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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 phone: 312-733-3390 fax: 312-733-3952 mobile: 312-218-8620 RACHLIS This transmission may be: (1) subject to
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