One minor change, I turned on tracking changes you should see it easily. Thanks. It is well written.
Haytham,
Thank you for your comments.
“Beyond cavil” means “beyond dispute” – to keep it simple, I’ll change it to the latter.
We will not be able to get an affidavit from Flanagan along the lines you suggest. In fact, he disputes that he said anything to Bill Slater. It is one of the challenges of the case. On the one hand, the Plaintiff has filed a verified pleading (i.e., the Amended Complaint) alleging that Flanagan told Bill that the Plaintiff was dangerous and may have a gun. The Plaintiff based this allegation on a privileged email that Larry Carver gave to Plaintiff’s counsel. In that email, Bill said that Flanagan was the source of the statement he made to the VA police officer. (Incidentally, we got a protective order to preclude the Plaintiff from using the privileged email.) The Plaintiff used that information to amend his complaint and add Flanagan as a defendant. In the amended complaint, the Plaintiff alleges that Flanagan told Slater that the Plaintiff was dangerous and had a weapon, gun, and/or AK-47. Subsequently, Plaintiff’s counsel got an affidavit from Flanagan in which, among attesting to other things, he denies saying anything along those lines to Bill. The Plaintiff then voluntarily dismissed the claim against Flanagan, now taking the position that Flanagan did not say those things to Slater. (Flanagan’s affidavit is attached to the Plaintiff’s Notice of Voluntary Dismissal.) For your reference, the Plaintiff’s Amended Complaint, the Notice of Voluntary Dismissal, and Flanagan’s affidavit are in the pleadings we sent you. It is our position that the fact that Flanagan made the statement to Slater is a judicial admission that the Plaintiff is estopped to deny because the Plaintiff verified this fact in his Amended Complaint (albeit on information and belief). We anticipate that this will be part of our summary judgment reply brief, as we expect the Plaintiff to attach Flanagan’s affidavit to his response. We also intend to file a motion in limine on this point in anticipation of trial. In addition to the judicial admission point, we may also assert the “mend the hold” doctrine in light of the fact that the Plaintiff used the assertion that Flanagan made the statement in order to obtain leave to file his Amended Complaint. I am happy to discuss this further with you if you are interested.
We did request all documents relating to the Plaintiff’s military record. (See Request No. 10.) He responded that he does not maintain any such records. If you think it may be helpful, you could make a FOIA request for his military record. It is my understanding that through a FOIA request you can get name, service number, rank, dates of service, awards and decorations, and place of entrance and separation. I agree that the conversation with Adrowski at the truck is odd. Among other things, the chit-chat that the Plaintiff testified about, as well as the fact that Adrowski escorted the Plaintiff back into the building to go through his desk a second time, suggest that Adrowski had no concerns about the Plaintiff actually having an AK-47 in his car.
We will be pulling the appendix of exhibits to the summary judgment brief together in an effort to get the motion on file today. I welcome any additional comments on the brief or Bill’s affidavit.
Kevin
From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
Sent: Tuesday, January 18, 2011 7:51 AM
To: 'Kevin Duff'; lisa@csss.net; slater@billslater.com
Cc: 'John E. Murray'; 'Kathleen M. Pritchard'
Subject: RE: Cynowa v. CSSS, et al. -- draft summary judgment brief & Slater affidavit
Kevin,
This is very well written. It’s comprehensive in its coverage of the issues. Well done! I only have a couple of comments. at page 12 2nd Paragraph