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Old October 22nd 09, 11:49 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
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First recorded activity by ChessBanter: May 2009
Posts: 1,132
Default Polgar Response to Berry SJ Motion

PLAINTIFF SUSAN POLGAR’S RESPONSE IN OPPOSITION TO THE
MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT
JIM BERRY

TO THE HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:

1. COMES NOW SUSAN POLGAR, Plaintiff, and files this her Response in
Opposition to the
Motion for Summary Judgment Filed by Defendant Jim Berry. In
consideration of the facts,

arguments, and authorities set forth in the accompanying Brief and
Appendix, Plaintiff respectfully requests that this Court deny the
Motion for Summary Judgment filed by Defendant Jim Berry.

SUMMARY

2. Defendant Berry contends that Plaintiff has not produced evidence
sufficient to show that Berry is liable for each of the torts alleged in
Plaintiff’s complaint. However, Plaintiff need not show that Berry, in
his individual or official capacity, has committed each of the alleged
torts. Plaintiff has alleged and can provide sufficient evidence to
create a genuine issue of material fact on a claim of civil conspiracy,
to which Berry is a participant. Thus, Defendant Berry can be held
vicariously liable for any torts committed by the other Defendants in
this case in furtherance of that conspiracy. Plaintiff will therefore
not, and need not, set forth here all the actions of the other thirteen
defendants in this case in order to create a genuine issue of material
fact on each claim.

3. Defendant Berry also contends that he is not liable on any claims in
his individual capacitybecause Plaintiff allegedly admitted the same in
her deposition. However, this contention not only wrongfully
characterizes the actual testimony of Plaintiff, but also mistakes
Plaintiff’s testimony for legal conclusions. Plaintiff cannot offer
legal conclusions in her testimony. Accordingly, Defendant Berry’s
contention that Plaintiff has admitted he is not liable in his
individual capacity is entirely false and groundless.

4. WHEREFORE, premises considered, Plaintiff respectfully requests that
this Court wholly deny the Motion for Summary Judgment Filed by
Defendant Jim Berry, and grant Plaintiff such other and further relief
to which she may be justly entitled, at law or in equity.

BRIEF IN SUPPORT OF PLAINTIFF SUSAN POLGAR’S RESPONSE IN OPPOSITION
TO THE MOTION FOR SUMMARY JUDGMENT FILED BY
DEFENDANT JIM BERRY

TO HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:
1. COMES NOW Susan Polgar, Plaintiff herein, files this her Brief in
Support of Plaintiff Susan Polgar’s Response to the Motion for Summary
Judgment Filed by Defendant Jim Berry, and would respectfully show the
Court as follows:
I.
SUMMARY JUDGMENT STANDARD

2. Summary judgment is proper if the pleadings, discovery products on
file, and affidavits
show that there are no genuine issues about any material fact and that
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue exists when a reasonable jury could resolve the disputed fact in
favor of the nonmovant. Meadowbriar Home for Children, Inc. v. Gunn, 81
F.3d 521, 533 (5th Cir. 1996). The court should resolve all reasonable
doubts about the facts in favor of the nonmovant. Cooper Tire & Rubber
Co. v. Farese, 423 F.3d 446, 456 (5th Cir. 2005).
II.
BACKGROUND

3. Plaintiff has brought claims against Defendant Berry in both his
individual capacity and in his official capacity as a member of the
Executive Board of the USCF. Defendant, in his Motion for Summary
Judgment, contends that he is not liable in his individual capacity as a
matter of law, based on Plaintiff’s deposition testimony. Defendant also
contends that no evidence exists on the claim of civil conspiracy, and
that he also cannot be held liable on that claim as a matter of law.
Both of these contentions, however, are false. Further, Defendant claims
he cannot be held liable on any of Plaintiff’s claims against him,
because he has not independently committed any of these torts. This
contention is also false, because, as a party to civil conspiracy,
Defendant Berry can be held liable for all of the actions of his
co-conspirators in furtherance of said conspiracy. Defendant also
attempts to raise the “intracorporation conspiracy” defense, which fails
because the conspiracy contains members outside of the USCF, including
Karl Kronenberger, Brian Mottershead, and others.

III.
LIABILITY IN INDIVIDUAL CAPACITY

4. A genuine issue of material fact exist whether Defendant Jim Berry is
liable for any of Plaintiff’s claims in his individual capacity.
Defendant incorrectly contends that he escapes liability in his
individual capacity because Plaintiff stated that Defendant committed
all his tortious conduct in his official capacity. However, Plaintiff is
not an expert in the law, has no knowledge of the legal definitions and
significance of the terms “official capacity” or “individual capacity,”
and consequently cannot offer her opinion on how Defendant is liable in
this regard. Further, Defendant’s bare conclusion in his affidavit that
he has never acted in his individual capacity to harm Plaintiff means
nothing in light of the evidence to the contrary.
5. Defendant Berry, as a member of the conspiracy involving the other
defendants in this case, could not have been acting in his official
capacity, because conspiracy does not fall within the scope of
Defendant’s employment. The Texas Supreme Court has defined an act
within an employee’s “scope of employment” as 1) within the scope of the
employee’s general authority, 2) in furtherance of the employer’s
business, and 3) for the accomplishment of the object for which the
employee was hired. Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577
(Tex. 2002). Defendant has not claimed, and would be wrong to claim,
that the USCF hired him to conspire to commit torts against other board
members, that the USCF granted him the authority to do so, or that
conspiring to commit torts against other board members in any way
furthers the business of the USCF. Accordingly, there exists a genuine
issue of material fact about which reasonable juries could differ on
whether or not Defendant Berry is liable in his individual capacity, and
summary judgment on claims against him in that capacity would be improper.

IV.
CONSPIRACY AND ALL OTHER CLAIMS

6. A genuine issue of material fact exists on whether or not Defendant
Berry participated in a conspiracy to commit torts against Plaintiff,
based on communications between Karl Kronenberger and those who were, at
the time the conspiracy existed, members of the Executive Board of the
USCF, including Defendant. Further, Defendant is not entitled to raise
the “intracorporation conspiracy” defense. Corporate agents cannot
conspire with each other when they participate in corporate action.
Fotjik v. First National Bank, 752 S.W.2d 669, 673 (Tex App.–Corpus
Christi 1988), writ denied, 775 S.W.2d 632 (Tex. 1989). However, A
corporation can conspire with its agent if the agent is acting in a
capacity other than as a corporate agent or is acting for personal
purposes. Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex. 1995). Several
members of the conspiracy are not a part of the USCF, including Brian
Mottershead, Hal Bogner, Jerome Hanken, Brian Lafferty, Sam Sloan, and
Karl Kronenberger, and conspiracy to defame could not possibly be a part
of working for the USCF, as set forth above.

7. Defendant’s claims that he has not participated in a conspiracy, and
his bare allegations of the same in his affidavit, fail to take into
account the communications between the USCF Executive Board and Karl
Kronenberger outlining the objective and intent of the conspiracy. See
Exhibit A, Appendix pp. 1-15. In these communications, Defendant
Kronenberger outlines strategies to force Plaintiff and her husband to
resign from the USCF Board, including using defamatory statements
accusing Plaintiff of child abuse and denying Plaintiff and her husband
coverage under insurance policy of the USCF. As a party to these
communications, which Berry has not denied, Defendant Berry undeniably
participated in the conspiracy to defame Plaintiff and commit the other
torts alleged by Plaintiff.

8. Further, because Defendant was a party to a conspiracy whose
objective was to commit the torts alleged against Plaintiff, Defendant
is liable for all actions in furtherance thereof by his coconspirators,
which acts need not be set forth here in addition to the conspiracy. For
examples of such acts, see Brief in Support of Plaintiff Susan Polgar ’s
Response in Opposition to the Motion for Summary Judgment filed by
Defendants Kronenberger Burgoyne, L.L.P., and Karl S. Kronenberger,
Document 160-2, and the accompanying Appendix. Given that evidence
sufficient to create a genuine issue of material fact exists on
Defendant Berry’s participation in a conspiracy to commit intentional
torts against Plaintiff, and the fact that Defendant cannot raise the
intracorporation defense, summary judgment is not proper on any of
Plaintiff’s Claims against Defendant Berry.

V.
CONCLUSION

9. In light of the facts and arguments presented herein, Plaintiff
respectfully requests this Court deny the Motion for Summary Judgment
filed by Defendant Jim Berry, that Defendant take nothing by his claims,
that he not be awarded any attorney’s fees, and that Plaintiff be
granted any other and further relief to which she may be justly entitled
at law or in equity.
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Old October 22nd 09, 11:52 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
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First recorded activity by ChessBanter: May 2009
Posts: 1,132
Default Polgar Response to Berry SJ Motion

MrVidmar wrote:
PLAINTIFF SUSAN POLGAR’S RESPONSE IN OPPOSITION TO THE
MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT
JIM BERRY

TO THE HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:

1. COMES NOW SUSAN POLGAR, Plaintiff, and files this her Response in
Opposition to the
Motion for Summary Judgment Filed by Defendant Jim Berry. In
consideration of the facts,

arguments, and authorities set forth in the accompanying Brief and
Appendix, Plaintiff respectfully requests that this Court deny the
Motion for Summary Judgment filed by Defendant Jim Berry.

SUMMARY

2. Defendant Berry contends that Plaintiff has not produced evidence
sufficient to show that Berry is liable for each of the torts alleged in
Plaintiff’s complaint. However, Plaintiff need not show that Berry, in
his individual or official capacity, has committed each of the alleged
torts. Plaintiff has alleged and can provide sufficient evidence to
create a genuine issue of material fact on a claim of civil conspiracy,
to which Berry is a participant. Thus, Defendant Berry can be held
vicariously liable for any torts committed by the other Defendants in
this case in furtherance of that conspiracy. Plaintiff will therefore
not, and need not, set forth here all the actions of the other thirteen
defendants in this case in order to create a genuine issue of material
fact on each claim.

3. Defendant Berry also contends that he is not liable on any claims in
his individual capacitybecause Plaintiff allegedly admitted the same in
her deposition. However, this contention not only wrongfully
characterizes the actual testimony of Plaintiff, but also mistakes
Plaintiff’s testimony for legal conclusions. Plaintiff cannot offer
legal conclusions in her testimony. Accordingly, Defendant Berry’s
contention that Plaintiff has admitted he is not liable in his
individual capacity is entirely false and groundless.

4. WHEREFORE, premises considered, Plaintiff respectfully requests that
this Court wholly deny the Motion for Summary Judgment Filed by
Defendant Jim Berry, and grant Plaintiff such other and further relief
to which she may be justly entitled, at law or in equity.

BRIEF IN SUPPORT OF PLAINTIFF SUSAN POLGAR’S RESPONSE IN OPPOSITION
TO THE MOTION FOR SUMMARY JUDGMENT FILED BY
DEFENDANT JIM BERRY

TO HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:
1. COMES NOW Susan Polgar, Plaintiff herein, files this her Brief in
Support of Plaintiff Susan Polgar’s Response to the Motion for Summary
Judgment Filed by Defendant Jim Berry, and would respectfully show the
Court as follows:
I.
SUMMARY JUDGMENT STANDARD

2. Summary judgment is proper if the pleadings, discovery products on
file, and affidavits
show that there are no genuine issues about any material fact and that
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue exists when a reasonable jury could resolve the disputed fact in
favor of the nonmovant. Meadowbriar Home for Children, Inc. v. Gunn, 81
F.3d 521, 533 (5th Cir. 1996). The court should resolve all reasonable
doubts about the facts in favor of the nonmovant. Cooper Tire & Rubber
Co. v. Farese, 423 F.3d 446, 456 (5th Cir. 2005).
II.
BACKGROUND

3. Plaintiff has brought claims against Defendant Berry in both his
individual capacity and in his official capacity as a member of the
Executive Board of the USCF. Defendant, in his Motion for Summary
Judgment, contends that he is not liable in his individual capacity as a
matter of law, based on Plaintiff’s deposition testimony. Defendant also
contends that no evidence exists on the claim of civil conspiracy, and
that he also cannot be held liable on that claim as a matter of law.
Both of these contentions, however, are false. Further, Defendant claims
he cannot be held liable on any of Plaintiff’s claims against him,
because he has not independently committed any of these torts. This
contention is also false, because, as a party to civil conspiracy,
Defendant Berry can be held liable for all of the actions of his
co-conspirators in furtherance of said conspiracy. Defendant also
attempts to raise the “intracorporation conspiracy” defense, which fails
because the conspiracy contains members outside of the USCF, including
Karl Kronenberger, Brian Mottershead, and others.

III.
LIABILITY IN INDIVIDUAL CAPACITY

4. A genuine issue of material fact exist whether Defendant Jim Berry is
liable for any of Plaintiff’s claims in his individual capacity.
Defendant incorrectly contends that he escapes liability in his
individual capacity because Plaintiff stated that Defendant committed
all his tortious conduct in his official capacity. However, Plaintiff is
not an expert in the law, has no knowledge of the legal definitions and
significance of the terms “official capacity” or “individual capacity,”
and consequently cannot offer her opinion on how Defendant is liable in
this regard. Further, Defendant’s bare conclusion in his affidavit that
he has never acted in his individual capacity to harm Plaintiff means
nothing in light of the evidence to the contrary.
5. Defendant Berry, as a member of the conspiracy involving the other
defendants in this case, could not have been acting in his official
capacity, because conspiracy does not fall within the scope of
Defendant’s employment. The Texas Supreme Court has defined an act
within an employee’s “scope of employment” as 1) within the scope of the
employee’s general authority, 2) in furtherance of the employer’s
business, and 3) for the accomplishment of the object for which the
employee was hired. Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577
(Tex. 2002). Defendant has not claimed, and would be wrong to claim,
that the USCF hired him to conspire to commit torts against other board
members, that the USCF granted him the authority to do so, or that
conspiring to commit torts against other board members in any way
furthers the business of the USCF. Accordingly, there exists a genuine
issue of material fact about which reasonable juries could differ on
whether or not Defendant Berry is liable in his individual capacity, and
summary judgment on claims against him in that capacity would be improper.

IV.
CONSPIRACY AND ALL OTHER CLAIMS

6. A genuine issue of material fact exists on whether or not Defendant
Berry participated in a conspiracy to commit torts against Plaintiff,
based on communications between Karl Kronenberger and those who were, at
the time the conspiracy existed, members of the Executive Board of the
USCF, including Defendant. Further, Defendant is not entitled to raise
the “intracorporation conspiracy” defense. Corporate agents cannot
conspire with each other when they participate in corporate action.
Fotjik v. First National Bank, 752 S.W.2d 669, 673 (Tex App.–Corpus
Christi 1988), writ denied, 775 S.W.2d 632 (Tex. 1989). However, A
corporation can conspire with its agent if the agent is acting in a
capacity other than as a corporate agent or is acting for personal
purposes. Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex. 1995). Several
members of the conspiracy are not a part of the USCF, including Brian
Mottershead, Hal Bogner, Jerome Hanken, Brian Lafferty, Sam Sloan, and
Karl Kronenberger, and conspiracy to defame could not possibly be a part
of working for the USCF, as set forth above.

7. Defendant’s claims that he has not participated in a conspiracy, and
his bare allegations of the same in his affidavit, fail to take into
account the communications between the USCF Executive Board and Karl
Kronenberger outlining the objective and intent of the conspiracy. See
Exhibit A, Appendix pp. 1-15. In these communications, Defendant
Kronenberger outlines strategies to force Plaintiff and her husband to
resign from the USCF Board, including using defamatory statements
accusing Plaintiff of child abuse and denying Plaintiff and her husband
coverage under insurance policy of the USCF. As a party to these
communications, which Berry has not denied, Defendant Berry undeniably
participated in the conspiracy to defame Plaintiff and commit the other
torts alleged by Plaintiff.

8. Further, because Defendant was a party to a conspiracy whose
objective was to commit the torts alleged against Plaintiff, Defendant
is liable for all actions in furtherance thereof by his coconspirators,
which acts need not be set forth here in addition to the conspiracy. For
examples of such acts, see Brief in Support of Plaintiff Susan Polgar ’s
Response in Opposition to the Motion for Summary Judgment filed by
Defendants Kronenberger Burgoyne, L.L.P., and Karl S. Kronenberger,
Document 160-2, and the accompanying Appendix. Given that evidence
sufficient to create a genuine issue of material fact exists on
Defendant Berry’s participation in a conspiracy to commit intentional
torts against Plaintiff, and the fact that Defendant cannot raise the
intracorporation defense, summary judgment is not proper on any of
Plaintiff’s Claims against Defendant Berry.

V.
CONCLUSION

9. In light of the facts and arguments presented herein, Plaintiff
respectfully requests this Court deny the Motion for Summary Judgment
filed by Defendant Jim Berry, that Defendant take nothing by his claims,
that he not be awarded any attorney’s fees, and that Plaintiff be
granted any other and further relief to which she may be justly entitled
at law or in equity.


APPENDIX TO BRIEF IN SUPPORT OF PLAINTIFF SUSAN POLGAR’S RESPONSE
IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT FILED BY
DEFENDANT JIM BERRY
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