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17-228

Case 17-228, Document 29-1, 04/26/2017, 2020450, Page1 of 136

United States Court of Appeals


for the Second Circuit

FREDERIC D. OSTROVE,
Appellant,

JEFFREY MALKAN,
Plaintiff,
v.

UNITED STATES DISTRICT COURT FOR


THE WESTERN DISTRICT OF NEW YORK,
Appellee,

MAKAU W. MUTUA, CHARLES P. EWING,


Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK (Buffalo)
APPELLANTS APPENDIX

LEEDS BROWN LAW, P.C.


Attorneys for Appellant
One Old Country Road, Suite 347
Carle Place, New York 11514
JOSEPH J. KARASZEWSKI, (516) 873-9550
ASSISTANT UNITED STATES ATTORNEY
U.S. ATTORNEY'S OFFICE FOR THE
WESTERN DISTRICT OF NEW YORK
Attorney for Appellee
138 Delaware Avenue
Buffalo, New York 14202
(716) 843-5700

DICK BAILEY SERVICE (212) 6087666 (718) 5224363 (516) 2222470 (914) 6820848 Fax: (718) 5224024
18005312028 Email: appeals@dickbailey.com Website: www.dickbailey.com
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TABLE OF CONTENTS

Page(s)

District Court Docket Sheet ............................................................................... A1-A11

Decision and Order of the Hon. Richard J. Arcara, dated


October 3, 2012 ................................................................................................ A12-A35

Excerpts of Defendants Answer to Plaintiffs Complaint,


dated October 23, 2012 .................................................................................... A36-A37

Memorandum of Law, in Support of Charles P. Ewings


Motion for Separate Trials, dated August 13, 2014 ......................................... A38-A51

Declaration of Makau W. Mutua, in Opposition to


Plaintiffs Motion for Sanctions, dated June 26, 2015..................................... A52-A56

Excerpts from Mutuas PERB Hearing Testimony ......................................... A57-A83

Declaration of Rick Ostrove, in Opposition to Defendants


Motion for Sanctions, dated September 11, 2015 .......................................... A84-A104

Exhibit 1 Excerpts of Transcript of M. Mutua, dated


December 19, 2013 ................................................................................ A105-A119

Exhibit 2 Excerpts of Transcript of Susan V.


Mangold, dated November 20, 2013 ..................................................... A120-A130

Exhibit 3 Excerpts of Transcript of Ms. Avery, dated


November 21, 2013 ............................................................................... A131-A138

Exhibit 4 Excerpt of Transcript of Mr. Steinfeld,


dated November 21, 2013................................................................................ A139

Exhibit 5 Excerpt of Transcript of Rebecca French-


Redwood dated November 21, 2013 ............................................................... A140

Exhibit 6 Declarations ........................................................................ A141-A156


i
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Table of Contents(contd) Page(s)

Exhibit 7 Handwritten Notes, labeled at Exhibit 17..................................... A157

Exhibit 8 Handwritten Notes ........................................................................ A158

Exhibit 9 Additional Excerpts from Mutuas PERB


Hearing Testimony ................................................................................ A159-A160

Exhibit 10 Excerpts of Transcript of N. Olsen, dated


December 19, 2013 ................................................................................ A161-A162

Exhibit 11 Letter from R. Nils Olsen to Jeffrey


Malkan, dated November 16, 2016 ....................................................... A163-A165

Exhibit 12 Excerpts of Transcript of Jeffrey Malkan,


dated December 18, 2013 ...................................................................... A166-A171

Exhibit 13 NYCLA Committee on Professional


Ethics Formal Opinion, dated March 1, 2010 ....................................... A172-A177

Exhibit 14 Excerpts of Defendant Mutuas Response


to Plaintiffs First Combined Set of Interrogatories and
Request for Production of Documents, dated July 13,
2013 ....................................................................................................... A178-A182

Exhibit 15 Letter from Christopher L. Boyd to Rick


Ostrove, Esq., dated June 19, 2015 ................................................................. A183

Defendants Notice of Motion for Sanctions Against


Plaintiff, dated June 19, 2015 ........................................................... A184-A186

Letters from David J. Sleight to Rick Ostrove, Esq.,


dated March 12, 2015 and June 3, 2015 ........................................... A187-A191

ii
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Table of Contents(contd) Page(s)

Report, Recommendation and Order of Defendants


Motion for Sanctions, dated December 1, 2015........................................... A192-A230

Decision and Order of the Hon. Michael B. Telesca, dated


December 16, 2016 ...................................................................................... A231-A237

Amended Decision and Order of the Hon. Michael B.


Telesca, dated December 18, 2016 .............................................................. A238-A243

Notice of Appeal, dated January 13, 2017 ............................................................. A244

iii
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APPEAL,CLOSED_2016,MEDIATION
U.S. DISTRICT COURT
U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:12cv00236MATHKS

Malkan v. Mutua et al Date Filed: 03/23/2012


Assigned to: Hon. Michael A. Telesca Date Terminated: 12/20/2016
Referred to: Hon. H. Kenneth Schroeder, Jr Jury Demand: Both
Cause: 42:1983 Civil Rights Act Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
Plaintiff
Jeffrey Malkan represented by Jeffrey Malkan
12 Valleywood Court West
Saint James, NY 11780
PRO SE

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

Date Filed # Docket Text


03/23/2012 1 COMPLAINT against Charles P. Ewing, Makau W. Mutua, filed by Jeffrey
Malkan.(DZ) (Entered: 03/23/2012)
03/23/2012 Summons Issued as to Charles P. Ewing, Makau W. Mutua. (DZ) (Entered:
03/23/2012)
03/23/2012 2 NOTICE, CONSENT, AND REFERENCE of a civil action to a Magistrate Judge
(forms attached) (DZ) (Entered: 03/23/2012)
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03/23/2012 3 AUTOMATIC REFERRAL to Mediation ; ADR Plan forwarded to plaintiff's
attorney.(DZ) (Entered: 03/23/2012)
04/06/2012 4 SUMMONS Returned Executed by Jeffrey Malkan. All Defendants. (Attachments: # 1
Certificate of Service)(Ostrove, Frederic) (Entered: 04/06/2012)
05/08/2012 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Charles P. Ewing,
Makau W. Mutua.(Sleight, David) (Entered: 05/08/2012)
05/08/2012 6 DECLARATION re 5 MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)
05/08/2012 7 MEMORANDUM IN SUPPORT re 5 MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM byCharles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)
05/14/2012 8 TEXT ORDER: Plaintiff shall respond to Defendant's Partial Motion to Dismiss and
for a Stay by May 29, 2012. Defendants may file a reply by June 5, 2012. Oral
argument will be at the Court's discretion. Issued by Hon. Richard J. Arcara on May
14, 2012. (MLM) (Entered: 05/14/2012)
05/29/2012 9 MOTION for Extension of Time to File Response/Reply by Jeffrey Malkan.(Ostrove,
Frederic) (Entered: 05/29/2012)
05/29/2012 EFiling Notification: 9 MOTION for Extension of Time to File Response/Reply
(Ostrove, Frederic) **document filed without proof of service** (DZ) (Entered:
05/30/2012)
05/30/2012 10 AFFIDAVIT of Service for Motion to Extend Time served on David Sleight and
Rowena Pelenio on 05/30/2012, filed by Jeffrey Malkan. (Ostrove, Frederic) (Entered:
05/30/2012)
05/30/2012 11 TEXT ORDER: the consent Motion for Extension of Time to File Response 9 is
granted. Plaintiff shall have until June 5, 2012 to respond to the motion to dismiss and
defendants' shall have until June 12, 2012 to reply to the response. Issued by Hon.
Richard J. Arcara on May 30, 2012. (WJG) (Entered: 05/30/2012)
06/05/2012 12 MEMORANDUM in Opposition re 5 MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM filed by Jeffrey Malkan. (Attachments: # 1 Affidavit)(Ostrove,
Frederic) (Entered: 06/05/2012)
06/05/2012 13 AFFIDAVIT of Service for Memorandum of Law in Opposition to Defendants Motion
to Dismiss the Complaint and the Affidavit of the Plaintiff, served on David Sleight
and Rowena Pelenio on 06/05/2012, filed by Jeffrey Malkan. (Ostrove, Frederic)
(Entered: 06/05/2012)
06/12/2012 14 MEMORANDUM in Support re 5 MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David)
(Entered: 06/12/2012)
06/29/2012 15 TEXT ORDER: Oral argument of defendants' Motion to Dismiss 5 shall be July 12,
2012, at 2:00 p.m., United States Courthouse, 2 Niagara Square, Buffalo, New York
14202. Issued by Hon. Richard J. Arcara on June 29, 2012. (WJG) (Entered:
06/29/2012)
07/09/2012 16 MOTION to Adjourn Oral Argument on Defendants Motion by Jeffrey Malkan.
(Attachments: # 1 Supplement)(Ostrove, Frederic) (Entered: 07/09/2012)
07/09/2012 17 AFFIDAVIT of Service for Notice of Motion and Motion to Adjourn served on David
Sleight, Esq. and Rowena Pelenio, Esq. on 07/09/2012, filed by Jeffrey Malkan.
(Ostrove, Frederic) (Entered: 07/09/2012)
07/10/2012 18 TEXT ORDER. The plaintiff filed 16 Motion to Adjourn the 7/12/2012 Oral
Argument as to 5 Motion to Dismiss for Failure to State a Claim and for a Stay filed
by defendants. The motion is granted. Oral Argument is adjourned to 7/26/2012 at
2:00 PM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J.
Arcara on June 10, 2012. (DJD) (Entered: 07/10/2012)
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07/20/2012 TEXT ORDER. The 7/26/2012 Oral Argument as to as to 5 Motion to Dismiss for
Failure to State a Claim and for a Stay filed by defendants is adjourned by the Court
until further notice. SO ORDERED. Issued by Hon. Richard J. Arcara on July 20,
2012. (DJD) (Entered: 07/20/2012)
09/25/2012 19 NOTICE of Change of Address by Frederic D. Ostrove (Ostrove, Frederic) (Entered:
09/25/2012)
10/03/2012 20 DECISION AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim.
Signed by Hon. Richard J. Arcara on 10/3/2012. (JMB) (Entered: 10/03/2012)
10/04/2012 CASE REFERRED to Magistrate Judge Hon. Leslie G. Foschio 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 a Report and Recommendation (DZ) (Entered: 10/04/2012)
10/05/2012 21 TEXT ORDER OF RECUSAL. Hon. Leslie G. Foschio recused. So Ordered. Issued
by Hon. Leslie G. Foschio on 10/5/2012. (SDW) (Entered: 10/05/2012)
10/05/2012 22 TEXT ORDER REREFERRING CASE to Magistrate Judge Hon. H. Kenneth
Schroeder, Jr The Magistrate Judge is hereby designated to act in this case as follows:
Pursuant to 28 U.S.C. Section 636(b)(1)(A) and (B), all pretrial matters in this case
are referred to the abovenamed United States Magistrate Judge, including but not
limited to: (1) conduct of a scheduling conference and entry of a scheduling order
pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all nondispositive
motions or applications, (3) supervision of discovery, and (4) supervision of all
procedural matters involving the aforementioned or involving the preparation of the
case or any matter therein for consideration by the District Judge. The Magistrate
Judge shall also hear and report upon dispositive motions for the consideration of the
District Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C). All motions or
applications shall be filed with the Clerk and made returnable before the Magistrate
Judge. The parties are encouraged to consider the provisions of 28 U.S.C. Section
636(c) governing consent to either partial or complete disposition of the case,
including trial if necessary, by the Magistrate Judge. Consent forms are available from
the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO
ORDERED.. Signed by Hon. Richard J. Arcara on 10/5/2012. (JMB) (Entered:
10/05/2012)
10/10/2012 23 ORDER regarding issuance of Case Management Order. Signed by Hon. H. Kenneth
Schroeder, Jr. on 10/10/12. (Attachments: # 1 Case Management Order Form, # 2
Consent Memorandum, # 3 Consent Form)(LMG) (Entered: 10/10/2012)
10/23/2012 24 ANSWER to 1 Complaint by Charles P. Ewing, Makau W. Mutua.(Sleight, David)
(Entered: 10/23/2012)
10/24/2012 25 ADR Plan electronically forwarded to attorneys.(DZ) (Entered: 10/24/2012)
10/29/2012 26 CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the
entire contents of the attached Order. It is your responsibility to read the attached
Order and download it for future reference. Direct any questions to the Chambers of
the Judge who entered this Order.) Stipulation of Selection of Mediator due by
11/20/2012; First Mediation Session due by 1/15/2013; Motions to Join Parties/Amend
Pleadings due by 1/31/2013; Plaintiff Expert Witness ID due by 5/31/2013; Defendant
Expert Witness ID due by 6/28/2013; Discovery completed by 8/30/2013; Dispositive
Motions due by 9/30/2013; Mediation To End by 9/30/2013. Signed by Hon. H.
Kenneth Schroeder, Jr. on 10/29/12. (LMG) (Entered: 10/29/2012)
11/16/2012 27 NOTICE OF MOTION by Jeffrey Malkan to opt out of ADR Plan (Attachments: # 1
Memorandum in Support)(Ostrove, Frederic) Event modified on 11/19/2012 (DZ).
(Entered: 11/16/2012)
11/19/2012 EFiling Notification: 27 event modified to indicate entry is a NOTICE OF MOTION
to opt out of ADR Plan. No further action required at this time. (DZ) (Entered:
11/19/2012)
12/12/2012 28 TEXT ORDER: the joint motion 22 to opt out of ADR is denied. The excuse of
plaintiff for filing the motion late does not excuse the failure timely to file the joint
motion by defendants. Moreover, the Court has carefully reviewed the grounds offered
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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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Megan Pelka.) (DJD) (Entered: 03/03/2016)


11/16/2016 111 TEXT ORDER REASSIGNING CASE. Case reassigned to Hon. Michael A. Telesca
for all further proceedings. Hon. Richard J. Arcara no longer assigned to case. Issued
by Hon. Richard J. Arcara on 11/16/16. (LAS) (Entered: 11/16/2016)
11/16/2016 112 Remark: A copy of text order 111 has been mailed to Jeffrey Malkan, 12 Valleywood
Court West, Saint James, NY 11780 (LAS) (Entered: 11/16/2016)
12/16/2016 113 DECISION AND ORDER granting 55 Motion for Summary Judgment; denying 70
Motion for Sanctions; denying 83 Motion for Sanctions; adopting Report and
Recommendations re 96 Report and Recommendations.; denying 97 Report and
Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on
12/16/16. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)

CLERK TO FOLLOW UP (Entered: 12/16/2016)


12/18/2016 114 DECISION AND ORDER amending Decision and Order dated December 16, 2016..
Signed by Hon. Michael A. Telesca on 12/18/16. (JMC)

CLERK TO FOLLOW UP (Entered: 12/18/2016)


12/20/2016 115 JUDGMENT in favor of Makau W. Mutua against Jeffrey Malkan. Signed by Mary C.
Loewenguth, Clerk of Court on 12/20/2016. (KM) (Entered: 12/20/2016)
01/03/2017 116 NOTICE OF APPEAL by Jeffrey Malkan. FEE STATUS PAID (KM) (Entered:
01/05/2017)
01/03/2017 USCA Appeal Fees received $ 505 receipt number BUF053662 re 116 Notice of
Appeal filed by Jeffrey Malkan (KM) (Entered: 01/05/2017)
01/05/2017 117 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals
(Attachments: # 1 index)(KM) (Entered: 01/05/2017)
01/13/2017 118 NOTICE OF APPEAL as to 113 Order on Motion for Summary Judgment, Order on
Motion for Sanctions,, Order on Report and Recommendations,,,,,, 114 Decision and
Order, 115 Judgment by Frederick Ostrove. Filing fee $ 505, receipt number
02092695968. Appeal Record due by 1/19/2017. (Attachments: # 1 Exhibit
Attachment A, # 2 Exhibit Attachment B)(Ostrove, Frederic) (Entered: 01/13/2017)
01/23/2017 Re 118 Notice of Appeal Pursuant to Local Rule 12.1 of th U.S. Court of Appeals for
the Second Circuit, Forms C and D must be completed within 14 days after filing of a
notice appeal. Forms C and D can be obtained at www.ca2.uscourts.gov. (KM)
(Entered: 01/23/2017)
01/27/2017 119 CLERKS CERTIFICATE re 118 filed and electronically sent to Court of Appeals
(Attachments: # 1 index)(KM) (Entered: 01/27/2017)
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UNITED STATES DISTRICT COURT


W ESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
Plaintiff,

v. DECISION AND ORDER


12-CV-236-A

MAKAU W . MUTUA and


CHARLES P. EW ING,

Defendants.

Plaintiff Jeffrey Malkan brings this action pursuant to 42 U.S.C. 1983

alleging that defendants Makau W . Mutua and Charles P. Ewing deprived him of

property without due process of law in violation of the Fourteenth Amendment to

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

Grievance Committee of the Law School.

In his complaint, plaintiff Malkan alleges that defendant Mutua wrongfully

terminated the plaintiffs contract as a Clinical Professor on the faculty of the Law

School. The plaintiff alleges that defendants Mutua and Ewing intentionally

violated his due process rights to pre-termination and post-termination faculty

consultation and review of defendant Mutuas termination of the contract.


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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

that the two cases are duplicative and wasteful.

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

beyond the Courts subject-matter jurisdiction or are unwarranted by the facts

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

recommendation of the faculty Promotion and Tenure Committee, to the position

of Clinical Professor.

Plaintiff Malkan executed an employment contract for the position of

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

term of employment, followed by a mandatory two-year administrative

extension to be made at the end of the three-year term. The contract provided

that, while American Bar Association (ABA) accreditation standards required

accredited law schools to grant five-year contracts to full professors of the

plaintiffs rank, State University of New York (SUNY) policies, by which the Law

School was bound, permitted only three-year contracts. The contract

nevertheless provided that it was a five-year contract, and characterized the

two-year extension necessary to make it a five-year contract as routine[] and

automatic. It specifically promised that the Dean will extend your contract for

2-years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term

mandated by the ABA.

The November 16, 2006 contract also provided that plaintiff Malkans

appointment as a Clinical Professor could only be terminated for good cause in

accordance with ABA accreditation standards. It specifically promised:

A change in the structure or staffing of the law schools


research and writing program will not equate with for
good cause to terminate or not renew your contract since
your contract as a Clinical Professor is separate from your
administrative appointment as Director of Research and
W riting. Should your appointment as Director of Research
and W riting end, you would still maintain your position as
Clinical Professor.

Dkt. No. 12-1, p. 23.

3
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On March 13, 2008, shortly after being appointed interim Dean of the Law

School, defendant Makau W . Mutua dismissed plaintiff Malkan as Director of the

Legal Research and W riting Program, effective March 14, 2008. The plaintiffs

dismissal was ostensibly in connection with termination of the existing Legal

Research and W riting Program. Defendant Mutua refused repeated attempts by

the plaintiff to discuss the plaintiffs termination as Director of the Legal Research

and W riting Program. The plaintiff continued teaching as a Clinical Professor.

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

to termination upon termination or material modification of the clinical program,

and that the termination of the Legal Research and W riting program at the Law

School met the requirements of Standard 405.

Plaintiff Malkan asked to meet with defendant Mutua about his termination,

but defendant Mutua refused. Defendant Mutua later refused similar requests.

In January of 2009, plaintiff Malkan filed a protest with the faculty

Grievance Committee of the Law School, which was chaired by defendant

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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and Renewal (CCPR) regarding the plaintiffs reappointment as a Clinical

Professor. The plaintiff asserted that defendant Mutua lacked authority to

terminate the plaintiffs appointment as a Clinical Professor for cause without

consulting with and receiving a recommendation from the CCPR. Defendant

Mutua refused to consult with the CCPR.

Defendant Mutua also refused to participate in the faculty Grievance

Committees attempts to address plaintiff Malkans protest that defendant Mutua

was terminating the plaintiff without consultation with the CCPR and without a

recommendation by the CCPR. Defendant Ewing, as chair of the Grievance

Committee, orally acknowledged that the protest was within the Grievance

Committees jurisdiction. As chair of the Grievance Committee, defendant Ewing

spoke to defendant Mutua about the plaintiffs termination and protest to the

Grievance Committee, but defendant Mutua refused to address the protest

through the Grievance Committee. The plaintiff requested that defendant Ewing

report the plaintiffs unaddressed Grievance Committee protest to the Law School

faculty, as defendant Ewing was required to do as chair of the Grievance

Committee, but defendant Ewing refused to do so.

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

Mutua refused to allow the CCPR to hear recommendations or to vote on plaintiff

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

plaintiffs appointment as Clinical Professor terminated, ending his employment

relationship with the Law School.

In January of 2009, plaintiff Malkan brought an action against SUNY in the

New York State Court of Claims for breach of his employment contract. The

plaintiff alleged in the Court of Claims that, by terminating him as a Clinical

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

future lost pay.

SUNY has answered in the New York State Court of Claims that plaintiff

Malkan lacked an employment contract extending beyond the initial three-year

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

contract by an automatic and routine two-year extension. The Court of

Claims action is still in pre-trial discovery.

6
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DISCUSSION

I. Entry of a Stay. Defendants Mutua and Ewing move pursuant to the

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

Claims action and a waste of time.

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

an action pending in state court is necessarily governed by a different and more

strict exceptional-circumstances standard. Moses H. Cone Memorial Hospital

v. Mercury Construction Co., 460 U.S. 1, 19 (1979) (authority to stay must be

exercised under the relevant standard.); Burnett v. Physician's Online, Inc., 99

F.3d 72, 77 (2d Cir. 1996) (a district court must balance the relevant factors in

reaching its decision.).

A motion to stay a federal court action such as this one in favor of an action

pending in state court triggers very different considerations of comity between

sovereigns and of judicial administration than those triggered by parallel federal

litigation. It is well settled that a federal court may stay an action that is within its

subject-matter jurisdiction in favor of a parallel matter pending in a state court

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only in truly exceptional circumstances. Moses H. Cone Memorial Hospital, 460

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

state court action).

Moreover, as a threshold matter, a stay of this federal action can be

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,

94 (2d Cir. 2006) (citing Dittmer, 146 F.3d at 118).

Defendants Mutua and Ewing argue that this action and plaintiff Malkans

New York Court of Claims action are entirely duplicative. The defendants

overlook some substantial differences, however.

Key issues in both the federal civil rights action and state breach of

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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

critical factor in assessing the extent of the plaintiffs property interest in

continued employment with the State an essential predicate for this action

but it will not be dispositive.

W hen considering whether plaintiff Malkans employment contract gave

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-

years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term mandated

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

finding by this Court of a viable property interest in the plaintiffs continued

employment with the State.

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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

contract issues in the Court of Claims action.

The Second Circuit has held that the existence of related and overlapping

subject matter with a state proceeding is insufficient to permit entry of a stay.

Alliance of Am. Insurers v. Cuomo, 854 F.2d 591 (2d Cir. 1988) (state action

involving adequacy of insurance rates was insufficiently similar to federal action

attacking constitutionality of related state medical malpractice statutes to justify a

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,

466 F.3d at 94.

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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

the New York Medical Malpractice Insurance Association was an

unincorporated association that included the federal plaintiff the Alliance of

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

liability without the protection of the States sovereign immunity. [S]uch

differences in parties and issues are strong factors against invoking exceptional

circumstances . . . to justify a stay. Alliance of Am. Insurers v. Cuomo, 854 F.2d

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

and Sun Alliance Ins. Co. of Canada, 466 F.3d at 94.

Based upon the substantial differences in this federal civil rights case and

plaintiff Malkans Court of Claims breach of contract case, the argument of

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

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necessary to warrant the Courts consideration of the defendants exceptional-

circumstances motion for a stay. The defendants motion for a stay is denied.

II. Motions to Dismiss. Defendants Mutua and Ewing move pursuant to

Fed. R. Civ. P. 12(b)(1) to dismiss some remedies sought by plaintiff Malkan

against the defendants in their official capacities including reinstatement and

the clearing of the plaintiffs personnel record of evidence of his termination as

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

their official capacities. The plaintiffs response to the defendants motions to

dismiss confirms that the plaintiff is not seeking to recover compensatory or

punitive damages from the defendants in their official capacities. The defendants'

motions to dismiss those remedies are denied as moot.

For the reasons that follow, the Court also denies the defendants

remaining motions to dismiss. However, the Court dismisses, sua sponte, the

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plaintiffs equitable pay claim as beyond the Courts subject-matter jurisdiction .

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

authority of the United States. Id. at 159-160.

In determining whether a suit against a state official falls within the Ex parte

Young exception to state sovereign immunity, the necessary inquiry focuses on

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

granting prospective injunctive relief to prevent a continuing violation of federal

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

the form of retroactive or compensatory damages as a remedy for a past injury,

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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

treasury is barred by the Eleventh Amendment).

The Supreme Court has acknowledged that its prospective-retrospective

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

prospective-retrospective distinction can be difficult to apply, a central principle is

well established: where the effect on a state treasury is only ancillary to a

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)

(injunctive relief requiring state officials to accept plaintiffs claims for

reimbursement from a state environmental assurance fund).

A. Official-Capacity Claim for Reinstatement. Employment

reinstatement has been recognized by the Second Circuit as a prospective form

of injunctive relief permitted under the Ex parte Young exception to a states

sovereign immunity. See Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985), modified

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on other grounds, 793 F.2d 457 (2d Cir. 1986). In Dwyer, a state employee

brought an action pursuant to 42 U.S.C. 1983 against a state agency, alleging

that he had been deprived of a property interest in continued employment without

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

employee to the state's payroll, and that reinstatement is permissible under Ex

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

defendants motion to dismiss the claim for that remedy is denied.

Defendants Mutua and Ewing overlook Second Circuit precedent that

reinstatement can be permissible under Ex Parte Young. Instead, the defendants

argue that because an order of reinstatement would be intended to remedy an

alleged past violation, it is clearly retrospective. But the mere existence of a

past harm does not render an otherwise forward-looking injunction retroactive.

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

relief relating to past injuries were barred. Id.

Defendants Mutua and Ewing also contend that because reinstatement of

plaintiff Malkan would have an effect on the state treasury, it must be barred by

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the Eleventh Amendment. However, under the prospective-retrospective

distinction articulated in Edelman, sovereign immunity is not invoked simply

because prospective injunctive relief ultimately results in a diminution of state

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

relief. In this case, while plaintiff Malkans reinstatement would necessarily

require the expenditure of state funds, it appears that the expenditure would be

an ancillary consequence of permissible prospective relief.

B. Official-Capacity Claim to Clear Personnel File. The Court also finds

that plaintiff Malkans claim for the clearing of his personnel file of any wrongful

disciplinary actions is similarly permitted under Ex parte Young. The existence

of derogatory information in the plaintiffs personnel file, if found to be the result of

a violation of due process, would be an ongoing violation of federal law. Even

though removal of such information is arguably remedial, the Court finds the

remedy may be entered to compel state officials to prospectively bring their

actions into compliance with federal law to prevent future harm.

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

personnel file be cleared of derogatory material to be purely prospective

injunctive relief. Id. at 302. As the Seventh Circuit held, the removal of

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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

similarly, finding the removal of derogatory information from a plaintiffs state

personnel file to be permitted under Ex parte Young. See, e.g., Williams v.

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

violations was prospective). The Court finds this reasoning to be correct.

Clearing plaintiff Malkans personnel file of references to an unlawful termination

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

barred by the Eleventh Amendment.

C. Official-Capacity Claim for an Equitable Award of Pay. Plaintiff

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).

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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

pay in a suit against a state officer to be barred by the Eleventh Amendment.

Dwyer v. Regan, 777 F.2d 825, 835 (2d Cir. 1985). Plaintiffs claim for back pay

is likewise therefore barred.

An award of front pay is similarly within the scope of the Eleventh

Amendment. W hile front pay is generally available in other contexts as an

alternative to reinstatement, were it to be awarded in this suit against state actors,

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)

(front pay is equivalent to compensatory damages which would have to be paid

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

is unavailable as an alternative to reinstatement in an official-capacity suit against

a state official where it will be paid from a state treasury.

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D. Individual-Capacity Claim for Punitive Damages. Defendants Mutua

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

support an award of punitive damages. In general, to survive a motion to dismiss

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).

Punitive damages may be awarded under 42 U.S.C. 1983 only where

the defendant's conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally protected rights of

others. Smith v. Wade, 461 U.S. 30, 56 (1983). The Second Circuit has found

punitive damages to be appropriate in cases involving wrongful termination on

prior occasions. See, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1343 (2d Cir.

1991) (punitive damages warranted where New York State Department of

Education employee was discharged in violation of First Amendment). To be

entitled to punitive damages, a plaintiff must show a positive element of

conscious wrongdoing. Kolstad v. American Dental Ass'n, 527 U.S. 526, 538

119 (1999).

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Plaintiff Malkan essentially complains that his procedural rights to

mandatory Law School faculty review of his termination as a Clinical Professor

were denied by defendant Mutua in violation of the plaintiffs Fourteenth

Amendment rights to due process. The plaintiff alleges that his termination as a

Clinical Professor was in wanton breach of specific promises made in his

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

terminate or to not renew the plaintiffs appointment as a Clinical Professor.

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

plaintiffs termination as if the plaintiff were an instructor, not a Clinical Professor.

The termination letter disposed of the promise to the plaintiff of a five-year

contract as not permitted by SUNY.

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.

But those allegations, along with the allegations of defendant Mutuas

stonewalling of the plaintiffs various attempts to seek redress, together support a

reasonable inference that defendant Mutua was determined to resist mandatory

Law School faculty consultation and review of the plaintiffs termination in order to

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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

circumstances of the plaintiffs termination through the Grievance Committee,

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

for punitive damages against defendant Mutua.3

Plaintiff Malkan alleges that defendant Ewing orally admitted that the

plaintiffs protest of the circumstances of his termination, including defendant

Mutuas refusal to consult with the CCPR, was within the jurisdiction of the faculty

Grievance Committee chaired by defendant Ewing. The plaintiff further alleges

that defendants Ewing and Mutua refused to address the plaintiffs protest after

defendant Ewing spoke to defendant Mutua about the plaintiffs termination and

the protest before the Grievance Committee.

After careful consideration, the Court finds it plausible that defendant

Ewings refusal as chair of the Grievance Committee to address plaintiff Malkans

protest, and his refusal to report the unaddressed protest to the faculty, was the

result of defendant Mutuas refusal to cooperate with the Grievance Committee.

The complaint adequately alleges that defendant Ewings actions recklessly or

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.

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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

therefore also denied.

III. New York Due Process. Defendants Mutua and Ewing fail to

challenge plaintiff Malkans cause of action to the extent that it purports to be

stated under provisions of the New York State Constitution. Because such a

claim is beyond the Courts subject-matter jurisdiction, it is dismissed, sua sponte,

pursuant to Fed. R. Civ. P. 12(h)(3).

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

which no alternative remedy is available to the plaintiff. Brown v. State, 89

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

to entertain an implied private right of action under an analogous clause of the

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

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State Constitution). To the extent plaintiff Malkans due process claim is stated

under provisions of the New York State Constitution, it is dismissed.

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

dismiss pursuant to Fed. R. Civ. P. 12(b) filed by defendants Makau W . Mutua

and Charles P. Ewing are all denied. The Court dismisses sua sponte plaintiff

Jeffrey Malkans equitable claims against the defendants in their official

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.

Pursuant to 28 U.S.C. 636(b)(1)(B), this case is referred to a United

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

a Report and Recommendation containing proposed findings of fact, if

appropriate, and recommendations for the disposition of any motions in this case.

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All papers shall continue to be filed in the Clerks office.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

DATED: October 3, 2012

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

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.

-- . . -~ __. __ .. With;respect:to the allegations contained in paragraph 1, Defendants assert that no

response is due as the allegations call constitute a legal conclusion, but to the extent that any

response is required, deny the allegations

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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allegations contained in this paragraph.

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

remaining allegations contained in this paragraph.

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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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK
_________________________________________

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

This Memorandum is submitted in support of Defendant Charles P. Ewings (Ewing)

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).

Avery testified, and her contemporaneous notes confirm:

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.

(Exhibit C: Avery Dep. 28; Exhibit D: Plaintiffs Ex. 17)

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

meeting to recommend that Jeffrey Malkan be promoted to Clinical Professor (Exhibit H:

Declarations of Dianne Avery, Rebecca French, Shubha Ghosh, Alfred Konefsky, Susan

Mangold, Isabel Marcus, Lynn Mather and Robert Steinfeld).

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.

(Exhibit I: Mutua Dep. 37).

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

Professor. (Exhibit K: Ewing Decl., 20).

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.

10; Exhibit L: Ewing Dep. 23-26).

7
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MALKANS PLAN TO SHOW MUTUAS FALSE TESTIMONY

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

facultys approval of my reappointment to . . . the rank of full clinical professor. In support of

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

consistent with reappointment. (Exhibit M).

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

his testimony . . . . (Exhibit N).

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

Penal Law 210.15, the state penal statute.

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

justice. (Exhibit P).

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.

THE SEPARATE TRIALS STANDARD: AVOIDING PREJUDICE

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.

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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,

2001) (internal quotes and citations omitted).

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

1-47, 286 F.R.D. 188, 196 (D. Mass. 2012).

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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.

Supp. at 120-122). This is called the spill-over effect. Id.

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

prejudice.) (Internal cites and quotation marks omitted).

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

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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

be disposed of as inconvenient by a law school dean.

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

recommending anything other than abeyance of Malkans grievance.

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

claims against Mutua (or Mutuas defenses to Malkans claims).

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.

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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:

Sworn testimony in judicial proceedings is a quintessential example of speech as a


citizen for a simple reason: Anyone who testifies in court bears an obligation, to
the court and society at large, to tell the truth. See, e.g., 18 U. S. C. 1623
(criminalizing false statements under oath in judicial proceedings); United States
v. Mandujano, 425 U. S. 564, 576 (1976) (plurality opinion) (Perjured testimony
is an obvious and flagrant affront to the basic concept of judicial proceedings).
When the person testifying is a public employee, he may bear separate obligations
to his employerfor example, an obligation not to show up to court dressed in an
unprofessional manner. But any such obligations as an employee are distinct and
independent from the obligation, as a citizen, to speak the truth.

***

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

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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

relationship with Mutua at the Law School.

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.

Dated: Buffalo, New York


August 13, 2014 s/ Randolph C. Oppenheimer
Randolph C. Oppenheimer, Esq.
Abigail D. Flynn-Kozara, Esq.

DAMON MOREY LLP


The Avant Building Suite 1200
200 Delaware Avenue
Buffalo, New York 14202-2150
Telephone: (716) 856-5500

Attorneys for Defendant, Charles P. Ewing

Doc #1950231.1

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l ~ITF.D STATES DISTRICT COURT


\\ ESTERJ'I DISTRICT OF NEW YORK

JEFFREY MAl KAN

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

pu-;ition until Dcct:mhcr 2014. when I stepped do'' n.

1. I make tlw, Declaration 111 opposttion to Plainttffs mottun for Rule II sanctions

against me ~md tn) counsel. Da\ td Slctght. Docket '\u. 70.

3. At the outset. I \\lmld likt: to stah: uncqunocall) tuatltc-;ttficd truthfully and to

the hcst of my rccollcclton at both Plainltlrs PI RB heunng .uHl at m)' dcposthon tn tht-.. case. I

tunc: ncn:t wu\ crcd frum that position.

4. Plaintiff-.. Rule II motton reltcs hca\ tl y on former Dc:fcndant Charles Lw ing's

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

to sully and damage my profes~ional reputation.

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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leadership meetings. or suppurt the initiatives o f the La"' School.

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

fl)ll<)wmg day. he filed his motion to se,cr.

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

the other faculty members complaint.

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.

D::ncd June 26. 2015


Rome. Italy
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173

1 there really was no coherent structure . As I recall there

2 were anywhere depending upon the time of the year,

3 anywhere from four to six or seven instructors who were

4 teaching this particular program. You know, some would be

5 dismissed in midstream from what I -- from what I could see.

6 I had several cases where some instructors would come to my

7 office and say , well, it was nice seeing you, see you later ,

8 and they would disappear from the building. So there was no

9 structure as such , nnd there was no avenue, you know, for

10 the facu lty to communicate with Mr . Malkan, with respect to

11 the instructors or the program.

12 Q. All right . And then I'd like to direct your

13 attention to a faculty meeting that took place in 2006 , in

14 which Mr. Malkan ' s reappointment was discussed. Do you

15 remember such a faculty meeting?

16 A. I do remember the meeting. The meeting was called

17 specifically to discuss Mr. Malkan. In particular, it was

18 to discuss whether he should continue as the director o f the

19 research and writing program and whether he should be

20 promoted from a clinica l associate professor to a full

21 clinical professor. The meeting was presided over by the

22 vice dean for academics.

23 Q. Who is that?

24 A. Professor Sue Mangold. Mangold, M-A-N-G-0-L-D .

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174

1 Sue Mangold, because the Dean Olsen was not -- was away on a

2 trip. The meeting began on a note of controversy, in which

3 faculty members argued that the purpose of the meeting was

4 not clear . The reason for that was because faculty members

5 asked how Jeff Malkan could be promoted from an associate

6 clinical professor to a full clinical professor when he was

7 not teaching in clinics in the first place, and many

8 questioned why he had been appointed in the first place or

9 been given the title of an associate clinical professor when

10 he was not a clinical professor. But that discussion was

11 was put aside and we focused our attention on discussing

12 Jeff Malkan ' s suitability as director of the research and

13 writing program and that. discussion was very heated.

14 Faculty members were disappointed about the nature of this

15 particular program . I can say that I have not been in many

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

18 not responded to the very poor state of the legal research

19 and writing program and why no one had, you know , brought up

20 the matter of Jeff Malkan ' s leadership of the program to a

21 faculty meeting for discussion. It was felt by many that --

22 you know, that Jeff Malkan should not continue to be

23 director of this program, that we should not reappoint him

24 because he had failed utterly as director of the program, to

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175

1 lead it, and that we should scrap the program and start from

2 scratch by rethinking the entire program.

3 So this particular meeting resolved two things.

4 One , that Mr . Jeff Malkan should be given an additional year

5 as director of the program , after which we would look for a

6 new director of the program. The reason for this additional

7 year was to give us more time to look fo r a new director and

8 to give Mr. Malkan time to look for employment elsewhere .

9 The second resolution of that particula r faculty meeting was

10 that the dean would be asked to a appoint a committee of t h e

11 faculty to study the program and to reconst ruct it f r om the

12 ground up. These were the two resolutions of this

13 particular meeting.

14 Q. All right . What , other than the -- so is it your

15 testimony that the faculty ultimately recommended to Dean

16 Olsen to reappoint Professor -- Mr. Malkan for one year as

17 director?

18 A. The faculty resolved i t to ask the vice dean for

19 academics , Professor Mangold, to ask the dean of the law

20 school to reappoi n t Mr. Jeff Ma lkan to a one year term, a

21 terminal -- one year terminal -- you know, term, as direc~or

22 of the program.

23 Q. All right . And do the faculty take any action

24 regarding Mr. Malkan ' s promotion?

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176

1 A. I do not recall the faculty acting on that part

2 of, you know, the agenda of the meeting . The discussion

3 regarding Jeff Malkan's di rectorship of the program was so

4 heated and, you know, so expressive , I should say, that the

5 faculty was consumed at that particular issue and once we

6 decided on these two resolutions, the meeting broke up.

7 Q. Were you personally concerned and in agreement

8 that Mr. Malkan had failed utterly as director of the

9 research and writing program?

10 A. Not only was I concerned , I was one of the main

11 advocates for the position that we should terminate Jeff

12 Malkan immediately, not even granting him an additional year

13 to transition. I made the argument before the faculty that

14 we should not give him one more year , because we did not

15 have an additional year to waste on our students, without

16 giving the~ a quality product in this particular program . I

17 felt that we would be wasting our students ' resources and

18 time to allow him to continue as director of the program. I

19 made this particular case. The faculty in it ' s wisdom

20 decided, you know, to give hi~ one year, and so there was

21 disagreement between myself and most of the faculty on that

22 situation.

23 Q. All right. And then this was just a

24 recommendation by the faculty; correct , the one year

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177

1 appointment?

2 A. It was a recommendation by the faculty, but

3 understand that a recommendation in this circumstance, means

4 the faculty - - the recommendation does not bind the dean , l

5 want to make that very clear, but the dean would norma l ly go

6 along with the faculty recommendation absent any strong

7 preferences that they would have, but if he did go against a

8 facult y recommendation , he would then explain to the faculty

9 why it was that he decided not to abide by their

10 recommendation.

11 Q. And what did Dean Olsen do with the faculty ' s

12 recommendation to reappoint Mr. Malkan for one year?

13 A. T~e dean never reported back to the faculty . We ,

14 I think, expected the dean would come back with a report

15 based upon our recommendations, but no report was ever

16 forthcoming. Mr . Malkan continued to be in the building .

17 Q. And did Dean Olsen then promote Mr . Malkan to

18 clinical professor and renew his term?

19 A. Most faculty did not know what actions the dean

20 had taken with respect to Mr. Malkan, because normally when

21 the dean acts on such a matter he sends a letter to the

22 particular facu l ty member . He may decide to announce his

23 decision to the faculty or he may not. In this particular

24 case, there was no announcement to the faculty as to the

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[Mutua , Cross] 272

l started work yet.

2 Q Cl inical associate professor?

3 A Clinical professor.

4 Q Full professor?

5 A No. Actua lly , I take that back . My mistake.

6 I've hired a Director of the clinics, not a

7 clinical professor.

8 Q Okay . Have you been involved in the reappointment

9 of any clinical professor? And I want to make

10 clear, when I'm talking about clinical professors,

ll I'm talking about people who hold the State title

12 who are non-tenure track in a qualified rank.

13 A I have been involved in the reappointment of three

14 clinical professors.

15 Q And who is that?

16 A George Hezel, Sue Tompkins and Tom Disare .

17 LAW JUDGE : How do you spell the first

18 name? And tell us the third name again.

19 THE WITNESS: George Hezel, H-e-z-e-1.

20 Tom Disare , D-i-s-a-r-e . And Sue Tompkins,

21 T-o-m-p-k-i-n-s.

22 Q The reappointment?

23 A The reappointment.

24 Q And in what way were you involved in those

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[Mutua, Cross] 273

1 reappointments? As Dean or on the committee?

2 A I was invo lved

3 MS. HOMES VANCE : Objection. Vague as

4 to what committee . Lack of foundation . She

5 said " the committee. " There ' s no --

6 MS. SING ER-B LUMBERG: I ' m sorry . The

7 Committee o n Clinical Review for Renewals .

8 A I was involved in their reappo i ntment as the Dean

9 of the Law School .

10 Q In those three cases?

11 A I n those th r ee cases, yes.

12 Q And before you were Dean , were you involved in the

13 reappointment of any other clinica l title?

14 A As far as I can remembe r, the r e were no

15 reappointments before I became Dean.

16 Q Wel l, you testif i ed yesterd ay that y ou were

17 i nvolved in the voting process of reappoi n ting

18 Pro fe ssor Malkan wh o holds a clinical professor

19 title . So I ' m confused .

20 A I said that I was i nvo l ved in a meeting in which

21 we were supposed to vote on his reappointment .

22 Q Right .

23 A Yeah . Supposed to vote on his reappointment .

24 Q You said actually I be l ieve that the

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[Mutua, Cross] 274

1 recommendation wa s to reappoint him to a one-year

2 terminal appointment?

3 A As Direc tor of the Research and Writing Program .

4 Q You didn't vote on his faculty appointment?

5 A We did not vote on his faculty appointmenl.

6 Q And in the cases you were involved in in renewing

7 those three other people --

8 A Uh-huh.

9 Q tell us what the process was.

10 A So what typically would happen is that the

11 Clinical Promotion and Tenure Comm ittee, which is

12 the body of all tenured faculty and all clinical

13 -- full clinical professors would meet to discuss

14 the reappointment of a clinical professor to

15 another three-year term. Every appoin tment is

16 three years. So when the appointment is up, this

17 particular committee would meet to discuss whether

18 this particular faculty member should be

19 reappo~nted based upon whether they have met, you

20 know , the requirements of their job description.

21 Q And that ' s always the first step is the committee

22 meets to review and make a decision on

23 reappointment of a clinical professor?

24 A To make a recommendation to the Dean to reappoint.

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[Mutua, Cross] 275

1 Q So when Jeff came up for rev iew i n 2006 on his

2 reappointment, did that committee meet?

3 A When Jeff came up for review -- Jeff formerly held

4 the title of clinical associate professor.

5 Q Right.

6 A At the meeting that we ' ve been discussing here in

7 2006 --

8 Q No, but I ' m asking you if there was a meeting for

9 reviewing his reappointment to a new three - year

10 contract which was due in 2006 .

11 A And that ' s what I'm trying to -- to respond to.

12 When we met in 2006 , we were supposed to make a

13 determination on two issues regarding Mr. Malkan:

14 No. 1 , as to whether he should continue to hold

15 the position of Director of Research and -- Legal

16 Research and Writing, and, No . 2, whether he

17 should be promoted from associate clinical

18 professor to a full clinical professor .

19 Q And along with the promotion would be a renewal?

20 A Would be a renewal of three years.

21 Q Now, nonrenewal of clinical faculty, do they also

22 go before the Promotion and Tenure Committee?

23 A Nonrenewals of clinical faculty would go before

24 the Clinica l Promotion and Renewal Committee.

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[Mutua, Cross j 276

1 Q Okay . And --

2 A And the requirements there are that the Director

3 of the clinics would present a report to that

4 committee recommending to that committee whether a

5 particular clinical professor should be rene wed.

6 Q And where does that come from, that the Director

7 of the c l inics makes that report?

8 A The Director of the clinics is requ i red by our

9 bylaws to make the -- to prese n t a report before

10 the Clinical Promotion and Renewal Committee to

11 make tnat determination. In Jeff Malkan ' s case,

12 he was not a member of the clinical fac ul ty and,

13 therefore, did not fall under the Director of the

14 clinics.

15 Q But he held a clinical title, the title of

16 c l inical associate professor.

17 A And that's precisely why I sa i d yesterday that he

18 was out of category .

19 Q That ' s your interpretation, but technically we

20 already have a stipu l ation. So I need you to get

21 past that. He he l d the title of clinical

22 associate professor ; right? You don ' t have even

23 to answer that because we know that i t ' s right .

24 So let's talk abou t the byla ws since you

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[Mutua, Cross] 277

1 raised them, and they are in the record .

2 A Sure.

3 Q Okay. I ' m looking at what ' s been in the record as

4 Charging Party 8, which is the University of

5 Buffalo bylaws and standing orders of the faculty

6 for the Law School , and i t specifically speaks to

7 the Clinical Promotion and Rene wal Committee, and

8 i t says that, " Renewal, d i smissal, or termination

9 of the appointment of a Facult y Member who i s on

10 an indef i nitely renewable long-term contract

11 shall be recommended by a majority of the

12 Committee voting in person at the meeting ." This

13 is Committee on Clinical Renewals. So in 2008

14 when a determination was going to be made to

15 non-renew Professor Malkan from his position as

16 clinical professor, did you follow the bylaws and

17 send the committee his paperwork to make a

18 recommendation on his nonrenewal?

19 A No, I did not.

20 Q And yet the bylaws dictated that clinical

21 nonrenewals go before the committee?

22 A I -- I d i d not send his matter of nonrenewal

23 before this particular committee because he was

24 out of category.

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[Mutua, Cross] 278

1 Q You already said that.

2 A Yes.

3 Q Just so I'm clear , who hires the adjuncts for the

4 Law School?

5 A The adjuncts can be hired by the Dean .

6 Q By the Dean?

7 A Yes.

8 Q And nonrenewals of the adjuncts?

9 A Can -- can be issued by the Dean .

10 LAW JUDGE: Mr . Reed, you need to keep

11 i t quiet. If you have something to te l l

12 them, you walk up and whisper in their ears .

13 Q How many faculty are in the school , not counting

14 the adjuncts and the clinical faculty, roughly , if

15 you know?

16 A Are you talking about full - time faculty or

17 part-time faculty , or are yo u talking about tenure

18 track faculty? What do you mean?

19 Q I ' m talking about full-time faculty other than --

20 right -- full-time faculty.

21 A And how are you defining full-time?

22 Q Full-time is a hundred percent employment. It's a

23 full-time position. There ' s only one definition

24 of full - time . How many roughly full-time faculty

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[Mutua , Cross] 279

l do you have in the Law School?

2 A I would say about fifty plus.

3 Q Fifty?

4 A Fifty Flus.

5 Q And how many adjuncts?

6 A I cannot say for sure, but i t ' s more than fifty.

7 Q More than fifty?

8 A Yes.

9 Q Now, you talked about when these committees, like

10 the Promotion and Tenure Review Committee, which

11 is comprised of the tenure track faculty and the

12 is it also the clinical faculty are part of

13 that committee?

14 MS. HOMES VANCE: Objection. Assumes

15 she ' s mischaracterizing the evidence. We

16 have testimony that there is a Committee on

17 Cl i nical Promotion and Renewal. We don't

18 want the witness to be confused and have the

19 record unclear . I don ' t know what committee

20 she ' s talking about.

21 LAW JUDGE: Make sure we're clear with

22 specificity, and I'm not sure you

23 characterized the membership of that

24 committee accurately.

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[Mu t ua, Cross) 280

1 MS . SINGER-BLUMBERG : Okay , I ' m sorry.

2 Let me take a step back.

3 Q Let ' s t alk about faculty mee t ings . Wh o is

4 eligible to att e nd a faculty meeting?

5 A It depends on what k i nd of faculty meet i ng you're

6 talking about . There are many types of faculty

7 meetings .

8 Q Do you have regul ar facul t y meetings?

9 A Well , there are many regular - - there are ma ny

10 regular t y pes of faculty meetings .

11 Q What types of faculty meetings are there?

12 A So there are faculty meetings which discuss

13 governa n ce in the Law School which is attended by

14 all tenure track and tenured faculty. There are

15 faculty meetings on a ppointme n ts for t e n ure t r ack

16 faculty which a r e attended by all tenure track and

17 tenured faculty .

18 Q Do these have different names , these f aculty

19 meetings? Do people know what faculty meeting i t

20 is?

21 A Absolutely . T h ere are facult y meet i ngs that , you

22 know, which are designed for the appoin t ment of

23 clinical faculty , which inc l ude clinical faculty,

24 tenure track and tenur e d faculty . You know , so

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[Mutua, Cross) 281

1 there are many types of faculty meetings. You

2 have to specify which faculty meeting you're

3 talk ing about .

4 Q Which faculty meetings are clinical faculty

5 allowed to attend?

6 A Clinical faculty can attend faculty meetings on

7 governance except those meetings that either

8 deliberate on tenure or deliberate on appointments

9 for tenure track faculty.

10 Q Was there a time when clinical faculty were not

11 allowed to attend tho se other faculty meetings

12 that they can now attend? Wasn ' t there a change?

13 A Prior to, I would say -- I don ' t know the exact

14 date here, but prior to I think 2007 , clinical

15 faculty cou ld not attend faculty meetings .

16 Q ~ou said yesterday that the Research and Writing

17 instructors came and went . Sometimes they'd say,

18 "See you in the hall, " and you ' d never see them

19 again, they're on their way out the doer. Were

20 you aware that over Je ff's tenure as Director, he

21 increased the number of instructors that would

22 teach in the Research and Writing Program?

23 A The Direc tor of the program has no capacity or

24 ability or authority to increase the number of

J M 01332
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[Mutua , Cross] 282

1 faculty teaching in the program.

2 Q He has the abil i ty to make that request, though ,

3 and persuade the Dean to do that; right?

4 A Yes.

5 Q And were you aw a re that those numbers actually

6 went up over his time as Director?

7 A I was not counting .

8 Q But you were concerned about the Research and

9 Writing Program t h e whole time?

10 A Yes , I was.

11 Q Did you realize that the number of sections went

12 up and the number of students in each section went

13 down as a result over the period that he was

14 Director?

15 A Again, I was not aware that the sections changed

16 number of sections changed .

17 Q Do you get a copy or is there a master copy of the

18 schedule of what ' s being offered in the Law

19 School? Do the faculty have access to that?

20 A What do you mean?

21 Q I mean do you as a faculty member , can you see

22 what the fall schedule is, whac courses are being

23 offered?

24 A Absolutely. Absolutely.

J M 01333
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[Mutua, Crossj 283

1 Q Now , i n 2006 when Professor Malkan came up for

2 review and promotion, renewal and promotion , you

3 said that it was at a facu l ty meeting . Was it a

4 general faculty meeting or a meeti n g of the

5 Promotion and Tenure Committee to vote on his

6 promotion?

7 A It was a faculty of tenured facu l ty - - it was a

8 meeting o f tenured faculty . Sorry.

9 Q To vote on hi s promotion?

10 A It was a meeting of tenured fa culty to discuss --

11 on the agenda were two i ssues: To discuss whether

12 Jeff Malkan should continu e in his posit i on as

13 Direc tor of Legal Research and Writi n g, and,

14 secondly , to determine whether we should make a

15 recommendation for him to be promoted from

16 clinical associate professor to full clinical

17 professor .

18 Q There was action that on t h e agenda before the

19 meeting commenced?

20 A It was - - that was what t he Vice Dean for

21 Academics mentioned .

22 Q Mentio ne d. Whe n a meeting is called , is there an

23 agenda that ' s sent out before the meeting?

24 A I cannot recall whe th er the r e was a particular

J M 01334
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[Mutua, Cross] 284

1 agenda, but I do recall that once we were in the

2 meeting, we were told that this is what we were

3 going to be discussing.

4 Q Do you remember ge t ting a dossier on Professor

5 Malkan for review for promotion?

6 A I remember getting a dossier for Professor Malkan

7 on his performance as Director of the Legal

8 Research and Writing Program , not a dossier for

9 promotion . I don ' t remember that.

10 Q But when a faculty member comes up for promotion,

11 even a clinical faculty professor, a dossier is

12 put together ; right?

13 A Yes.

14 Q So even though you don't remember, presumably a

15 dossier was put together for him?

16 A I don ' t remember.

17 Q And the dossier typically includes information on

18 performance from a number of sources?

19 A The dossier for clin i cal faculty?

20 Q Yes. For promotion.

21 A The dossier for clinical faculty would be prepared

22 by the Director of the Clinics and presented to

23 the faculty for discussion , and i t would focus on

24 the faculty member's competence in running a

J M 01335
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[Mutua, Cross) 285

1 clinic.

2 Q So wou~d a dossier have been put together by the

3 Director of the Clinics for Malkan in 2006?

4 A At this particular meeting, there was no Director

5 of Clinics . The meeting that I ' m-- that we're

6 talking about.

7 Q There was no Director in existence or present?

8 A There was no Director present to present us with

9 Malkan's -- Mr . Malkan ' s dossier.

10 MS . HOMES VANCE: Objection. It

11 assumes facts not in evidence . The witness

12 has already testified that since Professor

13 Malkan did not work in a clinic, that he is

14 not being reviewed by anyone that would have

15 run a clinic , so we're really mixing

16 evidence here .

17 LAW JUDGE: What we have here, frankly,

18 is the fact that Mr. Malkan was in this

19 title, and we have the Dean who has

20 testified that he didn't believe that was an

21 appropriate title. He keeps saying " out of

22 category ." Obviously, that can lead to

23 some , let's call them procedural problems.

24 I don ' t think there ' s -- there may be a

J M01 336
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[Mutua, Cross] 286

1 dispute broader about the nature of his

2 title and what resulted from that , but I

3 don ' t think that she ' s assuming any facts

4 not in evide n ce . It ' s just that there ' s

5 disagreement, I suppose , o v er the

6 con sequence of , as the Dean has testified ,

7 that Mr . Malkan was , quote, out of category.

8 MS. HOMES VANCE : So I think what I

9 guess let me make clear my objection . I

10 think that Ms . Singer-Blumberg's question is

11 assuming that if there was a Director of the

12 cli n ics, that that Director of the c l inics

13 would have been responsible for preparing a

14 dossier on Mr. Malkan and presenting i t to

15 the committee, to the Committee on Clinical

16 Promotion and Renewal or to a faculty

17 meeting , and that is against what the

18 testimony that the Dean has already

19 testified to . That ' s really assuming a fact

20 not in evidence , I believe.

21 LAW JUDGE : I don ' t read i t that way.

22 If you think i t ' s going in t hat direction,

23 that ' s something you can certainly ask on

24 Redirect.

J M 01337
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[Mutua, Cross] 28 7

1 So let's move along.

2 Q You tes t ified

3 LA W JUDGE : In my mind I ' m keeping

4 things clear , and I think it ' s probably as

5 clear on t he reco r d . I don ' t t hink it ' s --

6 right now i t ' s not clear , but if you think

7 it ' s not , t h en c l ar i fy it then on rebutta l .

8 MS . HOMES VANCE : Thank you.

9 LAW JCDGE: I don ' t th i nk there ' s been

10 any so r t of assumptions just yet .

11 MS. HO MES VANCE : Thank yo u, your

12 Honor.

13 MS . SINGER-BLUMBERG: Thank you.

14 BY MS . BLUMBERG :

15 Q You testif i ed that one of the things that was

16 discussed on the internal agenda o n ce the meeting

17 s tarted was Professor Malkan ' s promot i on . You

18 already testified to that . So as part of the

19 promotion process in the Law School , is a dossier

20 normally put together? Not necessar i ly by the

21 cli ni cal d i rector or the Directo r of cl i nics , but

22 by someone , is a doss i er put together when a

23 promotion package comes up?

24 A Yes.

J M 01338
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[Mut ua, Cross ] 288

1 Q Were there minutes of this meeting in 2006?

2 A The -- the Promotion and Tenure Committee, or the

3 Clinical Promotion and Renewal Committee, does not

4 -- do not keep minutes.

5 Q And do you remember how many people were in

6 attendance at that meeting?

7 A Oh, I can ' t recall, but I would say roughly maybe

8 I wo u ld say twenty roughly.

9 Q Do you remember whether the ABA 405(c}

10 requirements were read at that meeting by Sue

11 Mangold?

12 A No, I do not recal l that.

13 Q Were you familiar at that time with the 4 05 (c)

14 requirements?

15 A Yes, I am. I was and I am today.

16 Q And by that point in time do you recall that the

17 three of the other clinical professors had already

18 been promoted to full professor?

19 A I cannot reca l l.

20 Q So at that meeting you said one of the things on

21 the agenda was the removal -- whether to remove

22 Malkan as Director of the Research and Writing

23 Program?

24 A Whether to terminate his directorship of the

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[Mutua, Cross] 289

1 program, yeah.

2 Q Now, you testified yesterday that as Dean, the

3 Dean has exclusive authority on administrative

4 appointments. It doesn't have to go to a

5 committee. It doesn ' t have to be discussed with

6 the faculty . You can give those out and take them

7 away as you please , basically?

8 A Sure.

9 Q And the directorship is one of those

10 administrative appointments?

11 A Absolutely.

12 Q So there was no reason for i t to go before this

13 committee?

14 A There ' s no reason for it to go before the

15 committee, but the committee can discuss whatever

16 i t wants to discuss.

17 Q And you testified actually that it was your desire

18 that Malkan be immediately removed and out of the

19 building . He shouldn't even be given a year to

20 find new employment .

21 A It was my proposal to that committee that we

22 should terminate Jeff Malkan as Director of the

23 program because the program had failed.

24 Q Did you realize that terminating him from the

JM 01340
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[Mutua, Cross] 290

1 Director of the program would have zero impact on

2 his clinical faculty appointment?

3 A Let me put it this way: Jeff Malkan, I understood

4 Jeff Malkan ' s appointment as Director of the

5 program to be connected to his appointment as an

6 instructor in the program .

7 Q Did you know at that time that he taught other

8 classes completely outside of Research 3nd

9 Writing?

10 A Any faculty member can teach any course that the

11 Dean permits him to teach. So I would not be

12 surprised if he was teaching other courses .

13 Q So your understanding that his appointment as

14 Director was-- I don ' t remember what words you

15 used -- how it re l ated to his job as an instructor

16 in the program basically, what was that

17 understanding based on?

18 A My understanding - - my understanding was that if

19 Jeff ceased to be a Director of the program, he

20 would also cease to be an instructor in the

21 program.

22 Q How does that impact his clinical appointment, or

23 how did you understand i t to impact his clinical

24 appointment?

J M01 341
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[Mutua, Cross] 291

1 A As far as I was concerned, Jeff never had a

2 clinical appointment.

3 Q And is it your testimony that there was no vote

4 held o~ his promotion at that meeting?

5 A Promotion for what?

6 Q From clinical associate to full professor.

7 A My understanding is that we did not act on that

8 particular item.

9 Q There was no vote?

10 A There was no vote on that particular issue .

11 Q On the promotion issue?

12 A Yes.

13 Q So as far as you knew, after that meeting he

14 wasn't going to be promoted because nobody had

15 voted on it?

16 A That's correct.

17 Q And i t had to be voted on by the committee?

18 A It had to be voted on by the committee .

19 Q And did the committee hold a different meeting

20 where they held that vote?

21 A Repeat the question.

22 Q Did the committee hold a separate meeting,

23 reconvene to hold a vote on his promotion?

24 A No, they did not .

J M 01342
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[Mutua, Cross] 292

1 Q So when you became Dean and you said that's when

2 you first saw his appointment letter, is it your

3 testimony, is i t your claim that Nils Olsen

4 promoted him without going to the committee and

5 gett i ng a vote?

6 A It is my understanding that the Dean acted ultra

7 vires.

8 LAW JUDGE : Can you spell that?

9 THE WITNESS : U-1-t-r-a v-i-r-e-s .

10 A That he acted wi thout a recommendation from t he

11 from the committee.

12 Q I want to go back to something else you said about

13 h i ring and firing . We talked generally about

14 renewals and nonrenewals and letting people go,

15 and you said that sometimes the decision comes

16 from you , but i t then has to go to the Provost and

17 the President , sometimes i t just stops at you, and

18 you gave , when we went through the examples of the

19 different categories , you said when it comes to

20 adjuncts, for instance, i t comes from you?

21 A Yes.

22 Q You, specifically?

23 MS. HOMES VANCE : Could we just take a

24 moment , please, before he answers that

J M01 343
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[Mutua, Cross] 293

1 question?

2 LAW JUDGE: Why?

3 MS . HOMES VANCE : I just need to talk

4 to Jeffrey for a moment so I understand

5 where we ' re going.

6 LAW JUDGE: Let ' s take a five minute

7 break.

8 MS . HOMES VANCE : Thank you.

9 (A recess was taken) .

10 LAW JUDGE: I think we could all

11 benefit from having the last question read

12 back .

13 (The pending question was read back by

14 the stenographer) .

15 BY MS . SINGER-BLUMBERG:

16 Q We were talk ing about --

17 MS. HOMES VANCE : I have an objection.

18 LAW JUDGE: To the question I " You I

19 specifically"?

20 MS. HOMES VANCE: I -- I think i t

21 assumes a fact not in evidence. I do not

22 recall any testimony yesterday of the Dean

23 speaking to adjunct professors' hiring,

24 firing, nonrenewal, renewal. I don't

J M 01344
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------------X
JEFFREY MALKAN,
12-CV-0236(A)
Plaintiff,
DECLARATION OF
-against- RICK OSTROVE
MAKAU W. MUTUA,

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

New York, declares as follows, under the penalties of perjury:

1. I am the former attorney for the Plaintiff, Jeffrey Malkan. I am familiar with the facts

and circumstances surrounding this matter. I submit this declaration in opposition to

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-

Motion. This information is not intended to be a detailed recitation of every fact or

argument related to the Counter-Motion. Rather, it is intended to narrowly address some

of the disputed issues as they relate to the Firm, to provide some relevant background,

and to be read in conjunction with our Memorandum of Law submitted herewith.

1
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Background Relating to the Filing of the Sanctions Motions

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

submissions to the Court that related to the perjurious testimony.

5. I was hoping that we could resolve the issue informally. Accordingly, I contacted Sleight

and scheduled a telephone call for October 24, 2014.

6. Before our scheduled phone call, unbeknownst to me, Malkan sent a communication

directly to Sleight informing him of a possible sanctions motion.

7. On October 23, 2014, Sleight forwarded me Malkans communication to him.1 Sleights

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

arguments, including a discussion of the relevant Rules of Professional Conduct, the

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,

concluding my email by saying:

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

motion would itself be sanctionable. (Ex. 1).

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

to perform further research.

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

also emailed Sleight a copy, stating as follows:

I have spent considerable time working on this motion and have


considered the points you raised in your emails and our conversations.2
After careful consideration, I think your position is dead wrong. I am
convinced that you know your client has lied in two proceedings about
material issues. Any rational person would easily reach that
conclusion, despite your clients word. I am sorry that I have been
put in the position to force you to take action and I wish you corrected
this without warning. Nonetheless, here is one more, final warning:
you and your client have 21 days safe harbor to take corrective actions
before I file the attached motion.

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

signed for it personally.3 (Ex. 3).

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

accompanying memorandum of law.

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 It was frivolous for Plaintiff to argue that Sleight had a duty to


amend his answer4 (Dkt. 75, pp. 9-10);

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);

x It was frivolous for Plaintiff to argue Sleight knew about Mutuas


perjury, allegedly because the declarations establishing same were
not filed until after Sleight filed his Rule 56.1 Statement (Dkt. 75,
p. 11);

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 It was frivolous for Plaintiff to argue Sleights (frivolous)


interrogatory objection was sanctionable6 (Dkt. 75, pp. 11-12);

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 sanctions were available


pursuant to the Courts inherent power, because Plaintiff allegedly
did not allege bad faith (Dkt. 75, pp. 14-15);

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

threatening sanctions. The letter states:

Enclosed please find Defendants 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 11(C)(2) of the Federal Rules of Civil Procedure,
unless you withdraw Plaintiffs Motion for Sanctions. The basis for
the portion of the Motion seeking sanctions pursuant to Rule 11 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.

(Ex. 6) (emphasis added).

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

was sent on June 19, 2015 by overnight delivery. (Ex. 6).

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

to raise said issues in his Counter-Motion.

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

Malkans termination of our services had nothing to do with my assessment of the

content of Sleights opposition papers.

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

until long after Malkan terminated the Firm.

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

papers were filed, nor did I read them.

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

substantially the same reasons he had previously advanced. Further, my immediate

priority in the Malkan case was to either convince Malkan not to terminate the Firm or

get the Firm relieved as counsel.

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

could accomplish this and my withdrawal by stipulating to it with Sleight.

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

take a position regarding the merits of the motion.

30. It would have been easy for me to not comment about the merits of the Sanctions Motion

in my motion to be relieved. However, I felt it important to note that I was not

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

refer the Court thereto among other things, I declared:

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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from the Firm and I reviewed the situation exceptionally carefully. We


reviewed every case to which the AG directed us as well as numerous
other cases. I am 100% positive that the motion for sanctions is well
grounded in fact and law, and is therefore not frivolous. 11

(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

party to his Counter-Motion.

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

deem reading Sleights opposition to the Sanctions Motion to be a priority as I was

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

an email that stated:

I write regarding your potential sanctions motion against me and my


firm. As you know, I formally advised the Court of my safe-harbor
withdrawal. Im not 100% clear on the exact meaning of the Courts
ruling13 -- one thing that is clear is that if you move for sanctions
against me or my firm, we can submit opposition papers. If you do not
seek sanctions against me or my firm, we will not submit briefing. If
we are forced to defend ourselves, we will submit a comprehensive
brief which will likely be more focused and persuasive than any
materials that Mr. Malkan may submit. Accordingly, for the benefit
of you and your client, I am hopeful that you will not seek sanctions
against me or my firm.

(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

himself, engaged in other sanctionable conduct. (Dkt. 83-84).

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

above in 16 (footnotes 4-6).

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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Irresponsible Speculation Regarding the Firms Termination as Counsel

36. In 49-52 of Sleights declaration in support of the Counter-Motion, he addresses my

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

of the burden and expense of responding to the frivolous Counter-Motion, as it made

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

38. In 13 of Sleights declaration in support of the Counter-Motion, he cites Malkans

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

week to finance [his] Rule 11 motion. (Ex. 8).

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.

(Dkt. 88, 66, 72).

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

on email correspondence, Malkan appears to be mistaken -- as of December 3, 2014,

Malkan owed the Firm $12,918.

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

Sanctions Motion. I cannot state why Malkan held that belief.

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

billing, there was no extra charge or payment or request for same.

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

billed and paid at consistent hourly rates.

48. After receiving Sleights motion and reading it, on July 27, 2015, I advised Sleight of this

error of fact, stating:

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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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.

Against the Firms Wishes

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

is an Assistant Attorney General.

Irresponsible Citation to Grievance Committee Referral

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

U.S. Dist. LEXIS 166529 (E.D.N.Y. Nov. 22, 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

based on the Magistrate Judges mistaken impression based on incomplete information,

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

was terminated as counsel.

Defendants Incorrect Claim that Plaintiff Failed to


Comply with the Safe Harbor Requirement

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,

Plaintiff complied with Rule 11s safe harbor requirement.

Defendants Failure to Comply with the Safe Harbor Requirement

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

declarations in support of his Counter-Motion. The AAG papers state:

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).

x On June 19, 2015, my office served Mr. Ostrove by overnight mail


with a copy of our Motion for Sanctions and notice pursuant to FRCP
Rule 11(c)(2). A copy of these materials is attached as Exhibit E.
(Dkt. 84, 49, Decl. in Supp. of the Counter-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).

Further, Sleights Exhibit E, which he purports to be the Cross-Motion, is only

comprised of the June 19 Letter and its enclosures. (Dkt. 84-5).

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

Sleight and AAG Christopher Boyd an email that stated:

Im reviewing my records and I do not see an indication that you sent


me a copy of your memorandum of law along with a safe harbor letter.
I see a letter from Chris dated June 19 saying [e]nclosed please find
Defendants Motion for Sanctions Along with that, I see the
notice of motion, but I do not see the memorandum of law. I also do
not recall receiving the memorandum, its not scanned in my system
and I see no record of me receiving it, nor do I have a record of
sending a copy to my client (although I have all those records of the
letter as well as the notice of motion). I also dont see anything in
your affirmation indicating that you sent me a draft of the
memorandum of law.

I want to ensure that Im accurate in my representations to the Court.


Can you please confirm that you did not send me a copy of the
memorandum. Or, if Im wrong about that, please let me know.

Thanks.

(Ex. 12).

60. There was no response to this email.

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

never provided with a copy of Sleights memorandum of law or his declarations in

support of his Counter-Motion, and his Notice of Motion did not describe the specific

conduct that allegedly violates Rule 11(b).

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

safe harbor requirement.

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

forced to spend an exhaustive amount of resources addressing Sleights Counter-Motion

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

additional exhibits cited in our Memorandum of Law:

Ex. 13 NYCLA Committee on Professional Ethics Formal Opinion No. 741


(March 1, 2010);

Ex. 14 Contemporaneous notes regarding tenure vote which were taken by Avery
and Mangold, and deposition excerpts explaining same; and

Ex. 15 Mutuas Response to Plaintiffs Interrogatories

Dated: Carle Place, New York


September 11, 2015

____________/S/_____________
RICK OSTROVE

21
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M. MUTUA - - BY MR . ARBEIT -- 12/19/2013 29

1 A. You know , that -- the question was a baffl i ng one to


2 me .
3 Q. What -- well , can you explain that to me?
4 A. So Mr . Malkan had never taught in the clinics . He was
5 not a cl i n i cal professor at all . So i t ' s -- it didn ' t
6 make sense that he would be promoted from a position
7 which -- from a title which did not fit him to anot her
8 t i tle that did not fit him .
9 Q. So you certainly ra i sed this at the meeting ; correct?

10 A. Yes, it was raised in the meeting by many people, not


11 just by me.
12 Q. So but you raised this at the meeting , the fact that he

13 was being promoted to a Clinical Professor position and


14 he d i dn ' t work in the clinic?
15 A. Not that he was being promoted, that the issue had even
16 been put forward for discussion .
17 Q. And my understanding is that you revi ewed a dossier as

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

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 31

1 from Associate Clinical Professor to Full Clinical


2 Professor . And, you know, immediately that -- she
3 raised that issue, there were objections by various
4 faculty members who
5 Q. Including yourself?
6 A. Including myself, who questioned -- who wanted to
7 discuss actually the - - Mr . Malkan's directorship of
8 the Legal Research and Writing program first . And then
9 secondly said -- you know, questioned the
10 appropriateness of the matter of his being cons i dered
11 for promotion before that body. In other words, you
12 know, some faculty members including myself felt that
13 that is not a matter we should have considered.
14 Q. So in other words, you ' re saying that the faculty said
15 well, you shouldn't even vote on whether or not to
16 appoint him to a Clinical Professor position?
17 A. Exactly, exactly correct.
18 Q. And that was at the time you felt that -- why was

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

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M. MUTUA -- BY MR . ARBEIT - - 12/19/2013 32

1 the first position which was void?


2 Q . Do you know who else felt similar to you about that?

3 A. I t h ink there were many people who fe l t that way . I

4 think Lucinda Finley felt that way . I think that James


5 Gardner felt that way . I think many people felt that
6 way . I don ' t have the list in my head right now .
7 Q. And

8 A. But I think those two felt that way.


9 Q. Do you know if they felt that way before the meeting?

10 A. They had circulated, both of them had circulated a


11 letter or letters, each a l etter , you know , on
12 Mr. Malkan, questioning his appropriateness as Director
13 and I think even q u estioning whether he should be
14 promoted . I can ' t reca l l e x actly the language of those
15 letters.
16 Q. And so I think we were at the point that you were

17 q u estioning whether or not he should be promoted to


18 Clinical Professor, what happened?
19 A . So the discussion became very heated almost immediately
20 and --
21 Q. I just want to make sure , about wheth er or not he
22 should be promoted to Clinical Professor because he
23 wasn ' t in the c linic?
24 A. Ex actl y .
25 Q . Okay .

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1 A. And secondly, whether he was the appropriate person to


2 be Director of the program. And the meeting then
3 focused for the balance of the discussion in the
4 meeting, focused almost entirely on that question as to
5 whether he was the appropriate person to lead the
6 program. And I would say that there was a near
7 consensus by those who spoke that he should not lead
8 the program. In other words, the meeting turned into a
9 meeting to discuss, if you will, both the program and
10 its --the bad shape in which the program was.
11 Q. When you say near consensus --
12 MR. OPPENHEIMER: Counsel, I'm not sure that the
13 witness was finished with his answer.
14 MR. ARBEIT : I'm sorry .
15
16 BY MR. ARBEIT:
17 Q. Did I cut you off?
18 MR. SLEIGHT: Were you finished?
19 THE WITNESS: No, I was unfinished.
20
21 BY MR . ARBEIT:
22 Q. Oh, I apologize.
23 A. Just to say that there was a near consensus that he
24 was -- he really was a terrible Director of the program
25 and that he should not continue to run that program,

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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

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1 beginning of the meeting?


2 A. I can ' t remember exactly, but I think someone did raise
3 it. It was a very chaotic meeting.
4 Q. It was a what?
5 A. Chaotic. It became a very chaotic and heated meeting.
6 Q. All right . So out of the 11 people there, how many
7 people were would you say were in - - agreed with
8 that sentiment that you just shared?
9 A. I would say virtually everyone .
10 Q. And virtually everyone agreed that the legal research

11 and writing program was terrible?


12 A. It was terrible . I mean, I think that this was a fact
13 that was known throughout the law school and which had
14 been the subject of discussion by faculty members both
15 in the corridors of the law school and in faculty
16 meetings.
17 Q. And did anything was there any discussion between
18 like the difference between the structure of the
19 program versus the quality of the program?
20 A. There was discussion of the entire program.
21 Q. Okay .
22 A. Both structure of the program, instruction in the
23 program, the curricul um in the program, the teachers in
24 the program, the directorship of the program. We had a
25 full scale discussion of the program.

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1 Q. Let me ask, was there anything positive?


2 A. No .
3 Q. No?
4 A. No, there really wasn't.
5 Q. By anybody?
6 A. No, there really wasn ' t. It was a very heated meeting,
7 but I think people, you know, I should say that you
8 know, people were concerned that the program was not
9 doing what it should have done for our students , that
10 was the overwhe l ming concern of the faculty members. I
11 think that, you know -- and people felt that Jeff
12 should be removed from that position so that we could
13 find someone who could, you know, lead a good program
14 for our students.
15 Q. So then I guess what happened at the meeting after, I
16 guess , this heated discussion?
17 A. So the discussion continued and at some point, I think
18 people began to feel that although we felt that Jeff
19 should be removed, that we should not simply throw him
20 out onto the street immediately , that we should give
21 him a year , a terminal year and then instruct or ask
22 the Dean to form a faculty committee to study the
23 program and come back with recommendations of how the
24 program could be recreated.
25 Q. Let me ask , I mean, the committee couldn ' t throw h i m

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1 out in the street , I think, even if they wanted to,


2 could they?
3 A. You mean the faculty meeting?
4 Q. The faculty meeting.
5 A. The faculty was going to recommend to the Dean that he
6 give Mr. Malkan a terminal one year appointment and
7 then establ ish a committee to study the program and
8 make recommendations for change .
9 Q. But I ' m a little confused because I thought tha t the
10 appointment -- you said that the appointment for a
11 Director position was at- will for the Dean?
12 A. Yes. This does not mean that the facu l ty cannot
13 express their view to the Dean and we expressed our
14 view to the Dean very strongly on this one .
15 Q. So your view was to have him stay on for a full year?
16 A. Yes, as -- basically as a caretaker of the program
17 while we also look for another Director and he look for
18 another job elsewhere.
19 Q. And was -- thi s was voted on?
20 A. It was voted on .
21 Q. Okay. Was this communicated to the Dean?
22 A. I don ' t know .
23 Q. Okay .
24 A. We asked the current Dean, then Sue Mangold , to
25 communicate our resol ution to the Dean .

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1 Q. Do you know whether or not there was a process at that

2 time to look for a new Director?


3 A. As far as I know , the Dean never acted on our
4 resolution . As far as I know.
5 Q. And do you know whether or not Professor Malkan was

6 told that he should look for a new job somewhere


7 else?
8 A. I don ' t know.
9 Q. Do you think that's information that they would have

10 withheld from him?


11 MR . OPPENHEIMER: Objection .
12 THE WITNESS: I don ' t know.
13
14 BY MR. ARBEIT :
15 Q. Let me ask , what else happened at this meeting?

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?

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1 A. Someone did make a motion for us to vote on whether we


2 should give Jeff - - Mr. Malkan a terminal year.
3 Q. Who was that?
4 A . I can ' t recall who i t was.
5 Q. Do you know if somebody had to second that motion?
6 A. Yes .
7 Q. And do you remember who that was?
8 A. I can ' t recal l, but we did vote.
9 Q. You did vote?
10 A. Yeah.
11 Q. All right, and do you remember the outcome of that
12 vote?
13 A. Yeah, it was very close. Like I said, it was something
14 like 6 to 5 with maybe two abstentions . I can ' t
15 recall , something like that . Becau se I remember
16 someone asking whether a 6 to 5 vote with two
17 abstentions was an affirmative vote.
18 Q. Was an affirmative vote?
19 A. Yeah .
20 Q. To have him be able to stay?
21 A. To stay .
22 Q. Do you remember who that was?
23 A. I can ' t recall who it was, but I remember the person
24 who answered the question was the former President Bi l l
25 Greiner who sa i d yes , it ' s an affirmative vote . But no

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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:

15 Q. Did you discuss the meeting and what occurred at the


16 meeting after with anybody at the law school?
17 A. Probably. I mean, you know, it was such a contentious
18 meeting, probably people talked about i t for days. I
19 can ' t imagine that people didn ' t.
20 Q. And let me ask you, did you discuss with them the vote
21 or the outcome?
22 A. No, because I think, I think that we felt that we had
23 done the humane thing which was to give Mr. Malkan an
24 additional year. So that issue was settled. And I
25 think people felt, you know, that was the appropriate

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1 Q. Do you know at the time what jurisdiction the Committee

2 on Clinical Promotion Renewal, what their jurisdiction


3 was?
4 MR. OPPENHEIMER : Form.

5 THE WITNESS: The jurisdictions of the --of that

6 committee has always been to hire and to evaluate and


7 to promote faculty who are teaching the clinics, who
8 are on long term contracts as clinical professors. The
9 committee has no jurisdiction on faculty who are tenure
10 track.

11

12 BY MR. ARBEIT:
13 Q. What do you mean on tenure track? In other words

14 A . Tenure track faculty members were hired on an


15 indefinite contract as opposed to faculty who are hired
16 in long term contracts l ike clinical faculty .

17 Q. I ' m going to show you Plaintiff's Exhibit 8. If you

18 can turn to Page 8, can you tell me what -- I guess


19 it's the 4B4, where i t refers to Renewal, Dismissal and
20 Termination of the employment of a faculty member who's
21 on an indefinitely renewable long term contract or on

22 contract for indefinitely renewable long term contract

23 shall be recommended by majority of the committee


24 voting in person at a meeting?
25 MR . OPPENHEIMER: Form.

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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 .

5 MR. OPPENHEIMER : Form.


6 MR. SLEIGHT : Also maybe a little foundation for the
7 record.
8 MR . ARBEIT: That ' s fine .
9

10 BY MR. ARBEI T:

11 Q. Do you know what this document is?


12 A. This document was adopted in 2008.
13 Q. And what is it?
14 A. It ' s the bylaws .

15 Q. And this section, the secti on that I was referring to,


16 this section is the committee on clinical promotion and

17 renewal?

18 A. Yes, what about it?


19 Q. And my question I was try1ng to ask, what is your
20 understanding of Paragraph 4 in Section B of that

21 section?
22 A. Is that the faculty can recommend to the Dean whether a

23 person on a long term contract should be renewed ,

24 dismissed or terminated.
25 Q. And when you say they can recommend i t , is i t your

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1 understanding that they don't have to make a


2 recommendation?
3 A. No, i t says shall, shall be recommended. It says
4 shall.

5 Q. Okay . So it ' s your understanding if they are on an


6 indefinitely renewable long term contract, that they
7 A. But that ' s just a recommendation .
8 Q . Okay .

9 A . To the Dean. It is not something that is binding on


10 the Dean . It's a recommendation, yeah. The Dean does
11 not have to act on that recommendation.
12 Q. So is i t the Dean's choice just to forgo getting the
13 recommendation?
14 A. Well, I mean, I think that there is nothing from what I
15 can see here in language of that 4B4 that says that
16 the Dean has to seek that recommendation . It talks
17 about the faculty recommending, shall recommend, but i t
18 doesn ' t say that the Dean shall seek that
19 recommendation.
20 Q. Okay. So my understanding so there ' s nothing
21 forcing the Dean to seek that recommendation?
22 A. There is not.
23 Q. And --

24 A. Because i t ' s a recommendation.


25 Q. Okay.

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1 A. I mean, if it ' s a recommendation , why would I be forced


2 to seek it? But the faculty , you know --
3 Q. And is there anything in here about any consequences
4 for the Dean if he doesn ' t seek the recommendation or
5 do you know of any?
6 A . No, there is none.
7 Q. Has there been any times when you ' ve chose to forgo
8 seeking the recommendation?
9 MR. OPPENHEIMER : Fo r m .
10 MR. SLEIGHT : Form.
11
12 BY MR . ARBEIT:
13 Q. In other words, you made the decision - - it sounds l i ke
14 you don ' t have to go seek the recommendation from the
15 committee , have you made that choice not to?
16 A . There are I woul d say -- I can ' t really -- you know, I
17 just am-- there are very few clinical professors in
18 the law school under this particular title . So the
19 opportunities are not really there for the Dean to
20 exercise this particular sort of function . So - -
21 Q. I think - -
22 MR . OPPENHEIMER : Don ' t i nterrupt the witness.

23 MR . ARBEIT : Well, he stopped.

24 MR . OPPENHEIMER : Don ' t interrupt the witn ess .


25 MR . ARBEIT : Randy, he sort of stopped and I ' m

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.---------------Sus a n V. Mangold - By Mr. Ar bei t - 11 /20/13

1 A. Jeff 1 s reappointment and promotion to clinical


2 professor.
3 Q. Okay. Was there anything else discussed at
4 that mee t ing?
5 A. There was a lot of discussion about the
6 Research and Writing Program, but basically
7 what we were discussing was the -- was the
8 appointment and promotion of Jeff.
9 Q. Okay. And was there a vote at the meeting
10 about Jeff 1 s promotion?
11 A. Yes.
12 Q. Okay. And do you remember what the vote --
13 the outcome of that vote was?
14 A. The outcome was t hat he was appointed and, you
15 know, to the -- reappointed recommendation for
16 reappointment to full clinical professor.
17
18 The following was marked for ident i fication:
19 Exhibit 1 Bates stamp JM2800-2802
20
21 BY MR. ARBEIT:
22 Q. Professor Mangold , please take a look at
23 E x hibit 1.
24 A. Yes.
25 Q. If you just flip through the three pages.

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r---------------Susan V. Mangold - By Mr . Arbeit - 11/20/13

1 It's Bate stamped JM2800 though 2802. Do you


2 recognize this document?
3 A. Yes.
4 Q. Could you tell me what i t is?
5 A. This is a document that was in my files. So,
6 when I received your request for documents, I

7 looked to the file that I had, the hard copy


8 file that I had kept, and this was in the
9 file. And I believe i t ' s my - - my own
10 personal notes from the meeting on the 28th.
11 Q. Okay. And could you tell me this: Just this
12 list of names on the left-hand side, can you
13 tell me what that list means, if you know?
14 A. This? Yeah. So, again, if -- what I would
15 have usually done -- I don't remember making
16 this list, but what I usually do is write down
17 who's present at a meeting. So I assume that
18 that's who was present on the meeting on the
19 28th.
20 Q. Okay. And to the right of i t , there's -- it
21 says some N - - 9Y, 7N, 3AB. Can you tell me
22 what that means?
23 A. That's a vote.
24 Q. Okay. And do you know what that vote is on?
25 A. We talked about a few different things at this

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.--------------Susan V. ~~gold - By Mr. Sleight- 11 /20 / 13

1 through the American Association of Law


2 Schools and I accepted a tenure-track po s ition
3 at the Univ e rsity of Buffalo .
4 Q. Okay. And that was, you joined in ' 95 , and
5 your three- year -- your grant ran thr ee years.
6 So that would be '98?
7 A. No. So I -- the grant b ega n in '93. And
8 during the term of the three - year grant , I
9 applied for a tenure-track position .
10 Q. Okay. Yea h , you testified you joined the
11 faculty in '95? .
12 A. On a tenure-t rack position .
13 Q. Okay. And th e n in '02 you were promote d t o
14 well , I - - my notes are un c lear. What were
15 you promoted to in 2002 ?
16 A. I believe in 2002 was wh e n I got tenur e and I
17 was promoted to full profess or .
18 Q. Okay. And you were Vice - Dean of Academics
19 from '04 t o ' 07. And then after that you
20 returned to your position as full-tenured
21 professor?
22 A. Yeah. As I was trying to e xplain , I was
23 always a full -tenured profess or. And then for
24 those thre e years, I was additionally
25 Vice - Dean For Academi c s .

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.---------Susan V. Mangold - By Mr. Sleight- 11 / 20/ 13

1 received it. This is how it was in my files


2 and it didn't have a date on it, so I don't
3 know how I received it.
4 Q. Do you remember why he was giving you this?
5 A. To the best of my understanding, he was
6 keeping me informed on the debate in the ABA
7 and we were preparing his contract.
8 Q. Is he the one that told you about the change
9 in the ABA standard?
10 A. I'm not sure . I as Vice-Dean for
11 Academics, I was on a lot of LISTSERVs. So
12 this was a conversation that was taking place.
13 I'm not I certainly discussed it with Jeff.
14 I'm not sure if he's the one who first
15 informed me of the change.
16 Q. Okay . The next five pages
17 A. Yes?
18 Q. -- are, from what I understand , a memo from
19 Jim Gardner to the Promotion and Tenure
20 Committee regarding Jeff Ma1kan's promotion
21 and reappointment. How did you get this
22 document in your file?
23 A. Jim presented it to the Promotion and Tenure
24 Committee . I I don't recall if I got it in
25 advance of the meeting or at the meeting .

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. - - - - -- ---Susan V. Mangold - By Mr . Sleight- 11/20/ 13

1 Q. So you don't know whether you read this before


2 the meeting or not ?
3 A. I knew Jim's opinion before the meeting, but I
4 didn't - - I'm not sure if I read that. I just
5 don't remember now if I read it before the
6 meeting.
7 Q. How did you know Jim's opinion before the
8 meeting?
9 A. He asked to speak to me before the meeting to
10 inform me that he was going to oppose the
11 promotion.
12 Q. And do you r ecall the substance of that
13 discussion?
14 A. Yes. It was , you know, Jim felt that the
15 Research and Writing Program needed to be run
16 in a different way, that he felt that some
17 students weren't prepared in a manne r in which
18 he thought they should be and he held the
19 director responsible for that.
20 Q. In his memo, he -- he references a number of
21 other things. For instance, on 72773, he says
22 - - he talks about his impression of Jeff's
23 lack of professional standing in the legal
24 research and writing community. Did he talk
25 to you about that?

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.---------Susan V. Mangold - By Mr. Sleight- 11 / 20/ 13

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

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r - -- - - - - - S u s a n V. bfango ld - By Mr. Sleight- 11/20/13

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

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r--------------Susan V. Mangold - By Mr. Sleight- 11/20/13

1 that are used in all classes. We call them


2 SKATES, S-K-A-T-E-S. I don ' t know what it
3 stands for. I don't know what the K is.
4 And then additionally , research and
5 writing had its own teaching evaluation forms.
6 And a summary of those was included in the
7 dossier. And that was beyond what would have
8 been in the clinical faculty's, but we had
9 that information, so I shared it with the
10 :faculty.
11 Q. The next item in your documents is the memo
12 from Lucinda Finley to Law School Promotion
13 and Tenure Committee?
14 A. Yes.
15 Q. Dated April 5. And i t runs from Bates number
16 2775 to 2770 - - 2781.
17 A. Yes.
18 Q. When did you get this memo?
19 A. I believe this was received in advance of the
20 meeting, because Lucinda was not present at
21 the meeting.
22 Q. And, again, was this provided to other members
23 of the -- of the faculty at the meeting, at
24 the P & T meeting?
25 A. The other members of the Promotion and Tenure

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r - - -- ----Susan V. Mangold - By Mr. Sleight - 11120 / 13

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

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95

r--------------Susan V. Mangold - By Mr . Sleight- 11/ 20/13

1 my opening remarks. And that was back to some


2 of that information I discussed earlier with
3 Mr. Arbeit, in terms of making clear what it
4 was the faculty was voting on. So the
5 faculty , there was no one that was voting that
6 was unclear.
7 Q. And how do you know that, other than the fact
8 that -- or other than that you made some kind
9 of explanation? Did you go around? Did you
10 poll everybody?
11 A. Before we vote, we, by standard procedure, we
12 say is everyone clear on the vote? So , to the
13 best of my knowledge, there was no confusion
14 about what we were voting on.
15 Q. Her confusion, at least at this point , was
16 whether you were voting on whether Jeff Malkan
17 should be promoted from clinical associate
18 professor to clinical professor. That was
19 or whether there was two questions, and
20 whether he should be reappointed as Director
21 of Research and Writing.
22 When the time for the meeting did come
23 around , what was it, at least your
24 understanding was, that they were voting on?
25 A. So, my explanation to the faculty was that

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r--------------Susan V. Mangold - By Mr . Sleight- 11/ 20/ 13

1 they were voting on the promotion to clinical


2 professor.
3 Q. And what about this question of reappointment
4 as Director of Research and Writing?
5 A. That that would an administrative appointment
6 by the Dean.
7 Q. And was that discussed at the meeting?
8 A. Yes.
9 Q. She raised an issue on the second page, number
10 2, what the criteria that they are supposed to
11 be used to assess either or both the proposed
12 actions.
13 My understanding of your testimony is that
14 the the -- the appointment as Director of
15 the Legal Research and Writing is something
16 that is in the discretion of the Dean; is that
17 right?
18 A. Yes.
19 Q. And can he also take that -- take that
20 appointment away?
21 A. Yes.
22 Q. It's discretionary on his part?
23 A. Any administrative appointment.
24 Q. Okay. And so, let's set that aside and apply
25 her question to promotion to full clinical

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18

. - - - - - - - - - - M S . AVERY- BY 1tffi. ARBEIT - 11/ 2 1 / 1 3 - - - - - - - - - .

1 three year review, five year review, et


2 cetera.
3 Q. So let me ask, for the clinical track what
4 happens at these three year reviews?
5 MR. SLEIGHT: Form.
6 A. The way that -- again, the standards
7 anticipate to the best of my understanding
8 that a candidate who is on -- who is on a
9 clinical appointment will be reviewed either
10 let me stop for a second. I could speak
11 more definitively with the standards in front
12 of me. What you're asking as I understand, is
13 what happens at one of those reviews and what
14 would happen is the faculty would -- actually
15 not the faculty, the tenured faculty and
16 faculty who has clinical full professor status
17 would review a dossier of the candidate.
18 Q. Let me ask, the standards that you used or
19 that you're referring to, when were they
20 adopted or -- yeah, let me start with that.
21 A. There was a set of standards that was adopted,
22 considered in 1994. To the best of my
23 knowledge, best of my recollection, adopted in
24 1995 for clinical appointments. These are
25 essentially long term contracts which require

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r -- - - - -- - - IMS . AVERY - BY MR. ARBEIT - 11/ 21/ 13 - - - -- -----.

1 that the faculty mak e recommendation in the


2 final year of the c ontract regarding th e
3 promotion or renewal , dismissal, what e v e r .
4 Q. And this is 1994 or '95?
5 A. They would of been - - my recollection is they
6 were app r oved in 1995.
7 Q. And do you know, were they subsequent ly
8 amended or
9 A. I believe they were amended and revised in
10 2009.
11 Q. Okay . And you said that under the 1995 policy
12 t he -- which committee would be making the
13 recommendation or review ?
14 A. It would of been a commit t ee called clinical
15 committee on c linical promotions , i t had an
16 acronym CCPR .
17 Q. Is that - - do you remember if that was the
18 committee under the policy or --well , let me
19 ask , did the committee on clinical promotions
20 exist in 1995 when the poli c y was adopt e d?
21 A. Before it was adopted , I can't recall . I
22 can ' t recall what - - my best recollection is
23 that as we were developing our clinics ove r
24 the years and as the ABA standards began to
25 r e quire more job security for clinicians , we

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. - - -- - - ----MS . AVERY - BY MR . ARBEIT - 11 / 21 / 13 - - - -- -----,

1 After the discussion continued for a


2 while, a member of the faculty made some kind
3 of motion. I don't recall what the motion was
4 specifically, motion to -- whether we already
5 had a motion on the floor to cal l the
6 question, whatever. But we bifurcated the
7 issue of his candidacy for clinical full
8 professor from a d i scussion of the nature of
9 the research and writing program. We then had
10 a vote on his candidacy for clinical full
11 professor for an appointment to -- promotion
12 to the position of a clinica l full professor
13 from his position as clinical associate
14 professor.
15 That vote I can see -- I remember at the
16 time the vote passed by a majori t y vote and I
17 can see from my contemporaneous notes that the
18 vote was nine yes, seven no and three
19 abstentions. We then turned and we began to
20 have a conversation that did not last terribly
21 long because the prior part of the meet i ng had
22 gone on for some time and we were -- I think
23 we were subsequently going to have another
24 a ~eeting of the full faculty following a
25 lunch.

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74

. - - -- - - - - - - M S . AVERY - BY MR. SLEIGHT - 11 /21 / 13 - -- -- - - - - ,

l Q. No, about this lawsuit.


2 A. Oh about this lawsuit, no, I have not had no
3 discussions about this lawsu i t with him.
4 Q. Can I see Exhibit 17 . These are your notes
5 from the -- we ' ve established t hat - -
6 A. I wrote the date - -
7 Q. You wrote the wrong date down so i t ' s 4/28,
8 this i s the P&T committee meeting?
9 A. Yes, in 2006 .
10 Q. Right. That considered Mr. Ma l kan's
11 promotion. And I just want to ask you if you
12 could, go through these initia l s. DA is you?
13 A. Okay, yes.
14 Q. EM is who?
15 A. Let me point out there are two EM's here. One
16 of them would be Errol Meid i nger.
17 Q. And the other?
18 A. Eli z abeth Mensch.
19 Q. Is that FK?
20 A. FK, Fred Konefsky.
21 Q. GK?
22 A. George Kannar .
23 Q. TS?
24 A. Tanya Segal.
25 Q. RS.

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75

MS . AVERY - BY MR . SLEIGHT - 11 /21113

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

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r - - - - - - - - - - M S . AVERY - BY Ml:L SLEIGHT - 11 /21/ 13 - - - - - - - - - - - ,

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

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, - - - - - - - - - M S . AVERY - BY MR . SLEIGHT - 11 /21/13--------~

1 people that voiced strong or opposition?


2 A. I really just remember him. I don't remember
3 other people.
4 Q. Aside from the fact that you don't remember
5 other people, people's identity, was there
6 other people who got up and spoke against his
7 promotion?
8 A. There were several people and what happened
9 was that the discussion disintegrated into a
10 discussion and I use the term disintegrated
11 carefully, to a d i scussion of the program not
12 a discussion of h i s qualifications for the
13 promotion.
14 Q. Okay.
15 A. And so that was what happened.
16 Q. And as I understand your testimony, at some
17 point there was a decision to separate those
18 two --
19 A. Yes.
20 Q. issues. And was that -- I mean how does a
21 decision l ike that come to be, does someone
22 have to make a motion and say I move to
23 separate the issue from this to this?
24 A. Yes. And to the best of my recollection, Rob
25 Steinfeld made a motion either to go to a vote

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78

r - - - -- - - - - M S . AVERY - BY MR. SLEIGHT - 11 / 21 / 13 - - -- ----,

1 or to call a question or something, I don ' t


2 remember the specifics of it. But t o separate
3 out the discussion of the structure and the
4 nature of the program and from the dec i sion
5 that we were called to the meeting for, the
6 purpose of the meeting which was to vote on
7 his candidacy we had in front of us, his
8 dossier and we were there to consider his
9 appointment to full clinical professor.
10 Q. Do you recall the length of the meeting, it
11 started I think at 10 : 30 or someth i ng and
12 there was going to be lunch. This says i t
13 started at 10 o'clock this Exhibit 16 .
14 A. Yes. My recollection is that i t went past the
15 -- i t says lunch was to be served at 11:30 in
16 the jury deliberation room. My recollection
17 is that we went past 11;30, I can't remember
18 exactly how long i t was.
19 Q. Do you reca l l the overall length of the - - I
20 think your testimony was that you voted and
21 then you had some additional discussions?
22 A. Yes.
23 Q. And those additional discussions were with
24 respect to what?
25 A. With respect to the nature and structure of

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r - -- -- - - - M R . STEI NFELD - BY MR. ARBEIT - 11/21/ 13 - - - - - - - - .

1 that meeting for his promotion to full


2 professor?
3 A. Sure. I remember that it was a long
4 contentious meeting, there were strong
5 opponents of his promotion. Went on for a
6 long time and the way I recollect things,
7 after a certain amount of time had gone by and
8 there was a confusion in the meeting having to
9 do with the research and writing program
10 versus Professor Malkan's promotion and at a
11 certain point I believe i t was I who made a
12 motion to separate the two decisions. That
13 is, one vote on for promotion and tenure and
14 another vote on what to do about the structure
15 of legal research and writing. What I
16 remember about that is that the vote there
17 was a vote in favor of Professor Malkan's
18 promotion to clinical professor. It was a
19 close vote I remember. It was by one or two
20 votes. And when it came to deciding upon what
21 was to be done about the research and writing
22 program, the P&T committee voted to study it
23 and let i t go on for another year and then in
24 a year come back and consider what was to be
25 done about the research and writing program .

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r - - - - - - - -Rebecca French-Redwood - By ~lr . Arbeit - 11/20 /13

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.

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Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 39 of 99

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


DIANNE AVERY
Plaintiff,

v.
12-CV-0236{A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capacities,

Defendants.

DIANNE AVERY, pursuant to 28 U.S.C 1746 and under penalty of perjury,

declares and states:

1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo

Law School, The State University ofNew York.

2. As such, I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

and Renewal at V1e Law School.

4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from

Clinical Associate Professor to Clinical Professor.

5. Following the discussion, the Com.p1ittee voted by secret ballot at that meeting to

recommend that Jeffrey Malkan be promoted to Clinical Professor.

6. I took contemporaneous notes at the April 28, 2006, meeting of the Committee on

Clinical Promotion and Renewal.


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~

7. I recall, and my contemporaneous notes reflect, that Professor William Greiner, was

not in attendance at that meeting.

Dated: Buffalo, New York


July _Qi_, 2014
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


REBECCA FRENCH
Plaintiff,

v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
in()ividual eapacities;

Defendants.

REBECCA FRENCH, pursuant to 28 U.S.C 1746 and Wlderpenalty ofpezjury,

declares and states:

.
Law School, The State University ofNew York.

2. As such, I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion


o;." ._.... ...

and Renewal at the Law School.

4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from

Clinical Associate Professor to Clinical Professor.

5. Following the discussion, the Committee voted by secret ballot at that meeting to
. .. .
recommend that Jeffrey Malkan be promoted to Clinical Professor.
. .. .
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Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 42 of 99


<'

REBE A FRENCH

Dated: Buffalo, New York


July, -?I , 2014

-- ' ' :,! . . . '-:..-: .- I ,. -~ ... ~"- ,.._ ';' I"-~: - -- 'b, _:. , , ~' ~ . ,.. \ -"'.:... ..... '
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f. . ~

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


SHUBHA GHOSH
Plaintiff,

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

and states to the best of his memory:

1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo Law

School, The State University ofNew York.

2. As such, I was a member of the Law School's Committee on Clinical Promption

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion and

Renewal at the Law School.

4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from Clinical

Associate Professor to Clinical Professor.


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5. Following the discussion, the Committee voted by secret ballot at that meeting to

recommend that Jeffrey Malkan be promoted to Clinical Professor.

SHUBHA GHOSH

Dated: Dallas> Texas


July 27, 2014

2
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.. Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 45 of 99

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEF,l?REY MALKAN, DECLARATION OF


ALFRED KON~FSKY
Plaintiff,

v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individ~al capacities,

Defendants.

ALFRED KONEFSKY, pursuant to 28 U.S.C 1746 and under penalty of

perjury, declares and states:

1. On April 28, 2006, I was a tenured professor of law at the University at Buff~lo

Law School, The State University of New York.

2, As such, I was a member ofthe Law School' s Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

ancfRenewal at the Law School.

4. At that meeting, the Commi:ttee discussed the promotion of Jeffrey Malkan from

Clinical Associate Professor to Clinical Professor.

5 . Following the discussion, the Committee voted by sec:t;et ballot at that meeting to

recommend that Jeffrey Malkan be promoted to Clinical Professor.


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(\ ~ ' Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 46 of 99

Dated: Buffalo, New. York


July .li._, 2014

\
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEF.F REY MALKAN, DECLARATION OF


SUSAN MANGOLD
Plaintiff,

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

School, The State University ofNewYork.

2. As such, I was a member of the Law School's Committee on Clinical Promotion

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

Associate Professor to Clinical Professor.

5. Following the discussion, the Committee voted by secret ballot at that meeting to

recommend that Jeffrey Malkan be promoted to Clinical Professor.


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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

renew and promot(f Professor Mala was valid.

Dated: Great Barrington, MA


July~2014

2
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(.

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


ISABEL MARCUS
Plaintiff,

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

School, The State University of New York.

2. As such, I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion and

Renewal at the Law School.

4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from Clinical

Associate Professor to Clinical Professor.

5. Following the discussion, the Committee voted by secret ballot at that meeting to

recommend that Jeffrey Malkan be promoted to Clinical Professor.


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Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 50 of 99

ISABEL MARCUS

Dated: Buffalo, New Yorl<:


July _,i_i_, 2014

2
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A153

,.
,.. ~ . Case 1:12-cv-00236-RJA-HKS Document 59-4 'Filed 08/13/14 Page 51 of 99

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF

Plaintiff, LYNN MATHER

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
. . -

School, The State University ofNew York.

2. As such, I was a member of the Law School's Committee on Clinical Promotion

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
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.-- Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 52 of 99


'

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
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A155
> Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 53 of 99

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


ROBERT STEINFELD
Plaintiff,

v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLESP. EWING in their
individual capacities,

Defendants.

ROBERT STEINFELD, pursuant to 28 U.S.C 1746 and under penalty of

perjury, declares and states:

1. On April 28, 2006, I was a tenured professor of law at the University at Buffalo

Law School, The State University ofNew York.

2. As such, I was a member of the Law School' s Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Conunittee on Clinjcal Promotion

and Renewal at the L<=!w School.

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

recommend that Jeffrey Malkan be promoted to Clinical Professor.


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A156
._.
Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 54 of 99

Dated: Greensboro, Vermont


July ~2014

.
- ~ '~. ;, .. . . .
~ -\ - ':."' ._.
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page25 of 112
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Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 63 of 99

240

VOLOME 3

STATE OF NEW YORK

PUBLIC ~PLOYMENT REL ATIONS BOARD


I ,
* * * * * * * * * * * * * * * * * * ~
*
In the Matter of: *
*
UNITED UNIVERSITY PROFESSIONS, NEW *
YORK S';['AT'E. UNlTED !l'EACHERS, AFT, *
LOCAL 2190, AF~-CIO, *
Charging Party, * .Case No .
* U-28826
-and- *
*
STATE OF 'NEW Y'ORK (St:ate
Uniqersity of New York at
*...
Buffalo), *
*
Respondent. *
* * * * ~ * * * * * * * * * ~ * ***'*

Public Employment Relations Board


Main Hearing Room
Fifth F-loox
BO wolf Road
A.lbany, New York 12205
~pril 1, 2010

The above-entitled mattex carne o n for hear ing


at 9:4-5 a.m., pu~suant to Not.ice.

l3e.fore : KENNE-TH S . CARLSON , ESQ.


Admi.nistra.tive Law Ju.dge

DEAN R. NELSO~ - COUit'l' REPOR.'l'ER. - (71 6) 741-92-55

J M 00280
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A160

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[Mutua, Cross) 291

1 A As far as I was concerned, Jeff never hati a

2 clinic~l appQin~ment~

3 Q And is i t yo:or te..stimoi1:! that there was no v.ot.e


/
held on his promotion at that me~ting?

5 A Promotion for ~nat?

6 Q From clinical associate to full _professor.

7 A My understanding is that we did not act on that

8 particular item.

9" Q There was no vot~?

10 A There was no vote on th9-'t Piir.ticular issue.

11 Q On the promotion issue?

12 A Yes.

13' Q so as far as you knew, after that meeting he

14 ~as.n' t go.ing to he promoted bec-a use nobody had

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.

19 Q And did- the committee hold a d .ifferent meeting

2'0 where they heLd t~~t vote?

21 A Repeat the quest~on~

22 Q .Did the .cort\mi~tee bo~d a separate me~ting,

23 reconvene t.o hold a vote on his promotion?

2-4 A No, they did not.

J M 00285!
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page29 of 112
A161

N. OLSEN -- BY MR . SLEIGHT -- 12/19/2013 36

1 Q. Now the P and T Committee voted or Sue Mangold you


2 don ' t know because you weren't there; right?
3 A. That's exactly right.
4 Q. So all you know about the P and T committee i s what Sue
5 Mangold told you?
6 A. Yes . Other people told roe as well .
7 Q. Other folks that --
8 A. Other members who were there . But it ' s entirely
9 hearsay.
10 Q. And had any Clinical, Associate Clinical Professors or
11 Tenure Track Professors been promoted while you were
12 Dean where the vote was that close?
13 A. I don't believe so.
14 Q. And isn ' t it a fact that roost of the time when that
15 happens, the vote is - - tends to be unanimous?
16 A. Not most -- I think most of the time when it happens,
17 it isn't contentious . Whether it's unanimous or not,
18 I ' m not sure. But it certainly is not close .
19 Q. The vote that was taken at the P and T Committee was to
20 recommend to you to appoint him -- or this is what Sue
21 Mangold told you, to recommend to you to appoint him as
22 a Full Clinical Professor?
23 A. Yes.
24 Q. And that ' s just--
25 A. It wasn ' t just what Sue told me, that was what we spoke

DePAOLO-CROSBY REPORTING SERVICES, INC.


170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853 - 5544
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page30 of 112
A162

N. OLSEN -- BY MR. SLEIGHT -- 12/19/2013 37

1 about in preparing her for the meeting.


2 Q. I understand, but that was a recommendation; right?
3 A. It was an authorization, I guess I would say.
4 Q. Authorization, either way --
5 A. It authorized me to negotiate an employment contract.
6 I wanted to make sure at the meeting, but Sue made very
7 clear the terms that that contract would have given our
8 interpretation of the provision, so the faculty knew
9 what i t was voting on .
10 Q. All things being equal, you as the Dean had discretion
11 with respect to whether you recommended to the Provost
12 that somebody be promoted?
13 A. All things being equal?
14 Q. Yeah.
15 A. I believe so. I obviously did not recommend that Jeff
16 not be appointed.
17 Q. Right. But in another situation if you had felt
18 differently, you could have?
19 A. I could have . My own personal feeling in terms of my
20 role in the Promotion and Tenure process and in this
21 related process would be to view myself as an advocate
22 for the faculty unless there was some fatal flaw in the
23 election. If there was threats, whatever.
24 Q. Gunplay?
25 A. Discrimination, appropriate action, I certainly would

DePAOLO-CROSBY REPORTING SERVICES, INC.


170 Franklin Street, Suite 601 , Buffalo, New York 14202
716-853-5544
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Case 1:12-cv-00236-RJA-HKS Document 63-3 Filed 08/30/14 Page 7 of 76


0

% .
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:

I am :writing to congrcttulate you 011 your pr9motion to Cli.nical Professor. This


, promotion iS in recognition of your significant and effective service to the school. This
letter is intended to.incorporate our many conversations and to document out agreements
and will define your contract with the law school. It will be placed in your personnel file
hei'e to &uide future Deans as they approach your tenn reapp,ointments.

As we have discussed tlu:o.ughout your service to UB-Law School, your


appointment is covered by the ABA rules and is intended to fully comply with those
rules, particularly standard 40S(c) and all accompanying interpretations, especially
interpretalions 405-6 and 405~8. Now that you have succ~ssfully bee~ appointed
following 0 full review, future reviews will have the ''for cause only" removal standard
set fortJt in the ABA Standards. Under ABA policies, this standard means you may only
be denied reappointment for cauSe slich as dishonesty. failure to re}i.ort to work or some
other eq\IB.Ily egregious action. Tite "for good cause" standard is meant to ~ similar to
that term as applied when dealing with t~n~ faculty.and is intended to ensure academic
freedom.

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.

Your current contract tem1 as Clinical Professor extends fmm 9/112006-


8/3112009, and your current salary rate is $95,000. At the expiration of this term. the
Dean will' extend your contract for 2-years, or from 9/l/2009-8/31/2011, to provide the 5-
year .contract term mandated by the ABA. The Dean will perf'Onn the fU'st 5-year renewal

319John lordO'Brln Hall, 8uff1lo, NY 14281H100


Tel: (716) 6452052 fax: (71!3) 6455968 Emall: 14w-deaqs0buffalo,edu Web: www.l~w.bulfalo.odu
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page32 of 112
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) -. '

of your contract in20112012, followed by asecond 5-year renewal, performed by the


Faculty's Promotion & Tenure Committee in 2016-2017. All subsequent S-year ~newals
at the expiration of each tenn will alternate in this format between the Dean and the
Faculty. The reJ;lewals will incorporate all the tet.ms of the preceding contracts and this
letter unlessboth parties agree to new tenns. All reviews and renewals will comply with
the ABA's accreditation.standards, partic\ll~ly standard 405(c) and all accompanying
interpretations; as welJ as with the impl~entation ofthoSe tequirem~ts set forth in this
letter. A co?Y of standard 405(c) is attached to this letter for reference.

I am additionally renewing your administrativ~ appointment as Director of


Research and Writing. I want to sincerely thank you for your work as Direotor and look
forward to your continued leadership ofthe program. This is a decanal admfuistrative
appointment and is not part ofthe faculty r~view ~ The Dean will repew this
appointment in 5-year increments unless there is good cause for an earlier review or as a .
result of mutual agreement.

Achange in structure or staffing.ofthe law sclwol's.research and writing program


will not equate with "for good cause" to.terminate or not renew yout contract sirice your
contract as ClinicaL Professor is separate from yotll' administrative appointment as
Director of: Research and Writing. Should yow- appointment as Director ofResearch and
Writing end, you would still maintain your position as Clinical Professor. .In !hat
capaCity, without the administrative workload asDirector ofRe8eC!fCb: and Writing, you
woUld be expected to teach two courses each semes'ter as per tbe normal teaching load of
aU faculty. TilOSe cout'Ses'could be writing courses, IP courses or whatever teaching load
you mutually agree upon with the Dean and Vice Dean'for Academic Affairsat the time.

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

I accept the foregoing appointment as Clinical Professor.

I accept the foregoing administrative appointment as Director ofResearch and Writing.

.. -~ ....._...., ..._......., ..... .


.: .::F .L' r :
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. ' .
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A166

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.

Q. iou mention t.ro other reu. one: wu publhhinw? Q. ctrvie')


A. Yea. A. "th.l' wh~n; thtt le:9&l "''l.lLlng pr:OQr&lll ~ld fit. in.
Q. That -- c:an you j\1.5t. ct.ac:r1b4. for ae vht ~rvice ~=o<~a

I\. ,...ocht ng . {/ltlld'flllly?


0- Teehintifi' What type ot -- what type (If info!ll\Adon A. Gorvic-e moane Hie.(! ~e:r:vice t.c th& hw scho.,l buic:aUy
would be in:=lltdtd in th~ IJosail'~ ~i.t.h r-apect to yout ~ co-ttt, tac::ulty gcvern.ance, ad:DlnUt"tot.iv
as.J.v~nt..

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

O"PJ\OLO-CROSBY REPOR'rmG SERVl:CES 1 INC. Dol'JIOLO-CROSBY REPOR'rWG SEtiVlCES, INC.


l"JO PranUln Street, ~uite f:Ol, Bu.tfalc, Ne~o~ 1ork 140!!02 1"10 Frant.lin Stt41ttt , Suite 601, Bu.f!a,lo, New '(Of~ 14202
'H't\lS!tH HCUl.UH

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.

ll o. And na ditln t? ~1 Q. Approved t.o be pt'~ted to?


2~ A. D!d not. A. n11l Cl:inic.:al Prole!nmr.
23 Q. Do you re~;embfrr .,..h.en that w? o. ot.a h@ teU you anytl'\in; lse about whu occurrd t
24 l\. l Ulink it. wa. Ukt:: Much 30, .2008. Prt.t.y elo!le to the e-eUngl
but - - 1. .SUb:.equnlly W'hen we had d.1nner, ~ taU:ed abooL Jt..

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11il$) UH 'IUU:J$~'14
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page35 of 112
A167

J, M"LN~ .....- SY MR. SLOGH'r -- 12/lB/2:011 G2

~.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.

'S'i MP SLEIGHT: 16 Q, Po yc.u recall sending t-his e-m_,il tG Susan Manq?ld?

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$.

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J. HALKl\N -- BY MR. SLH..iHT - "U/18/201'3 63 J , MALJ<JI...N -- BY MP. 5LE'.l(iHT -- l~/18/2011

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 .

19 a Ht~ ~oo~;;~s t~ying to dl~t.rac..t tw~.rybody .,..it.h tal ki ng abcut.


20 A. And tho~ we.re t:.alking on the phc.ne about. it and I ~0 the ~egal writing pro9:ra.m and SUt! hAd ll Utt.l._, bit of
e>!'uldn'l: h~a.r Olsen 1 s .sJ de of it... but .apparently he was 21 trouble> gett.ino th~ point back to thi& isn ' t a legal
S$yi.nq \i.ke (!Oil~ t wor.ty, J '1 1 handle t..h..h whon I COOle ?.~ wrJtin9 l:lt'l!!er:..iny . Thh is a persotm~l sneet..1~9 So then
b.-cl<, that ti l'id1eulous . So;- th~n 1 tal~eq to suw 2l t..he.y tinally got. ar,ounct to vot.inq on it:, but th&-t ' s
a.rterw.al"dS And !She kind cr: told fie rJ1t.1 sttme: thing . 24 Wh;;~t [ h!!llt:d.

Q, Dean Ols~n wa8 c.ut o r tuwn at the t;irne? Q .. 0}:.,~

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Case 17-228, Document 29-2, 04/26/2017, 2020450, Page36 of 112
A168

65 J. M.\LV.ll - BY MB, SLEJGH1 - l:!:/l!/201) 6

(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~

... t.hlnk be. wouldl'l'l be one ot" ay 3t.cong. . t

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} --

" Y ~. JUt LhU. N., eue -- lt'_,. R eccet baUot., 6a \.hera'


10 o. Okay. can you tell me what. that: .1e? 10 n.o way ".f knr;...,in!';J.
,, A. J .,. . jullt. tryintJ to guns J ike now th& ll-'1-l ca111., out. II Ct. l..t!t. !be a:ak :t'OU 1 t thln)O: t kno-... why you Q\ll'!StiOd oltln

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.

lG Q, A.n<l t.t'ih 'oUHf tflttl in th& dtttrnoon ot the 28th -- 15 you?


1Li 1\, Yos. H '- Beceuo at the! t H!!Io, JiA Gardner was very woll t.l'!ou9ht
t7 0. -- o 2006? And ~o L.hb is you d01ng wh11.t.1 17 Of 01\ the faCUlty And h~ hild bl.!en gofnq door to (lc)or
18 A. 'l'ry1nq t~ vuc.&.e. vho voted tor ~o and ac;aaiM~ IM!. 18 lobbying [JC!oplr a nd Z'IIY gueu Wfi-' that Ohno l\nd rrod
19 o. ~n<l in the yes c::o1UII1n, you h.-.w tht> Defendant in this 19 were very illlp.cdsed by t.h~ passion and the intnt
zo caae, M~ ..... u Kut-ue 1 )0 that. \li~t~ ~e.o takioq in thls and \.hat 1'\e .,ern: to at 1
A. Yes. 21 this trouble. So t.h.at wu- Y 9'Ut'!5:S.

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.

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tl. MAJ..AAN -- Bj MiL SLElGHT ~- t:/1812011 67 J. MA.lJ<A.~ -- SY MR. ~LEIGHT -- 1~/lB/2011 6A

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\\.

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Case 17-228, Document 29-2, 04/26/2017, 2020450, Page37 of 112
A169

f9 J. K~l.KA.t~ - .8'1 MR. SLEltiHl' - - 12/U/201 l 70

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

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1l~-tSl5S44 1U- U3- 5.54-4

J. MALIV\N -- BY HR. SLE::'IGNJ' -- t:/18/2013 71 72

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

10 pulled. pro.ot1on to Clinical Professor.


ll tt. Oh. (Proposed &xtl.iblL t:~rs U - 14 t~~Brt.d for
1: A. Weit.ing until U.C at~ctinq vo:~-s t.~ver ~nd ~hen uhinq an ldonti ticat.icn. )
13 -:bjc.uon, that. ' what Hils told hJ.Ja. K aa.y-s, you
14 c.n't re13e .an objectlon to the vote c:ount ft.e"t t.he BY MR.. SL&I(il{T:

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?

Q. Ucw long aft~r the r:w;et tng? A. Yap, ye'.


:1 1\, T don' t knc..w, not vory -- Whe-a he got baaS! to to1o1n, l' 0. Thl!' d .. te 1S H.ay lat. ' 06?
2~ IJUOI$a. A. Ye8.

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

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t1U F'ran.-:lin Stre~t. Suite 601, Buffalo, Heltl 1w~ U202 110 fnnl::lin St re~t, Suite. 601. Buttalo, New Yc.rl:: U202
7U~HJ-S\H lU UJ.S.SU
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page38 of 112
A170

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?

s And it ~~as thi!J. me:raorandl.l!ll, a eh: pagl! lneltlotandum t.h~t. A. ~es.

Jlu:~ Gft-rdner hod d.xcul~ted to the Facul t.y but that hiS Q. Pt"iot to th~r vottt?

10 hnd nc:-t. givt'ln t.c SUb M:mqttld tc P\lt into my 10 A. Yes.

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 ~)'

lS o.riqlnally ~chedule d, :.o 11.. had b&en a r ound


"'
16
that. he made up tt"!f!- llo about. his r.any attemlj:t.a to t.ry

bnd c:-ntnet me 4nd wo:u-1: with !!'It! and tttllt I'tJ always J.;
mOI!til"t<} ltf.'Clil

t?r a \o..'Oile. But no one told me: gtx,.ut i t e-x- sh-.:..\lle.d ie


17 :mnhb~ him ftnd r-ttfll~J-ed lo t~lk to hl.JU .rtnd that 'S" what 17 to me..
10 J:ea.lly -- I h&vc a th1ng about <H$hcne:sty. 1 can ' t. te o. Do- you knf.lw if" sue Mang?ld had 90tt.en a copy?

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

DePAOLO-CROSBY REPOR'l'ING SERVl:CES, XNC. DaPAOLO-CROSBY REPOI\TING SERVICES, INC.


110 Franklin st..reet, Suite 601, Bu!talo, NEW 'iorl: 14202 110 rra.nf'".lin Street, Suite 601, Buf'f.alo, ~few "'.lark 14202
1H-esJ-SH4 , l ~-&$l-S!tH

.J. 1-!1\t,KAU -- BY !o!R. Sl.ElGH'X - 1.:!/lB/2013 7o

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~.

1: the .sitUCJti"'n, .so I toolt. their advioo and 1 did. 12


ll Q. so yt'lu never actually -~ }'CIU never w::-ote a .rEspon!il~ ? l3 BY t!R. SLEIGHT:

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.

DaPJIOLO-CROSBY REPORTING SERVICES, INC. DePAOLO- CROSBY REPORTING SERVICES, INC.


l '10 f'Tanklin Str~et, Suite 60l, S.ut!alo, Nw 'tort'. U202 no rran'r.lin st:..rut., 3u.it.e; COl, Bu.ttollo, Ne\( '/orr. 14202
ll&-8SJ-tt!tH ..,H&S3-S~H
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page39 of 112
A171

J . MAL~~) - b)' }IlL SLEIGHT -- l:/l8/20U 77

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~.

o. liAs t.bat al:t.o A refe.rence t? Gardnor'' que~tionin9 ot


gy MR. SLEIGHT: tho vdidit.'J ot t~.a vot~7

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

1l A. So t.his 3;.t.~'S -;1 t. 1 ~ Mi:!y 4 u prob,h.ms wl r.h thu vot.a1


(l. Ju2't woit., if yolJ'v~ rcod throu9t1 ic, ll.1.s-t let me l:now 1~ A. No.

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 -

DePAOLO-CROSBY REPORTrNG SERVIcES , INC. DePJ\OLO-CROSBl' REWRTING SEI!Vl:CES , INC .


110' t"r.anr.lin Street 1 Suite 6(!1, 8~frt'IJO , Ne\f 'lor~ l'121J2. 110 F'r antlin S tre~t, s~lt ~01, Buff alo, New 'totl: lo;2D2
iH-D~.J~.SSH 716~&5-J-S.H4

J. MALKl _._ BY MP !lLRl.GWf - C/1B/20l3 79 11. MI\Ll\ll.f~ - BY M~ . SL"tlGli'l' -- 12/l&/2011 eo

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

16 t'=< $.\~ ." H identU'leat1ot'l . )


l7 (J . CAn I see that back? 17
l~ A. sure, lS 6'.1.' MP; SLtiCHT =

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

Uefendant 1 !1 EKhibit l .S,, ll:'l: it you can take ~ lccl:


~0 from Lllcinda Finley <1ated Aptil 5.1. 20 ol.C

2l A. Yll!IS. 21 'that . Onc.e you ' ve r~vle.~.t~ed it, lt!>t:. 111& ~no..t .

\r. Old you evet '!!lee tl1At? 22


23 A. Ac;~ain, she WA:t a 1i t:tle mor4: di&cr~l:l! in t:hl!l way she 23 Q. And can you t ell me what tha.t 1$"9

?.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 .

Oe PJ\OLO-CROSI!lt REPORTING Sl1lRV<cE:S, INC . DePAOLO- CROSBlt RllPORTl NG S!lP.VICES , DIC .


110 Fra nr:lin stri!e.t, suit.e 6CH , Buf'!do, He w 'lork 11202 110 Fr6ni:lin Street .- sui te fiOl, eutt.!l.lo, N('~ 'iork 11202
7J6-!$3~t,SH 7H~b:~l!tSH
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page40 of 112
A172

NYCLA COMMITTEE ON PROFESSIONAL ETHICS


FORMAL OPINION
No. 741
Date Issued: March 1, 2010

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:

RPC 3.3, 1.6

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

Rules of Professional Conduct

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:

If a lawyer, the lawyer's client, or a witness called by the lawyer has


offered material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribW1al. A lawyer may refuse to offer evidence, other
than the testimony of a defendant in a ctiminal matter, that the lawyer
reasonably believes is false.

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

The lawyer's duty to remedy false statements by disclosure of confidential information if


necessary represents a change in the ethics rules, and requires us to revisit and withdraw our
prior opinion on client false testimony in depositions.

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

Is a Deposition Tantamount to Testimony before a Tribunal?

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.

Rules of Professional Conduct 3.3 comment [ 1].

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
A175

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.

Remediation of False Testimony at a Deposition

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.

Accordingly, a lawyer is required to remedy the false testimony. Depending on the


circumstances a lawyer may be able to correct the false testimony or withdraw the false
statement. RPC 3.4 directs a lawyer to abstain from preserving known false testimony. A
lawyer may not "participate in the creation or preservation of evidence when the lawyer knows

~ 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
A176

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.

Knowledge of Falsity under RPC 3.3 and l.O

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:

[T]he drafters intended disclosure of only that information which the


attorney 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 tribunal.

To interpret the rule to mean otherwise would be to require attorneys to


disclose mere suspicions of fraud which are based upon incomplete
information or information which may fall short of clearly establishing the
existence of a fraud. We do not suggest, however, that by requiring that
the attorney have actual knowledge of a fraud before he is bound to
disclose it, he must wait until he has proof beyond a moral certainty that
fraud has been committed. Rather, we simply conclude that he must
clearly know, rather than suspect, that a fraud on the court has been
committed before he brings this knowledge to the court's attention.

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
A177

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
A178

.
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
A179
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page48 of 112
A180

RESPONSE: D~endanfobj~.ts to this interrogatory on the grounds thai,i t is oyerly broad.


-- ~. . ~----

unduly vague and anibiglioils;,:~otwitbstandipg said objections, and without V{.Bivllig sam~, '
, II ~

- .... l.

unduly vague ancfambi~o~.Notwitbstanding said objections, and wifu_out waiving same,'

defendant respOiids: none: ." : }1


~ i'i .
-~ . ' ~
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page49 of 112
A181

. ;. '.} ,,

to filipg a Fo~~nth Alri~doient due proce~s cl~ .mfederaL court under 42 U.S.C. 1983.

RESPONSE: PlaintifffsJled.to.grieve his termination pursuant to the UUP CBA.

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.

~'. ~: .. _. ~, ~sPONSE: D~fendanJ~fH~~t~ ~o this inte~ogatoi on the gro~d~dia~tt.is overly broad,


,I ' t ~- ' ~., ' ' I f. ~ o .:, o

. 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 - <. . . . - .....

>'".::. : \;''l:' T. .,_~f- .. >"' , . '(c ' I .,.,.'~.~~~~.:':'


..: ,...,lNfERRQcNroRY #2itrs~~ thl riames of au 1&Jl~chopl.facu1ty meniberi':~b~:are . . .
' . ," ,' i :: ..:c-~petent to't~ an~-mayJ~:~alled to co~~otatff.?~ati ~ak~u ~utua's 8\Vow ~~~oriy. at
i~ .~>t;r~ .' llie .March 31-Ap~d 1, 2~1 q.~~g ofthe l>ublic:Emplo~ent Relations Bo.ard' (PEllB) ~
...Mbany, that the Promotipn and Tenure (P&T) Committee, on April28, 2006, voted to grant
~-rofessor Ma1kan a one-y~ai,)~rminal coi$'Bet for his administrative appointment as Director of
t ~ -"~W, ~d took no action,Q;e:,.did not vote~Jl any_resolution or approve any .reCommendation)
): ?.~ tegilrding his applicationfor the renewal ofbis faculty-appointment, ~than in~finitely
:. . r~p~\vable long-tenn fOD~~-.and promotion t9 the.~tl.e(rank offull cliniclll p~fes$or.
. ~" ')' ;~'!;~. '?> ~,.lf, '.. . . ,fl'!' ';X'-;"' ,\ .'
r~~~. ' f' r~,S!O~~~= r}.t;f~~pb~~~;tO thls futerrog~;~rr:,~,~ th~ groUndS that it i~f.Q~~Jy br<?,ad,
~J ~ %<;j .~~{~~
~ ~ -
,.
I '
, ,.,
J ,..
l)<s
~~ /, Jt
.,.;~-.
' ~ .
. "-t~~~~; \."~
y~
":. -
. ~. x.
pJ ,) _ *

' ' 'updl,lly"vague


: ."1>.' "'"
and ambiguo
-
- , irrelevant, andnot reasonl'lbly
').' _" .
calculated to'lead
...
to' the discovery ~~
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page50 of 112
A182

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 :

not in his possession, .


custody, or control.
. Notwithstanding said obJeCtions,
-
and Without waiving

same, defendant responds: defendant has no documents responsive to this request.

' DOCPMENT REOUES'T'#J8; Provide all Written d6cuments iiraiiY,form, includinglett~rs/


~emoran~ and e-mail, pertaining to Defendant Ewing's appoint:Jiientby Defendant MutUa to
tile administrative post QfVice-Dean for Legal Skills and his sub~equent appointment to the
administrative post ofVice;Dean for A~aen'lic Affairs, and any IDformation from any source
'9
.pertaining the.compensation for as weUas any other terms andjxmditions ofthose
admfuistrati~.e~~ppointments. . - ~:. ;. ~ ''

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

Main Place Tower, Suite 300A


'350 Malo Street' '''
Buffal~, New York 14202-3473
~elephone,: J716) 852-6~74
DaYid.Sleight~.ily.gov \
t- - -,:.:-

..,.

'I
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page51 of 112
A183

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 2 of 10

STATE OF NEW YORK


OFFICE OF THE ATTORNEY GENERAL
ERICT. SCHNEIDERMAN DMS!ON OF REGIONAL AffAIRS
ATTORNEY GENERAL BVffAI.O RuliON/\LOmC'

Telephone: (716) 853-8457

June 19,2015

Via Overnigllt Delivery


Rick Ostrove, Esq.
Leeds Brown Law, P.C.
One Old Country Road, Ste. 347
Carle Place, New York 11514

Re: Malkao v. Mutua et al


12-cv-00236-RJA

Dear Mr. Ostrove:

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

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 3 of 10

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff, NOTICE OF MOTION


vs.
12-CV-0236-A
MAKAU W. MUTUA,

Defendant.

MOTION FOR SANCTIONS AGAINST FREDRIC D. OSTROVE,


LEEDS BROWN LAW, P.C. AND JEFFREY D. MALKAN

MOTlONBY: Defendant Makua W. Mutua

RELIEF SOUGHT: Sanctions against Plaintiff Jeffrey D. Malkan, Esq.,


his attorney, Fredric D. Ostrove, Esq., and Mr.
Ostrove's fum Leeds Brown Law, P.C., pursuant to
Rule 11 ofthe Federal Rules of Civil Procedure, 28
U.S.C. 1927, and the Court's inherent power, an
Order dismissing this action with prejudice, an
Order directing Mr. Malkan to cease harassing
Defendant and his co~msel, David J. Sleight, Esq.,
an Order holding Mr. Malkan in civil contempt,
referral of Mr. Malkan and Mr. Ostrove for
discipline due to possible violations of the New
York State Rules ofProfessional Conduct, 22
NYCRR Part 1200, attorney's fees and costs
associated with bringing this Motion, and such other
and further relief as the Court deems just and
proper.

WHEN RETURNABLE: As directed by the Court

WHERE RETURNABLE: Hon. Kenneth Schroeder, Jr.


United States Courthouse
2 Niagara Square
Buffalo, New York 14202

SUPPORTING PAPERS: Memorandum of Law and Supporting Declarations


Case 17-228, Document 29-2, 04/26/2017, 2020450, Page53 of 112
A185

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 4 of 10

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

DATED: Buffalo, New York


June 19, 2015

ERJC T. SCHNEIDERMAN
Attorney General of the State of
New York
Attorney for Defendant
BY:

/sf Christopher L. Boyd


CHRISTOP-!;[ER L. BOYD
Assistant Attorney General of
Counsel
Main Place Tower, Suite 300A
350 Main Street
Buffalo, NY 14202
(716) 853-8457
Christopher.Boyd@ag.ny.gov
Case 17-228, Document 29-2, 04/26/2017, 2020450, Page54 of 112
A186

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 5 of 10


I'

UNlTED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff, CERTIFICATE OF SERVICE


vs.
12-CV-0236-A
MAKAU W. MUTUA,

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:

Rick Ostrove, Esq.


LEEDS BROWN LAW, PC
Attorneys for Plaintiff
One Old Country Road, Suite 347
Carle Place, N.Y. 11514

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

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 6 of 10

STATE OF NEW YORK


OFFICE OF THE ATIORNEY GENERAL
ERlCT. SCHNEIIJERMAN DM.SION OF REGIONAL AFFAIRS
ATIORNEY GENERAL BuFfAJ.O Ru:lDNAl.Oma

Telephone: (716) 852-6274

Match 12, 2015

Via e-mail and U.S. Mail


Rick Ostrove, Esq.
Leeds Brown Law, P.C.
One Old Country !toad, Ste. 347
Carle Place. New York 11514

Jte: M alkan v. Mutua et at


12-cv-00236-RJA

Dear Mr. O~trove:

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


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A188

Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 7 of 10

Rick Ostrove, Esq


March 12, 2015
Page 2 of4

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
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Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 8 of 10

Rick Ostrovtj, Esq


March 12, 20.15
Page3 of4

To interpret the rule to mean otherwise would be to require attorneys to


disclose mere suspicions of fraud which an~ based upon incomplete infonnation
or infonnation whlch may fall short of clearly establishing the existence of lit
fraud. We do not suggest, however, that by requiring that the attoJitey have actual
knowledge of a fraud before he is bound to disclose it, he must wait until he has
proof beyond a moral certainty that fraud has been committed. Rather, we simply
conclude that he must clearly know, rather than suspect, that a fraud on the court
has been committed before he brings this knowledge to the court's attention.

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 ~
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A190

~. Case 1:12-cv-00236-RJA-HKS Document 84-5 Filed 07/23/15 Page 9 of 10

Rick Ostrove, Esq


March 12,2015
Page,4 of4

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.

I trust this properly advises.

. Very truly yoUtS,


L~\\-29 ~ il
DAVIDJ.SgGHT ~
Assis~t Attorney General

DJS/nnp
Main Place Tower, Suite 300A. 350 Malo Smer, Buffalo, NY 14202 (716) 85).8400 Fur (716) 853-8571
httpo//www.~.ny.cov
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STATE OF NEW YORK


OFFICE OF THE ATTORNEY GENERAL
ERICT. SCHNEIDERMAN DIVISION Of R EOIONAL O FfiCES
ATTORNEY GENERAL BUFFAlO REOIONALOFFJCE_

{716) 852-6274

June 3, 2015

Via e-mail and U.S. Mall


Rick Ostrove, Esq.
Leeds Brown Law, P.C.
One Old Country Road; Ste. 347
Car1e,Piace, New York 11514

Re: Malkan v. Mutua. et al.


12-cv-00236-RJA

Dear Mr. Ostrove:

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
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,
v.
12-CV-0236A(Sr)
MAKAU W. MUTUA, et al.,

Defendants.

REPORT, RECOMMENDATION AND ORDER

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

upon dispositive motions. Dkt. #22.

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

Mr. Malkan commenced employment as an Associate Clinical Professor

and Director of Research and Writing for the State University of New York (SUNY)

Buffalo Law School in the Fall of 2000. Dkt. #70-2, p.7.


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On April 28, 2006, the Committee on Clinical Promotion and Renewal

(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,

Guyora Binder and Isabel Marcus. Dkt. #70-2, pp.15-17.

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

it was a long contentious meeting, there were strong


opponents of his promotion. Went on for a long time and
the way I recollect things, after a certain amount of time had
gone by and there was confusion in the meeting having to
do with the research and writing program versus Professor
Malkans promotion and at a certain point I believe it was I
who made a motion to separate the two decisions. That is,
one vote . . . for promotion and tenure and another vote on
what to do about the structure of legal research and writing.
What I remember about that is that the vote there was a
vote in favor of Professor Malkans promotion to clinical
professor. It was a close vote I remember. It was by one or
two votes. And when it came to deciding upon what was to
be done about the research and writing program, the . . .
Committee voted to study it and let it go on for another year
and then in a year come back and consider what was to be
done about the research and writing program.

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

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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,

Professor Konefsky, Professor Mangold, Professor Marcus and Professor Steinfeld

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.

Professor Mutua testified at his deposition that

It was a very heated meeting, but I think people . . . were


concerned that the program was not doing what it should
have done for our students, that was the overwhelming
concern of the faculty members. I think that . . . people felt
that Jeff should be removed from that position so that we
could find someone who could . . . lead a good program for
our students.

***
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

to recommend to the Dean that he give Mr. Malkan a


terminal one year appointment and then establish a
committee to study the program and make
recommendations for change.

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

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program. Dkt. #70-2, p.61. He testified that the vote

was very close . . . something like 6 to 5 with maybe two


abstentions. I cant recall, something like that. Because I
remember someone asking whether a 6 to 5 vote with two
abstentions was an affirmative vote.

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

Research and Writing. Dkt. #63-3, pp. 7-8.

Professor Mutua was appointed Interim Dean of the Law School in

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,

Local 2190, AFL-CIO (Union), filed an improper practice charge on Professor

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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

Malkans appointment as Clinical Professor in retaliation for Professor Malkan seeking

the Unions assistance to meet with Dean Mutua regarding his termination as Director

of the Research and Writing Program. Dkt. #72-1, pp.4-5.

At the Public Employee Relations Board (PERB), hearing on April 1,

2010, Dean Mutua testified regarding the CCPR meeting on April 28, 2006 as follows:

The meeting began on a note of controversy, in which


faculty members argued that the purpose of the meeting
was not clear. The reason for that was because faculty
members asked how Jeff Malkan could be promoted from an
associate clinical professor to a full clinical professor when
he was not teaching in clinics in the first place, and many
questioned why he had been appointed in the first place or
been given the title of an associate clinical professor when
he was not a clinical professor. But that discussion was . . .
put aside and we focused our attention on discussing Jeff
Malkans suitability as director of the research and writing
program and that discussion was very heated. Faculty
members were disappointed about the nature of this
particular program. I can say that I have not been in many
faculty meetings where emotions ran so high and, you know,
much of the angst was about why the dean and the faculty
had not responded to the very poor state of the legal
research and writing program and why no one had, you
know, brought up the matter of Jeff Malkans leadership of
the program to a faculty meeting for discussion. It was felt
by many that . . . Jeff Malkan should not continue to be
director of this program, that we should not reappoint him
because he had failed utterly as director of the program, to
lead it, and that we should scrap the program and start from
scratch by rethinking the entire program,.

So this particular meeting resolved two things. One, that Mr.


Jeff Malkan should be given an additional year as director of

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the program, after which we would look for a new director of


the program. The reason for this additional year was to give
us more time to look for a new director and to give Mr.
Malkan time to look for employment elsewhere. The second
resolution of that particular faculty meeting was that the
dean would be asked to appoint a committee of the faculty
to study the program and to reconstruct it from the ground
up. These were the two resolutions of this particular
meeting.

Dkt. #72-2, pp.3-4. When asked if the faculty took any action regarding Professor

Malkans promotion, Dean Mutua responded:

I do not recall the faculty acting on that part of . . . the


agenda of the meeting. The discussion regarding Jeff
Malkans directorship of the program was so heated and . . .
so expressive . . . that the faculty was consumed at that
particular issue and once we decided on these two
resolutions, the meeting broke up.

Dkt. #72-2, p.5. Dean Mutua admitted that he

was one of the main advocates for the position that we


should terminate Jeff Malkan immediately, not even granting
him an additional year to transition. I made the argument
before the faculty that we should not give him one more
year, because we did not have an additional year to waste
on our students, without giving them a quality product in this
particular program. I felt that we would be wasting our
students resources and time to allow him to continue as
director of the program. I made this particular case. The
faculty in its wisdom decided . . . to give him one year, and
so there was disagreement between myself and most of the
faculty on that situation.

Dkt. #72-2, p.5. Dean Mutua reiterated that the Committee did not vote on his faculty

appointment. Dkt. #72-2, p.9.

The Administrative Law Judges (ALJs), Decision recounted Dean

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.

Malkans non-renewal. Dkt. #70-3, pp.29-30. As a result of this determination, the

PERB charge was dismissed. Dkt. #70-3, p.30.

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

case. Dkt. #84-1, p.3.

On March 23, 2012, plaintiff commenced this action pursuant to 42 U.S.C.

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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qualified, presumptively renewable contract and university title/rank of full clinical

professor without due process, to wit, review by the Committee on Clinical Promotion

and Renewal (CCPR). Dkt. #1.

By letter dated September 5, 2012, plaintiff informed SUNY Buffalo

Provost Charles Zukoski that

On two previous occasions, November 11, 2011 and June


18, 2012, I informed President Satish K. Tripathi that Dean
Makau W. Mutua committed perjury in the first degree at the
hearing of the Public Employment Relations Board (PERB)
in Albany on March 31 and April 1, 2010. . . . At this point, I
beleive President Tripathi is complicit in the cover-up of a
crime by a high-ranking member of his administration, which
could have calamitous consequences for himself, for the law
school, and for the university.

Dkt. #84-1, p.5.

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

thirty members of the SUNY staff. Dkt. #70-4, p.16.

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

respect to paragraph 11 that it is within Defendants knowledge whether Malkan was

recommended to full Clinical Professor especially considering that Mutua testified

previously to this very issue. Dkt. # 70-4, p.4.

On February 27, 2013, plaintiff posted a copy of his statement in

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

to have discussed the mediation proceedings with the Spectrum:

Malkan said he was there with his attorneys, along with


Ewing, SUNY Counsel Jim Jarvis, Esq., and Assistant
Attorney General David Sleight.

According to Malkan, Mutua did not show up to the


mediation, claiming that he had more important business
elsewhere. Malkan claims this is a violation of the rules.

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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This is disappointing, of course, because over the five years


of this dispute SUNY Buffalo has refused to make any
settlement offer at all, not one dollar, and has blocked me
from obtaining a teaching job at any other law school,
Malkan wrote in an email. Im also afraid that the trial in
federal court will be harmful to the law schools reputation
because the facts that will be revealed will not be flattering.

Dkt. #84-1, p.12.

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:

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 would recommend that the Dean offer
Malkan a terminal one year appointment, and that vote
came out in Malkans favor.

Dkt. #56, 29.

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

Division, Fourth Department Attorney Grievance Committee. Dkt. #74, 11. In

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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I have testified that I was present at the meeting of the


Committee on Clinical Promotion and Renewal (CCPR) at
SUNY Buffalo Law School on April 28, 2006 at which Jeffrey
Malkans employment was discussed. I recall, and repeat
here for clarity, that the CCPR only voted to authorize the
Dean of the Law School to offer Malkan a one-year terminal
contract as Director of the Research and Writing Program
because he was universally viewed as incompetent.
According to my recollection, the CCPR did not hold a vote
on a second question of whether Malkan would have been
considered for promotion from Associate Clinical Professor
to full Clinical Professor. I have maintained throughout that
Malkan could not be legally promoted to the rank of Clinical
Professor since he was not a clinician and had never taught
in the clinics. The CCPR meeting was heated and
rancorous and broke up after the vote to grant Malkan a
terminal one-year contract. These are the facts as I
remember them and as I have truthfully testified in several
legal proceedings. By practice and tradition of the Law
School, no formal or official written record of CCPR
meetings is kept.

Dkt. #74-3, p.2.

On September 22, 2014, SUNY at Buffalo Provost Charles Zukoski

announced Dean Mutuas resignation as Dean of SUNY Buffalo Law School, effective

December 19, 2014. http://www.buffalo.edu/provost/messages/mutua.html.

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

District Attorney of Albany County because:

You have stated facts in your filings to the Western District


that you know are untrue, on the word of your client, against
all other evidence, and done no investigation at all. I believe
that you have violated Rule 11 of the Federal Rules of Civil
Procedure and I have instructed my attorneys to file a
motion for sanctions against you.

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I also believe that you have violated numerous provisions of


the New York Rules of Professional Conduct and have
thereby assisted your client in perpetrating a fraud on this
Court.

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.

I am not threatening to prosecute Dean Mutua. I have filed


charges that I expect will result in his prosecution. He has
committed a crime against the judicial process for which he
must answer, entirely apart from my civil actions in the Court
of Claims and this court.

Dkt. #72-6, p.2.

By e-mail dated October 23, 2014, AAG Sleight advised Mr. Ostrove:

I presume you know about your clients October 18, 2014


letter to me. In it, he advised me that he believes that I have
stated facts in my court submissions, on the word of my
client, that I know to be untrue. He goes on to state that he
has instructed the two of you to file a Rule 11 motion for
sanctions against me. He then posted this letter on a list
server and sent an e-mail to the entire faculty of the UB Law
School and various UB administrators with a link to the
letter.

Needless to say, I am not pleased that your client has now


decided to expand his sphere of rage and vitriol by engaging
in personal, public attacks on my integrity as a lawyer when I
am just doing my job and representing my client pursuant to
the obligations that I owe him as an attorney. . . .

What is even more alarming than your clients threat of a


frivolous Rule 11 sanctions motion is his intimation that . . .
you may actually be considering bringing such a motion on
his behalf.

Dkt. #70-3, p.34.

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By e-mail dated October 27, 2014, Mr. Ostrove advised AAG Sleight that:

Rule 3.3 precludes you from using or offering evidence that


you know to be false. If you know the testimony is false,
you also have a duty to remedy the false testimony and not
submit it to a court. Below you have not argued that you
dont know your clients testimony to be false.

However, I assume you may argue that you dont know it


[sic] false based on the word of your client. Rule 3.3 does
not allow you to blindly accept the word of your client.
According to Comment 8, a lawyer cannot ignore an
obvious falsehood. Comment 8 indicates that you have to
have a reasonable belief that the testimony is truthful.
NYCLA Opinion No. 741 (attached) sheds additional light on
the issue. It provides a discussion of knowledge in this
context. Under this opinion, which cites a Second Circuit
Opinion, a lawyer cannot rely on his clients statements if it is
unreasonable to do so. See also In re Grivance [sic]
Committee of the United States District, District of
Connecticut, John Doe, 847 F.2d 57, 63 (applying an
objective test to whether a lawyer has actual knowledge by
noting that the lawyer must have a reasonable belief that
his client is being truthful). The objective portion of the
knowledge rule is necessary, otherwise everyone would
just say they believe their client, regardless of how
unreasonable that belief may be.

Other than your clients word, there is no basis to believe


the truth of Mutuas statement. Given the overwhelming
evidence disputing your clients testimony, no reasonable
person could believe him. . . .

. . . RPC 1.0(k) specifically says that knowledge may be


inferred from the circumstances. Having read the
overwhelming evidence disputing your clients position, any
reasonable person would have to conclude that Mutua
definitely lied.

In your 56.1 statement, you offered Mutuas false testimony


as evidence there was a sharp dispute regarding whether
Malkan was promoted. I provide you with this case law and
remedy to give you a chance to remedy this on your own. I
sympathize with the fact that you are in a difficult position,
and I dont like sending you this email. But, it is your clients

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perjury which has put us both in this position. Obviously,


you will take whatever actions you think appropriate. But, I
suggest that before you decide how to proceed, you review
the information I have provided, carefully consider your
options, and possibly conduct additional legal research.

Dkt. #70-3, pp.32-33.

By e-mail dated November 3, 2014, AAG Sleight advised Mr. Ostrove that:

I suggest you read Doe v. Federal Grievance Committee,


847 F.2d 57 (2d Cir. 1988), more closely, and also read
subsequent decisions that cite it, for a fuller understanding
of the knowledge standard. I also remind you that the
bringing of a baseless Rule 11 motion is in itself
sanctionable conduct.

Dkt. #70-3, p. 32.

By e-mail dated November 24, 2014, following receipt from plaintiff of an

e-mail accusing AAG Sleight of violating the Rules of Professional Conduct, AAG

Sleight requested that plaintiffs attorneys instruct plaintiff to stop communicating with

him directly. Dkt. #84-3.

By e-mail dated December 5, 2014, plaintiff advised Professor Ewing and

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

signed. Dkt. #73-3, p.2.

By e-mail dated February 20, 2015, Mr. Ostrove advised AAG Sleight:

I am convinced that you know your client has lied in two


proceedings about material issues. Any rational person
would easily reach that conclusion, despite your clients
word. I am sorry that I have been put in the position to
force you to take action and I wish you corrected this without
warning. Nonetheless, here is one more, final warning: you
and your client have 21 days safe harbor to take corrective
actions before I file the attached motion.

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

& Dkt. #70-7, p.13.

By letter dated March 12, 2015, AAG Sleight responded as follows:

Your draft motion argues that I have violated Rule 11


because I cite Mr. Matuas [sic] allegedly perjurious
testimony in my Rule 56.1 statement. As is clear from that
paragraph you reference, I am not citing Matuas [sic]
testimony 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 Matuas [sic]
testimony regarding what occurred at the Committee on
Clinical Promotion and Renewal meeting for the truth of the
matter asserted, nor would I, because, as our Summary
Judgment Motion reflects, 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 [sic] and, in particular,
what Mr. Matua [sic] 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.

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Our separate and independent grounds for summary


judgment are threefold. First, that your client did not have a
protected liberty interest because he did not have a
legitimate expectation of continued public employment
based on the letter agreement between him and Nils Olsen.
. . . Thus, we do not deny that your client was offered and
accepted a term appointment as a clinical professor that
expired on August 31, 2009. . . . What we do deny, however,
is that your client had a legitimate expectation of continued
employment past August 31, 2009 based on his contract
with Olsen, because Olsen was prohibited by the SUNY
Board of Trustees policies from offering him a term
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 . . .
there is no case law interpreting the definition of actual
knowledge under RPC 1.0(k). There is, however, a Second
Circuit decision that discussed the actual knowledge
standard and that case is binding precedent on our court. I
previously encouraged you to read the decision in In Re
Doe, 847 F.2d 57 (2d Cir. 1998), and cases that cite it, more
closely. 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
lawyers actual knowledge of a witnesss false testimony is
judged by an objective standard. In fact, to the contrary, it
supports the proposition that it is judged by a subjective
standard, that is, actual knowledge. The Second Circuit in
Doe approved of the definition used in Virginia for when
actual knowledge is clearly established. Id. at 62.
[I]nformation is clearly established when the client
acknowledges to the attorney that he has perpetrated a
fraud on the court. Id. (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:

***

. . . 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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Additionally, New Yorks RPC is essentially the States


adoption of the ABA Model Rules of Professional Conduct
(1983). In ABA Formal Opinion 87-353, the actual
knowledge standard is discussed. . . . That Opinion advises
that it will be the unusual case where the lawyer does
know that a client intends to commit perjury, and
that knowing can only be established by the clients clearly
stated intention to perjure himself. Id.

Where is your evidence in this case that I know that Mr.


Matua [sic] intentionally testified falsely at his deposition?
There is no evidence that Mr. Matua [sic] ever
acknowledged to anyone that his testimony was false, let
alone to me. In 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 the most usual of circumstances in
litigation where memory is involved. At best, this is evidence
that might lead me to suspect that Mr. Matuas [sic]
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 asking 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. . . .

***

. . . if you proceed, I will file a cross motion for sanctions against


you and your client. Your draft motion is frivolous, has no basis in
law or fact, and appears to serve no other purpose than to harass
and vex me.

Dkt. #73-5, pp.2-5.

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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In opposition to plaintiffs motion for sanctions, Professor Mutua declares

unequivocally that I testified truthfully and to the best of my recollection at both

Plaintiffs PERB hearing and at my deposition in this case. Dkt. #74, 3.

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,

31. However, counsel further declared that

our safe harbor exercise is unrelated to the merits of the


motion. Prior to filing our sanctions motion, multiple
attorneys from the Firm and I reviewed the situation

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exceptionally carefully. We reviewed every case to which


the AG directed us as well as numerous other cases. I am
100% positive that the motion for sanctions is well grounded
in fact and law, and is therefore not frivolous.

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

identify Frederic D. Ostrove as an Interested Party so that he


continues to receive notice of electronic filings. Plaintiffs
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 . . . Saint James, New York 11780.

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.,

The judicial process is based on the understanding that


there are undisputed facts that are accessible to the
common knowledge of responsible and mentally competent
human beings. That includes lawyers and law professors.
Everyone on the Law School faculty has actual knowledge
of what happened in the P&T Committee meeting, even if
they were not in the room, and so does Mr. Sleight.

***

Any reasonable inquiry based on the record in this litigation


and the related legal proceedings in state court would

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confirm that the evidence of Makau W. Mutuas perjury is not


just compelling, but conclusive. The truth is that former-
Dean Mutua committed perjury and that President Tripathi
obstructed justice in a manner that is strikingly similar to the
cover-up by the administration at Penn State University of its
athletic programs scandal.

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

meter on my private attorneys ran to over $140,000 before I exhausted my last

resources earlier this summer. Dkt. #82, 90. Mr. Malkan declares that he is currently

impecunious. Dkt. #82, 90.

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

fees and costs. Dkt. #83.

DISCUSSION AND ANALYSIS

Fed. R. Civ. P. 11(a)

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

further provides that

By presenting to the court a pleading, written motion, or


other paper whether by signing, filing, submitting, or later
advocating it an attorney or unrepresented party certifies
that to the best of the persons knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:

(1) it is not being presented for any improper purpose, such


as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are


warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;

(3) the factual contentions have evidentiary support or, if


specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and

(4) the denials of factual contentions are warranted on the


evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.

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

motive. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498

U.S. 533, 542 (1991).

If, after notice and a reasonable opportunity to respond, the court

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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violation. Fed. R. Civ. P. 11(c). A pleading, motion or paper violates Rule 11 if it is

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,

356 (S.D.N.Y. 2002). The appropriate standard is an objective standard of reasonable

inquiry. Business Guides, 498 U.S. at 554; See Fed.R.Civ.P.11 advisory committee.

Rule 11 is violated when it is clear under existing precedents that a

pleading has no chance of success and there is no reasonable argument to extend,

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

Rule 11 violation is . . . a serious thing, and an accusation of such wrongdoing is

equally serious. Id.

The decision whether to impose a sanction for a Rule 11(b) violation is . .

. 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

(2000). Although dismissal should be imposed only in extreme circumstances, it is an

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,

266 (2d Cir. 1994).

28 U.S.C. 1927

28 U.S.C. 1927 provides that [a]ny attorney . . . who so multiplies the

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,

vexatiously, wantonly, or for oppressive reasons.).

Plaintiffs Motion for Sanctions

Perjury

Plaintiff seeks sanctions pursuant to Rule 11 of the Federal Rules of Civil

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

been a lie. Dkt. #70-7, pp.5 & 20.

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

this Court. Dkt. #72, p.4.

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

of confusion, mistake, or faulty memory. Id. Differences in recollection alone do not

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

demonstrated by showing that testimony of a witness is inconsistent with the

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,

63 (2d Cir. 2000).

As there is no evidence before the Court to suggest anything other than

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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accurately depicting witnesses differing recollections of the meeting in his Statement of

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

particular allegation is utterly lacking in support. ), quoting OBrien v. Alexander, 101

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,

2006 are immaterial.

Rule 3.3 of the New York Rules of Professional Conduct

Plaintiff seeks to impose sanctions against AAG Sleight pursuant to the

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

may be inferred from the circumstances. Dkt. #70-7, p.21.

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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In Doe v. Federal Grievance Committee, however, the Court of Appeals

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:

If attorneys were bound as part of their ethical duties to


report to the court each time they strongly suspected 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 Codes drafters intended
to throw the court system into such a morass. Instead, it
seems that the only reasonable conclusion is that the
drafters intended disclosure of only that information which
the attorney 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 tribunal.

To interpret the rule to mean otherwise would be to require


attorneys to disclose mere suspicions of fraud which are
based upon incomplete information or information which
may fall short of clearly establishing the existence of a fraud.
We do not suggest, however, that by requiring the attorney
to have actual knowledge of a fraud before he is bound to
disclose it, he must wait until he has proof beyond a moral
certainty that fraud has been committed. Rather, we simply
conclude that he must clearly know, rather than suspect,
that a fraud on the court has been committed before he
brings this knowledge to the courts attention.

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

that the witness committed perjury. Id.

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In United States v. Shaffer Equipment Co., in contrast, the Court of

Appeals for the Fourth Circuit determined that an attorney possessed actual knowledge

of misstatements by an expert witness where the expert witness admitted to that

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

(S.D.N.Y. Jan. 16, 2002).

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

Mutua testified falsely. As the ABA Commission on Ethics and Professional

Responsibility opined:

It must be emphasized that this opinion does not change the


professional relationship the lawyer has with the client and
require the lawyer now to judge, rather than represent the
client. The lawyers obligation to disclose client perjury . . .
is strictly limited . . . to the situation where the lawyer knows
that the client has committed perjury, ordinarily based on
admissions the client has made to the lawyer. The lawyers
suspicions are not enough.

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

questions regarding the accuracy of Professor Mutuas recollection is not a collateral

proceeding for sanctions against counsel, but a trial. 847 F.3d at 63.

Answer

Plaintiff seeks to sanction AAG Sleight pursuant to Rule 11 for failing to

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,

p.12, n.4. Paragraph 11 of the Complaint alleges:

On April 28, 2006, upon a review of his job performance,


applying the facultys scholarship, teaching, and service
standards, the Promotion and Tenure Committee
recommended that Malkan be reappointed to the position of
full Clinical Professor with the protections of ABA Standard
405(c) and accompanying interpretations, which requires law
schools to protect the academic freedom of clinical
professors by providing them with job security reasonably
similar to tenure.

Dkt. #1, 11 & Dkt. #70-7, pp. 5 & 11.

AAG Sleight declares that he denied knowledge or information sufficient

to form a belief as to the truth or falsity of the allegation contained in paragraph 11

because

the allegations are not precise. It alleges that the Promotion


and Tenure Committee met on April 28, 2006, when it was
the Committee on Clinical Promotion and Tenure. It alleged
that Plaintiff was reappointed to the position of full Clinical
Professor when in fact from what I knew at the time the
issue at that meeting was his promotion from Associate
Clinical Professor to full Clinical Professor. It alleged that the

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faculty reviewed Plaintiffs job performance, applied the


facultys scholarship, teaching, and service standard, and I
did not know that to be the case one way or the other. And,
it alleged that the appointment was with the protections of
ABA Standard 405(c) and accompanying interpretations,
which require law schools to protect the academic freedom
of clinical professors by providing them with job security
reasonably similar to tenure, which I did not know to be the
case one way or [the] other.

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.

Rule 11 applies only to the initial signing of a pleading,


motion, or other paper. Limiting the application of rule 11 to
testing the attorneys conduct at the time a paper is signed is
virtually mandated by the plain language of the rule.

***

Moreover, the advisory committee note to the amended rule


states that the signers conduct is to be judged as of the time
the pleading or other paper is signed. Fed. R. Civ. P. 11
advisory committee note. It is difficult to imaging why this
comment would be made if the rule were meant to impose a
continuing obligation on the attorney.

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

the signer. Id., quoting Oliveri, 803 F.2d at 1275.

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As it is clear that Rule 11 imposes no obligation upon an attorney to

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

knowledge or information sufficient to form a belief as to the truth or falsity of the

allegation contained in paragraph 11 at the time the Answer was filed.

Defendants Motion for Sanctions

Rule 11 Safe Harbor Provision

Mr. Ostrove argues that defendant failed to follow the appropriate

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.

Dkt. #89, p.4 & Dkt. #90, 61.

Defendant responds that he complied with Rule 11 by serving a copy of

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

increasing the costs of defending the action. Dkt. #93, p.3.

A motion for sanctions must be made separately from any


other motion and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served
under Rule 5, but it must not be filed or be presented to the
court if the challenged paper, claim, defense, contention, or

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denial is withdrawn or appropriately corrected within 21 days


after service or within another time the court sets. If
warranted, the court may award to the prevailing party the
reasonable expenses, including attorneys fees, incurred for
the motion.

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.

Id.; Storey, 347 F.3d at 389.

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

to escape responsibility for improper conduct simply because he was subsequently

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.

Frivolousness of Plaintiffs Rule 11 Motion

Defendant argues that plaintiffs Rule 11 motion is frivolous and warrants

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

situation, defendant seeks dismissal of this action as an appropriate sanction against

plaintiff. Dkt. #83-1, p.9.

Mr. Ostrove responds that the motion for sanctions was appropriate

because an objective assessment of the facts compels the conclusion that Mutua lied.

Dkt. #89, p. 10.

In a declaration in opposition to the motion for sanctions, Mr. Malkan

states: My purpose in everything I have said and done since November 11, 2011 has

been to report my evidence of former-Dean Makau Mutuas criminal misconduct, not to

vex, harass, or defame anyone who stands in the path of my legal claims, nor for any

unethical or unlawful reason. Dkt. #88-2, 1. Mr. Malkan declares that:

The crime I am alleging is subversion of the judicial process


by a state official who is also a member of the New York
State Bar, a law professor, and the former-Dean of the
SUNY Buffalo Law School. Mr. Sleight is in violation of Rule
11 because he has certified documents based on perjured
testimony to this Court without disclosing the perjury, which
puts this court in exactly the position Rule 11 is intended to

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prevent. Mr. Sleights signature means that he has inquired


into the facts in a manner that is reasonable under the
circumstances. He knows that my allegations on this motion
are as serious as any allegations in a civil lawsuit can be.

Dkt. #88-2, 3.

Plaintiffs motion for sanctions against Professor Mutua and AAG Sleight

is frivolous. As AAG Sleight repeatedly attempted to advise, just because witnesses

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

against Dean Mutua and AAG Sleight.

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

Professor Mutuas differing recollection compromises plaintiffs claim.

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Bad Faith

The same factors which establish the frivolousness of plaintiffs motion for

sanctions also demonstrate bad faith.

In addition, as defendant argued in opposition to plaintiffs motion for

sanctions, the memorandum of law in support of plaintiffs motion is riddled with

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

paper is signed is virtually mandated by the plain language of the rule.).

As a result, sanctions are also appropriate pursuant to 28 U.S.C. 1927

and the Courts inherent power.

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

diligently attempted to comply in a reasonable manner. Paramedics Electromedicina

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

violation was willful. Id.

The Alternative Dispute Resolution Plan provides for confidentiality of all

mediation interventions and processes. Rule 4.4. The ADR Plan specifically provides

that Mediation Memorandum shall be subject to the confidentiality of the mediation

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

process is confidential. Rule 16(a).

Plaintiffs disclosure of his mediation statement on the internet and

discussion of the mediation proceedings with SUNY Buffalo Spectrum is contemptuous.

5
http://www.nywd.uscourts.gov/alternative-dispute-resolution

6
http://www.nywd.uscourts.gov/rules-individual-local-federal

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Sanction

In light of the foregoing discussion, it is recommended that Mr. Ostrove

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.

As to plaintiff, the Court agrees with defendant that a financial sanction

would be inappropriate in light of plaintiffs current circumstances. However, as the

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

litigation would easily warrant even such a severe sanction.

CONCLUSION

For the foregoing reasons, it is recommended that plaintiffs motion (Dkt.

#70), for sanctions be denied and that defendants motion (Dkt. #83), for sanctions be

granted in part.

Therefore, it is hereby ORDERED pursuant to 28 U.S.C. 636(b)(1) that:

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This Report, Recommendation and Order be filed with the Clerk of the

Court.

ANY OBJECTIONS to this Report, Recommendation and Order must be

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.

72(b) and Local Rule 72(b).

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).

Failure to file objections within the specified time or to request an extension

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

(2d Cir. 1988).

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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The Clerk is hereby directed to send a copy of this Report,

Recommendation and Order to the attorneys for the parties.

SO ORDERED.

DATED: Buffalo, New York


December 1, 2015

s/ H. Kenneth Schroeder, Jr.


H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
No. 1:12-CV-00236
Plaintiff, (MAT)
-vs- DECISION AND ORDER
MAKAU MUTUA,

Defendants.

I. Introduction

Presently before the Court for review are two Reports

and Recommendations (R&Rs) prepared by Magistrate Judge

Kenneth Schroeder, Jr. and filed December 1, 2015.1

Jeffrey Malkan (plaintiff), proceeding pro se,2 brings

this action pursuant to 42 U.S.C. 1983, alleging a

single due process claim pursuant to the Fourteenth

Amendment. Defendant Makau Mutua (defendant) has moved

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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for summary judgment (doc. 55) pursuant to Fed. R. Civ.

P. 56 and both parties have cross-moved for sanctions

pursuant to Rule 11. Docs. 70, 83. The parties motions

were referred to Magistrate Judge Kenneth Schroeder, Jr.,

for consideration of the factual and legal issues

presented, and to prepare and file Reports and

Recommendations (R&R) containing a recommended

disposition of the issues raised.

Judge Schroeder issued two R&Rs on December 1, 2015.

In the first (the first R&R), Judge Schroeder

recommended that defendants motion for summary judgment

be granted. In the second R&R (the second R&R), Judge

Schroeder recommended that defendants motion for

sanctions be granted in part, and plaintiffs motion for

sanctions be denied.

II. Factual Background and Procedural History

Plaintiff commenced this civil rights action pursuant

to 42 U.S.C. 1983 on March 23, 2012, alleging that

defendant Makau W. Mutua (defendant), then Dean of the

State University of New York (SUNY) Buffalo Law School

(the law school), violated his due process rights under

2
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the Fourteenth Amendment when he declined to renew

plaintiffs three-year contract as a clinical professor

at the law school. The Court hereby incorporates the

thorough factual summaries included in Judge Schroeders

R&Rs. Doc. 96 at 1-6; doc. 97 at 1-20.

At issue for purposes of defendants summary judgment

motion is whether plaintiff was afforded the requisite

due process when he was terminated, via non-renewal of

his three-year term contract, from his position as

clinical professor. The first R&R (doc. 12) found that,

as a threshold issue, plaintiff had no property interest

in his position. The R&R therefore recommended that the

Court grant defendants motion for summary judgment on

that basis. Plaintiff, proceeding pro se, has submitted

objections to the first R&R. See docs. 99, 100.

The second R&R recommended that the Court grant

defendants motion for sanctions in part, by sanctioning

plaintiffs former counsel, Frederic D. Ostrove, Esq.,

and his firm, Leeds Brown Law, P.C., in the amount of

$10,000.00, payable to the Clerk of the Court for the

Western District of New York. The second R&R declined to

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recommend sanctioning plaintiff himself due to his

current [financial] circumstances. Doc. 97 at 37.

Plaintiff and his former counsel have filed objections to

the second R&R. See docs. 98 (Mr. Ostroves objections);

99-101 (plaintiffs objections). For the 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

Decision and Order.

III. Discussion

When a specific objection is made to a portion of

a magistrate judges report and recommendation, the

district judge subjects that portion of the report and

recommendation to a de novo review. Fed. R. Civ. P.

72(b)(2); 28 U.S.C. 636(b) (1)(C); Mario v. P & C Food

Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). When

only a general objection is made to a portion of a

magistrate judges report and recommendation, or the

objection merely reiterates the same arguments made by

the objecting party in its original papers, the district

judge subjects that portion of the report and

recommendation to only a clear error review. Fed. R. Civ.

4
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P. 72(b)(2), (3); Fed. R. Civ. P. 72(b), Advisory

Committee Notes: 1983 Addition. The objections made by

plaintiff and his former counsel merely reiterate

arguments which were fully briefed in the original motion

argument. Therefore, the Court reviews the R&Rs for clear

error.

A. The First R&R

The Court has reviewed the record in this case as

well as the parties arguments on summary judgment. Upon

due consideration of the first R&R, the Court finds no

clear error. The Court agrees with Judge Schroeders

conclusion that plaintiff had no property interest in his

position as clinical professor at the law school, because

the rules governing term appointments in SUNY schools

provide that a term appointment can last no longer than

three years and that an individual so appointed has no

legal right, interest, or expectancy in a renewed

appointment. 8 N.Y.C.R.R. 338.2; see 8 N.Y.C.R.R.

335.10. The Court therefore adopts the first R&R in its

entirety and grants defendants motion for summary

judgment.

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B. The Second R&R

The second R&R discussed cross-motions for sanctions

made by the parties pursuant to Rule 11 of the Federal

Rules of Civil Procedure. The R&R recommended that

defendants motion be granted to the extent that

sanctions in the amount of $10,000.00 be awarded against

plaintiffs counsel. The R&R recommended no monetary

sanctions against plaintiff himself due to his current

[financial] circumstances. Doc. 97 at 37. The Court

declines to adopt the recommendation of a monetary

sanction in the amount of $10,000.00 against plaintiffs

former counsel. In declining to adopt the monetary

sanction as provided in the R&R, the Court emphasizes

that the reasons Judge Schroeder gave for imposing such

a monetary sanction are well-supported by this record.

Counsels actions and unduly contentious behavior, as

described in extensive detail in the second R&R, are

worthy of verbal sanctions as stated by Judge Schroeder.

IV. Conclusion

For the foregoing reasons, the first R&R addressing

defendants summary judgment motion (doc. 96) is adopted

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in its entirety and defendants motion for summary

judgment (doc. 55) is hereby granted. The Court declines

to adopt the second R&R addressing sanctions (doc. 97)

and the parties cross-motions for sanctions (docs. 70,

83) are therefore denied. Plaintiffs objections (docs.

99, 100) and former counsels objections (doc. 98) are

overruled to the extent stated in this Decision and

Order. The Clerk of the Court is directed to close this

case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

HON. MICHAEL A. TELESCA


United States District Judge

Dated: December 16, 2016


Rochester, New York.

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, AMENDED


No. 1:12-CV-00236 (MAT)
Plaintiff, DECISION AND ORDER
-vs-

MAKAU MUTUA,

Defendants.

This Decision and Order amends the Decision and Order dated

December 16, 2016 and filed on that date.

I. Introduction

Presently before the Court for review are two Reports and

Recommendations (R&Rs) prepared by Magistrate Judge Kenneth

Schroeder, Jr. and filed December 1, 2015.1 Jeffrey Malkan

(plaintiff), proceeding pro se,2 brings this action pursuant to

42 U.S.C. 1983, alleging a single due process claim pursuant to

the Fourteenth Amendment. Defendant Makau Mutua (defendant) has

moved for summary judgment (doc. 55) pursuant to Fed. R. Civ. P. 56

and both parties have cross-moved for sanctions pursuant to Rule

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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Judge Kenneth Schroeder, Jr., for consideration of the factual and

legal issues presented, and to prepare and file Reports and

Recommendations (R&R) containing a recommended disposition of the

issues raised.

Judge Schroeder issued two R&Rs on December 1, 2015. In the

first (the first R&R), Judge Schroeder recommended that

defendants motion for summary judgment be granted. In the second

R&R (the second R&R), Judge Schroeder recommended that

defendants motion for sanctions be granted in part, and

plaintiffs motion for sanctions be denied.

II. Factual Background and Procedural History

Plaintiff commenced this civil rights action pursuant to 42

U.S.C. 1983 on March 23, 2012, alleging that defendant Makau W.

Mutua (defendant), then Dean of the State University of New York

(SUNY) Buffalo Law School (the law school), violated his due

process rights under the Fourteenth Amendment when he declined to

renew plaintiffs three-year contract as a clinical professor at

the law school. The Court hereby incorporates the thorough factual

summaries included in Judge Schroeders R&Rs. Doc. 96 at 1-6; doc.

97 at 1-20.

At issue for purposes of defendants summary judgment motion

is whether plaintiff was afforded the requisite due process when he

was terminated, via non-renewal of his three-year term contract,

from his position as clinical professor. The first R&R (doc. 12)

2
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found that, as a threshold issue, plaintiff had no property

interest in his position. The R&R therefore recommended that the

Court grant defendants motion for summary judgment on that basis.

Plaintiff, proceeding pro se, has submitted objections to the first

R&R. See docs. 99, 100.

The second R&R recommended that the Court grant defendants

motion for sanctions in part, by sanctioning plaintiffs former

counsel, Frederic D. Ostrove, Esq., and his firm, Leeds Brown Law,

P.C., in the amount of $10,000.00, payable to the Clerk of the

Court for the Western District of New York. The second R&R declined

to recommend sanctioning plaintiff himself due to his current

[financial] circumstances. Doc. 97 at 37. Plaintiff and his former

counsel have filed objections to the second R&R. See docs. 98 (Mr.

Ostroves objections); 99-101 (plaintiffs objections). For the

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

Decision and Order.

III. Discussion

When a specific objection is made to a portion of a

magistrate judges report and recommendation, the district judge

subjects that portion of the report and recommendation to a de novo

review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. 636(b) (1)(C); Mario

v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). When

only a general objection is made to a portion of a magistrate

3
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judges report and recommendation, or the objection merely

reiterates the same arguments made by the objecting party in its

original papers, the district judge subjects that portion of the

report and recommendation to only a clear error review. Fed. R.

Civ. P. 72(b)(2), (3); Fed. R. Civ. P. 72(b), Advisory Committee

Notes: 1983 Addition. The objections made by plaintiff and his

former counsel merely reiterate arguments which were fully briefed

in the original motion argument. Therefore, the Court reviews the

R&Rs for clear error.

A. The First R&R

The Court has reviewed the record in this case as well as the

parties arguments on summary judgment. Upon due consideration of

the first R&R, the Court finds no clear error. The Court agrees

with Judge Schroeders conclusion that plaintiff had no property

interest in his position as clinical professor at the law school,

because the rules governing term appointments in SUNY schools

provide that a term appointment can last no longer than three years

and that an individual so appointed has no legal right, interest,

or expectancy in a renewed appointment. 8 N.Y.C.R.R. 338.2; see

8 N.Y.C.R.R. 335.10. The Court therefore adopts the first R&R in

its entirety and grants defendants motion for summary judgment.

B. The Second R&R

The second R&R discussed cross-motions for sanctions made by

the parties pursuant to Rule 11 of the Federal Rules of Civil

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Procedure. The R&R recommended that defendants motion be granted

to the extent that sanctions in the amount of $10,000.00 be awarded

against plaintiffs counsel. The R&R recommended no monetary

sanctions against plaintiff himself due to his current [financial]

circumstances. Doc. 97 at 37. Accordingly, for equitable concerns

and weighing the combined behavior of both the plaintiff and his

counsel, the Court declines to adopt the recommendation of a

monetary sanction in the amount of $10,000.00 against plaintiffs

former counsel. In declining to adopt the monetary sanction as

provided in the R&R, the Court emphasizes that the reasons Judge

Schroeder gave for imposing such a monetary sanction are well-

supported by this record. Counsels actions and unduly contentious

behavior, as described in extensive detail in the second R&R, are

worthy of verbal sanctions as stated by Judge Schroeder.

IV. Conclusion3

For the foregoing reasons, the first R&R addressing

defendants summary judgment motion (doc. 96) is adopted in its

entirety and defendants motion for summary judgment (doc. 55) is

hereby granted. The Court modifies the second R&R (doc. 97) to the

extent that monetary sanctions will not be imposed by the Court

against plaintiffs counsel, but in all other respects the

sanctions as stated by Judge Schroeder are accepted and adopted.

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.

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Defendants motion for sanctions (doc. 83) is, therefore, granted

in part and plaintiffs motion for sanctions (doc. 70) is denied.

Plaintiffs objections (docs. 99, 100) and former counsels

objections (doc. 98) are overruled to the extent stated in this

Decision and Order. The Clerk of the Court is directed to close

this case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

HON. MICHAEL A. TELESCA


United States District Judge

Dated: December 18, 2016


Rochester, New York.

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK
-------------------------------------------------------------){

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.

Dated: January 13, 2017


Carle Place, New York

LEEDS BROWN LAW, P.C.


Former Counsel for Plaintiff
One Old Country Road, Suite 347
Carle Place, New Y I 514
(516) 3-9550