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Old December 27th 08, 04:59 PM posted to rec.games.chess.politics,re.games.chess.misc
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Default Bogner Motion to Strike

DEFENDANT HAL BOGNER’S MOTION TO STRIKE
PLAINTIFF’S IMPROPER EVIDENCE
AND MEMORANDUM IN SUPPORT
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 1 of 15
20080491.20080491/480840.1
TABLE OF AUTHORITIES
Automatic Radio Mfg. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 3
70 S.Ct. 894, 896 (1950), overruled on other grounds,
Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1920 (1993)
Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990) 3
Cadle Co. v. Hayes, 116 F.3d 957, 961 (1st Cir. 1997) 4
Columbia Pictures Indus. v. Professional Real Estate Inves., 944 F.2d 1525
(9th Cir. 1991), aff’d, 508 U.S. 49, 113 S.Ct. 1920 (1993) 11
Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004) 2,
3, 11
Credentials Plus, LLC v. Calderone, 230 F. Supp. 2d 890, 904 (N.D. Ind.
2002) 3
Dolcefino v. Randolph, 19 S.W.3d 806 (Tex. App.—Houston [14th Dist.]
2000, no pet.) 4
Evans v. Technologies Applications & Serv., 80 F.3d 954, 962 (4th Cir.
1996) 3
Ho v. University of Texas at Arlington, 984 S.W.2d 672, 680 (Tex. App.— 4
Amarillo 1998, pet. denied)
Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 191 (Tex. App.—Houston 4
[14th Dist.] 1993, no writ)
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177,
3188 (1990) 3, 11
Maietta v. UPS, Inc., 749 F. Supp. 1344, 1369 (D.N.J. 1990) 2
Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 324
(5th Cir. 1998) 11
O’Donnell v. Bullivant of Texas, Inc., 940 S.W.2d 411, 416 (Tex. App.— 9
Fort Worth 1997, writ denied)
Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) 4
Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985) 3
Quanaim v. Fransco Rest. & Catering, 17 S.W.3d 30 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied)
Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F. Supp. 2d 948, 956
(S.D. Ohio 2000) 3
Requipco, Inc. v. AM-Tex Tank and Equipment, 738 S.W.2d 299 9
(Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.)
RRR Farms, Ltd. v. American Horse Protection, 957 S.W.2d 121 (Tex. App. –
Houston [14th Dist.] 1997, writ denied) 9
Ruffin v. Shaw Indus., 149 F.3d 294, 302 (4th Cir. 1988) 2
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) 3
Veláquez-Garcia v. Horizon Lines, 473 F.3d 11 (1st Cir. 2007) 4
Velazquez-Garcia v. Horizon Lines, 473 F.3d 11, 18 (1st Cir. 2007) 3
Visser v. Packer Eng’g, 924 F.2d 655, 659 (7th Cir. 1991) 2
Zoslaw v. MCA Distrib. Corp., 265 F.2d 870, 883 (9th Cir. 1982) 11
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 2 of 15
20080491.20080491/480840.1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SUSAN POLGAR §
§
VS. §
§
UNITED STATES OF AMERICA §
CHESS FEDERATION, INC., §
and §
BILL GOICHBERG, JIM BERRY, §
RANDY BAUER, and §
RANDALL HOUGH, all Individually and §
in their Representative Capacities as § C.A. NO. 5-08CV0169-C
Members of the Executive Board of the §
United States of America Chess Federation; §
BILL LAFFERTY, Individually and in his §
Representative Capacity as Executive §
Director of the United States of America §
Chess Federation; BRIAN MOTTERSHEAD; §
HAL BOGNER; CHESS MAGNET, L.L.C.; §
CONTINENTAL CHESS INCORPORATED; §
JEROME HANKEN; BRIAN LAFERTY; §
SAM SLOAN; KARL S. KRONENBERGER; §
and KRONENBERGER BURGOYNE, LLP §
DEFENDANT HAL BOGNER’S MOTION TO STRIKE
PLAINTIFF’S IMPROPER EVIDENCE
TO THE HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:
Defendant, Hal Bogner (“Bogner” or “Defendant”), files this Motion to Strike
Plaintiff’s Improper Evidence, and would respectfully show unto the
court as follows:
SUMMARY OF THE MOTION
1. Susan Polgar (“Polgar” or “Plaintiff”) filed a Response in Opposition to
Defendant Hal Bogner’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(2) and 12(b)(3),
and Subject to the Court’s Ruling on the Same, Motion to Dismiss for
Plaintiff’s Failure to State
a Claim Under Fed. R. Civ. P. 12(b)(6), or in the Alternative, Motion
for a More Definite
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 3 of 15
20080491.20080491/480840.1 2
Statement Pursuant to Fed. R. Civ. P. 12(e) and Brief in Support
Thereof, and Plaintiff filed
improper evidence in responding to same. More specifically, Plaintiff
filed two affidavits that
had improper conclusory statements and unsubstantiated opinions. Because
some or all of the
facts alleged by Polgar in her Response are not supported by admissible
evidence, Defendant’s
Motion to Dismiss should be granted.
ARGUMENT AND AUTHORITIES
2. In trying to rebut the affidavit filed by Defendant, Plaintiff tries,
but fails, to
present proper evidence purporting to establish facts to allow this
Court to exercise jurisdiction
over Defendant. Generally speaking, a proper affidavit must (1) show
that the affiant is
competent to testify, (2) be based on the affiant’s personal knowledge,
and (3) state admissible
facts. Fed. R. Civ. P. 56(e)(1). A court must not consider parts of an
affidavit that do not meet
the standards of Fed. R. Civ. P. 56(e) when considering a motion for
summary judgment.
Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004).
Likewise, a court should
not consider similar improper evidence in reviewing affidavits attacking
motions to dismiss or
similar motions.
3. The affidavit must affirmatively show that the affiant is competent
to testify on
the matters in the affidavit. Fed. R. Civ. P. 56(e)(1). Generally, an
affiant is competent to testify
when her testimony is grounded in observation or other personal
experience and is not based on
speculation, intuition, or rumors about matters remote from that
personal experience. Visser v.
Packer Eng’g, 924 F.2d 655, 659 (7th Cir. 1991); see, e.g., Ruffin v.
Shaw Indus., 149 F.3d 294,
302 (4th Cir. 1988) (without factual basis for conclusory comments,
affiant would not be
competent to testify about defect in carpet); Maietta v. UPS, Inc., 749
F. Supp. 1344, 1369
(D.N.J. 1990) (layman may have been able to testify about elevated
nature of his blood pressure,
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 4 of 15
20080491.20080491/480840.1 3
but he was not competent to testify about medical determination of cause
for its rise), aff’d, 932
F.2d 960 (3d Cir. 1991). An affiant is not competent to testify about
inadmissible hearsay or
opinion. Evans v. Technologies Applications & Serv., 80 F.3d 954, 962
(4th Cir. 1996); Pfeil,
757 F.2d at 860-61. Plus, trying to generalize alleged statements
without actually attaching the
exact statements in dispute compounds the hearsay problem.
4. Moreover, the facts stated in the affidavit must be based on the
affiant’s personal
knowledge. Fed. R. Civ. P. 56(e)(1); Cooper-Schut, 361 F.3d at 429;
Evans, 80 F.3d at 962;
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988);
see also Velazquez-Garcia
v. Horizon Lines, 473 F.3d 11, 18 (1st Cir. 2007) (self-serving
affidavit may be competent
summary judgment evidence as long as it contains relevant information
based on affiant’s
personal knowledge). The affiant should state the basis for her personal
knowledge. However,
an affiant’s personal knowledge may be inferred from the contents of the
affidavit as a whole;
explicit assertions that the affiant has personal knowledge of each
statement in the affidavit are
unnecessary. Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990);
Credentials Plus, LLC v. Calderone, 230 F. Supp. 2d 890, 904 (N.D. Ind.
2002); see Reddy v.
Good Samaritan Hosp. & Health Ctr., 137 F. Supp. 2d 948, 956 (S.D. Ohio
2000). An affidavit
made on “information and belief” does not meet the Fed. R. Civ. P. 56(e)
requirement of
personal knowledge. Automatic Radio Mfg. v. Hazeltine Research, Inc.,
339 U.S. 827, 831, 70
S.Ct. 894, 896 (1950), overruled on other grounds, Lear, Inc. v. Adkins,
395 U.S. 653, 89 S.Ct.
1920 (1993); Reddy, 137 F. Supp. 2d at 956.
5. In Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct.
3177, 3188
(1990), the court explained that the object of [Fed. R. Civ. P. 56] is
not to replace conclusory
allegations of the complaint or answer with conclusory allegations of an
affidavit. In Veláquez,
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 5 of 15
20080491.20080491/480840.1 4
the court explained that the distinction in [Fed. R. Civ. P. 56] between
“specific facts” and “mere
allegations” is important. Veláquez-Garcia v. Horizon Lines, 473 F.3d 11
(1st Cir. 2007). The
court also stated that whether a nonmovant’s deposition testimony or
affidavits might be selfserving
is not dispositive. It is true that testimony and affidavits that
‘merely reiterate allegations
made in the complaint, without providing specific factual information
made on the basis of
personal knowledge’ are insufficient. Although personal knowledge may
include reasonable
inferences, those inferences must be grounded in observation or other
first-hand personal
experience. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). Plus,
the court held that such
statements must not be flights of fancy, speculations, hunches,
intuitions, or rumors about
matters remote from that experience. See also Cadle Co. v. Hayes, 116
F.3d 957, 961 (1st Cir.
1997) (statements must be based on personal knowledge, not on
information and belief).1
6. Hearsay is an out-of-court statement offered in evidence to prove the
truth of the
matter asserted. See Fed. R. Evid. 801(c). Federal courts must make
decisions on motions based
only upon proper evidence that is placed before them. Even under Texas
law, evidentiary proof
must be presented in a form that would be admissible in a conventional
trial. See Hou-Tex Printers,
Inc. v. Marbach, 862 S.W.2d 188, 191 (Tex. App.—Houston [14th Dist.]
1993, no writ). A trial
court may not consider hearsay evidence in ruling on a motion based on
purported evidence. See
Dolcefino v. Randolph, 19 S.W.3d 806 (Tex. App.—Houston [14th Dist.]
2000, no pet.). See also
Ho v. University of Texas at Arlington, 984 S.W.2d 672, 680 (Tex.
App.—Amarillo 1998, pet.
denied).
1 For example, not only did the affiants not specifically describe
alleged statements Bogner allegedly made about
“bad mouthing” Plaintiff (what exactly was said, to whom, when, etc.),
the affiants completely fail to explain
how they have any personal knowledge to support or deny such a statement.
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 6 of 15
20080491.20080491/480840.1 5
7. There are numerous conclusions and unsubstantiated opinions in
Plaintiff’s
purported rebuttal evidence. In responding to the Bogner Motion to
Dismiss, Plaintiff attached
affidavits of Fred Gruenberg (“Gruenberg”) and Dan DeLeon (“DeLeon”).
8. In Gruenberg’s affidavit, Gruenberg makes several unsubstantiated
opinions
and/or conclusory statements. For example, he states, “Hal Bogner
admitted to me that he placed
at least one phone call to a person at Texas Tech University to make
adverse remarks about
Susan Polgar.” See paragraph no. 4 of his affidavit. Gruenberg does not
state that he actually
heard this phone call. Instead, he appears to state that he heard Hal
Bogner allegedly stating that
he placed this phone call. Describing the phone call itself, i.e., if.
Gruenberg had overheard it,
such a statement would be hearsay. Hearing Bogner telling Gruenberg
about the prior phone call
is hearsay within hearsay. Consequently, all such statements should be
stricken from the record.
Plus, Gruenberg he did not state that he actually heard exactly what was
said during this alleged
phone call. Instead, he says simply that “adverse marks” were made about
Susan Polgar. Such
“remarks” could be about the state of Plaintiff’s golf game and/or his
opinion of Polgar’s ability
to play chess. Unless Gruenberg is willing to testify under oath exactly
what Bogner allegedly
said in this alleged phone call, any such evidence should be stricken
from the record.2
9. Indeed, such “adverse remarks” could be absolutely true. Unfortunately,
Gruenberg did not specifically state exactly what remarks were allegedly
made. Gruenberg did
not even specify any specific facts about how, when and/or where such
alleged phone call was
done. Indeed, was the phone call made in Texas? Was the phone call made
to a person in
Texas? Gruenberg presented no specific facts other than a conclusory
statement about “adverse
remarks.” If Polgar wants to sue Bogner in Texas, Polgar needed to
specifically explain what
defamatory statements were made and/or what other alleged tortious
conduct was allegedly done
2 Without providing specific statements, there is no evidence that any
defamatory statements were made.
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 7 of 15
20080491.20080491/480840.1 6
so as to subject Bogner to having a Texas court exercise jurisdiction
over this particular
Defendant.
10. Again, Gruenberg did not even hear the actual phone call that was
made. Instead,
he interpreted alleged comments made by Bogner as Bogner’s alleged
hearsay comments about a
prior phone call of which Gruenberg provided no specifics about the
phone call.
11. Gruenberg also made various other hearsay comments. For example,
Gruenberg
stated that he “asked Hal Bogner to please refrain from harassing Susan
Polgar.” That statement
is hearsay. Plus, such a statement does nothing to support any claims
being made by Susan
Polgar. Gruenberg also states another response allegedly made by Bogner
that “I will think
about it.” Such a statement is not defamatory, and should not subject
Defendant to any liability
for various claims being made by Polgar against Bogner and/or Chess Magnet.
12. Gruenberg also states that his son witnessed the conversation.
However, this is
again hearsay and an unsubstantiated opinion. If Gruenberg’s son,
“Kurt,” actually heard the
statements, nothing prevented this person “Kurt” from providing his own
affidavit to support
and/or deny the alleged statements. Again, mentioning that another
person allegedly heard a
conversation is simply an unsubstantiated opinion, hearsay testimony and
a conclusory
statement. If such a person wanted to testify under oath about alleged
statements, he was more
than able to do so. For whatever reason, that person is unwilling to do so.
13. Bogner also objects to many of the statements made in the affidavit
of DeLeon.
DeLeon stated that Bogner “approached some of my students and their
parents to convince them
to sign up for his program Chess Magnet.” There is nothing defamatory
and/or libelous about
such a statement. In America, people want to try to do business with
other people. DeLeon fails
to state that Bogner and/or his entity, Chess Magnet, had no authority
from the USCF and/or the
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 8 of 15
20080491.20080491/480840.1 7
organizer of the event to distribute literature at the event. Simply
put, there is nothing improper
about such a statement.
14. DeLeon also states that “I told Mr. Bogner that his conduct was not
proper
because parents and students should not be disturbing a chess
tournament.” This is hearsay
testimony and should be stricken. Moreover, these were not statements
made by Bogner, and
instead were made by DeLeon. DeLeon does not explain whether or not he
and/or anyone else
had any authority to ask Bogner to stop doing certain actions especially
when DeLeon failed to
state that Bogner had no authority from the USCF to undertake such actions.
15. DeLeon also states, “I also told Mr. Bogner that my kids already
received
assistance from Grandmaster Polgar.” This would also be hearsay. This
also is not a statement
on which Bogner should be somehow found liable to Polgar and/or
establish jurisdiction over
Bogner and/or his company on claims being brought by Polgar.
16. DeLeon also states, “It appeared to me that this angered Mr. Bogner,
and he then
proceeded to bad mouth Grandmaster Polgar and her SPICE program at Texas
Tech University.”
Such a statement is not proper evidence for several reasons. For
example, DeLeon states that it
“appeared to me” which appears to be speculation and improper evidence.
DeLeon also states
that Bogner proceeded to “bad mouth” Polgar. However, this is a vague,
conclusory,
unsubstantiated opinion and/or conclusory statement. Because it was so
vague, the Court still
does not know exactly what was allegedly said by Bogner that would
subject him to potential
liability to Polgar and/or subject him to possibly being sued by Polgar
in Texas. In other words,
there is nothing inherently wrong with “bad-mouthing” another
individual. Again, Bogner could
have been stating that Ms. Polgar is not as good of a chess player as
she thinks she is. Such a
“bad-mouthing” would not cause Bogner to be liable to Polgar. At a
minimum, such a statement
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 9 of 15
20080491.20080491/480840.1 8
should not subject him to being sued in Texas by Polgar. Indeed, the
bottom line is that DeLeon
provided no specific evidence of any specific defamatory comments.
DeLeon provided no
evidence of any defamatory statements, specific untruth, lies, etc. Why
is DeLeon unwilling to
testify about what specifically Bogner allegedly said? If DeLeon did
hear defamatory comments,
he should have specifically described in the Affidavit exactly what he
heard. For whatever
reason, DeLeon was not willing under oath to state how Bogner made a
defamatory statement
that should subject him to being sued in Texas by Polgar. Without being
willing to specifically
state what he heard, DeLeon has not allowed the Court to analyze such a
statement. Thus,
because DeLeon only provided conclusory and non-specific statements,
this Court should decline
to exercise jurisdiction over this Defendant.
17. Plus, in paragraph 3 of his affidavit, DeLeon states that he ran
into Bogner in
Houston, Texas. If Polgar is truly suing Bogner over a conversation in
Houston, Texas, venue
would be more appropriate in the Southern District of Texas if, in fact,
this would be the alleged
fact that Polgar is suing upon.
18. In Bogner’s affidavit, which Polgar attached as Exhibit C to her
Response,
Bogner was very clear about specific facts showing his connections with
the state of Texas.
Instead of providing specific representations and/or specific facts for
which Polgar thought
Bogner should be liable for, Polgar has failed to provide any specific
facts or any specific
statement that would allegedly cause any liability to be claimed against
Bogner and/or such to
allow the Court to exercise personal jurisdiction over Bogner.
19. In his affidavit, Bogner stated that “Other than the foregoing., I
have had no
contacts with the State of Texas nor done any business there.” Again,
this is after Bogner had
provided specific facts. Polgar failed to use those facts to show
exactly how and/or why Bogner
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 10 of 15
20080491.20080491/480840.1 9
should be found to be sued by Polgar in Texas. In other words, Polgar
could have come back
with specific examples such as to establish personal jurisdiction over
Bogner. Instead, Bogner is
unable to even rebut the vague and conclusory comments and/or
unsubstantiated opinions. If
requested by the Court, Bogner is willing to specifically state under
oath that he made no calls to
Texas Tech and he is willing to sign a new affidavit to this effect if
the Court somehow desires
and/or requires Bogner to do so.
20. Simply put, this Court should not allow Plaintiff to file and rely
on the affidavits
attached to the Response, as the affidavits are filled with conclusions,
hearsay, speculation,
unsubstantiated opinion, testimony from interested witnesses and the
affidavits have all of the
other problems referenced throughout this motion.
21. Affidavits must contain facts that support legal arguments. As this
is a diversity
case, even under Texas law, conclusions in an affidavit have no
probative value, and they are not
competent summary judgment evidence. See Requipco, Inc. v. AM-Tex Tank
and Equipment, 738
S.W.2d 299 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
Unsubstantiated opinions or
unilateral and subjective determinations of fact are also incompetent
summary judgment
evidence. See O’Donnell v. Bullivant of Texas, Inc., 940 S.W.2d 411, 416
(Tex. App.--Fort Worth
1997, writ denied). Conclusory statements and legal conclusions are
incompetent summary
judgment evidence. See Id.
22. Moreover, the affidavits should also be stricken because the
affidavits constitute
improper testimony from an interested witness. Testimony of an
interested witness may be used
only if: (1) it is uncontroverted; (2) it is clear, positive, and
direct; (3) it is otherwise credible
and free from contradictions and inconsistencies; and (4) it could have
been readily controverted.
See RRR Farms, Ltd. v. American Horse Protection, 957 S.W.2d 121 (Tex.
App. – Houston [14th
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 11 of 15
20080491.20080491/480840.1 10
Dist.] 1997, writ denied). In RRR Farms, the court concluded that the
affidavit did not meet this
standard. See Id. at 132. The RRR Farms court reasoned that the
testimony was not grounded in
any sound evidence that could be effectively countered by opposing
evidence; rather the
testimony simply concluded “the Association never acted with the intent
to prohibit the Plaintiff
from entering into any contract or business relationship.” See Id. The
RRR Farms court stated
that such testimony could not be readily controverted; indeed, the
determination of whether the
party intended to interfere with the business relations rested upon the
affiant’s credibility.
23. Here, the respective affiant’s testimony is not specific and the
affiants do not
subject themselves to perjury and should not be considered as proper
evidence. Moreover,
because the affidavits are so replete with conclusions and
unsubstantiated opinions, the affidavit
is not clear or direct and cannot be readily controverted. Thus, the
entire affidavits should be
stricken. Plus, the affidavits should be stricken in their entirety for
other reasons mentioned
herein.
24. Plaintiff also appears to have attempted to have portions of her
Response be
proper summary judgment evidence. Plaintiff does not present an
affidavit from Plaintiff to
support such facts. However, a response, even if verified, does not
provide evidence to the court
as a party must provide an affidavit. See Quanaim v. Fransco Rest. &
Catering, 17 S.W.3d 30
(Tex. App.—Houston [14th Dist.] 2000, pet. denied).
25. If requested at a hearing, Defendant will be prepared to go through
all of the
affidavit testimony and demonstrate how statements are taken out of
context and/or how the
affidavit testimony is nothing more than unsubstantiated opinions and/or
conclusions.
26. Polgar is apparently unwilling to apply rules she raises with Sam
Sloan to her own
court filings. Polgar already attacked a party in this lawsuit for
filing improper evidence. More
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 12 of 15
20080491.20080491/480840.1 11
specifically, Polgar filed a Response to Plaintiff Sam Sloan’s Motion
for Summary Judgment and
Brief in Support of Her Response to Defendant Sam Sloan’s Motion for
Summary Judgment.
Consequently, Polgar should already know what constitutes proper
evidence and should not be
filing improper evidence with this Court. Defendant incorporates by
reference Polgar’s Brief in
Support of Her Response to Defendant Sam Sloan’s Motion for Summary
Judgment. Polgar
argued as follows:
5. Fed. R. Civ. P. 56(e)(1) requires that an affidavit in support of a
motion for summary judgment must (1) show that the affiant is competent to
testify, (2) be based on personal knowledge, and (3) state admissible facts.
Fed. R. Civ. P. Rule 56(e)(1). A court must not consider parts of an
affidavit
that do not meet the standards of Fed. R. Civ. P. 56(e) when considering a
motion for summary judgment. Cooper-Schut v. Visteon Auto. Sys., 361 F.3d
421, 429 (7th Cir. 2004).
6. The Federal Rules and case law also require that an affidavit
must affirmatively show that the affiant is competent to testify on
matters in
the affidavit, and that an affiant is not competent to testify about
inadmissible hearsay or opinion. Fed. R. Civ. P. Rule 56(e)(1); Pfeil v.
Rogers,
757 F.2d 850, 860-61. An affidavit made on “information and belief” does not
meet the Federal Rules requirement of personal knowledge. Fed. R. Civ.
P. Rule
56(e)(1); and Columbia Pictures Indus. v. Professional Real Estate
Inves., 944
F.2d 1525, 1529 (9th Cir. 1991), aff’d, 508 U.S. 49, 113 S.Ct. 1920 (1993).
7. The facts stated in an affidavit must be specific and must
constitute admissible evidence. Lujan v. National Wildlife Fed’n, 497
U.S. 871,
888, 110 S.Ct. 3177, 3188 (1990). Bare allegations of fact, ultimate or
conclusory facts, and legal conclusions are not sufficient. Marshall v. East
Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 324 (5th Cir. 1998).
8. Documents, other than discovery products, must be properly
authenticated and otherwise admissible to be used as summary-judgment
proof; in
order to authenticate such documents, an affidavit authenticating the
document
should be made by a person through whom the document would be introduced at
trial and should prove the document is a true copy of the original.
Zoslaw v. MCA
Distrib. Corp., 265 F.2d 870, 883 (9th Cir. 1982).
See Exhibit A (emphasis added). This Court should hold Polgar to the
same standard she has
already argued in this matter.
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 13 of 15
20080491.20080491/480840.1 12
27. Also in her Motion attacking Sloan’s evidence, Polgar argued,
“First, Sloan is not
competent to testify. Sloan’s affidavit never affirmatively shows that
he is competent to testify,
and [documents] are based in part or in whole on inadmissible hearsay or
opinion. Second,
Sloan’s Affidavits are not based on personal knowledge.” Plaintiff also
argued, “Most if not all
of Plaintiff Sloan’s affidavits are comprised of allegations and
conclusions based on beliefs,
hearsay, and speculation.” Thus, Plaintiff knows what should and should
not be contained in
purported affidavits to provide proper proof, but Plaintiff is trying to
provide this Court with
affidavits that have all of these same problems that Polgar raised and
complained about in
attacking Sloan’s purported evidence. Thus, for this additional reason,
all of Plaintiff’s evidence
should be stricken from the Court’s record and not relied on by this Court.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this
Court strike all of Plaintiffs’ improper evidence and grant Defendant’s
Motion to Dismiss.
Respectfully submitted,
By: s/ William P. Huttenbach
William P. Huttenbach
Federal I.D. No. 21742
State Bar No. 24002330
ATTORNEY-IN-CHARGE FOR
DEFENDANT HAL BOGNER
OF COUNSEL:
HIRSCH & WESTHEIMER, P.C.
Bank of America Center
700 Louisiana, 25th Floor
Houston, Texas 77002-2772
Telephone: (713) 223-5181
Telecopier: (713) 223-9319
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 14 of 15
20080491.20080491/480840.1 13
LOCAL COUNSEL:
LaFONT, TUNNELL, FORMBY, LaFONT
& HAMILTON, L.L.P.
Bill LaFont
State Bar No. 11791000
Brent Hamilton
State Bar No. 00796696
PO Box 1510
Plainview, Texas, 79073-1510
Telephone: (806) 293-5361
Telecopier: (806) 293-5366
CERTIFICATE OF CONFERENCE
Pursuant to Local Rule 7.1, counsel for Defendant attempted to confer
with Plaintiff’s
counsel but was unable to reach Plaintiff’s counsel due to the holiday,
but believes that
Plaintiff’s counsel will be opposed to the filing of this motion and the
relief sought herein.
/s/ Aaron E. Homer
Aaron E. Homer
CERTIFICATE OF SERVICE
I certify that at true and correct copy of the foregoing was served by
electronic mail by
the Clerk of the Court via the ECF system, to all parties of record on
December 24, 2008.
James L. Killion
Samantha P. Estrello
Killion Law Firm
PO Box 64670
Lubbock, Texas 79424-4670
Samuel H. Sloan
1664 Davidson Avenue
Apt. 1B
Bronx, NY 10453
s/ William P. Huttenbach
William P. Huttenbach
Case 5:08-cv-00169-C Document 71 Filed 12/24/2008 Page 15 of 15
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