Polgar's Response to Four Summary Judgment Motions
MrVidmar
TO THE MOTIONS FOR SUMMARY JUDGMENT FILED BY
DEFENDANTS BRIAN LAFFERTY, HAL BOGNER, BRIAN MOTTERSHEAD, AND
CONTINENTAL CHESS INCORPORATED
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 Defendants Brian Lafferty, Hal Bogner, Brian
Mottershead, and Continental Chess Incorporated, 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.SUMMARY OF MOTION
3. Defendants Brian Lafferty, Hal Bogner, Brian Mottershead, and
Continental Chess
Incorporated all filed motions for summary judgment wherein they assert
that Plaintiff has not produced evidence sufficient to create genuine
issues of material fact on any of her claims against them, including
libel, slander, and civil conspiracy. Under the law, Defendants are
liable for the overt acts of their co-conspirators. As such and as
further described herein, Plaintiff has produced sufficient evidence to
create a genuine issue of material fact such that a reasonable jury
could find in her favor, and, therefore, Defendants are not entitled to
judgment as a matter of law.
III.ARGUMENTS AND AUTHORITIES
4. The movants herein, Defendants Lafferty, Bogner, Mottershead, and
Continental Chess, have committed intentional, overt acts that
constitute slander per se, and have done so in furtherance of a
conspiracy to which they all are parties. This conspiracy arose from a
meeting of the minds between these and the other defendants in this
case, with the objective of that combination of persons to defame and
disparage Plaintiff Susan Polgar and to force her out of the USCF. The
members of this conspiracy have committed overt acts sufficient to give
rise to liability for each of Plaintiff�s claims, as set forth in
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, which is incorporated herein as if recited
verbatim. Accordingly, the Court must deny Defendants� Motion for
Summary Judgment on all claims.
A. Each Defendant�s Acts Constitute Libel Per Se.
5. In Texas, a plaintiff claiming libel must show that (1) the defendant
published a statement of fact (2) about the plaintiff; (3) the statement
was defamatory; (4) The statement was false; (5) the defendant acted
with actual malice, in the case of a public figure; (6) and the
plaintiff suffered pecuniary injury, unless injury is presumed. WFAA TV,
Inc., 978 S.W.2d at 571; Leyendecker & Assocs., 683 S.W.2d at 374.
Injury is presumed when statements are defamatory per se and actual
malice has been shown. Gertz, 418 U.S. at 349; Sneed, 998 F.2d at 1332-33.
6. A statement is defamatory per se if it injures a person in her
office, profession, or occupation, Morrill, 226 S.W.3d at 549, if it
imputes a crime, Leyendecker & Assocs., 683 S.W.2d at 374, or if it
impeaches a person�s honesty, integrity, virtue, or reputation. Tex.
Civ. Prac. & Rem. Code �73.001. A statement is made with actual malice
when it is made with knowledge of or reckless disregard for its falsity.
Bentley, 94 S.W.3d at 591. For example, a publisher�s purposeful
avoidance of the truth would be sufficient to show actual malice. Id. at
599.
1. Defendants� Statements are Defamatory Per Se.
7. All four Defendants moving herein for summary judgment have made
statements that are defamatory per se within the laws of the State of
Texas. Defendant Lafferty, in various internet postings, has accused
Plaintiff of making fraudulent representations to USCF Members, of
restricting members� First Amendment rights, of conspiring with Gregory
Alexander to commit the crime of wire fraud, and of abusing her children
with hot sauce. See Exhibit A, Appx. pp. 4-6. Each of these statements
constitutes a purported statement of fact about Plaintiff, which is
false and defamatory. Further, each statement is defamatory per se, in
that it imputes a crime, injures Plaintiff in her occupation as a chess
personality and USCF member and Board member, and impeaches her honesty,
integrity, virtue, and reputation. Thus, injury to Plaintiff�s
Reputation is presumed.
8. Defendant Bogner, in various internet postings, has accused Plaintiff
of committing wire fraud, being a poor role model for children, and
making fraudulent representations to USCF members, and has openly
compared Plaintiff to Michael Vick, Barry Bonds, and O.J. Simpson, all
celebrities well-known for their unscrupulous behavior and involvement
in criminal acts. See Exhibit B, Appx. pp. 8-11. Each of these
statements constitutes a purported statement of fact about Plaintiff,
which is false and defamatory. Further, each statement is defamatory per
se, in that it imputes a crime, injures Plaintiff in her occupation as a
chess personality and USCF member and Board member, and impeaches her
honesty, integrity, virtue, and reputation. Thus, injury to Plaintiff�s
Reputation is presumed.
9. Defendant Mottershead claimed in an internet posting, despite that
fact that experts have opined otherwise, that the �Fake Sam Sloan� was
sitting on the Executive Board, clearly implicating Plaintiff and her
husband. See Exhibit C, Appx. p. 13. This statement constitutes a
purported statement of fact about Plaintiff, which is false and
defamatory. Further, this statement is defamatory per se, in that it
injures Plaintiff in her occupation as a chess personality and USCF
member and Board member and impeaches her honesty, integrity, virtue,
and reputation. Thus, injury to Plaintiff�s Reputation is presumed.
10. Defendant Continental Chess, in two postcards, accused Plaintiff of
violating fiduciary duties to the USCF and working for the destruction
of the same. See Exhibit D, Appx. pp. 15-16. Each of these statements
constitutes a purported statement of fact about Plaintiff, which is
false and defamatory. Further, each statement is defamatory per se, in
that it imputes a crime, injures Plaintiff in her occupation as a chess
personality and USCF member and Board member, and impeaches her honesty,
integrity, virtue, and reputation. Thus, injury to Plaintiff�s
Reputation is presumed.
2. Defendants Acted with Actual Malice.
11. Defendants, in making each of the statements listed above, acted
with actual malice. Defendants do not have any evidence to suggest that
Plaintiff has breached fiduciary duties owed to the USCF, and have not
brought suit for that claim. Further, they have no credible evidence to
suggest that Plaintiff herself has committed wire fraud, has made
fraudulent misrepresentations, or is working to destroy the USCF.
Accordingly, Defendants could only have made these statements in a
purposeful effort to avoid the truth, an effort sufficient under Bentley
to show actual malice. All of the above evidence constitutes a genuine
issue of material fact from which a reasonable jury could find for
Plaintiff and against each Defendant for libel. Accordingly, Defendants
are not entitled to judgment as a matter of law, and summary judgment is
improper.
B. Defendants are Members of a Conspiracy to Defame and Disparage Plaintiff.
12. In Texas, a plaintiff claiming civil conspiracy must show that (1)
the defendant was a member of a combination of two or more persons; (2)
the object of the combination was to accomplish an unlawful purpose, or
a lawful purpose by unlawful means; (3) the members had a meeting of the
minds on the objectives or courses of action; (4) one of the members
committed an unlawful, overt act to further the objective or course of
action; and (5) the plaintiff suffered injury as the result of an
unlawful act. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).
Plaintiff has already set forth grounds on which a reasonable jury could
find liability for civil conspiracy against Defendants Lafferty and
Continental Chess by way of its President, Bill Goichberg. See
Plaintiff�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, pp. 11-13. Plaintiff would show, as set
forth below, that Defendants Mottershead and Bogner are also members of
that conspiracy.
13. Defendants Mottershead and Bogner, both of whom work as IT
volunteers for the USCF, have, by their own admission, worked to do what
they call �unmasking� the �Fake Sam Sloan,� at the request of the USCF
�Legal Subcommittee,� composed of defendants in the present case. See
Exhibit E, Appx. p. 18. However, because the methodologies used in
pinning the �Fake Sam Sloan� postings on Plaintiff and her husband are
flawed, it seems apparent that, like the other members of the conspiracy
and consistent with the objectives of the conspirators, Mottershead and
Bogner desired only to defame and disparage Plaintiff. Given the
similarity in behavior and goals of these two defendants to the other
conspirators and the fact that the report that sparked the allegations
by both sides in the various lawsuits involved was compiled by
Mottershead with input from Bogner, a reasonable jury could conclude
that these two Defendants were members of the conspiracy involving all
defendants in this case, and a genuine issue of material fact exists
thereon. Accordingly, Defendants are not entitled to summary judgment on
the claim of civil conspiracy.
C. Defendants are not Entitled to Protection Under the Volunteer
Protection Act Because
their Actions were Outside the Scope of their Employment.
14. The Volunteer Protection Act provides that a volunteer shall not be
liable for �harm caused
by an act or omission of the volunteer on behalf of the organization or
entity if... the volunteer was acting within the scope of the
volunteer�s responsibilities.� 42 U. S.C. 14503(a). Defendants, as
members of the conspiracy involving the other defendants in this case,
could not have been acting in their volunteer capacity because
conspiracy does not fall within the scope of Defendants� employment. The
Texas Supreme Court has defined an act within an employee�s scope of
employment, similar to the scope of a volunteer�s post, 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). Defendants have not claimed, and would be wrong to
claim, that the USCF hired them or asked them to volunteer to conspire
to commit torts against other board members, that the USCF granted them
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,
summary judgment based on the Volunteer Protection Act would be improper.
IV. CONCLUSION
15. In light of the facts, arguments, and authorities set forth above,
Plaintiff respectfully requests
this Court deny Defendants� various Motions for Summary Judgment, that
Defendants take nothing by their claims, that they be awarded no
attorney�s fees, and that Plaintiff be granted such other and further
relief to which she may be justly entitled, at law or in equity.
Respectfully submitted,
KILLION LAW FIRM 2521 74th Street
Post Office Box 64670 Lubbock, Texas 79424-4670 (806) 748-5500 Telephone
(806) 748-5505 Facsimile
/s/ Samantha Peabody Estrello
James L. Killion SBN: 11409100 Samantha Peabody Estrello
SBN: 24056112
MrVidmar
samsloan
Polgar alleges that Jerry Hanken said "Paul Truong is a Fink".
Polgar alleges that Jerry Hanken is a friend of Goichberg
Polgar alleges that she has been defamed by the statement that her
husband, Paul Truong, is a Fink.
Jerry Hanken fails to prove that Paul Truong is a Fink.
Even though Goichberg has said nothing about Polgar or about Truong,
Polgar sues Goichberg for being part of Hanken's conspiracy to allege
that Truong is a Fink.
Have I correctly stated the essence of Polgar's claim?
Sam Sloan
MrVidmar
Rob
lol silly boy
Teddybear
"samsloan" <samh...@gmail.com> wrote in message
news:f66b310d-0b95-4590...@b15g2000yqd.googlegroups.com...
Robert Leroy Parker (The Sundance Kid) had a name similar to Gordon Roy
Parker, so they must be conspiring to rob the Union Pacific Railroad. Mr.
E. H. Haraman, Chairman of the Union Pacific, sues G. R. Parker for
conspiracy to rob the train based on the legal conclusion that since they
have similar names, they must be in cahoots to rob his trains. Obviously
there is a huge flaw in his reasoning.
The Texas case against the USCF defendants has similar flaws, in that they
had no obvious intent to violate the law, and some disagreement must occur
to operate a healthy organization. Every statement that otherwise meets the
technical statutory requirements is not actionable. The USCF's intent seems
to be about uncovering wrongdoing, and the Tolgar suit seems to be about
chilling free speech and discussions. The USCF has a duty to investigate
these matters which may financially impact the organization, that's why they
were elected to office in the first place. If every disagreement between
board members of an organization were to result in multiple Federal suits,
no organization could long survive.
Trolgar's approach is similar to the many kooksuits that we have seen filed
in the recent past. Just because one has a thin skin, and some of the
statements made are insulting, does not mean that it merits a lawsuit.
Chilling free speech seems to be the intent, which is why we have the First
Amendment in the first place.
MrVidmar
>
> Trolgar's approach is similar to the many kooksuits that we have seen filed
> in the recent past. Just because one has a thin skin, and some of the
> statements made are insulting, does not mean that it merits a lawsuit.
> Chilling free speech seems to be the intent, which is why we have the First
> Amendment in the first place.
It's also why the Supreme Court decided Times v. Sullivan the way it
did. Polgar,by the evidence and her own clear admission during her
definition, it a public figure who must prove actual malice. She had
presented conclusory statements as to that in her reply brief. Nothing
more.
MrVidmar
David Ames
Allegations have been made, and she doesn't have to prove who the
alligator is, because it's a conspiracy.
David Ames
Teddybear
"David Ames" <world...@juno.com> wrote in message
news:64f0b046-1676-43ad...@v36g2000yqv.googlegroups.com...
"Conspiracy" is what they use when they know they have nothing else.