c~tU~e thtl'Y were jU!lt
Q. ~hQt had you heard wen-c badly? concerned o1bc:.ut qet.tinq a qu?rum to !inbh t.h..h ott, he
;,, "'1!11, after shubha c6me and told me thar. I w~s ll!!t SU@ -~ q.lv~ h.ar instr-uctions on l1o'io1' to do i~.
prmn.ot.ed1 r WMJ; 'Wtt.iti nq t or ~ue Manqold t.o come up and Q. Aod at 1.etls-t: o:s; the way Cht!l ~ and T clllldtt..ee \ofli.S
t..tl-11 11'"-' wr.~t, t..hc result \fil9 1 and slle didn ' t cotnc up f or.. oenfigur~d &..t thr: tim~. the Oe..an is t..he t:hti.t ot t:.h(!
a h"hile and it was getting to be lh:to 3;30# soT W6DC C:O!Illlli tt..ee e~ oftlcio?
down to her: o.Ui..cte; and l heard hP.r on the phone with A. ~ea.
10 D~an Oh6n talking on thr- phone. And !'!IO I tell liktl 10 o. hnd .,e> sue Mangold -acted in the Oe!an ' :J s t.,ad in thi$
11 undet.. tht! e:i..:rcull!lstances 1 could ll!o:"e l..i!'Jten to vhat her 11 partiC\lltu lofteetino?
$ide Clf tl"u!l cc.nvotaation was., 111nd At;- it.. curnod out., s he A. 'r~as.
13 t.fa.s td..ling him that ttrotessot: Jim Go\Y.dn~r was t:ryinq 1l Q. ~then you say I heaxd that h . we ht v~ry b1Jdly 1 w,ere yo u
14 to hlQek tt~Y appointmcsnt becao::Je alter t.hC!' meeti.nq wu ]4 Jtlto.o ret<tr:r:inCJ to t.h~ tact. that. r.llere had bf!en
over and everybody lo!t. the room., he sald th~t she H op-poa-ition to your appointmt!Ut.-'1'
16 ~&~~iaeount!!d the vot.-s. and that !1 to 1 with tr1re..e 16 A. N'o, 1 was -- wha t I t'leard frc;.om 3hubha Ut.er on was thet
17 abstertt..ions i:J -just a plu:tal l ty .and no.t " majority 1ncl 17 they sort of fjJiot t.hO!llsel ves ot..f t.rnek Llnd started -- I
16 .to t:hertfor. h6 "Wa!'!l asklnQ f"r .., recount. 18 think it "''as pri.IJiarily because of Prof"eJ!-sor ~raner .
(Ptopok~ txhlbit. 1:\mber 10 ~r~Q for- t'e hed the ea:ae z~cu!.t.ary. I sav tiL.- ..,flr-y aln9l day
1o.nt: fJ.eat-iGn.) pracuc:ally, ko e hl'ays petted .e em t.hc bAel: and ..,,..,
friendly. H~ n~;.""H: said c.nythinq: t.o at that ~let u~
Q. I' 90in9 1:0 s.ttelf you \~hat'~ be.~:n I!Wirk<ed !or purposes suppoz:t.ers.
or '/OJr d6po:.ltion lll! O.!r.wt.iant'.&- .K..I');ibit to, a~}: it Q. Did YO\I .aubsd~ently leArn hQ'f the vote "nt?
YttU cAn t6k6 t. lMk .at that, Wll 1.~11! if you rocf)9ni :o A. No.
H" Q, In S"'ODe wa} --
1~ (1, '-"d thu: h 1.1.n a.-ll'lail tro"t you tc;. Sarah F,.herty? 1) Gtltdno~ vuted ag~inst ~?
A. . ioo~~. h~~: ' ., clinical i nst.tu.:tor e;r wa:! a clinical Jo,. \'e~.
H lnst.ru~tor. H Q, Hhy did you think: Diane Avery would ba voti.no aqalnat.
22 ~. Can you tll . . why \'O'U put t\1:'1\ tn tlle yes C'OlWI.O? %2 Q. so f't"ad, you luq>Gd F't&d in vi ch DJne tor tMt
23 A. Bocuae he ~.s alway C"O:IJ)lt"toly :su.pportivo of IMI. He 2~ reuQn?
24 n~er in 11 t.l"'l! \'"e.ars I otOrkl!d theu ~~t: zafd 24 1\. They uuall y vot.e the saat" wa:J, rt~)be t:h"'Y don't
nY'oM09 neo-.Uve to ae. t ttiCH.U;ht. he ~"' ._y tri.tmd. 1v..ya, I dont J:no\1.
v. I '111 not fantili~H Wl.th Bert WestbrC'ook' 1 what. kind of MR . OPPtttH&lHEift.: t.:ounscl, t woUld ']U&t say unctur
inau:uct?r wu t.e? th Fed~ral Rules --
A. Pro/&JHior oC Law. MR.. ARBei'l': w~n. e:v~n likely tc. ce11d --
o. Is he Jt.J ll t.hore7 HR. OPPEW::IJH&R: Let me jutt t1-nish my ccmm.ent.
A. 'ttl. Undu the f't!deral Rules, 1 think ell objection. are
(.1, flilhy did you thhal( he ~uld vc.t.e -against you? zeae:ved untLl the ti11:1e of trial other t.han tho !O'tM or
A. tt'.S hard to ay. I t.bouqht t.nat. he didn't ll.J:e me. t.ha qucu1Ut"n C..%" t? IUt!iiC'I"t ~ -pl"ivileqe. 3t'l I vould a!lk
"" 1Uit nevr aaid haUp t.o ma. I don't. Y.now. you to ke~p your ~nta 1 i.Mi t.ed to those.
Q. How ,.bouL Jattf!L L1ndgren1 Mk. AP.aE.lT : Oh.y. aut I'!R nclim) [Ol" th_. rtiC:CL"d
10 A. Sho's 111 -- I 11ean. ahe'" .a really nic:e pa.ro-n .and sho 10 jun. if ycou go on and unnecessarily aDk lr.relevant
11 aozt of t aught. l il:m .!'pttcial vrllinq eour~s, U1tt~ sh'd 11 alu.U tbat i t 1 ha"Je to cut it ot'f at a~ point, Lhcn
lZ ot.ort of cover tho ye4)r:J so.tt of 3t.c-pped to-aching 1~ I'll re.sll!tve t.he r-i;ht. to do that. becaun 1 thin,: it.
ll doctrinal co\U"au: and ~uld s?rt ot t.ut.or lndividu.l 13 wiU be hnas.sing and unnece.ss..uy t ~ polnt. so
14 atudenu, enct J ju.sl twu:J a tee..l ing t.hat 21he ,U.qht fe6l ,. that' why I note Y object.ion urly l.J\Kt.ew or J!.Ut1.
n little bit l:.hroat-ened by -.e b&eau=~ w, ch..cln't relly lS ittin9 h~:"tc and ft")t: say!~ anydun-o, yw undentant.l
ll tallo: vny -.uch. Like 'IIi! ware: always t.al,....lng aboo.~ 16 'tltr&t I' &aying? '!hat':~ why l say saaeth.inQ .. _
17 let:.'s 9et tooothcr and. do this or tha~ but ve never 11 MR. SLEIGHT: I undcu:stanct o,th.at. yl)u're .uyiNJ bul I
18 ceUy did. Shec didn't reUly w.ant. to. JU!.t ay a oact.o Mr. Oppenheill'er's co11unts ~oth1ch re under tl\11
n ft!el \ng t.hat .it. was pos:oibl~, t dol'l't knov. n V.d.ral Rules ycur objection~ .are liit.od to (otlll. All
Q, !low Ab~ut - :o objec~icn:s that Bre as t? rell!vance --
21 HR. MB.El'Tt l ' m going to ob;l!.ct to thia 1 tne ot 21 HR. ARSl'r: otlject1oq to ha:--4nl!lent. Oky,
22 quonJonta;. I don't think this has any re1ev.,nce to 2: tlat ~lnq and annoying thtt wi.to01'S 1 thn'n ll'f
trli$ c.ue t "ll why he t.houyht :.omttbody would vote- to.t. 23 "'bj'lllction.
htm 8lLher ~otey. I don ' t see any l:elevancC~. eliped.~lly 24 f~R. OPilt~HEIMER: I belie.ve under the pnc1.lce In
if Lhtt.A:~ l)fiOple htt\tft no :rfllationship to t.hb case. the W e-~tarn Dhtrtt::t thal if ..,1:1 OC!IL to 11 pQlnl. l;hl\\.
V~U'te inclined lQ t.ry And cut. ot que.sUonina, at tht not happy ..,sth )'"011 t..he next. r on, 1 c.ant. > "'l.
p~int. yN would be QbUQat~f;i co conq~Q" tho H11~utz::ec.o Lhb t.I.e, I 7W.t: - Re~cca was very friendly vtdt one:
.J\Kt9 ~u d1nc:-unv witness not to r.swc o:.>t Uot! in:n.ructOr$ and l t.hlnlf she. vu 9ttltMJ tosip
'IU!'IstloTt on relvanee orounds or t.his ha.ra:astt.nt: .1S"1ue, about. ce behi.rtd Y bad: and that's Why t thoughl Ult
t thtnt roquJx:t:s th&t t.h coo..J.r~ weigh in. et.e vas incl.iud to $-6}' no. But I thin~>: I a w~:onq now.
MP. APBnT: Of cG>uu~. 9nd t.ltat .!1. totby ._,. a cou:n;.osv l l:lttftP - -
I' giving a warning. tn ot.he.r words, I dc..n't want. it o. Okay. tlo"' ab?ut. Ceo~ F.aMa.r?
to oet to p::.int lit~ere, o.koy. it'~ .a.lre."y toe. ht. A. t don t rem.eaocr wby I t.hoU9ht. h vas a no vot.
und you re ctt~M . SoC:' lr 'fou 're qoing t.O 211~nd anot.her Jo:no"' that h~ btU)ttUt.obd [totft 1'\Y reliW'nll bl!cau. . he
10 10, 1~ minute-" asking qu~tiOil!l' on thi~, yeAh. t ' ra 10 ~e." the. inteda d1rmetcr t.he tCtllowin; yeor, 'but l
11 voilltJ to aay Y Obj~etion. I ' m not tnat.ructino hlm not. 11 dtm't. know. I ' tn .fiC~11y kind or aurpdaed Lhat r put.
1: t<i:t "'n,fw~r. ~Ct"CC.ed. Thet~ 1 !1 it . h l.m thci:Co
t1P.. SLI!:.lGHT: All tiqht.. Woll, I will :repre:~ent. to 1) Q. And then the ~~t~n t!on.s , 'oljh.ot. in.!CtriiDt ion did you baoc
1< you l.ht. 1 intend, to ;o thr~uqh this l a t and as~ the H that -- the ap-cl,l.lat.ion on \o.'h o abstained on?
a.Q.u quuatiou, ll-0 1t _yi)U' t l! goj n([ to do sorol(!t.ht.nq 15 1\. Shubha told lflt!' that those thr.ee people .said we u. nuL
1 th"t1 ..._ 1> votin9.
~Ut. APBEIT: My ~ject.ion is on recur<l, t.hat 1 so you had ~clu1111 inro~:raation ;sbout thc-"et r.htets
17
18 tnlnk thia 1 UllMcou:ary and H r elcvanr. to
t.tHt
~1)\:t
"
10
Q.
pcoplol'
19 e 19 A. lcs.
20 MR. SLE1Gii1': 7hat.':t all l hv en that,
DY HP.. SLIGMT:
~. Rerieea French, why d.icl you think ~h.:t vould vote at Uft., SLt.lGHT:
Qoint you? 23 Q, SO \lh.en .la the .that u.ae yc;.u talked tc; -- or who t.ol.d
A. Ttl.. . . r -- r don't );no:ov lt t..hl!. word DI!.CCUtUal -- 2 you tox:.dly .tt.o..-. thf! adll.ln.i3c:r"t:lon U\at thn tuld
bunch ot people. Lit:. theyce hppy wit:h yOtJ c.ntt dAy, t.en 11 vote t the. P lilnd T ~ttee and th.tJt they
votod to prc;.moh you t.o Fu U cli.n1ul Pt'o!6ssor? bttoinninq of tho nt!Kt. yoar. t.he.re \fD:J " !iut ruc:ul ty
" 1 ttrinl-: it "'"5- lionday, t t h info; l QOt a 11 E:-R13U from Sue oc the 111aetin~;~ of' tn-e y.-.u was l thinlo: called the
M&nejc.ld apologt:::.inv tot U 1t= tJe lay, and {1.:.'~ probably In coUoquiWD or t.he convocation . And tUb, we g~therttd
thotc onu:~wh~ra b~coiluae I thinJ: I p r ob.al?lY -- I 1n tha. l'ft(oCt. ecurtrootrt t.hu.t dAy b'!CDU5a th hculty
prov1dod it. But. 1 wu told on t.Nt dy jU5t don't lQunQa waa und~x conrtruetion and h id ,..,lc:oro.e to
wc.rry bout it, Jl!ltf. This b jw;t. ~Oiollr-t.hin~ be<:aW'e ~ve rybody, t.hn he taade acl<no"'led!JJI!;enU ot U'lce poorJhl
IU.lo 1~ C"Ut of t()wn, tJut he has to t.ake car-e o ! who havt.t b C'on prot:~ot.ed thh. past year. Ccn;r.at.u.lot.ion'
G.\tdnet, but; I ob.Ub, vou \or-ere ~prove-d. 11:. WoiiS to, :~ou know, A, 8, c, the. ot.htlr pecple. who wte.
ba"ieally 111 the n1ture o! a dirly trict:-, .,.hat. Gar:dnar f!.Zom.ct.l!ld and congrAt.ulAt.lons t.o Jart M-ollk.11n Qn hh
1S oot.lno 1. adjc.urma:d. It's jus~; - Q. t QOl ng t.o shov yo)U what s bC!.e-n marL.-ed u DC'hndnt: a
16 Q. Old Pl:ofen:or G.\rd~r pu.rau~ tt~s: objt!Ctlon put t.t\11 ~..htbit 11. Aqa.ln, it a an -. .11 in tnu toraet that
l7 i_.d1atr obttonuth of the =eetinq1 wive- bec.n dea.li~ vith, but. it. appears to to b4!' an
u 11. NUs told ("t(t that he met with Gardner to talk atY.Jut -..au tz-00\ you t.c. Nit. Olsen and sue K.angold; b. tht
19 (L d~ht?
23 Q. WAt thflru ever toral nno;ounc.ement "'"'d~ to the 21 Q, .Allout t.h;ree or- tour days ~ft.e.r t:i'le P nd t c:otlfti ttee?
~4 t:.e.c:ult.y z:e;ar:tltnsr your p.coov;.t1on7 A. li.lght..
f\, Actually yft!'J;. [ ltlnan, not l'I L th~ Hma bUL at the Q. And .in that tl-maJl, yoQ ;;re "talkio~ about 11 htter- C"r.om
11, M!\LI\1''\ll - ftjl t-tP,. SLElGHT - - l::!/l~/2011 73 J. MA.t.KMf -- BY MP.. SLt.:Jr,;H'f - - 1;!/18/:i!Ot J 74
~Jim G&~Tdner? ~nd J wanLt!d 1.0 tt.1ll Lhum thot tt wasn ' t tr\Ju . 1 Cl1tHHI;
A. le~. 1 ~o.o1,1ld meet: ~nyb?l;ly wh-::;. wanted to tal l: to me anvtlmo
Q . Al\d what l~r:ter h that tht'lt yol,lte tal.kl.n'1 about/ abou1: the prQc;Jr-~m. Jim G11rdn~r :r
n1n.. c'lppro,;;u:hed me- SQ
1\ . After tii'J er0111o1:ion ;,~d fttnure COI!Ill\it:'tet: Meeting and tha1. "'M' ve.r".l up.settlnQ to 111e.
S~\ubha Ghosh and, J W~f$ lfd.king out to t.he- t;>.!t:kim;z lot Q. 'lou.I unde:n tandi nq W65 that r.his memo had b~er'l
to qo out. t.o dumer, h& t1and.s t.'\e t.hit> JMUIO and he saya~ di.:!:trt but.d to t.h6 t'8culty pdoJ; to t.hltl r ~nd '1'
1'7hc Ii\C6ting' 11 ~v-er . I thin~ you shc.U!d ~60 thl:.." committet- mePting?
Jlu:~ Gft-rdner hod d.xcul~ted to the Facul t.y but that hiS Q. Pt"iot to th~r vottt?
u c<:rnfi(fential dossie-r ~o~hich was this 11ort. of se~~:thing tl ((. Do you have 811 undex.:!-tand.in9 as- to ho~ lon9 bef'o.n th~
and viel~\15 m&!W';), ~rscnal .attack on lfl6. And l wo..s 1~ p and T ocll>ltlittr.>e mttettnq tbis men~o had be:e-n
::cl3111 U)'s-er, th-at I r_,lt it was very uneivil and 13 dis.tTibu~ed?
l< unf.ai.r to me, but ti1e thinq that really upset me WA<S' 14 A. I thinr.. it: was eat:Jy ;,p.dl bt~c.l'IUS\! that was- 'fl'ht-n ~)'
bnd c:-ntnet me 4nd wo:u-1: with !!'It! and tttllt I'tJ always J.;
mOI!til"t<} ltf.'Clil
19 stand i,t. And .so like ray com.pla!nL to Hil.s and SUe. 1~ A. 'ia-.s.
20 wa!'Jn 1 t that. he can say whatevq,r- he want.$ about.. 11e. l.n Q, Oicl she tnention j t to yc-u'?
11 the ct'ntOKt. of this process nlthongh ~ ciOrt' t thin!; A. Shfl taadc :rt.omc cryptic co!QII\Cnt. to me, 1!! thor~ anyr.h.ing
n it: 1 .\: -- I think a cflru1n hvel ot e-ivUit.Y shollld 22 e bEt you '.(ant to add to your- -do.s5ier abou~ an~ d;at.ails
n ~Jlwoys be maintained. But "1 don't have A chnnce to- 23 about. how y<ou m.,naq"' t.he proq.r.o.m and I co\lldn t. thin~
resp..,nd :.o th1B kind of thing, so e-verybody ' s on r.ha:ir cor anythlnq. 1 didn ' t ~.n.ow loo'hat she. was rc-&l.J.y ~- 1
~
hoflor t.c tel.], the t..tut)"\ on r.ht!I!U~ confidential. doc!umtsnt.a 2~ a~~um~O sh$ wa ,_l!;[t!rt.lng to Gar<lner-'e~ crit.Jci:.rns or
let. e know how 'JQU 01nd ~ils decide! to Ptoc:e(td . 1' J;.nd
Q. And at luee ln t.hat e.-!11_,.1!, r..ho~~.t. y'!'U &ppea.r -- ~ou my queJI!t!on h, \olhat ate yo\l ta.lJ,;"inq about"?
wonted to re~pon<t t.o t.hts n~oe~aet1 Mi\. A.IW&tT: ~ou 'i:: @. Q(lf.ng t.o Lake t.he t.ime to Zt!Ad
A. I t.hc.ught. I - I d1dn' t l:Cillly -- y(.U know, :.;tart
Qgdn. Nils tea.11y 1.s the kind ")( Dean who r M.lly
di.dn 1 L 1 H:~ any ~ind CJ[ conflict on the h<:ulty and !iO 8'i tlR. SL&1GHT:
like h~ and Sue w~re n'\Ordtiecl by \o."hAt: Jim ha.d .,.rit.~en o. Yeah.
about.. m.e. but they told Plte that you j\lst lt'l.r!! and wove 11.. I se-e that the oriqlnal rtte!isage- --
on j~ thiu llii.nd or thing . .Like paoplo get hentt'ld and MR. AKDE.I'rt 'to1J can jus.t. -- yc.ou Cbn t:6:tld it to
10 they write thinQ3 t-hat you m.u.y not lU:~ .and jU.!t. put. it 10 yourse.l!.
n behind you. ~ou ~on aod th~re ' .s no point in intlamlug ll :me- Wt'ft:Ess: 1 TRet~n, it ' ~ <~ contJnua1 ion of r.M~.
14 Pt. 1 may hr\Vt! w~:ttl~n it. and ylvtu\ it -- thi.x e -ntail seanua )0 Q. Ye~h, it '~ a .stdng.
H to uy t.h;at "1 <lid prepftTtl a let"ter, but 1 ju.at; 9-<J~Ve it 15 A. l clcn'e remember what- I mea.nt by that.
t>:> the.ut and thAt's wttue it ended. \l.'e- jutrt. s at down 1. t;:~. Do you nutott!ber what you munt by " h.t 111 know h<>w yolJ
17 lH'oUnd a c~nterence toblc and they both Cjli.We m~ t..heir 17 nnd Nil-5 ~ec;ide to l,n:-oce:o<.l'' ?
u best advice about how you deal witlJ "thi.:r Und ot thin(t . lS A. I think that wh~tber they werE going to tell Via
19 Th&y ' d ~e.en a lot.. of it. over: the Yt!1lrs ancl .,_ 19 ~r.rdner:: that hi~ behav!o:r was 1napproprlltte 1 t.hat' s
~0 Q. OY..3.y, l'tQ going to s how you ..,hat'~ bet'.n marki'Jd a,: ~0 wh.ll.t. t ....a:~ hcpin; fo-r but i t was just my whht'ul
21 Defendant's Exhibit. 11, an<-ther e-m.ail. Thh ontt is 21 thinkitl9 th4t b'I!Cilu.n . tfila ho~ -- would not want a
datctl May 2, :OO(i. /\lid i t appeiiSr.l:l tc llttl' to be an 22 conf-rontation U kti r..hat.. J: 1\KlbU- sue l:.nt~~ how upset t
23 e-mail rrom you t o. sue M.!llng..,ld r~&~ponding to something 23 was t.o r4!1ad som~thinq that w~s- di.shonest. c-otning t~oltl a
she haft w.ritten. .\nd i n your z-espon}Je, yo\1 tJay "t 'l l la~ prof~u!lso~.
t.ly not. t.o thin!( abQIJt t-his !or ttJe n~Y,t f'c;ll# <lay~. Qot Q, oi;.B~j', llmt ju.st foe tht!! rt!c<ud , I 'lf'l sorry, 1 thinM l.
rtl3rP:e-d the sem.~ - no, 1 di.dn ' t, nf'lv~r nund. Or did l\, 1 ~trSUftle,
C,. And chc- sa:ccnd part you 5ay "I as-king myself
~' t.he~r1 ~aap
MR.. ARS~ll'! 1 think ~ . 9 is t.ht!l ~e.cond .-...M in this hoW l!lll th.1s camo a.bcut. . 11 hll of what.?
p.Uf!. A. Hmr ot penJon U k~ Ji..tn Gar.dner: D)Uld be behuvt.ng in .such
MR. SLtiGH'l : Did 1 ~t~a.r\o: th~ same C.M twit:'!!? 12 and ..!ltl unprct'e.s.ional way ~nd ClllJ:t-. so tnUoh trolJble. I'll!
13 iutt t:he !Ult"le and r don ' t. ~~ave an.:~t:.hJ "9 .:lfl 13. .!ltJ U :)~st: so appalled by \olh&t. h41 cU~.
Q. Bu t l rlo Want: to f'how ycu J<J r 41nrl ~~k: if you <:-C~,tlc.J t;_,ke A. 'le~ .
10 a lc.;~ k .at that, 10 Q, Oo you kn<."W ?! .any ot.ho:r hcol.ty mC!1itl!lers Who had
And I ' 11 a!!' I: o Q\.leation . o. t:o. )"GolJ don't .kno-..r or n?, they dl.dn' t:1
11 A. Ok:ay, 14 A. !th.ay did. net:. It. \i<'.ISN' t_ just his interpt'et.at!Qn ot the.
15 Q.. Thh J~DI;>~~!;'ft t.o Tile to b<i an e-JPai.l f t"Ofll :totl t.(J Sue 15 rule~ \-rhi.ch was il!lbsurd foe .an e.l&clion l~tw e}.;p~rt~ but
1-lange;ld dat.e.d t-.lay 4, :ZOO~; !-:- thot. ri;ht'1 i t was ~l:s:o the way he did it. Ho ~lt<:td lJntil
17 ~. '{f!S . 11 evry'body lt"J.l't. the r.oc,m t~ cab~ chc objection which .ls
13 o. Okoy, and in t.he emdl you :say "I d(ln' t- '1(\.\nt: ~ bad9et l? u:1hca.rd of.
you, but I ' m wondui.nQ it you CAD give me an upcUltt!l. 19 MR. SLoElGH1'~ c:ould we take a bt-t.ak?
h e p a$ki ng my.!u1H hO'..t all vf tM s r.ame ttbout.." Ny ~0 HR. "RBEI'T! V'eah.
01 quesdon is. what do you 'liunt. an update C"n, what. ore 21 (B.d .ef pause i n ~tocecdinqt\ , )
22 yc-u a~td ng her f(lr an 1Jpd4.te on? 22
23 A. 1 wu: waitinq t'l rnl'tet with tHls t.o taU: abtJUt. the -- 2> DV t-!R, SLI:!GHT:
r;oofit'M t::he v~t.E count. 24 Q. ~~e 1.1sr~ taUd ng .about a rnttl!lo tbat. Jim G.a.rdner had
Q, Artd t.han - - ~5 wt:itten t.o the Pr11ctJce and 'tl!nu:;e (:rnrvg1ttett -
Proraotic.n and Tqm.Jr~. t."hel.t you h4d tc.tUlld a C-?PY of or it to ra(!. so I ' vo .seen it. bef'"ore, but I did no~ .sl8e
wttte p_rovide4 .11 copy ot: nt1 U).lawt you and ~~ou W&J.lt.6d t o:r ~his while- I was still .,.orJ.::i.ng .at t.h& school.
cespeond. l'..nd t ' m 90ing tc. sho~o.~ you \olhat 1 1! Uet!n mada~d Q. Do yoo know 1r t:Mt. ,...,_,. r.list:1::i.bu-ted to ~htt facult.v
r-.tovicusly as Defemio,nt.s S.":hi.bit. 1. I'll rep~:esent. tc. ~dor t.o the P and T 1ncatin91:
yo:.u ~hat. tht!IS@ w-e.r~ doc:umltnts t hllt. wt~r-a provided to us h. I undustand thAt it wa$..
t>y Suslln t-1ango1d. ln parHcular, l want to draw you:r:- Q. I ' Ill. no.rrs to l:ee~ $~1\pping back ~nd !orth, but Chis is
~ t t.ant.ion to t.ha <:tocUCicnt at. JM 002.110. ~nd A~l: you is. the onlY copy I brought ot this. This may h've be~~m
that the ftleJliO you 're tal.kinq ab0ut? mdl'kGd bl!fore. If it i5-, l don't k now wh~rt!l it h .
A. Ytta. Thb is t.hf!l Ot:t:ober 19, 2006 lett.or.
10 Q. I ' ll qive you a s~cond to lc:.ok At it . 10 HR. AN3E:IT: t don ' t. know it you hove the .,rigina.l
u A. Then: 'to'BS anott)er adoendult' that he added to it in 2008, u exhtbit.s nom la:Jt. tltn$. I don't l::now lt -~
so t.rhen c~hib.it - w'han do~ants wer~ givbn to me. in ~. OPPttmetHC~ : Theynt a ll on t.he uble.
13 the Court ot Claims c;u&, r thtnk there was Lik'<! 13 MR. SLf!IGH'I': TMt. ' s okay. Let ' s just mark j t
l< .anc.t tu~r two pu9e!i: wht~~re h~ reaffirnt.,d - llf:e~ "I sdll 14 -lJgain. Jt.'" Wel,J k~c.,.,n a nd no ;!!:ltr pt1str to l'lnybody.
Qtand by av~ryt.hJ.nQ l .said and I f"le~;vc SCiJitB m.otn thi.oQs H ~PropCJ.!eod El'Jlibit J~umbct 15> marl:cd f o r
19 Q . 'i'her"''s alBo ~ mef!lC in thls c:ompt!ndiui:R of docu.-narrt.zJ 19 Q. Cil:ay . L'm goinq to show you what's been tfla.rkt!d dO
2l A. Yll!IS. 21 'that . Onc.e you ' ve r~vle.~.t~ed it, lt!>t:. 111& ~no..t .
?.4 c:.ircutaled these t hi.nq$, s:o 1 didn ' t ger. i!l copy of: thl& A. tt. s tDY contract thal; J. :r:ecc.ivl!d t.rO!D Pean Ol:u~.~~
untl1 l:.ha Court. of Cla.iiU:s 11tigatlon. 'rhf!y dhc,lo(-ed ~Ub~Sequ"nt. to my pro~t~ot i.on and rttru~wal .
TOPIC: Lawyer learns after the fact that a client has lied about a material issue in a civil
deposition.
DIGEST:
A lawyer who comes to know after the fact that a client has lied about a material issue in a
deposition in a civil case must take reasonable remedial measures, starting by counseling the
client to correct the testimony. If remonstration with the client is ineffective, then the lawyer
must take additional remedial measures, including. if necessary, disclosure to the tribunal. If the
lawyer discloses the client's false statetnenl to the tribunal, the lawyer must seek to minimize the
disclosure of confidential information. This opinion supersedes NYCLA Ethics Opinion 712.
RULES:
QUESTION:
What are a lawyer's duties and obligations when the lawyer learns after the fact that the client
has lied about a material issue in a civil deposition?
OPINION:
This opinion provides guidance under the newly promulgated New York Rules ofProfessional
Conduct, 22 NYCRR 1200 et seq. (April I, 2009) (RPC), for a lawyer who comes to know after
the fact that a client has Jied about a material issue in a deposition in a civil case. As explained
in detail below, this opinion presupposes that the lawyer has actual knowledge of the falsity of
the testimony. Actual knowledge, however. may be inferred circumstantially.
Lawyers are ethically obliged to represent their clients competently and diligently and to
preserve their confidential information. At the same time, lawyers, as officers of the court, are
ethically and professionally obliged not to assist their clients in perpetrating frauds on tribunals
or testifying falsely. Balancing the duties of competent representation, client confidentiality and
candor to the tribunal requires careful and thoughtful analysis.
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page41 of 112
A173
Effective April!, 2009, the New York Rules of Professional Conduct, in RPC 3.3 (a)(3), forbid a
lawyer from offering or using known false evidence, and requires a lawyer to take reasonable
remedial measures upon learning of past client false testimony:
Two other provisions of RPC 3.3 are also relevant here. RPC 3.3 (b) provides that a lawyer who
"represents a client before a tribW1al and knows that a person intends to engage, is engaging or
has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to the tribW1a1." In addition, a lawyer is
duty boW1d to "correct a false statement of material fact previously made to the tribW1al by the
lawyer." RPC 3.3 (a) (1).
RPC 3.3 (c) requires a lawyer to remedy client false testimony ''even if compliance requires
disclosure of information otherwise protected by Rule. 1.6." The lawyer's duty of confidentiality
is contained in RPC 1.6, which states that a lawyer shall not knowingly reveal confidential
information, including information protected by the attorney-client privilege. except in six
enumerated circumstances. One of those circumstances is "when permitted or required under
these Rules or to comply with other law or court order." (RPC 1.6(b)(6).) Under the explicit
language ofRPC 3.3 (c), the lawyer's duty to remedy an admitted fraud on the court or known
client false testimony or to correct prior false statements offered by the lawyer supersedes the
1
lawyer's duty to maintain a client's confidential information under RPC 1.6.
NYCLA Ethics Opinion 712 Is Superseded Because It Was Based upon the Old Code
In a prior opinion on this issue, we stated that a lawyer who learns of a client's past false
testimony at a deposition must maintain the confidentiality of that information but cannot use it
in settlement or trial of the case. The former Code's protection of client confidences formed the
basis for NYCLA Ethics Opinion 712, www.NYCLA.org, 1996 WL 592653 (1996), which
addressed the issue of admitted past client false testimony in a civil deposition. That opinion
1
The Committee notes that Section 4503 of the New York Civil Practice Law and Rules ("C.P.L.R.'')
provides that unless the client waives the privilege, an attorney .. .shall not disclose or be allowed to
disclose such communication. RPC 3.3 thus seemingly contradicts the C.P.L.R. The apparent
contradiction between Section 4503 of the C.P.L.R. and the RPC 3.3 has not been addressed by any court
thus far. Resolution of the contradiction is a matter of law, and Committee opinions do not address
matters of Jaw.
2
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page42 of 112
A174
analyzed the conflict between the lawyer's duty to preserve client confidences under former DR
4-101, and the lawyer's competing duty to avoid using perjured testimony or false evidence
under former DR 7-102. We concluded, in Ethics Opinion 712, that the lawyer may not use the
admitted false testimony~ but also may not reveal it: "The infonnation that the testimony was
'
false may not be disclosed by the lawyer." The lawyer could ethically argue or settle the case,
provided that the lawyer refrained from using the false testimony.
NYCLA Ethics Opinion 712 was based upon the prior Code of Professional Responsibility,
which was superseded by the Rules of Professional Conduct on April 1, 2009. In light of the
adoption of RPC 3.3 on Aprill, 2009, N.Y. County712 is no longer valid, and accordingly does
not provide guidance for conduct occurring after April2009. 2
An important question under the new rules is whether deposition testimony is considered to be
different from trial testimony.
The text of the rules does not explicitly refer to depositions and other pretrial proceedings in civil
cases. RPC 3.3 (a) (3) applies when a witness, the client or the lawyer "has offered material
evidence" that the lawyer learns to be false, and RPC 3.3 (b) applies to "criminal or fraudulent
conduct related to the proceeding." RPC 1.0 (w) defines "Tribunal" as "a court, an arbitrator in
an arbitration proceeding or a legislative body, administrative agency or other body ~cting in an
adjudicative capacity when a neutral official, after the presentation of evidence or legal argument
by a party or parties, will render a legal judgment directly affecting a party's interests in a
particular matter." RPC 1.0 (w).
The literal language of the RPC 3.3 (a) (3) applies when a lawyer "has offered material
evidence," which the lawyer later comes to learn was false. While the phrase is not defined in
the rules, the taking of a deposition is no different from calling a witness at a trial. Under certain
circumstances, deposition testimony, which is offered under oath and penalty of perjury, is
adntissible evidence at trial.
While not formally adopted as part of the Rules, the comments to the New York Rules of
Professional Conduct explicitly contemplate the applicability of Rule 3.3 to depositions:
This Rule governs the conduct of a lawyer who is representing a client in the proceedings
of a tribunal. ... It also applies when the lawyer is representing a client in an ancillary
proceeding conducted pursuant to the tribunal's adjudicative authority, such as a
deposition. Thus, for example. paragraph (a)(3) requires a lawyer to take reasonable
remedial measures if the lawyer comes to know that a client has offered false evidence in
a deposition.
2
The New York State Bar Association has opined (Opinion 831) that if client fraud occurred before the
effective date of the New York Rules of Professional Conduct, April I, 2009, and the fraud is protected as
a client confidence or secret (DR 4-1 Ot (A)), then an attorney may not reveal the fraud.
3
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page43 of 112
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We conclude that testimony at a deposition is governed by RPC 3.3, and is subject to the
disclosure provisions of RPC 3.3 (c). False testimony at a deposition may be perjury,
punishable as a crime. The victim of the perjury is the adversary party, which may rely on the
false testimony, and the justice system as a whole even if the deposition is not submitted to a
court, or not submitted to the court for months or even years after the testimony is reduced to
transcript fonn.
A lawyer's duty under RPC 3.3 comes into effect immediately upon learning of the prior
testimony's falsity, and requires a lawyer to remedy the false testimony. As a first step, a lawyer
should certainly remonstrate with the client in an effort to correct known false testimony.
Remonstrating with a client who has offered false testimony can be accomplished in various
ways. The attorney should explore whether the client may be mistaken or intentionally offering
false testimony. If the client might be mistaken, the attorney should refresh the client's
recollection, or demonstrate to the client that his testimony is not correct. If the client is acting
intentionally, stronger remonstration may be required, including a reference to the attorney's
duty under the Rules to disclose false testimony or fraudulent testimony to the court.
Also, the process of remonstration may take time. For example, in the case of a corporate client,
the lawyer may report the known prior false testimony up the ladder to the general counsel, chief
legal officer, board of directors or chief executive officer. See RPC 1.13 (organization as client).
Only if remonstration efforts fail should the lawyer take further steps. While there is no set time
within which to remedy false testimony, it should be remedied before it is relied upon to
another's detriment.
When faced with the necessity to remedy false deposition testimony, a lawyer no longer has the
option to simply withdraw fTom representation while maintaining the client confidential
information? Prior to the adoption of the New York Rules of Professional conduct in April
2009, when remonstration failed, the attorney was presented with a dilemma. The attorney could
not reveal a client confidence, and yet could not stand by and allow false testimony to be relied
on by others. Withdrawal was the only option. The Committee now concludes that withdrawal
from representation is not a sufficient method of handling false testimony by a client where prior
remonstration has failed to correct the false deposition testimony. Withdrawal, without more,
does not conect the false statement, and indeed increases the likelihood that the false statement.
if unknown by a substituting attorney, will be presented to a tribunal or relied upon by the
adverse party. Unless in withdrawing, the lawyer also communicates the problem sufficiently to
enable the false testimony to be corrected, withdrawal from representation is no remedy.
~ Pursuant to RPC 1.6, confidential information includes the definition of confidences and secrets
contained in former DR 4-101 (A).
4
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page44 of 112
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or it is obvious that the evidence is false." RPC 3.4 (a) (5). Once the lawyer is aware of material
false deposition testimony, the lawyer may not sit by idly while the false evidence is preserved,
perpetuated or used by other persons involved in the litigation process. Thus, if a settlement is
based even in part upon reliance on false deposition testimony, the lawyer may not ethically
proceed with a settlement. The falsity must be corrected or revealed prior to settlement.
Ultimate] y the false testimony cannot be perpetuated. If remonstration is not effective, the
attorney must disclose the false testimony. However, disclosure of client confidential
information should be limited to the extent necessary to correct the false testimony.
New York lawyers should note that the duty to correct client false testimony by revealing client
confidential information comes into play only when the lawyer "comes to know of its falsity. . .. "
RPC 3.3 (a) (3). The lawyer may refuse to introduce, in a civil case, evidence "that the lawyer
reasonably believes is false." RPC 3.3 (a) (3), (emphasis added). Thus, it is only when the
lawyer knows that the prior testimony is false that the rules trigger a duty to take corrective
action.
When does a lawyer "know" that a client's testimony is false? RPC 1.0 (k) defines knowledge as
''actual knowledge of the fact in question," which "may be inferred from circumstances."
While there is no known precedent under the 2009 Rules, some guidance is provided by
authorities decided under the prior rules. ln In re Doe, the Second Circuit Court of Appeals
articulated the standard of knowledge required to trigger reporting to the tribunal under former
DR 7-102:
In re Doe, 847 F.2d 57, 63 (2d Cir. 1988). While the Court's discussion of a lawyer's duty to
report a fraud on the tribunal dealt with a non-client's fraud, the Court's cogent analysis of the
"knowledge'' standard also applies to a lawyer's duty with respect to a client's fraud on a
tribunal. It is clear that only actual knowledge triggers the duty to .report the fraud on the
tribunal. In ln re Doe, the Court held that a lawyer's suspicion or belief that a witness had
committed perjury was not sufficient to trigger the duty to report.
5
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page45 of 112
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While the following case does not directly address the ethics rules, it may, nevertheless, provide
further guidance by way of analogy, and illustrates the notion that actual knowledge may be
gleaned from the circumstances. In Patsy's Brand Inc. v. I.O.B. Realty et a/.,2002 U.S. Dist.
LEXIS 491, (vacated by ln re Pennie & Edmonds LLP, 2003 U.S. app LEXlS 4529 (2d Cir.
2003)) the United States District Court for the Southern District of New York sanctioned defense
counsel for F. R.Civ. P. Rule 11 violations. There, a law firm having substituted as counsel for
defendant offered an affidavit that prior counsel had disavowed in withdrawing. The Court
stated that "rather than risk offending and possibly losing a client, counsel simply closed their
eyes to the overwhelming evidence that statements in the client's affidavit were not true." The
Court found that by the time the law firm substituted as counsel, the affidavit had been
conclusively proven to be false in very material respects. Counsel was aware that their client had
made prior false statements under oath. Although the law firm discussed the false statements and
the affidavit with their client, and relied on the client's explanation, the Court determined that all
of the facts available to the law finn "should have convinced a lawyer of even modest
intelligence that there was no reasonable basis on which they could rely on (their client's)
statements.4
While Patsy's Brands was decided w1der Rule 11, a lawyer confronting the question of what
may constitute actual knowledge may fmd some guidance in that opinion and in Doe, above.
Conclusion
A lawyer who comes to know that a client has lied about a material issue in a deposition in a
civil case must take reasonable remedial measures, stat1ing by counseling the client to conect the
testimony. If remonstration with the client is ineffective, then the lawyer must take additional
remedial measures, including, if necessary, disclosure to the tribunal. If the lawyer does disclose
the client's false statement to the tribunal, the lawyer must minimize the disclosure of client
confidential information.
4
The finding was reversed on appeal because the law finn had not been given an opportunity to
withdraw the false affidavit before sanctions were levied.
6
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page46 of 112
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.
nerendan~
.. - .. ...
plahtt:iff's compJaint. lt isthe plaintiff who has thc.burden 9f proof and responsi~ill~ to request
. ~ :
- .,.
(.~
~
.
..
-
;..:, - 1- 'I
fd~~cn to make the d~tiop about wha! ~ppofts J>l~tift"_s theories ~fliabiJ!~ and cause
- ~...
.
jf '<,-
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page47 of 112
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Case 17-228, Document 29-2, 04/26/2017, 2020450, Page48 of 112
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unduly vague and anibiglioils;,:~otwitbstandipg said objections, and without V{.Bivllig sam~, '
, II ~
- .... l.
. ;. '.} ,,
to filipg a Fo~~nth Alri~doient due proce~s cl~ .mfederaL court under 42 U.S.C. 1983.
INTERROGATORY #21: State the names of all law school faculty members;ifany, who have
applied for and received or.peen denied university tenure or ABA Standani 405(c)-protected
status during the administ:nitions of Dean Olsen and Dean Mutua, i.e., from 1998-.tO present,
iridicating which ofthe two .actions was taken.
. undUly yague and ambigu~ti5;:Defendant also obje$ to this interrogatory on the grounds that it
c8lls for information outsideof his knowledge. Notwithstanding said objections, and without
..
: ..r
.. ~ ~
w~ving same, dcfendal).t responds: plaint;iff is referred to the documentsattached at Int Tabs 21 .
,z - <. . . . - .....
Article XI in thE Policies ofthe Board of Trustees lis~g job titles-~iigible' for five-year con~t
term.
RESPONSE: Defendant further objects to this request on the grounds that it seeks documents
' .: !j._~t; -~
.,L'- L :
RESPONSE: Documents responsive to this request are attached ~t Doc. Tab 38.
~c
Oated: 'BUffalo, New York
July 19, 2013
DAVID J. SLEl
Assistant Attorney General
.A,;t; ofcounse1'ttl:.,,.
~'"r
..,.
'I
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page51 of 112
A183
June 19,2015
Enclosed please find Defendant's Motion for Sanctions Against Fredric D. Ostrove,
Leeds Brown Law, P.C. and Jeffrey D. Malkan. The Motion will be filed after the expiration of
the safe harbor provision provided under Rule 1l(c)(2) of the Federal Rules of Civil Procedure,
unless you withdraw Plaintiffs Motion for Sanctions. The basis.for the portion oftbe Motion
seeking sanctions pursuant to Rule ll is described in prior correspondence sent to you on March
12, 2015 and June 3, 2015 by Assistant Attorney General David Sleight. For your convenience,
a copy of this correspondence is enclosed.
Kind regards,
~ ______ _
.....
CHRISTOPHER L. BOYD
Assistant Attorney General
Malo Pla(l: Tower, Suitt' 300A, 350 Main Street, Bulhlo, NY 14202 (716) 853-8400 Fa.x: (716) 853-8571
http:/ / www.ag,oy.gov
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page52 of 112
A184
JEFFREY MALKAN,
Defendant.
Pursuant to Local Rule 7(a}(l), notice is hereby given that Defendant intends to file reply papers.
Pursuant to Local Rule 7(b) any opposing papers must be served at least fourteen (14) days prior
to the return date of the motion unless otherwise ordered by the Court
ERJC T. SCHNEIDERMAN
Attorney General of the State of
New York
Attorney for Defendant
BY:
JEFFREY MALKAN,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2015, I caused to be sent by overnight delivery a copy of
the foregoing Notice of Motion to:
ERJC T. SCHNEIDERMAN
...,. Attorney General of the
State ofNew York
Attorney for the Defendant
BY: Is/ Christopher L. Boyd
CHRffiTOPHERL.BOYD
Assistant Attomey General
of Counsel
350 Main Street, Suite 300A
Buffalo, NY 14202
Telephone: (716) 853-8457
Christ6pher.Boyd@ag.ny.gov
I
I
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page55 of 112
A187
This letter will sex:ve as my reply to your February 20, 201 5 e-mail to me in which you
forwarded to me draft motion paper in connection the Rule ll sanctions motion that you and
your client have been threatening me with since October 2014. ~
It is regrettable that you have decided to pursue this course of action. But, given that you
appear to have made up your mind, I am going to explain my position one last time, for the
record, and to put you on notice, so that you will not later be able to complain that you and your
client did not anticipate the consequences of your actions.
Your draft rpotion argues that Jhave violated Rule 11 because I cite Mr. Matua's
allegedly perjurious testimony in my Rule 56.1 statement. As ,is clear from that paragraph you
reference, I am not citing Matua's test~ony or the testimony of the other deponents in this
action for the truth of the matter asserted; rather, I included that paragraph and cite that
testimony only for the purpose of providing continuity to the narrative and to identify a fact issue
for the Court. I have never cited Matua's testimony regarding what occurred at the Committee on
Clinical PromQtion and Renewal meeting for the truth of the matter asserted, nor would I,
because, as our Summary Judgment Motion rdlects, we do not think it is relevant to the legal
issues in this case. While your client seems to be obsessed with all things Makau Matua and, in
particular, what Mr. Matua says about what occurred at the Committee on Clinical Promotion
and Renewal meeting, it is irrelevant to his due process claim. What is relevant is what happened
afterward.
Our separate and independent grounds for summary judgment are threefeld. First, that
your client did not have a protected liberty interest because he did not have a legitimate
Main Pillet Tower, Suite 300A, }50 Main S~t, B11ffalo, NY 14202 (716) SSJ.84()0 Fu. (716) 853-8571
h1tp1// '"""'"flny.gov
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page56 of 112
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expectation ofcontinued public employment based on the letter agreement between him and Nils
all
Olsen. Second, that your client received the process he \:VaS due in connection with his
dismissal. And, lastly, that in the event the Court finds thafthere was a due process violation,
my client is entitled to qualified immwlity because he did not violate a clearly established right
of your client. Thus, we do not deny that your client was offered and accepted a tenn
appointment as a clinical professor that expired on August 31, 2009. See Statement of Facts
iM!J0-31 and accompanying exhibits. What we do deny, however, is that your client had a
legitimate expectation of continued employment past August 31, 2009 based on his contrac~ with
Olsen, because Olsen was prohibited by the SUNY Board ofTrustees' policies from offering
him a tenn appointment longer than three years, and your client knew it.
Your draft motion papers also misstate the law on the knowledge standard applicable to
both Rule 11 and RPC 3.3. As you acknowledge in your draft memo of law at page 17, there is
no case law interpreting the definition of "actual knowledge" under RPC l .O(k). There is;
however,; a Second Circuit decision that discusses the "actual knowledge" standard and that case
is binding precedem on our court. 1 previously encouraged you to read the decision in In Re Doe,
841 F.2d 57 (2nd Cir. 1988), and cases that cite it, more qlosely. Instead, you have either not done
so, or you have applied sophistry to its clear meaning in order to mold it to your purposes. Doe
does not support the proposition that a lawyer's ''actual knowledge'' of a witness's false
testimony is judged by anobjective standard. In fact, to the contrary, it supports the proposition ,-
that it is judged by a subjective standtud, that is, ''actual knowledge." The Second Circuit in Doe
approved of the definition used in Virginia for when "actual knowledge'' is clearly established.
ld. at 62. "'(l]nfonnation is clearly established when the client acknowledges to the attorney that
he has perpetrated a fraud on the court."' ld. (emphasis in original) . That is not an objective
standard. The Second Circuit went on to cogently explain why actual knowledge had to be the
standard:
Our e.xperience indicates that ifany standard less than actual knowledge
was adopted ;in this context, serious consequences might follow. If attorneys were
bound as part of their ethical duties to report to the court each time they strongly
suspected that a witness lied, courts would be inundated with such reports. Court
dockets would quickly become overburdened with conducting these .collateral
proceedings which would.necessarily hold up the ultimate disposition of the
underlying action. We do not believe that the Code's drafters intended to throw
the court system into such a morass. Instead, it seems that the oniy reasonable
conclusion is that the drafters intended disclosure of only that information which
the ~ttomey reasonably knows to be a fact and which, when combined with other
facts in his knowledge, would clearly establish the existence of a fraud on the
tnbunal.
M~ia Place Tower, Sui~JOOA. 350 Main S!Teet. Buffalo, NY 14202 (716)'8 5>8400 Fax. (7161 8SJ..BS71
httpa//www.ag,l\y.gov
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page57 of 112
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ld. at 63. Thus, in Doe. and all of the cases that I have found that cite it for its interpretation of
actual knowledge," what courts find determinative js whether evidence of actual intentional
misconduct has been brought to the attorney's attention. See ld. (two conversations where client
advised lawyer that witness had lied at deposition insufficient to establish actual knowledge).
See also United States v. Shaffer Equipment Company, 11 F.3d 450 (41h Cir. 1993) (actual
knowledge by government attorneys that EPA on-site coordinator had misrepresented acad'emic
credentials and achievements); United States v. Shvne, 2007 U.S. Dist. LEXIS 26994 (S.D.N.Y)
(circumstantial evidence insufficient to establish actual knowlc!dge supporting finding of
. prosecutorial misconduct); Sigma-Tau Industrrie Fannaceutiche v. Lonza, 48 F. Supj,. 2d 16
(D.C. 1999) (testimony by attorney that he was "sUTprised" by witnesses allegedly false
testimony insufficient to establish attorney had actual knowledge of its falsity); United States v.
Fausto Del Carpio-Cotrin!!, 733 F.Supp. 95 (S.D. Fla. 1990) (actual knowledge by criminal
defense counsel that client had fled jwisruction at time he requested trial continuance sufficient
to trigger counsel's obligation to advise court the he believed client would not appear at trial);
Addamax Com..v. Open Software Foundation, 151 F.R.D. 504 (D. Mass 1993)(attorneys
attempt to have witness revise prior affidavit based on evidence that prior affidavit was.
inaccurate insufficient to support subornation of perjury); People v. DePallo, 96 N.Y.2d 437
(N.Y. 2001) (contradictory statement by client to defense counsel prior to testifying differently at
trial sufficient to trigger counsel's obligation to notify tribunal of fraud upon the court).
Additionally, New York's RPC is essentially the State's adoption of the ABA Model
Rules ofProfessional Conduct (1983). In ABA Fonnal Opinion 87-353, the "actual knowledge"
standacd is discussed. See ABA Formal Op. 87-353 (1987). That Opinion advises that it will be
"the unusual case" where the lawyer "does know" that a client intends to commit petjury, and
that knowjng can only be es~blished by the clients ..clearly stated intention" to perjure himself.
Id.
Where is your evidence in this case that I know that Mr. Matua intentionally testified
falsely at his deposition? There is no evidence that "Mr. Matua ever acknowledged to anyone that
his testimony was false, let alone to me. ln fact, his testimony at his deposition was entirely
consistent with the testimony he gave at the PERB hearing. All you have here is one witness to
an event that remembers it one way and other witnesses that remember it another way; which is
Maio Place Towu, Suite JOOA, JSO ~Street, Bulfalo, NY 14ZOZ (716)8SJ.8400 Fu:d716l BSJ-8571
httpfl,.._.w..,.ny.gov ~
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page58 of 112
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the most usual ofcircumstances in litigation where memory is involved. At best, this is evidence
that might lead me to suspect that Mr. Matua's recollection of the event is not accurate; however,
it is not evidence that leads me to believe he is intentionally lying. There is a distinction and you
know this, or at least you should. What you are doing here is a5king me to weigh evidence and
assess the credibility of witnesses in order to come to a conclusion on an issue of fact. That is
not my job as counsel': that is the job of the trier of fact. In sum, neither you nor I nor your client
has personal knowledge of what happened at the meeting of the Committee on Clinical
Promotion and Renewal on April28, 2006, because none of us was there: we only "know" what
other people say happened.
Lastly, I would like to address your clien~'s recent conduct in this litigation and, in
particular, his constant direct contact with me by e-mail that I have asked you stop. As it is clear
that you have little control over your client, I am going to give you the benefit of the doubt and
assume that you do not know the scope of that contact. Since the beginning ofthis case, your
client has been sending a constant barrage of e:..rnail blasts to the entire law school faculty and
staff, some of whom are witnessesj and in the case ofMr. Matua and Mr. Ewing, parties-'8Jld
fonner parties. I would characterize these e-mail blasts broadly as diatribes against Mr. Matua
and other UB administrators that your client feels have wronged him. Randy Oppenheimer, when
he was involved in the case, asked you to get your client to stop these e-mails, but they have
persisted. And, although many of the faculty at UB finds these e-mails to be harassment, I have
told them that there is nothing that I can do to stop your client from exercising his free speech
rights. However, since roughly September 2014, your client bas been writing and e-mailing me
directly. Jdo not think this is appropriate, since he is represented by counsel and, thus, I cannot
respond. I would estimate that he has sent me between 30 and 40 e-mails and I want it to stop.
.
At this-point I consider it harassment with the only purpose being to vex and annoy me.
In conclusion, I am done arguing with you about this issue. I am not the type oflawyer
that easily threatens a Rule 11 sanctions motions, and I have never made one, nor has one ever
been brought against me. However, ifyou proceed, I will file a cross motion for sanctions
against you and your client Your draft motion is frivolous, bas no basis in law or fact, and
appears to serve no other purpose than to harass and vex me. Similarly, your client's constant
direct contact with me and my client is improper and also appears to have no other purpose than
to vex and harass us.
DJS/nnp
Main Place Tower, Suite 300A. 350 Malo Smer, Buffalo, NY 14202 (716) 85).8400 Fur (716) 853-8571
httpo//www.~.ny.cov
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page59 of 112
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{716) 852-6274
June 3, 2015
Pursuant to FRCP Rule 11 (c) (2). you are hereby placed on notice of
Defer.~dant's intention 1o filea Cross motion for sanctions if you do not withdraw
Plaintiffs motion for sanctions (Docket No. 70) within 21 days..As I have previously
explained to you, your motion is frivolous,\ vithout basis in law or In fact, and its only
purpose appears to be to harass me and my client, cause delay and needlessly
increase the cost of this litigation.
~~1\~'W{JK
~~S~GHT
..
Assistant Attorney General
DJS/elp
MAIN rLAC"ETOWER, SUrTE JOOA, :JSO MAIN STREtrr, BUFFALO, NY 14202 ( 716) 853-8400 1-"ax: (716) 8S3 U71
WWW.AG.NY.OOV
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page60 of 112
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Case 1:12-cv-00236-MAT-HKS Document 97 Filed 12/01/15 Page 1 of 39
JEFFREY MALKAN,
Plaintiff,
v.
12-CV-0236A(Sr)
MAKAU W. MUTUA, et al.,
Defendants.
This case was referred to the undersigned by the Hon. Richard J. Arcara,
in accordance with 28 U.S.C. 636(b), for all pretrial matters and to hear and report
Currently before the Court is Jeffrey Malkans motion for sanctions against
defendant Makau Mutua and his attorney, Assistant Attorney General (AAG), David
Sleight (Dkt. #70), and Makau W. Mutuas motion for sanctions against Jeffrey Malkan
his attorney, Rick Ostrove, and Leeds Brown Law, P.C. Dkt. #83. For the following
reasons, it is recommended that sanctions be denied as to Mr. Mutua and AAG Sleight
and that sanctions be imposed against Mr. Malkan and Mr. Ostrove.
FACTS
and Director of Research and Writing for the State University of New York (SUNY)
(CCPR), met to discuss the promotion of Professor Malkan to Clinical Professor. Dkt.
#70-2, p.39, 4. The following faculty were in attendance: Makau Mutua, Susan
Mangold, Diane Avery, Errol Meidinger, Elizabeth Mensch, Fred Konefsky, George
Kannar, Tony Szczygiel, Rob Steinfeld, Rebecca French, Bert Westbrook, Shubha
Ghosh, Janet Lindgren, Marcus Dubber, Stephanie Phillips, Barry Boyer, Jim Gardner,
Professor Mangold, who chaired the meeting due to the absence of Dean
Olsen, testified at her deposition that there was a lot of discussion about the Research
and Writing Program at the meeting. Dkt. #70-2, p.27. Professor Steinfeld testified
that
Dkt. #70-2, p.34. Professor Avery similarly testified that the meeting became
acrimonious and that the CCPR decided to bifurcate the issue of Professor Malkans
-2-
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page62 of 112
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Case 1:12-cv-00236-MAT-HKS Document 97 Filed 12/01/15 Page 3 of 39
promotion to Clinical Professor from the discussion of the Research and Writing
Program. Dkt. #70-2, pp.14 & 17. Professor Averys notes indicate that the vote was 9
in favor of promoting Professor Malkan to the position of Clinical Professor, with seven
opposed and three abstentions. Dkt. #70-2, p.14. Professor French, Professor Ghosh,
each declare that the CCPR voted by secret ballot to recommend that Mr. Malkan be
promoted to Clinical Professor. Dkt. #70-2, pp.41, 43, 45, 47, 49 & 53.
***
So the discussion continued and at some point, I think
people began to feel that although we felt that Jeff should be
removed, that we should not simply throw him out into the
street immediately, that we should give him a year, a
terminal year and then instruct or ask the Dean to form a
faculty committee to study the program and come back with
recommendations of how the program could be recreated.
Dkt. #70-2, p.57. Thus, Professor Mutua recalled that the CCPR voted
Dkt. #70-2, p.58. Professor Mutua reiterated that he remembered very clearly that
[t]here was only one vote, which was to extend him for another year as Director of the
-3-
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page63 of 112
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Case 1:12-cv-00236-MAT-HKS Document 97 Filed 12/01/15 Page 4 of 39
Dkt. #70-2, p.59. Professor Mutua couldnt recall who asked that question, but did
remember the person who answered the question was the former President Bill
Greiner who said yes, its an affirmative vote. Dkt. #70-2, p.59. Professor Avery
declares that Professor William Greiner was not in attendance at this meeting. Dkt.
#70-2, p.40.
By letter dated October 19, 2006, Dean Olsen advised Professor Malkan
of his promotion to Clinical Professor and the renewal of his appointment as Director of
December of 2007. Dkt. #63-8, 40. Effective March 13, 2008, Dean Mutua relieved
Professor Malkan of his duties as Director of the Research and Writing Program. Dkt.
#56-21, p.4. By letter dated August 28, 2008, Dean Mutua advised Professor Malkan
that his three-year term appointment as Clinical Professor ending on August 31, 2009
would not be renewed and that his last day of work would be May 15, 2009. Dkt. #63-2,
p.67.
The United University Professions, New York State United Teachers, AFT,
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Malkans behalf, alleging that the Law School violated the Public Employees Fair
Employment Act when it did not renew his appointment as Clinical Professor. Dkt. #70-
3, p.8. Specifically, the Union alleged that Dean Mutua decided not to renew Professor
the Unions assistance to meet with Dean Mutua regarding his termination as Director
2010, Dean Mutua testified regarding the CCPR meeting on April 28, 2006 as follows:
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Dkt. #72-2, pp.3-4. When asked if the faculty took any action regarding Professor
Dkt. #72-2, p.5. Dean Mutua reiterated that the Committee did not vote on his faculty
Mutuas testimony regarding the CCPR meeting, but noted that the CCPRs actions
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were not binding on the Dean, and that plaintiff was, in fact, appointed to the position
of Clinical Professor. Dkt. #70-3, p.10. As to the merits of the charge, the ALJ
determined that the evidence supported the States argument that Mr. Malkan was non-
renewed because the Program was being replaced by a more comprehensive Legal
Skills Program rather than as a pretext masking some inappropriate motive for Mr.
By letter dated November 22, 2011, Mr. Malkan advised the PERB ALJ
that Makau Mutua committed perjury in your courtroom on March 31 and April 1,
2010. Dkt. #84-1, p.2. By letter dated November 28, 2011, plaintiff advised the Hon.
Jeremiah Moriarty, III, New York State Court of Claims,1 that he was accusing Makau
Mutua of committing perjury in the PERB proceeding that is running parallel to this
1983, alleging that Dean Mutua deprived plaintiff of his property interest in a 405(c)-
1
Plaintiff filed two claims alleging that the State had breached an employment
agreement between plaintiff and Dean Olsen. Dkt. #72, 19, n.5. Plaintiffs initial claim was
dismissed for failure to state the total sum claimed and his second claim was dismissed as
untimely. Dkt. #73-6, p.4. Plaintiffs application to file a late claim was denied by Decision and
Order entered March 23, 2015 for failure to establish merit. Dkt. #73-6, p.7. Specifically, the
Court of Claims determined, inter alia, that it was the president of the University at Buffalo, and
not the dean of the School of Law, who served as the chief administrative officer . . . and
possessed the power to make term appointments. Dkt. #73-6, p.8. In any event, the Court of
Claims noted that the maximum duration of a term appointment was three years, with an
automatic expiration at the end of the designated term, without legal right, interest or
expectancy to any other appointment or renewal. Dkt. #73-6, p.8.
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professor without due process, to wit, review by the Committee on Clinical Promotion
By letter dated September 13, 2012, the AAG requested of counsel for
plaintiff that plaintiff be instructed to cease improper contact and communication2 with
the Defendants, SUNYs staff including the President, Dean and Provost and some
By letter dated November 20, 2012, Mr. Ostrove advised AAG Sleight that
more than fifteen of the responses contained in defendants Answer violated Rule 11.
2
Samples of Mr. Malkans letters and e-mails to SUNY staff, SUNY Buffalo Council,
SUNY Buffalo Law School Deans Advisory Council, the Attorney Generals Office and media
outlets accusing Dean Mutua of subverting the judicial process, swearing to false testimony,
committing perjury, and engaging in criminal misconduct and defamation, and accusing SUNY
officials and the AAG of complicity, are attached at Dkt. #72-5; Dkt. #84-1; Dkt. #84-2; Dkt.
#92-1 & Dkt. #94-1.
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Dkt. #70-4 , pp.2 & 4-5. As relevant to the instant motion, Mr. Ostrove argued with
anticipation of mediation on the internet, where it remains available for public view. See
http://www.scribd.com/doc/217761477/statement-of-facts-and-damages-submitted-2-
27-2013. Mediation was conducted on March 1, 2013 and April 2, 2013. Dkt. #34 &
Dkt. #35.
An article in the SUNY Buffalo Spectrum published April 28, 2013 detailed
Mr. Malkins accusations in this lawsuit and outlined concerns of Law School faculty
regarding Dean Mutuas leadership. Dkt. #84-1, pp.11-13. Mr. Malkan is also reported
Malkan also claims the attorney general asked for time until
March 21 to come back with a settlement offer but later
asked for an extension until April 2. The attorney general
informed Malkan that UB declined to make any settlement
offer, saying the case will be going to trial in federal court
before the end of 2013.
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Dean Mutua moved for summary judgment in this action on June 7, 2014.
Dkt. #55. In his Statement of Undisputed Facts, Dean Mutua asserted that:
On August 19, 2014, Professor Ewing3 and seven other law school faculty
members filed a complaint against Dean Mutua with the New York State Appellate
response to that complaint, Dean Mutua advised the Grievance Committee that:
3
Professor Mutua notes that he removed Professor Ewing from an administrative
appointment as Vice Dean for Academic Affairs on May 27, 2014. Dkt. #74, 7 & 10.
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announced Dean Mutuas resignation as Dean of SUNY Buffalo Law School, effective
On October 18, 2014, Mr. Malkan sent a letter to AAG Sleight, copied to
Mr. Ostrove, attaching a copy of his complaint to the Public Integrity Bureau of the
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Finally, you are aware that your client gave the same false
testimony to a state administrative agency, PERB, on March
31-April 1, 2010. This false testimony had the effect of
causing a miscarriage of justice.
By e-mail dated October 23, 2014, AAG Sleight advised Mr. Ostrove:
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By e-mail dated October 27, 2014, Mr. Ostrove advised AAG Sleight that:
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By e-mail dated November 3, 2014, AAG Sleight advised Mr. Ostrove that:
e-mail accusing AAG Sleight of violating the Rules of Professional Conduct, AAG
Sleight requested that plaintiffs attorneys instruct plaintiff to stop communicating with
Professor Mangold, as well as numerous other faculty members at SUNY Buffalo Law
School that: I have to find $25,000 by next week to finance my Rule 11 motion.4 Dkt.
#73-3, p.2. Mr. Malkans e-mail continued: [t]he Universitys disrespect and defiance
has continued to the point that I have to demand that my lawyers, against their own
4
Plaintiff subsequently declared that this $25,000 was the balance due as of that date
for the Firms work on the summary judgment motion. Dkt. #88, 66 & 72.
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wishes, hold the AAG personally responsible for the fraudulent pleadings he has
By e-mail dated February 20, 2015, Mr. Ostrove advised AAG Sleight:
Dkt. #70-3, p.37. Mr. Ostrove attached a copy of his Notice of Motion and
Memorandum of Law in Support of the Sanctions Motion to his e-mail. Dkt. #70-3, p.37
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***
. . . Thus, in Doe, and all of the cases that I have found that
cite it for its interpretation of actual knowledge, what courts
find determinative is whether evidence of actual intentional
misconduct has been brought to the attorneys attention.
[citing 6 cases].
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***
On April 14, 2015, plaintiff filed his motion seeking sanctions against
Professor Mutua and AAG Sleight pursuant to Rule 11 and the courts inherent power.
Dkt. #70.
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On June 19, 2015, the Attorney Generals Office served Mr. Ostrove with
a Notice of Motion seeking sanctions against Mr. Ostrove, Leeds Brown Law, P.C. and
Mr. Malkan, as well as a copy of AAG Sleights letter, dated March 12, 2015, setting
forth the basis for defendants motion for sanctions. Dkt. #84-5 & Dkt. #90, 20.
By e-mail dated June 23, 2015, Mr. Malkin advised the faculty at UB Law
School that he will defy any civil contempt citation entered against me, so you will
continue to receive information about this case throughout next year. Dkt. #84-2,
p.140.
On June 26, 2015, Mr. Malkan advised Mr. Ostrove that he intended to
terminate the services of Leeds Brown Law, P.C. Dkt. #90, 22.
On July 15, 2015, counsel moved to withdraw and have the sanctions
motion deemed filed solely by plaintiff, pro se, nunc pro tunc. Dkt. #80. In doing so,
counsel declared that the Firm and I wish to exercise our safe harbor rights. Dkt. #90,
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Dkt. #80-1, 5.
By Text Order entered July 16, 2015, the Court terminated Leeds Brown
Law, P.C. as counsel for plaintiff but directed the Clerk of the Court to
Dkt. #81.
On July 22, 2015, Mr. Malkan filed a declaration in support of his motion
for Rule 11 sanctions against Professor Mutua and AAG Sleight, stating, e.g.,
***
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Dkt. #82, 58. Mr. Malkan declares that despite the benefit of hundreds of hours of
donated legal work from the union and . . . countless hours of my own legal time . . . the
resources earlier this summer. Dkt. #82, 90. Mr. Malkan declares that he is currently
On July 23, 2015, defendant filed his motion seeking sanctions against
Mr. Malkan, Mr. Ostrove and Leeds Brown Law, P.C., pursuant to Rule 11, 28 U.S.C.
1927 and the Courts inherent power. Dkt. #83. Defendant seeks dismissal of this
action with prejudice; an order directing plaintiff to cease his harassment of Mr. Mutua
and AAG Sleight; an order holding Mr. Malkan in civil contempt for his disclosure of
mediation proceedings; referral of Mr. Malkan and Mr. Ostrove for discipline due to
possible violations of the New York State Rules of Professional Conduct; and attorneys
Rule 11(a) of the Federal Rules of Civil Procedure requires that every
pleading, written motion and other paper be signed by at least one attorney of record in
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the attorneys name or by a party personally if the party is unrepresented. The Rule
Fed. R. Civ. P. 11(b). A signature certifies to the court that the signer has read the
document, has conducted a reasonable inquiry into the facts and the law and is
satisfied that the document is well grounded in both, and is acting without any improper
determines that Rule 11(b) has been violated, the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is responsible for the
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frivolous, legally unreasonable, or factually without foundation, even though not signed
in subjective bad faith. Wechsler v. Hunt Health Systems, Ltd., 216 F. Supp.2d 347,
inquiry. Business Guides, 498 U.S. at 554; See Fed.R.Civ.P.11 advisory committee.
modify, or reverse the law as it stands. Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir.
2001); See Oliveri v Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (sanctions are
appropriate when it appears that a competent attorney could not form the requisite
reasonable belief as to the validity of what is asserted in the paper.), cert. denied sub.
nom Suffolk County v. Grascek, 480 U.S. 918 (1987). In assessing whether Rule 11
sanctions should be imposed, the court considers whether the attorney has abused the
judicial process. Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp.2d 407, 417
(S.D.N.Y. 2003). If a partys motion for Rule 11 sanctions is not well grounded in fact or
law, or is filed for an improper purpose, a court may find itself in the position of
imposing Rule 11 sanctions on the moving party and/or his attorney. Id. at 421. A
. committed to the district courts discretion. Perez v. Posse Comitatus, 373 F.3d 321,
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325 (2d Cir. 2004). Sanctions under Rule 11 are discretionary. Ipcon Collections LLC
v. Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir. 2012). Once a court determines
that Rule 11 (b) has been violated, it may in its discretion impose sanctions limited to
what is sufficient to deter repetition of such conduct. Margo v. Weiss, 213 F.3d 55, 64
available remedy for Rule 11 violations. Safe-Strap, 270 F.Supp.2d at 418. Because
the principal objective of the imposition of Rule 11 sanctions is not compensation of the
victimized party but rather the deterrence of baseless filing and the curbing of abuses,
any monetary sanctions imposed should ordinarily be paid into the court as a penalty.
Caisse Nationale de Credit Agricole - CNCA, N.Y. Branch v. Valcop, Inc., 28 F.3d 259,
28 U.S.C. 1927
proceedings in any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred
because of such conduct. An award pursuant to this provision, which may be made
only against attorneys, requires a clear showing of bad faith. Oliveri, 803 F.2d at
1273.
Inherent Power
A district courts inherent power to sanction derives from the fact that
courts are vested, by their very creation, with power to impose silence, respect, and
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decorum, in their presence, and submission to their lawful mandates. Schlaifer Nance
& Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999), quoting Chambers v.
NASCO, 501 U.S. 32, 43 (1991). In order to impose sanctions pursuant to its inherent
power, a district court must find that: (1) the challenged claim was without a colorable
basis and (2) the claim was brought in bad faith, i.e., motivated by improper purposes
such as harassment or delay. Id.; See Oliveri, 803 F.2d at 1272 (an award of sanction
under the courts inherent power may be imposed for actions taken in bad faith,
Perjury
Procedure and the Courts inherent power to sanction attorneys for ethical violations
against Dean Mutua for perjuring himself during his testimony before PERB and at his
deposition and against AAG Sleight for utilizing Dean Mutuas perjurious testimony in a
Rule 56.1 Statement of Facts and implicitly relying upon it in defendants Memorandum
of Law. Dkt. #70-7. Essentially, plaintiff argues that because eight non-party witnesses
testified that a vote was held to grant plaintiff a full clinical professorship, Dean Mutuas
testimony before PERB and at his deposition that no such vote was taken must have
AAG Sleight argues that just because witnesses recollections may differ
on what happened during a particular incident does not necessarily mean that one of
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them is lying. Dkt. #75, p.4. AAG Sleight also argues that Dean Mutuas testimony
regarding the CPPR meeting is irrelevant to the legal issues raised before PERB and
In determining what constitutes perjury, the courts rely upon the definition
that has gained general acceptance and common understanding under the federal
criminal perjury statute, 18 U.S.C. 1621. United States v. Dunnigan, 507 U.S. 87, 94
(1993). As both plaintiff and his attorney should be aware, [a] witness testifying under
oath or affirmation violates this statute if [he] gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a result
add up to perjury. United States v. Sanchez, 969 F.2d 1409, 1415 (2d Cir. 1992); See
United States v. Schlesinger, 438 F. Supp.2d 76, 106 (E.D.N.Y. 2006) (Perjury is not
statements of another witness.). Moreover, [a] statement can be false without being
uttered with the scienter required to render it perjurious. Margo v. Weiss, 213 F.3d 55,
differing recollections of a meeting of tenured faculty on April 28, 2006, there is no basis
for the accusation of perjury against Dean Mutua. Concomitantly, there is no evidence
to suggest that AAG Sleight possesses actual knowledge that Professor Mutua is lying
about his recollection of that meeting. AAG Sleight should not be maligned for
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Undisputed Material Facts. See Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d
Cir. 2003), (With regard to factual contentions, sanctions may not be imposed unless a
F.3d 1479, 1489 (2d Cir. 1996). In any event, as there is no disagreement over the fact
that plaintiff was promoted to the position of Clinical Professor, the events of April 28,
Courts inherent power based upon AAG Sleights alleged violation of Rule 3.3 of the
New York Rules of Professional Conduct by submitting Mr. Mutuas perjured testimony
to the Court. Dkt. #70-7, p.20. Relying on the definition of knowledge set forth in Rule
1.0(k), plaintiff argues that AAG Sleights knowledge that Mr. Mutuas testimony is false
Rule 3.3 of the New York Rules of Professional Conduct provides that a
lawyer shall not knowingly offer or use evidence that the lawyer knows to be false. N.Y.
Comp. Codes R. & Regs. tit. 22, 1200.0, Rule 3.3(a)(3). The definitions for the New
York Rules of Professional Conduct provide that knowingly denotes actual knowledge
of the fact in question. N.Y. Comp. Codes R. & Regs. tit. 22, 1200.0, Rule 1.0(k).
The definition also acknowledges that [a] persons knowledge may be inferred from
circumstances. Id.
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for the Second Circuit determined that even subjective beliefs or strong suspicions that
a witness is lying are insufficient to meet the actual knowledge standard. 847 F.2d 57,
63 (2d Cir. 1998). In reaching this conclusion, the Court of Appeals explained that:
Id. In that case, even though an adverse witness had informed the attorneys client that
he had been instructed to change his story at his deposition and subsequently informed
the attorneys client that he had followed his attorneys instructions and lied at his
deposition, and even though attorney believed that the adverse witness had lied at his
deposition based upon his own independent conclusions drawn from his knowledge of
the case, the Court of Appeals concluded that the attorney lacked actual knowledge
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Appeals for the Fourth Circuit determined that an attorney possessed actual knowledge
attorney that he had lied about his credentials and the attorney confirmed with the
University cited on the expert witness curriculum vitae that the witness had not received
a degree. 11 F.3d 450, 459 (4th Cir. 1993). Similarly, in Patsys Brand, Inc. v. I.O.B.
Realty, Inc., the district court determined that, inter alia, a printers statement that he did
not conduct business with the defendant in 1993 provided the lawyer with actual
knowledge that his clients declaration that the label his client declared had been
printed by that printer in 1993 was false. No. 98 CIV 10175, 2002 WL 59434, at *7
In the instant case, as set forth above, there is no evidence before the
Court to suggest that Dean Mutua testified falsely as to his recollection of events on
April 28, 2006, let alone that AAG Sleight possesses actual knowledge that Dean
Responsibility opined:
Formal Op. 87-353 (1987) (footnote omitted). Thus, as the Court of Appeals concluded
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in Doe, the proper forum for challenging Professor Mutuas credibility and resolving
proceeding for sanctions against counsel, but a trial. 847 F.3d at 63.
Answer
amend the answer to admit the allegations contained in paragraph 11 of his complaint
upon learning that Mutua had perjured himself regarding the tenure vote. Dkt. #70-7,
because
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Dkt. #72, 20. AAG Sleight further declares that if he were to amend his Answer, he
would deny the allegations. Dkt. #72, 28. In any event, AAG Sleight responds, inter
alia, that Rule 11 applies only to the attorneys conduct at the time of signing and
cannot be used to sanction counsel for failing to amend a pleading. Dkt. #75, p.10.
***
Oliveri, 803 F.2d at 1274. There is thus no obligation to update a pleading, motion or
other paper based on new information provided that the document met the
requirements of Rule 11 at the time it is signed. Curley v. Brignoli Curley & Roberts,
128 F.R.D. 613, 616 (S.D.N.Y. 1989). In determining whether the signer has met this
objective requirement, the court is to avoid hindsight and resolve all doubts in favor of
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amend his pleading, plaintiff has no grounds to move to sanction AAG Sleight regarding
the answer. Moreover, AAG Sleight articulated sufficient grounds for his denial of
procedure for filing a Rule 11 motion because he failed to provide him or plaintiff with a
copy of his memorandum of law or declaration in support of the motion before filing it
and the motion did not describe the specific conduct that allegedly violated Rule 11.
the Notice of Motion and copies of his prior letter accusing counsel of filing a frivolous
motion without basis in law or fact for the sole purpose of harassing Professor Mutua
and AAG Sleight, delaying resolution of the merits of plaintiffs complaint, and
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Fed. R. Civ. P. 11(c)(2). The law is clear that Rule 11(c)(2) requires only the service of
a motion; it does not require the service of a memorandum of law or affidavits. Star
Mark Mgmt. v. Koon Chun Hing Kee Soy & Sauce, 682 F.3d 170, 176 (2d Cir. 2012).
So long as the party subject to the sanctions motion receives notice of the specific
conduct that allegedly violated Rule 11(b), the requirements of Rule 11(c) are satisfied.
AAG Sleight served his Notice of Motion and his letter of March 12, 2015
upon Mr. Ostrove on June 19, 2015. Dkt. #84-5, p.5. In accordance with those
documents, Mr. Ostrove received notice of the potential for Rule 11 sanctions based
upon AAG Sleights allegation that Mr. Ostroves motion for sanctions was based upon
an erroneous legal standard and false factual predicate. Dkt. #84-5, pp.6-9. Mr.
Ostrove did not withdraw his motion for sanctions within 21 days of service of that
notice of motion as would allow him and his client to claim refuge in the safe harbor
provision of Rule 11. In fact, Mr. Ostrove did not withdraw his motion for sanctions at
all, but merely attempted to shift responsibility for the consequences of the motion to his
client following his termination as plaintiffs counsel. The Court will not permit counsel
terminated as counsel. As Mr. Malkan encouraged the filing of the motion for sanctions
and adopted the arguments contained in the motion following his termination of Mr.
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Ostrove, defendants motion for sanctions against Mr. Malkan is also properly before
this Court.
a substantial monetary sanction to deter Mr. Ostrove and Leeds Brown Law, P.C. from
such conduct in the future. Dkt. #83-1, pp.6 & 8-9. In light of Mr. Malkans dire financial
Mr. Ostrove responds that the motion for sanctions was appropriate
because an objective assessment of the facts compels the conclusion that Mutua lied.
states: My purpose in everything I have said and done since November 11, 2011 has
vex, harass, or defame anyone who stands in the path of my legal claims, nor for any
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Dkt. #88-2, 3.
Plaintiffs motion for sanctions against Professor Mutua and AAG Sleight
recollection may differ on what happened during a particular incident, does not
necessarily mean that one of them is lying. Dkt. #75, p.4. While the fact that Mr.
Mutuas recollection differs from that of every other individual in the room may well
suggest that his recollection is faulty, as discussed, supra, plaintiff has proffered no
evidence that his testimony was intentionally false. In other words, plaintiff had no
factual or legal basis for the accusations of perjury set forth in his Rule 11 motion
In addition, given that there was never any dispute that Mr. Malkan was
promoted to the position of Clinical Professor, the Court can fathom no reason to fixate
on Professor Mutuas recollection of this meeting other than to harass Professor Mutua,
needlessly increase the costs of this litigation and unduly burden the court. Neither
plaintiff nor his attorney has ever articulated how plaintiffs claim would be strengthened
if Professor Mutuas recollection aligned with the recollection of the other faculty
members present at the CCPR meeting on April 28, 2006 nor have they articulated how
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Bad Faith
The same factors which establish the frivolousness of plaintiffs motion for
citation to vacated authority, misstated legal standards and goes so far as to quote from
an outdated version of Rule 11. Dkt. #75, p.12. Plaintiff cites cases, albeit for different
points of law, without recognizing that they contradict other arguments being made by
plaintiff. For example, plaintiff cites Oliveri as a point of law regarding the Rule 11
standard (Dkt. #70-7, pp.14-15), without acknowledging that the decision refutes
plaintiffs argument that AAG Sleight was obliged to amend his answer. 803 F.2d at
1274 ([l]imiting the application of rule 11 to testing the attorneys conduct at the time a
Civil Contempt
Defendant argues that Mr. Malkan should be held in civil contempt for
violating local court rules affording confidentiality to mediation proceedings. Dkt. #83-1,
p.12.
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A party may be held in civil contempt for failure to comply with a court
order if: (1) the order the contemnor failed to comply with is clear and unambiguous; (2)
the proof of noncompliance is clear and convincing; and (3) the contemnor has not
Comercial, Ltda v. GE Medical Systems Information Technologies, Inc., 369 F.3d 645,
655 (2d Cir. 2004)(internal quotation omitted). It need not be established that the
mediation interventions and processes. Rule 4.4. The ADR Plan specifically provides
process and treated as a document prepared for settlement purposes only. Rule
5.6B. The ADR Plan is attached to the Automatic Referral to Mediation on the Docket
(Dkt. #3), and is available on the Courts public website.5 In addition, the Courts Local
Rules, which are available on the Courts public website,6 provide that [t]he ADR
5
http://www.nywd.uscourts.gov/alternative-dispute-resolution
6
http://www.nywd.uscourts.gov/rules-individual-local-federal
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Sanction
and his firm, Leeds Brown Law, P.C., be sanctioned pursuant to Rule 11, 28 U.S.C.
1927 and the Courts inherent power in the amount of $10,000, payable to the Clerk
of the Court for the Western District of New York. This sum is selected as a reasonable
sum in comparison to the amount of legal fees incurred, yet a sufficient sum to
demonstrate the Courts displeasure with counsels conduct and to deter such conduct
in the future.
Court believes that it is important to the parties and to the integrity of the judicial system
that plaintiffs accusations be resolved on the merits, the Court declines to recommend
dismissal of this action even though Mr. Malkans conduct during the course of this
CONCLUSION
#70), for sanctions be denied and that defendants motion (Dkt. #83), for sanctions be
granted in part.
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This Report, Recommendation and Order be filed with the Clerk of the
Court.
filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this
Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P.
The district judge will ordinarily refuse to consider de novo arguments, case
law and/or evidentiary material which could have been, but were not presented to the
magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts
Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474
U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for
the Western District of New York, "written objections shall specifically identify the portions
of the proposed findings and recommendations to which objection is made and the basis
for such objection and shall be supported by legal authority." Failure to comply with the
provisions of Rule 72(b) may result in the District Judge's refusal to consider the
objection.
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SO ORDERED.
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JEFFREY MALKAN,
No. 1:12-CV-00236
Plaintiff, (MAT)
-vs- DECISION AND ORDER
MAKAU MUTUA,
Defendants.
I. Introduction
1
This case was originally assigned to Judge Richard Arcara,
who referred it to Magistrate Judge Schroeder for two Reports and
Recommendations, which were completed and filed on December 1,
2015. The case was referred to this Court by order dated November
16, 2016.
2
On the underlying motions for summary judgment and
sanctions, plaintiff was represented by Frederic D. Ostrove, Esq.,
of Leeds Brown Law, P.C. Plaintiffs counsel was terminated by
plaintiff on July 16, 2015, however, and plaintiff now proceeds pro
se.
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sanctions be denied.
2
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3
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below, the Court adopts the first R&R in its entirety and
III. Discussion
Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). When
4
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error.
judgment.
5
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IV. Conclusion
6
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case.
S/Michael A. Telesca
7
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MAKAU MUTUA,
Defendants.
This Decision and Order amends the Decision and Order dated
I. Introduction
Presently before the Court for review are two Reports and
11. Docs. 70, 83. The parties motions were referred to Magistrate
1
This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Schroeder for two Reports and Recommendations, which were
completed and filed on December 1, 2015. The case was referred to this Court by
order dated November 16, 2016.
2
On the underlying motions for summary judgment and sanctions, plaintiff
was represented by Frederic D. Ostrove, Esq., of Leeds Brown Law, P.C.
Plaintiffs counsel was terminated by plaintiff on July 16, 2015, however, and
plaintiff now proceeds pro se.
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issues raised.
(SUNY) Buffalo Law School (the law school), violated his due
the law school. The Court hereby incorporates the thorough factual
97 at 1-20.
from his position as clinical professor. The first R&R (doc. 12)
2
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counsel, Frederic D. Ostrove, Esq., and his firm, Leeds Brown Law,
Court for the Western District of New York. The second R&R declined
counsel have filed objections to the second R&R. See docs. 98 (Mr.
reasons stated below, the Court adopts the first R&R in its
entirety and adopts the second R&R to the extent stated in this
III. Discussion
v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). When
3
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The Court has reviewed the record in this case as well as the
the first R&R, the Court finds no clear error. The Court agrees
provide that a term appointment can last no longer than three years
4
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and weighing the combined behavior of both the plaintiff and his
provided in the R&R, the Court emphasizes that the reasons Judge
IV. Conclusion3
hereby granted. The Court modifies the second R&R (doc. 97) to the
3
This conclusion is amended to clarify the modified adoption of the second
R&R. In all other respects, the Decision and Order remains as originally filed.
5
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this case.
S/Michael A. Telesca
6
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JEFFREY MALKAN,
Plaintiff,
DKT. NO.: 12 CV 00236
-against-
NOTICE OF APPEAL
MAKAUMUTUA,
Defendant
-------------------------------------------------------------X
PLEASE TAKE NOTICE that Plaintiffs former counsel hereby appeals to the United
States District Court for the Western District of New York from the Amended Decision and Order
dated December 18, 2016 (ECF Docwnent 114, attached hereto as Attachment A) issued by the
Honorable Michael A. Telesca, United States District Judge for the Western District ofNew York.
Additionally, attached within "Attachment A" is the original Decision and Order dated December
16,2016 (ECF Document 113), issued by the Honorable Michael A. Telesca, United States District
Judge for the Western District of New York. Judgment was entered in this action on December
20, 2016 (ECF Docwnent 115, attached hereto as Attachment B). Specifically, counsel appeals to
that portion of the Decision and Order which found that counsel's actions ''are worthy of verbal
sanctions" and all findings related thereto.