Case 1:12-cv-00236-MAT-HKS

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APPEAL,CLOSED_2016,MEDIATION

U.S. DISTRICT COURT

U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:12cv00236MATHKS
Internal Use Only
Malkan v. Mutua et al
Assigned to: Hon. Michael A. Telesca
Referred to: Hon. H. Kenneth Schroeder, Jr
Cause: 42:1983 Civil Rights Act

Date Filed: 03/23/2012

Date Terminated: 12/20/2016
Jury Demand: Both
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question

Plaintiff
Jeffrey Malkan

represented by Jeffrey Malkan

12 Valleywood Court West
Saint James, NY 11780
PRO SE
Frederic D. Ostrove
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY 11514
(516) 8739550
Fax: (516) 7475024
Email: [email protected]
TERMINATED: 07/16/2015
LEAD ATTORNEY
Bryan Arbeit
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY 11514
5168739550
Fax: 5167475420
Email: [email protected]
TERMINATED: 07/16/2015

V.
Defendant
Makau W. Mutua

represented by David J. Sleight

Office of the Attorney General
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
7168526274
Fax: 7168538428
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Christopher L. Boyd
NYS Attorney General's Office
Main Place Tower
Suite 300A
350 Main Street
Buffalo, NY 14202
7168538457
Fax: 7168538428

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Email: [email protected]
ATTORNEY TO BE NOTICED
Defendant
Charles P. Ewing
in their individual capacities
TERMINATED: 09/23/2014

represented by Abigail Deirdre FlynnKozara

Barclay Damon, LLP
200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
7168565500
Fax: 7168565510
Email: [email protected]
TERMINATED: 10/17/2014
LEAD ATTORNEY
Randolph C. Oppenheimer
Damon Morey LLP
200 Delaware Avenue
Suite 1200
Buffalo, NY 14202
7168565500
Fax: 716855510
Email: [email protected]
TERMINATED: 10/17/2014
LEAD ATTORNEY
David J. Sleight
(See above for address)
TERMINATED: 01/28/2013

Movant
Jessica M. Baker
(as counsel for certain nonparty
witnesses who are employees of the
University at Buffalo)

represented by Jessica M. Baker

SUNY Office of General Counsel
University at Buffalo
3435 Main Street
216 Harriman Hall
Buffalo, NY 14214
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Robert E. Ruggeri
SUNY Office of General Counsel
University Plaza
Albany, NY 12246
5183201400
Fax: 5184435137
Email: [email protected]
PRO HAC VICE
ATTORNEY TO BE NOTICED

Date Filed

Docket Text

03/23/2012

1 COMPLAINT against Charles P. Ewing, Makau W. Mutua, filed by Jeffrey

Malkan.(DZ) (Entered: 03/23/2012)

03/23/2012

Summons Issued as to Charles P. Ewing, Makau W. Mutua. (DZ) (Entered:

03/23/2012)

03/23/2012

2 NOTICE, CONSENT, AND REFERENCE of a civil action to a Magistrate Judge

(forms attached) (DZ) (Entered: 03/23/2012)

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03/23/2012

3 AUTOMATIC REFERRAL to Mediation ; ADR Plan forwarded to plaintiff's

attorney.(DZ) (Entered: 03/23/2012)

03/23/2012

(Court only) Request for verification of admission sent to Attorney (DZ) (Entered:
03/23/2012)

04/06/2012

4 SUMMONS Returned Executed by Jeffrey Malkan. All Defendants. (Attachments: # 1

Certificate of Service)(Ostrove, Frederic) (Entered: 04/06/2012)

05/08/2012

5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Charles P. Ewing,

Makau W. Mutua.(Sleight, David) (Entered: 05/08/2012)

05/08/2012

6 DECLARATION re 5 MOTION TO DISMISS FOR FAILURE TO STATE A

CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)

05/08/2012

7 MEMORANDUM IN SUPPORT re 5 MOTION TO DISMISS FOR FAILURE TO

STATE A CLAIM byCharles P. Ewing, Makau W. Mutua. (Sleight, David) (Entered:
05/08/2012)

05/14/2012

8 TEXT ORDER: Plaintiff shall respond to Defendant's Partial Motion to Dismiss and
for a Stay by May 29, 2012. Defendants may file a reply by June 5, 2012. Oral
argument will be at the Court's discretion. Issued by Hon. Richard J. Arcara on May
14, 2012. (MLM) (Entered: 05/14/2012)

05/29/2012

9 MOTION for Extension of Time to File Response/Reply by Jeffrey Malkan.(Ostrove,

Frederic) (Entered: 05/29/2012)

05/29/2012

EFiling Notification: 9 MOTION for Extension of Time to File Response/Reply

(Ostrove, Frederic) **document filed without proof of service** (DZ) (Entered:
05/30/2012)

05/30/2012

10 AFFIDAVIT of Service for Motion to Extend Time served on David Sleight and
Rowena Pelenio on 05/30/2012, filed by Jeffrey Malkan. (Ostrove, Frederic) (Entered:
05/30/2012)

05/30/2012

11 TEXT ORDER: the consent Motion for Extension of Time to File Response 9 is
granted. Plaintiff shall have until June 5, 2012 to respond to the motion to dismiss and
defendants' shall have until June 12, 2012 to reply to the response. Issued by Hon.
Richard J. Arcara on May 30, 2012. (WJG) (Entered: 05/30/2012)

06/05/2012

12 MEMORANDUM in Opposition re 5 MOTION TO DISMISS FOR FAILURE TO

STATE A CLAIM filed by Jeffrey Malkan. (Attachments: # 1 Affidavit)(Ostrove,
Frederic) (Entered: 06/05/2012)

06/05/2012

13 AFFIDAVIT of Service for Memorandum of Law in Opposition to Defendants Motion

to Dismiss the Complaint and the Affidavit of the Plaintiff, served on David Sleight
and Rowena Pelenio on 06/05/2012, filed by Jeffrey Malkan. (Ostrove, Frederic)
(Entered: 06/05/2012)

06/12/2012

14 MEMORANDUM in Support re 5 MOTION TO DISMISS FOR FAILURE TO

STATE A CLAIM filed by Charles P. Ewing, Makau W. Mutua. (Sleight, David)
(Entered: 06/12/2012)

06/29/2012

15 TEXT ORDER: Oral argument of defendants' Motion to Dismiss 5 shall be July 12,
2012, at 2:00 p.m., United States Courthouse, 2 Niagara Square, Buffalo, New York
14202. Issued by Hon. Richard J. Arcara on June 29, 2012. (WJG) (Entered:
06/29/2012)

07/09/2012

16 MOTION to Adjourn Oral Argument on Defendants Motion by Jeffrey Malkan.

(Attachments: # 1 Supplement)(Ostrove, Frederic) (Entered: 07/09/2012)

07/09/2012

17 AFFIDAVIT of Service for Notice of Motion and Motion to Adjourn served on David
Sleight, Esq. and Rowena Pelenio, Esq. on 07/09/2012, filed by Jeffrey Malkan.
(Ostrove, Frederic) (Entered: 07/09/2012)

07/10/2012

18 TEXT ORDER. The plaintiff filed 16 Motion to Adjourn the 7/12/2012 Oral
Argument as to 5 Motion to Dismiss for Failure to State a Claim and for a Stay filed
by defendants. The motion is granted. Oral Argument is adjourned to 7/26/2012 at
2:00 PM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J.

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Arcara on June 10, 2012. (DJD) (Entered: 07/10/2012)
07/20/2012

TEXT ORDER. The 7/26/2012 Oral Argument as to as to 5 Motion to Dismiss for

Failure to State a Claim and for a Stay filed by defendants is adjourned by the Court
until further notice. SO ORDERED. Issued by Hon. Richard J. Arcara on July 20,
2012. (DJD) (Entered: 07/20/2012)

09/25/2012

19 NOTICE of Change of Address by Frederic D. Ostrove (Ostrove, Frederic) (Entered:

09/25/2012)

10/03/2012

20 DECISION AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim.
Signed by Hon. Richard J. Arcara on 10/3/2012. (JMB) (Entered: 10/03/2012)

10/04/2012

CASE REFERRED to Magistrate Judge Hon. Leslie G. Foschio for all proceedings
necessary to a determination of the merits of the factual and legal issues presented by
this action. At the conclusion of such proceedings,the Magistrate Judge shall prepare
and submit a Report and Recommendation (DZ) (Entered: 10/04/2012)

10/05/2012

21 TEXT ORDER OF RECUSAL. Hon. Leslie G. Foschio recused. So Ordered. Issued

by Hon. Leslie G. Foschio on 10/5/2012. (SDW) (Entered: 10/05/2012)

10/05/2012

22 TEXT ORDER REREFERRING CASE to Magistrate Judge Hon. H. Kenneth

Schroeder, Jr The Magistrate Judge is hereby designated to act in this case as follows:
Pursuant to 28 U.S.C. Section 636(b)(1)(A) and (B), all pretrial matters in this case
are referred to the abovenamed United States Magistrate Judge, including but not
limited to: (1) conduct of a scheduling conference and entry of a scheduling order
pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all nondispositive
motions or applications, (3) supervision of discovery, and (4) supervision of all
procedural matters involving the aforementioned or involving the preparation of the
case or any matter therein for consideration by the District Judge. The Magistrate
Judge shall also hear and report upon dispositive motions for the consideration of the
District Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C). All motions or
applications shall be filed with the Clerk and made returnable before the Magistrate
Judge. The parties are encouraged to consider the provisions of 28 U.S.C. Section
636(c) governing consent to either partial or complete disposition of the case,
including trial if necessary, by the Magistrate Judge. Consent forms are available from
the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO
ORDERED.. Signed by Hon. Richard J. Arcara on 10/5/2012. (JMB) (Entered:
10/05/2012)

10/10/2012

23 ORDER regarding issuance of Case Management Order. Signed by Hon. H. Kenneth

Schroeder, Jr. on 10/10/12. (Attachments: # 1 Case Management Order Form, # 2
Consent Memorandum, # 3 Consent Form)(LMG) (Entered: 10/10/2012)

10/23/2012

24 ANSWER to 1 Complaint by Charles P. Ewing, Makau W. Mutua.(Sleight, David)

(Entered: 10/23/2012)

10/24/2012

25 ADR Plan electronically forwarded to attorneys.(DZ) (Entered: 10/24/2012)

10/29/2012

26 CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the
entire contents of the attached Order. It is your responsibility to read the attached
Order and download it for future reference. Direct any questions to the Chambers of
the Judge who entered this Order.) Stipulation of Selection of Mediator due by
11/20/2012; First Mediation Session due by 1/15/2013; Motions to Join Parties/Amend
Pleadings due by 1/31/2013; Plaintiff Expert Witness ID due by 5/31/2013; Defendant
Expert Witness ID due by 6/28/2013; Discovery completed by 8/30/2013; Dispositive
Motions due by 9/30/2013; Mediation To End by 9/30/2013. Signed by Hon. H.
Kenneth Schroeder, Jr. on 10/29/12. (LMG) (Entered: 10/29/2012)

11/16/2012

27 NOTICE OF MOTION by Jeffrey Malkan to opt out of ADR Plan (Attachments: # 1

Memorandum in Support)(Ostrove, Frederic) Event modified on 11/19/2012 (DZ).
(Entered: 11/16/2012)

11/19/2012

EFiling Notification: 27 event modified to indicate entry is a NOTICE OF MOTION

to opt out of ADR Plan. No further action required at this time. (DZ) (Entered:
11/19/2012)

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12/12/2012

28 TEXT ORDER: the joint motion 22 to opt out of ADR is denied. The excuse of
plaintiff for filing the motion late does not excuse the failure timely to file the joint
motion by defendants. Moreover, the Court has carefully reviewed the grounds offered
in support of the motion and finds no good cause to opt out of ADR. The individual
request of plaintiff that the Court order nonparties to attend the mediation is also
denied. Because the Court did not decide the joint opt out motion sooner, an extension
of time to confer and select a Mediator, confirm availability of the Mediator, ensure
the Mediator does not have a conflict with any parties, identify a date and time for the
initial mediation session, and to file the stipulation confirming the selection of the
Mediator, is granted nunc pro tunc to January 18, 2013. The action remains committed
to Magistrate Judge Schroeder pursuant to the Courts October 5, 2012 Text Order 22 .
Issued by Hon. Richard J. Arcara on December 12, 2012. (WJG) (Entered:
12/12/2012)

01/22/2013

29 StipulationSelection of Mediator by Charles P. Ewing, Makau W. Mutua(Sleight,

David) (Entered: 01/22/2013)

01/23/2013

(Court only) ***Party Hugh M. Russ, III added as Mediator. (DZ) (Entered:
01/23/2013)

01/25/2013

30 CONSENT to Substitute Attorney by Charles P. Ewing.(Oppenheimer, Randolph)

Modified on 1/28/2013 (DZ). (Entered: 01/25/2013)

01/28/2013

EFiling Notification: 30 * Text modified to indicate entry is a CONSENT to

Substitute Attorney * (DZ) (Entered: 01/28/2013)

01/28/2013

(Court only) ***Motions terminated: 30 MOTION to Substitute Attorney filed by

Charles P. Ewing. (DZ) (Entered: 01/28/2013)

01/29/2013

31 TEXT ORDER: The 30 Consent Motion to Substitute Attorney filed by Charles P.

Ewing is hereby SO ORDERED. Issued by the Hon. H. Kenneth Schroeder, Jr. on
1/29/13. (LMG) (Entered: 01/29/2013)

01/30/2013

32 MOTION to Amend/Correct 24 Answer to Complaint by Charles P. Ewing.

(Attachments: # 1 Declaration to Motion, # 2 Exhibit)(Oppenheimer, Randolph)
(Entered: 01/30/2013)

02/01/2013

33 TEXT ORDER re 32 MOTION to Amend/Correct 24 Answer to Complaint filed by

Charles P. Ewing: Responses due by 3/1/2013. Replies due by 3/22/2013. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 2/1/2013. (KER) (Entered:
02/01/2013)

03/01/2013

34 Mediation Certification by Hugh M. Russ, III(Russ, Hugh) (Entered: 03/01/2013)

04/02/2013

35 Mediation Certification by Hugh M. Russ, III(Russ, Hugh) (Entered: 04/02/2013)

05/10/2013

36 MOTION to Amend/Correct 26 Scheduling Order,, by Charles P.

Ewing.(Oppenheimer, Randolph) (Entered: 05/10/2013)

05/13/2013

37 TEXT ORDER granting 32 Motion to Amend Answer. SO ORDERED. Issued by

Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER) (Entered: 05/13/2013)

05/13/2013

38 TEXT ORDER granting 36 Motion to Amend Case Management Order. SO

ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 5/13/2013. (KER) (Entered:
05/13/2013)

05/13/2013

Set/Reset Scheduling Order Deadlines: Fact Depositions completed by 8/30/2013.

Plaintiff Expert Witness ID completed by 8/30/2013. Defendant Expert Witness ID
completed by 9/27/2013. Expert Depositions completed by 11/29/2013. Discovery
completed by 11/29/2013. Dispositive Motions due by 1/10/2014. Mediation may
continue through 1/10/2014. (KER) (Entered: 05/13/2013)

05/13/2013

39 AMENDED ANSWER to 1 Complaint by Charles P. Ewing. (Oppenheimer,

Randolph) (Entered: 05/13/2013)

08/22/2013

40 Joint MOTION to Amend/Correct 26 Scheduling Order,, by Charles P.

Ewing.(Oppenheimer, Randolph) (Entered: 08/22/2013)

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08/22/2013
08/22/2013

41 TEXT ORDER granting 40 Motion to Amend or Correct. Signed by Hon. H. Kenneth

Schroeder, Jr on 8/22/2013. (KER) (Entered: 08/22/2013)
Set/Reset Scheduling Order Deadlines: Fact Discovery completed by 11/29/2013.
Plaintiff Expert Witness ID due by 11/29/2013. Defendant Expert Witness ID due by
1/10/2014. Expert Depositions completed by 3/14/2014. All Discovery completed by
3/14/2014. Dispositive Motions due by 4/25/2014. Mediation may continue through
4/25/2014. NO FURTHER EXTENSIONS WILL BE GRANTED. (KER) (Entered:
08/22/2013)

10/23/2013

42 NOTICE of Appearance by Bryan Arbeit on behalf of Jeffrey Malkan (Arbeit, Bryan)

(Entered: 10/23/2013)

11/07/2013

43 Joint MOTION to Amend/Correct Scheduling Order by Jeffrey Malkan.(Arbeit,

Bryan) (Entered: 11/07/2013)

11/08/2013

44 TEXT ORDER granting 43 Motion to Amend or Correct Case Management Order

solely with respect to deadline for completing fact depositions. SO ORDERED. Issued
by Hon. H. Kenneth Schroeder, Jr on 11/8/2013. (KER) (Entered: 11/08/2013)

11/19/2013

45 TEXT ORDER: The Court having been advised of a potential conflict between
counsel to nonparty deponents Satish Tripathi and Susan Mangold, it is hereby
ORDERED that the nonparty deponents may defer their currently scheduled
depositions to a mutually convenient date within the deadline of the current case
management order to afford them the opportunity to obtain alternate representation.
Issued by Hon. H. Kenneth Schroeder, Jr on 11/19/2013. (KER) (Entered: 11/19/2013)

12/02/2013

46 NOTICE of Appearance by Jessica M. Baker on behalf of Makau W. Mutua (Baker,

Jessica) (Entered: 12/02/2013)

12/02/2013

47 MOTION to appear pro hac vice ( Filing fee $ 150 receipt number 02091928296.) by
Makau W. Mutua. (Attachments: # 1 Supplement Admission Sponsor Affidavit, # 2
Supplement Attorney Oath, # 3 Supplement Civility Principles Oath, # 4 Supplement
Attorney Database Form, # 5 Supplement CM ECF Form)(Baker, Jessica) (Entered:
12/02/2013)

12/04/2013

EFiling Notification: 47 MOTION to appear pro hac vice for Robert E. Ruggeri, Esq.
A Notice of Motion is required for all motions (See Local Rule 7(a)(1)). ACTION
REQUIRED: Please file a Notice of Motion using the "Motion" event and select
"appear" to avoid a second fee payment. Please refile all attachments required for pro
hac vice admission together with a Certificate of Service. (CMD) (Entered:
12/04/2013)

12/04/2013

(Court only) ***Motions terminated: 47 MOTION to appear pro hac vice ( Filing fee $
150 receipt number 02091928296.) filed by Makau W. Mutua. (CMD) (Entered:
12/04/2013)

12/11/2013

48 MOTION for Leave to Appear On behalf of certain nonparty witnesses for Robert E.
Ruggeri by Jessica M. Baker. (Attachments: # 1 Supplement Motion for Admission
pro hoc vice, # 2 Supplement Sponsoring Affidavit, # 3 Supplement Attorney's Oath, #
4 Supplement Civility Principles Oath, # 5 Supplement Attorney Database Information
Form, # 6 Supplement ECF Registration Form, # 7 Supplement Attorney Petition
Form, # 8 Certificate of Service)(Baker, Jessica) (Entered: 12/11/2013)

01/10/2014

(Court only) ***Staff notes: Confirmed admission to New York State bar for attorney
Robert E. Ruggeri. (CMD) (Entered: 01/10/2014)

01/10/2014

(Court only) ***Attorney Robert E. Ruggeri for Jessica M. Baker added. (CMD)
(Entered: 01/10/2014)

01/10/2014

49 CLERK TO FOLLOW UPTEXT ORDER granting 48 Robert E. Ruggeri's Motion

for Leave to Appear Pro Hac Vice. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 1/10/2014. (KER) (Entered: 01/10/2014)

03/21/2014

50 TEXT ORDER. Defendants' letter request seeking an extension of the deadline for the
completion of discovery is granted. All discovery shall be complete by April 14, 2014.
All other dates in this Court's Case Management Order and any prior modifications
thereto shall remain in place. SO ORDERED. Issued by Hon. H. Kenneth Schroeder,
Jr. on March 21, 2014. (APG) (Entered: 03/21/2014)

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04/22/2014

51 TEXT ORDER. Based upon the extraordinary circumstances (trial schedule) outlined
in counsel for the defendants' April 22, 2014 letter, defendants' request seeking an
extension of the deadline for the filing of dispositive motions is granted. Dispositive
motions shall be filed by May 23, 2014. Mediation may also continue to May 23,
2014. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on April 22, 2014.
(APG) (Entered: 04/22/2014)

05/22/2014

52 NOTICE of Appearance by Abigail Deirdre FlynnKozara on behalf of Charles P.

Ewing (FlynnKozara, Abigail) (Entered: 05/22/2014)

05/22/2014

53 TEXT ORDER re 51 Text Order, Set Deadlines. Defendant Mutua's May 22, 2014
letter request for an extension of the dispositive motion filing deadline is granted.
Dispositive Motions are due by 6/6/2014. Responses to any and all dispositive motions
are due by 7/18/2014. Replies are due by 8/8/2014. If necessary, oral argument will be
scheduled at a later date. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on
May 22, 2014. (APG) (Entered: 05/22/2014)

05/23/2014

54 MOTION for Summary Judgment by Charles P. Ewing. (Attachments: # 1 Declaration

in Support, # 2 Statement of Undisputed Facts, # 3 Appendix, # 4 Exhibit Exhibit A, #
5 Exhibit Exhibit B, # 6 Exhibit Exhibit C, # 7 Exhibit Exhibit D, # 8 Exhibit Exhibit
E, # 9 Exhibit Exhibit F, # 10 Exhibit Exhibit G, # 11 Exhibit Exhibit H Part 1, # 12
Exhibit Exhibit H Part 2, # 13 Exhibit Exhibit I, # 14 Exhibit Exhibit J, # 15
Memorandum in Support)(Oppenheimer, Randolph) (Entered: 05/23/2014)

06/07/2014

55 MOTION for Summary Judgment by Makau W. Mutua.(Sleight, David) (Entered:

06/07/2014)

06/07/2014

56 STATEMENT OF FACTS by Makau W. Mutua Related document: 55 Motion for

Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, #
10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15
Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit
T, # 21 Exhibit U)(Sleight, David) (Entered: 06/07/2014)

06/07/2014

57 MEMORANDUM IN SUPPORT re 55 MOTION for Summary Judgment byMakau

W. Mutua. (Sleight, David) (Entered: 06/07/2014)

07/15/2014

58 TEXT ORDER re 54 MOTION for Summary Judgment filed by Charles P. Ewing, 55

MOTION for Summary Judgment filed by Makau W. Mutua. Plaintiff's July 14, 2014
letter requesting a one month extension of time to file responses to defendants' motions
for summary judgment is granted. Responses due by 8/18/2014. Replies due by
9/12/2014. If necessary, oral argument will be scheduled at a later date. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on July 15, 2014. (APG)
(Entered: 07/15/2014)

08/13/2014

59 MOTION to Sever Separate Trials by Charles P. Ewing. (Attachments: # 1

Declaration of Randolph C. Oppenheimer, # 2 Memorandum in Support, # 3
Appendix, # 4 Exhibit AO)(Oppenheimer, Randolph) (Entered: 08/13/2014)

08/15/2014

60 TEXT ORDER re 54 MOTION for Summary Judgment filed by Charles P. Ewing, 55

MOTION for Summary Judgment filed by Makau W. Mutua. The plaintiff's letter
request for additional time to submit his opposition to the motions for summary
judgment is granted. The plaintiff's opposition is due August 29, 2014. Replies, if any,
are due September 24, 2014. If necessary, oral argument will be scheduled at a later
date. The plaintiff's request to file a single memorandum of law with respect to both
motions and for that memorandum not to exceed 50 pages is also granted. SO
ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on August 15, 2014. (APG)
(Entered: 08/15/2014)

08/30/2014

61 MEMORANDUM in Opposition re 55 MOTION for Summary Judgment filed by

Jeffrey Malkan. (Arbeit, Bryan) (Entered: 08/30/2014)

08/30/2014

62 MEMORANDUM in Opposition re 54 MOTION for Summary Judgment filed by

Jeffrey Malkan. (Arbeit, Bryan) (Entered: 08/30/2014)

08/30/2014

63 DECLARATION re 57 Memorandum in Support, 56 Statement of Facts, filed by

Jeffrey Malkan filed by Jeffrey Malkan. (Attachments: # 1 Exhibit 19 (Deposition
Testimony), # 2 Exhibit Exs. 1019, # 3 Exhibit Exs. 2029, # 4 Exhibit Exs. 3034, #

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5 Exhibit Exs. 35, # 6 Exhibit Exs. 3647, # 7 Exhibit Exs. 4849, # 8 Statement of
Undisputed Facts)(Arbeit, Bryan) (Entered: 08/30/2014)
09/24/2014

64 STIPULATION of Dismissal by Charles P. Ewing. (Oppenheimer, Randolph)

(Entered: 09/24/2014)

09/25/2014

65 TEXT ORDER: the Stipulation of Dismissal as to Defendant Charles P. Ewing 64 is

approved. The Clerk shall reform the caption of the case to remove defendant Ewing
and shall terminate all pending motions filed by defendant Ewing as moot. Counsel for
plaintiff Jeffrey Malkan and defendant Makau W. Mutua shall confer about whether
returning to mediation is appropriate before the presiding Magistrate Judge considers
the pending motion for summary judgment 55 , and shall advise the Court whether
they request time to return to mediation in a short joint filing no later than October 1,
2014. Issued by Hon. Richard J. Arcara on September 25, 2014. (WJG) CLERK TO
FOLLOW UP (Entered: 09/25/2014)

09/25/2014

66 TEXT ORDER amending 60 Scheduling Order: Replies due by 10/16/2014. SO

ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on 9/25/2014. (KER) Modified
on 9/25/2014 (KER). (Entered: 09/25/2014)

09/25/2014

(Court only) ***Motions terminated: 59 MOTION to Sever ; 54 MOTION for

Summary Judgment filed by Charles P. Ewing. (DZ) (Entered: 09/26/2014)

10/01/2014

67 STATUS REPORT regarding mediation by Makau W. Mutua. (Sleight, David)

(Entered: 10/01/2014)

10/16/2014

68 STATEMENT OF FACTS , Supplemental by Makau W. Mutua Related document: 55

Motion for Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3
Exhibit C)(Sleight, David) (Entered: 10/16/2014)

10/16/2014

69 MEMORANDUM in Support re 55 MOTION for Summary Judgment filed by Makau

W. Mutua. (Sleight, David) (Entered: 10/16/2014)

04/14/2015

70 MOTION for Sanctions by Jeffrey Malkan. (Attachments: # 1 Affidavit Declaration of

Rick Ostrove, # 2 Exhibit AJ, # 3 Exhibit KN, # 4 Exhibit O, # 5 Exhibit PQ, # 6
Exhibit R, # 7 Memorandum in Support)(Ostrove, Frederic) (Entered: 04/14/2015)

05/29/2015

71 TEXT ORDER re 70 MOTION for Sanctions filed by Jeffrey Malkan: Responses due
by 6/26/2015. Replies due by 7/24/2015. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 5/29/2015. (KER) (Entered: 05/29/2015)

06/26/2015

72 DECLARATION signed by David J. Sleight re 70 MOTION for Sanctions filed by

Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service)(Sleight, David)
(Entered: 06/26/2015)

06/26/2015

73 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit G, #

2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L, # 7 Exhibit M, #
8 Exhibit N, # 9 Exhibit O, # 10 Certificate of Service)(Sleight, David) (Entered:
06/26/2015)

06/26/2015

74 DECLARATION signed by Makau Matua re 70 MOTION for Sanctions filed by

Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Certificate of Service)(Sleight, David) (Entered: 06/26/2015)

06/26/2015

75 MEMORANDUM IN OPPOSITION re 70 MOTION for Sanctions by Makau W.

Mutua. (Sleight, David) (Entered: 06/26/2015)

06/29/2015

76 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit Q, #

2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Exhibit U, # 6 Exhibit V, # 7 Certificate
of Service)(Sleight, David) (Entered: 06/29/2015)

06/29/2015

EFiling Notification: 76 CONTINUATION OF EXHIBITS to 72 Declaration, ; 73

CONTINUATION OF EXHIBITS to 72 Declaration, (Sleight, David) **Exhibits N of
#73 and Exhibits R, S, T, of Item #76 to be refiled as pages are blank** (DZ)
(Entered: 06/30/2015)

06/30/2015

77 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit P, #

2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Certificate of Service)(Sleight, David)

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06/30/2015

78 CONTINUATION OF EXHIBITS to 72 Declaration, . (Attachments: # 1 Exhibit P, #

2 Exhibit R, # 3 Exhibit S, # 4 Exhibit T, # 5 Certificate of Service)(Sleight, David)
(Entered: 06/30/2015)

07/14/2015

79 TEXT ORDER denying request for leave to file a memorandum in excess of the
standard page limits. SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr on
7/14/2015. (KER) (Entered: 07/14/2015)

07/15/2015

80 MOTION to Withdraw as Attorney by Jeffrey Malkan. (Attachments: # 1

Affidavit)(Ostrove, Frederic) (Entered: 07/15/2015)

07/16/2015

81 CLERK TO FOLLOW UPTEXT ORDER granting in part and denying in part

plaintiff's 80 Motion to Withdraw as Counsel and for Further Relief. The Clerk of the
Court shall terminate attorney Bryan Arbeit and identify Frederic D. Ostrove as an
Interested Party so that he continues to receive notice of electronic filings. Plaintiff's
request to deem the 70 motion for sanctions as filed by plaintiff nunc pro tunc is
denied. As the affiant to the 70 Motion for Sanctions, Mr. Ostrove is granted
permission to respond to defendant's anticipated motion for sanctions to the extent that
such motion may challenge Mr. Ostrove's conduct as counsel on behalf of plaintiff
prior to his withdrawal from this action. The Clerk of the Court shall identify Plaintiff
as proceeding pro se and direct correspondence to plaintiff at 12 Valleywood Court
West, Saint James, New York 11780. SO ORDERED. Issued by Hon. H. Kenneth
Schroeder, Jr on 7/16/2015. (KER) (Entered: 07/16/2015)

07/16/2015

(Court only) ***Party Frederick Ostrove added as an interested party pursuant to order
entered on 7/16/2015. (JMM) (Entered: 07/16/2015)

07/16/2015

Remark: This is a TEST entry on the docket to confirm email notification to interested
party Frederic Ostrove. No action is required by any parties. (JMM) (Entered:
07/16/2015)

07/16/2015

Remark: Dkt. #81 mailed to pro se plaintiff (KER) (Entered: 07/16/2015)

07/22/2015

82 DECLARATION by Jeffrey Malkan in support re 70 MOTION for Sanctions.

(Attachments: # 1 notice of appearance pro se)(DZ) (Entered: 07/22/2015)

07/23/2015

83 MOTION for Sanctions by Makau W. Mutua. (Attachments: # 1 Memorandum in

Support)(Boyd, Christopher) (Entered: 07/23/2015)

07/23/2015

84 DECLARATION signed by David J. Sleight re 83 MOTION for Sanctions filed by

Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service)(Sleight, David)
(Entered: 07/23/2015)

07/27/2015

85 TEXT ORDER re 83 MOTION for Sanctions filed by Makau W. Mutua: Responses

due by 8/28/2015. Replies due by 9/18/2015. SO ORDERED. Issued by Hon. H.
Kenneth Schroeder, Jr on 7/27/2015. (KER) (Entered: 07/27/2015)

07/27/2015

Remark: Dkt. #86 mailed to pro se plaintiff (KER) (Entered: 07/27/2015)

08/24/2015

86 MOTION for Extension of Time to File Response/Reply by Frederick Ostrove.

(Attachments: # 1 Exhibit Motion to Extend Time, # 2 Affidavit)(Ostrove, Frederic)
(Entered: 08/24/2015)

08/24/2015

88 MEMORANDUM in Opposition re 83 MOTION for Sanctions filed by Jeffrey

Malkan. (Attachments: # 1 document continued, # 2 document continued, # 3
document continued)(KM) (Entered: 08/27/2015)

08/25/2015

87 TEXT ORDER granting 86 Motion for Extension of Time to File Response/Reply re

83 MOTION for Sanctions. Responses due by 9/11/2015. Replies due by 10/2/2015.
SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on August 25, 2015. (APG)
(Entered: 08/25/2015)

09/11/2015

89 MEMORANDUM in Opposition re 83 MOTION for Sanctions filed by Frederick

Ostrove. (Ostrove, Frederic) (Entered: 09/11/2015)

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90 DECLARATION re 89 Memorandum in Opposition to Motion filed by Frederick

Ostrove filed by Frederick Ostrove. (Attachments: # 1 Exhibit 115)(Ostrove,
Frederic) (Entered: 09/11/2015)

09/18/2015

91 REPLY/RESPONSE to re 83 MOTION for Sanctions , 88 Memorandum in

Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered:
09/18/2015)

09/18/2015

92 DECLARATION signed by David J. Sleight re 83 MOTION for Sanctions filed by

Makau W. Mutua . (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Sleight,
David) (Entered: 09/18/2015)

10/02/2015

93 REPLY/RESPONSE to re 83 MOTION for Sanctions , 89 Memorandum in

Opposition to Motion filed by Makau W. Mutua. (Boyd, Christopher) (Entered:
10/02/2015)

10/02/2015

94 DECLARATION signed by David Sleight re 83 MOTION for Sanctions filed by

Makau W. Mutua . (Attachments: # 1 Exhibit A)(Sleight, David) (Entered:
10/02/2015)

10/27/2015

95 TEXT ORDER: the parties are reminded undocketed letters are not accepted as a
motion. Issued by Hon. Richard J. Arcara on October 27, 2015. (WJG) (Entered:
10/27/2015)

12/01/2015

96 REPORT AND RECOMMENDATIONS re 55 MOTION for Summary Judgment

filed by Makau W. Mutua. Objections due fourteen days from receipt. Signed by Hon.
H. Kenneth Schroeder, Jr on 12/1/2015. (KER) (Entered: 12/01/2015)

12/01/2015

97 REPORT AND RECOMMENDATIONS re 83 MOTION for Sanctions filed by

Makau W. Mutua and 70 MOTION for Sanctions filed by Jeffrey Malkan: Objections
due fourteen days from receipt. Signed by Hon. H. Kenneth Schroeder, Jr on
12/1/2015. (KER) (Entered: 12/01/2015)

12/01/2015
12/14/2015
12/14/2015

Remark: Copy of Dkt. #96 and Dkt. #97 mailed to plaintiff (KER) (Entered:
12/01/2015)
99 DECLARATION IN SUPPORT OF OBJECTIONS TO REPORT AND
RECOMMENDATIONS filed by Jeffrey Malkan. (KM) (Entered: 12/17/2015)
100 MEMORANDUM OF LAW IN SUPPORT OF OBJECTIONS TO REPORT AND
RECOMMENDATION OPPOSITION re 99 Declaration by Jeffrey Malkan.
(Attachments: # 1 Apppendix A)(KM) (Entered: 12/17/2015)

12/15/2015

98 OBJECTION to 96 , 97 Report and Recommendations by Frederick Ostrove.

(Attachments: # 1 Memorandum in Support Memo of Law, # 2 Exhibit exhibits
115)(Ostrove, Frederic) (Entered: 12/15/2015)

12/21/2015

101 CONTINUATION OF EXHIBITS by Jeffrey Malkan. to 100 Memorandum in

Opposition, 99 Declaration filed by Jeffrey Malkan. (KM) (Entered: 12/28/2015)

01/08/2016

102 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
Recommendation 96 regarding the motion for summary judgment filed by defendant
55 shall be due January 21, 2016. A reply by plaintiff Malkan shall be due February 3,
2016. Oral argument will be February 18, 2016 at 2:00 p.m. SO ORDERED. Issued by
Hon. Richard J. Arcara on 1/8/16. (LAS) (Entered: 01/08/2016)

01/08/2016

103 TEXT ORDER: The response of defendant Mutua to the objections to the Report and
Recommendation 97 regarding the motion for sanctions filed by defendant 83 shall be
due January 28, 2016. Replies by plaintiff Malkan and former counsel shall be due
February 10, 2016. Oral argument will be scheduled after the response and replies are
filed, if necessary. SO ORDERED. Issued by Hon. Richard J. Arcara on 1/8/16. (LAS)
(Entered: 01/08/2016)

01/08/2016

104 Remark: Copies of text orders 102 and 103 have been mailed to Jeffrey Malkan, 12
Valleywood Court West, Saint James, NY 11780 (LAS) (Entered: 01/08/2016)

01/21/2016

105 MEMORANDUM IN OPPOSITION re 100 Memorandum in Opposition, 99

Declaration by Makau W. Mutua. (Sleight, David) (Entered: 01/21/2016)

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106 REPLY/RESPONSE to re 101 Continuation of Exhibits, 98 Objection to Report and

Recommendations, 100 Memorandum in Opposition, 99 Declaration filed by Makau
W. Mutua. (Boyd, Christopher) (Entered: 01/28/2016)

01/28/2016

107 SECOND DECLARATION in further support to re 99 Declaration filed by Jeffrey

Malkan. (KM) (Entered: 01/30/2016)

02/04/2016

108 THIRD DECLARATION in further support of re 99 Declaration filed by Jeffrey

Malkan. (KM) (Entered: 02/04/2016)

02/10/2016

109 REPLY/RESPONSE to re 105 Memorandum in Opposition to Leeds Brown Law

objections filed by Frederick Ostrove. (Ostrove, Frederic) (Entered: 02/10/2016)

02/11/2016

110 TEXT ORDER. The time of the February 18, 2016 Oral Argument as to the
Objections to 96 Report and Recommendation is changed by the Court to 9:00 AM on
February 18, 2016 before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon.
Richard J. Arcara on February 11, 2016. (DJD) (Entered: 02/11/2016)

02/11/2016

Remark: A copy of Text Order 110 has been mailed to Jeffrey Malkan12 Valleywood
Court West, Saint James, NY 11780. (DJD) (Entered: 02/11/2016)

02/18/2016

Minute Entry for proceedings held 2/18/2016 before Hon. Richard J. Arcara. Oral
Argument is held as to the 99 Objections filed by Plaintiff, Jeffrey Malkan to 96
Report and Recommendation (summary judgment motion). Decision is reserved.
Appearances: Pltf Jeffrey Malkan, pro se; Deft David Sleight (Court Reporter
Megan Pelka.) (DJD) (Entered: 03/03/2016)

11/16/2016

111 TEXT ORDER REASSIGNING CASE. Case reassigned to Hon. Michael A. Telesca
for all further proceedings. Hon. Richard J. Arcara no longer assigned to case. Issued
by Hon. Richard J. Arcara on 11/16/16. (LAS) (Entered: 11/16/2016)

11/16/2016

112 Remark: A copy of text order 111 has been mailed to Jeffrey Malkan, 12 Valleywood
Court West, Saint James, NY 11780 (LAS) (Entered: 11/16/2016)

12/16/2016

113 DECISION AND ORDER granting 55 Motion for Summary Judgment; denying 70
Motion for Sanctions; denying 83 Motion for Sanctions; adopting Report and
Recommendations re 96 Report and Recommendations.; denying 97 Report and
Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on
12/16/16. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)
CLERK TO FOLLOW UP (Entered: 12/16/2016)

12/18/2016

114 DECISION AND ORDER amending Decision and Order dated December 16, 2016..
Signed by Hon. Michael A. Telesca on 12/18/16. (JMC)
CLERK TO FOLLOW UP (Entered: 12/18/2016)

12/18/2016
12/20/2016
12/20/2016

(Court only) Copy of Amended Decision and Order dated December 18, 2016 sent by
first class mail to Plaintiff. (JMC) (Entered: 12/18/2016)
115 JUDGMENT in favor of Makau W. Mutua against Jeffrey Malkan. Signed by Mary C.
Loewenguth, Clerk of Court on 12/20/2016. (KM) (Entered: 12/20/2016)
(Court only) ***Set Closed Flags (KM) (Entered: 12/20/2016)

01/03/2017

116 NOTICE OF APPEAL by Jeffrey Malkan. FEE STATUS PAID (KM) (Entered:
01/05/2017)

01/03/2017

USCA Appeal Fees received $ 505 receipt number BUF053662 re 116 Notice of
Appeal filed by Jeffrey Malkan (KM) (Entered: 01/05/2017)