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That was an error on my part.
Lisa N. Wolford
CSSS.NET
402-393-8059w
402-393-1825f
SDVOB, 8(a)/SDB & WOB - TS clearances From: Kevin Duff [mailto:kduff@rddlaw.net] Sent: Tue 01/18/2011 3:18 PM To: Wolford Lisa; 'Haytham Faraj'; slater@billslater.com Cc: 'John E. Murray'; 'Kathleen M. Pritchard' Subject: RE: Cynowa v. CSSS, et al. -- draft summary judgment brief & Slater affidavit Thank you Lisa. Can you please clarify your first comment/change? It appears to relate to the “47” in AK-47 in the sentence where your comment appears.
We are aiming to get it out the door today. The clerk’s office closes at 4:30 p.m. If we do not get it filed today, it will be filed tomorrow. After filing the motion, we will present it to the Court on either Thursday or Friday. At that time, I expect the Court to set a briefing schedule – that is, the time for the Plaintiff to respond and for us to file a reply. The presiding judge in the courtroom where we must appear also may assign the motion to another judge to hear. We will keep you apprised.
From: Wolford Lisa [mailto:lisa@csss.net]
Kevin - One minor change, I turned on tracking changes you should see it easily. Thanks. It is well written.
Lisa N. Wolford CSSS.NET 402-393-8059w 402-393-1825f SDVOB, 8(a)/SDB & WOB - TS clearances
From: Kevin Duff [mailto:kduff@rddlaw.net] 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]
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 under E, you say “it is beyond cavil.” Not sure what cavil means. Also, is it possible to get an affidavit from Noel Flanagan regarding the statement to Bill Slater.
The reason I wanted to take a look at Cynowa’s military record and DD-214 is because of statements he made in his deposition that raised serious doubts in my mind about his service. 1) The term MOS is burned into the memory of service members. It stands for military occupational specialty. He said it stands for “method of service” Depo. P. 37, line 20. The reason people know and remember that term is because you spend the first few weeks and sometimes months of your military life competing to get the MOS you desire. And you spend the rest of your military career working to remain competitive and relevant in your MOS. There is no way someone would forget what that stands for. Also the entire exchange at the truck with officer Androwski is odd. Most Marines who come across another Marine would engage in conversation about a) the MOS they had; b) the units they served in; c) the locations and dates they served. Of course he did not serve in the Marine Corps –he served in the Army- yet he has a Marine Corps sticker on his truck. 2) He says he may have fired an AK-47 in boot camp. Boot camp is not a memory that is easily forgotten even with the passage of time. Neither the Army nor the Marine Corps fire soviet (in 1985) weapons in their basic training. I went to boot camp in 1986. I, as well as my friends from boot camp, have specific memories and details from boot camp. I remember the day when I first fired a weapon and my time on the rifle ranges. Mr. Cynowa says he did not compete Marine Corps boot camp. I have some doubts about whether Mr. Cynowa completed any full term of service in the military at all.
From: Kevin Duff [mailto:kduff@rddlaw.net]
Lisa, Bill, and Haytham,
Attached are: (i) the summary judgment brief along with (ii) an affidavit for Bill Slater. Please let me know any comments you have as soon as possible. Ideally, I would like to file the motion tomorrow.
Please note that we are subject to a 15-page limit on the brief.
Kevin
Kevin B. Duff Rachlis Durham Duff & Adler, LLC 542 South Dearborn Street, Suite 900 Chicago, Illinois 60605 phone: 312-733-3390 fax: 312-733-3952 mobile: 312-218-8620
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