Attorney General and Former-Dean Mutua Rule 11 Cross-Motion For Sanctions

Case 1:12-cv-00236-RJA-HKS Document 83 Filed 07/23/15 Page 1 of 4
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
______________________________________
JEFFREY MALKAN,
Plaintiff,
CERTIFICATE OF SERVICE
vs.
12-CV-0236-A
MAKAU W. MUTUA,
Defendant.
______________________________________
CERTIFICATE OF SERVICE
I hereby certify that on July 23, 2015, I electronically filed the foregoing, along with the
memorandum of law in support thereof, with the Clerk of the District Court using its CM/ECF
system,
And, I hereby certify that on July 23, 2015, I caused to be mailed a copy of the foregoing,
along with the memorandum of law in support thereof, by the United States Postal Service, to the
following non-CM/ECF participants:
Jeffrey Malkan
12 Valleywood Court West
Saint James, NY 11780
BY:
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for the Defendant
/s/ Christopher L. Boyd
CHRISTOPHER L. BOYD
Assistant Attorney General
of Counsel
350 Main Street, Suite 300A
Buffalo, NY 14202
Telephone: (716) 853-8457
[email protected]
Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 1 of 27

_________________________________
JEFFREY MALKAN
Plaintiff,
vs.
12-CV-0236(A)
MAKAU W. MUTUA
Defendant.
__________________________________
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SANCTIONS
Attorney General of the State
of New York
Main Place Tower, Suite 300A
350 Main Street
Buffalo, NY 14202
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 4
ARGUMENT .................................................................................................................................. 4
I.
Plaintiffs Rule 11 Motion is Frivolous and Warrants Sanctions ....................................... 4
II.
Plaintiff Should be Sanctioned Pursuant to 28 U.S.C. 1927............................................ 7
III. The Court Should Consider Whether to Hold Plaintiff in Civil Contempt......................... 9
IV. Plaintiff Should be Sanctioned Pursuant to the Courts Inherent Power .......................... 12
A. Plaintiffs Repeated Violations of Ethics Rules Warrants Sanctions ............................. 12
1.
Plaintiff And His Former Counsel May Have Violated RPC 3.1 ........................... 13
2.
Plaintiff May Have Violated RPC 3.4 .................................................................... 15
3.
4.
B. The Court Should Consider Whether Referral For Discipline Is Appropriate ............... 21
C. Plaintiffs Conduct Warrants Dismissal of this Action as a Sanction ............................ 21
D. Plaintiff Should Be Directed to Cease Harassing AAG Sleight and Mr. Mutua ........... 25
CONCLUSION ............................................................................................................................. 25
Plaintiffs Motion for Sanctions Pursuant to Rule 11 of the Federal Rules of Civil
Procedure (ECF No. 70-7, Plaintiffs Rule 11 Motion, or Plaintiffs Motion) is only the
latest chapter in a long running campaign of invective, ad hominem attacks, threats and other
unprofessional conduct by Plaintiff in the course of this litigation. Plaintiffs actions would be
egregious for any litigant, but are especially deserving of opprobrium given that Plaintiff, Jeffrey
Malkan, Esq., is a member of the bar and former law professor, who should know better.
Defendant now moves for sanctions against Plaintiff, his former counsel, Fredric D.
Ostrove, Esq., and Mr. Ostroves firm, Leeds Brown Law P.C. (Leeds Brown) under Rule 11,
28 U.S.C. 1927 and the Courts inherent power. Defendant also requests that the Court
consider whether Mr. Malkan and Mr. Ostrove should be referred for discipline because their
conduct may have violated New Yorks Rules of Professional Conduct (RPC), and whether
Mr. Malkan should be held in civil contempt for disclosing confidential information shared
during mediation in violation of the Courts ADR Plan and related Standing Order.
PRELIMINARY STATEMENT
Plaintiff, while represented by counsel, filed Plaintiffs Rule 11 Motion on April 14,
2015, seeking sanctions against Defendant Makau W. Mutua, Esq. and Assistant Attorney
General David J. Sleight, Esq. Defendant responded on June 26, 2015. (ECF Nos. 72-78.)
Mr. Ostrove and Leeds Brown Law P.C. Move to Withdraw
On June 19, 2015, the Office of the Attorney General served a notice of motion on
Fredric D. Ostrove, Esq., Plaintiffs former counsel, of Defendants intention to cross-move for
sanctions against Plaintiff, Mr. Ostrove, and his firm. (Declaration of AAG David J. Sleight
dated July 23, 2015, the Sleight Declaration at Ex. E.)
On June 26, 2015, Plaintiff informed
Mr. Ostrove of his desire to terminate him as counsel. (Motion to Withdraw, ECF No. 80-1 3.)
Mr. Ostrove filed a Motion to Withdraw as counsel on July 15, 2015. Id. In the Motion
to Withdraw, Mr. Ostrove stated that [t]he Firm and I wish to exercise our safe harbor rights.
Id. at 5. However, Mr. Ostrove gratuitously added that I wish to highlight that our safe harbor
exercise is unrelated to the merits of the motion . . . I am 100% positive that the motion for
sanctions is well grounded in fact and law, and is therefore not frivolous. Id. The Rule 11 safe
harbor only protects a party where the offending pleading is withdrawn. Fed. R. Civ. Pro.
11(c)(2). Here, Mr. Ostrove sought to have the motion for sanctions be deemed to have
emanated from Plaintiff. (Mot. to Withdraw 8.) This is not the same as withdrawing the
motion. Moreover, the safe harbor period had already expired on July 13, 2015, before the
Motion to Withdraw was filed. See Fed. R. Civ. Pro. 11(c)(2).
The Court granted the Motion to Withdraw in part, terminating Mr. Ostrove as counsel,
but noting that [a]s the affiant to the Motion for Sanctions, Mr. Ostrove is granted permission to
respond to defendants anticipate motion for sanctions . . . (ECF No. 81.) The Court denied
Mr. Ostroves request to deem the motion for sanctions as filed by plaintiff nunc pro tunc. Id.
Mr. Ostrove is an experienced attorney who should have known better than to bring such
a frivolous motion. Indeed, Mr. Malkan has stated that he demanded that my lawyers, against
their own wishes file Plaintiffs Rule 11 Motion. (Sleight Dec. 13). Mr. Ostrove apparently
consented to file Plaintiffs Motion, despite his misgivings, upon payment of yet another
$25,000 by Mr. Malkan. Id. An attorney is not permitted to bring a baseless motion just
because his client demands it.
Mr. Malkans Conduct
Since initiating this lawsuit, Mr. Malkan has on a frequent, and sometimes daily, basis
circulated personal insults and tirades against Mr. Mutua and his counsel, AAG Sleight, as well
as many other esteemed members of the legal community. (See Sleight Dec.) Mr. Malkan has
accused AAG Sleight of lying, acting unethically, and has suggested he should be disbarred. Id.
37, 39. Mr. Malkan has also threatened to have criminal charges brought against Mr. Mutua,
Satish, K. Tripathi, president of the University at Buffalo and members of the UB Foundation,
among others. Id. 5-6, 12, 15-17, 23, 26, 35, 37-38.
Mr. Malkan has also exhibited a flagrant disregard for this Court and the judicial process.
Mr. Malkan widely circulated confidential information about mediation conducted in this case, in
violation of this Courts Standing Order. Perhaps most egregiously, after being served with this
Motion, Mr. Malkan emailed AAG Sleight and others to state that he will defy any civil
contempt citation entered against me . . . . Id. 44. Such blatant disregard of this Courts
authority should not be countenanced.
Plaintiffs Rule 11 Motion has no basis in law or fact. Indeed, it appears to have been
drafted with little regard for the facts asserted or legal authorities cited therein. Plaintiffs Motion
repeatedly relies on vacated authority, fails to provide the Court with the correct legal standard,
and repeatedly cites to a version of Rule 11 that has been out of date for over two decades.
Mr. Malkan, now proceeding pro se, filed a declaration in support of Plaintiffs Motion
for Sanctions on July 22, 2015 (ECF No 82, the Malkan Declaration). The Malkan
Declaration repeats Plaintiffs long list of grievances against Mr. Mutua and the Law School, but
does nothing to show that Defendant or AAG Sleight should be sanctioned. Indeed, the Malkan
Declaration contains numerous ad hominem attacks and threats of criminal prosecution that are
entirely inappropriate. Id. The legal argument in the Malkan Declaration is uniformly
inaccurate, to the point that it merits little response.1
The Office of the Attorney General does not take the issue of moving for sanctions
lightly, but Plaintiffs conduct has left this office with little choice. AAG Sleight has long
endured Plaintiffs unprofessional and abusive conduct without bringing these issues to the
Courts attention. Defendant would have preferred to litigate this case on the merits instead of
delving into a side-show. But Plaintiffs decision to file a baseless Rule 11 Motion mandated a
forceful response. Plaintiffs conduct has demonstrated that nothing short of a severe sanction
dismissal of this lawsuitwill stop his behavior.
STATEMENT OF FACTS
The facts relevant to this Motion are set out at length in Defendants Opposition to
Plaintiffs Rule 11 Motion and the declaration of David J. Sleight dated June 26, 2015 in support
thereof (ECF Nos. 74-75), as well as the declaration of David J. Sleight dated July 23, 2015, filed
in support of the instant Motion. In short, this dispute arose after Mr. Mutua, then dean of the
State University of New York at Buffalo Law School (the Law School), fired Mr. Malkan,
then the director of the Legal Research and Writing Program, due to his poor performance.
ARGUMENT
I.
Plaintiffs Rule 11 Motion is Frivolous and Warrants Sanctions

Rule 11 provides, in relevant part:
(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paperwhether by signing, filing, submitting, or later advocating
itan attorney or unrepresented party certifies that to the best of the persons
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
It is worth noting that Mr. Malkan demonstrates a fundamental misunderstanding of how Public Officers Law
Section 17 functions. (Malkan Dec. 95-102.) AAG Sleight does not represent the State University of New York,
he represents Mr. Mutua personally. Mr. Malkans citation to RPC 1.13 is entirely misplaced.
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law; . . . .
(c) Sanctions. (1) In General. If, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated, the court may
impose an appropriate sanction on any attorney, law firm, or party that violated the
rule or is responsible for the violation.
Fed. R. Civ. P. 11.
As explained more fully in Defendants Opposition to Plaintiffs Rule 11 Motion (ECF
No. 75), which Defendant hereby incorporates by reference, Plaintiffs Motion is wholly without
merit, frivolous, and designed to harass Mr. Mutua and AAG Sleight. Plaintiffs Motion makes a
number of arguments that have no basis in fact or law. Indeed, the entire thrust of Plaintiffs
Motion is that because Plaintiff has more declarants in support of his version of events than Mr.
Mutua, Mr. Mutua must be lying. Plaintiff cites no authority for this proposition.
A request for sanctions, especially one that seeks to impugn the honesty and integrity of a
party and his counsel, should not be made lightly. Nakash v. US Dept. of Justice, 708 F. Supp.
1354, 1370 (S.D.N.Y. 1988) ([R]equests for sanctions must be treated seriously and controlled
appropriately.) Filing a frivolous Rule 11 motion is itself sanctionable conduct. Safe-Strap Co.,
Inc. v. Koala Corp., 270 F. Supp. 2d 407, 421 (S.D.N.Y. 2003) ([W]here a partys motion for
Rule 11 sanctions is not well grounded in fact or law, or is filed for an improper purpose, a court
my find itself in the position of imposing Rule 11 sanctions on the moving party and/or her
attorney.); Lee v. Grand Sichuan Eastern (NY) Inc., 2014 U.S. Dist. LEXIS 6768, 3-4 (S.D.N.Y.
Jan. 17, 2014) ([A] Rule 11 motion that itself does not comply with Rule 11 can warrant
sanctions against the moving party.); In re Taub, 439 BR 276, 281 (Bankr. E.D.N.Y. 2010)
(same); Indus. Tech. Ventures LP v. Pleasant T. Rowland Revocable Trust, 08 Civ. 6227, 2012
U.S. Dist. LEXIS 31022 (W.D.N.Y. Mar. 8, 2012) (awarding attorneys fees against the filer of a
Rule 11 motion because it was utterly without support).
Plaintiffs Rule 11 Motion has no basis in fact or law. Plaintiffs legal contentions are
not warranted by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law and therefore, Plaintiff and his former counsel
are subject to sanctions under Rule 11. Fed.R.Civ.P. 11(b)(2). Moreover, Plaintiffs Rule 11
Motion appears to be presented for the improper purpose of harassing Defendant and his counsel.
Sanctions under Rule 11 do not turn on the issue of whether a party has acted in bad faith,
and acting in good faith is no defense. Bus. Guides, Inc. v. Chromatic Communs. Enters., 498
U.S. 533 (1991). Instead, sanctions under Rule 11 turn on the objective reasonableness of a
partys conduct. Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000) (Rule 11(b)(2) establishes an
objective standard, intended to eliminate any empty-head pure-heart justification for patently
frivolous arguments.) (quoting Simon DeBartolo Group v. Richard E. Jacobs Group, 186 F.3d
157, 166 (2d Cir.1999)). Thus, Rule 11 is violated when it is clear under existing precedents
that a pleading has no chance of success and there is no reasonable argument to extend, modify,
or reverse the law as it stands. Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir. N.Y. 2001). By its
terms, Rule 11 is applicable to both a party and the partys counsel. Eastway Constr. Corp. v.
City of New York, 821 F.2d 121, 124 (2d Cir. N.Y. 1987) (Rule 11 . . . authorizes assessment of
a fee against counsel, a party, or both.) Here, Defendant seeks sanctions against Plaintiff and
his former counsel, Mr. Ostrove, as well as Leeds Brown.2
Because no exceptional circumstances exist, Mr. Ostroves firm, Leeds Brown Law P.C., must be held jointly
responsible for the violations committed by Mr. Ostrove, who is a partner at the firm. Fed.R.Civ.P. 11(c)(1)
(Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.)
When Rule 11 is violated, the issuance of sanctions is left to the Courts discretion.
Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 166 (2d Cir.
1999) (Once a court determines that Rule 11(b) has been violated, the decision to impose
sanctions is discretionary.). The Court has wide discretion in determining the appropriate
sanction to fit the circumstances. Fed.R.Civ.P. 11(c)(4).3
Mr. Ostrove and Leeds Brown should be required to pay a substantial monetary sanction
in order to deter them from making similarly frivolous motions for sanctions in the future, and to
deter other litigants from doing so. Fed.R.Civ.P. 11(c)(4). Plaintiff and his former counsel
should also be required to pay Defendants attorneys fees and costs, both for making this
Motion and for opposing Plaintiffs Rule 11 Motion. Id. As explained in section III. C. infra,
Defendant has been informed that Mr. Malkan does not have substantial monetary resources and
believes the most appropriate sanction for his conduct is dismissal of this action.
II.
Plaintiff Should be Sanctioned Pursuant to 28 U.S.C. 1927

Plaintiffs unreasonable multiplication of the proceedings in this case warrants sanctions
under 28 U.S.C. 1927, which provides that:

Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys fees reasonably incurred because of such
conduct.
Id. Mr. Malkan and Mr. Ostrove are both attorneys. (Sleight Dec. 2.) They are subject to
sanctions under section 1927 for unreasonably multiplying the proceedings in this case.
Sanctions are warranted under section 1927 when an attorney has acted in bad faith.
State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 180 (2d Cir. 2004).
3
The Court may not impose monetary sanctions under Rule 11 against a represented party for violating Rule
11(b)(2). Fed.R.Civ.P. 11(c)(5). However, because Plaintiff is now proceeding pro se, he may be sanctioned under
Rule 11(b)(2) for advancing frivolous legal arguments.
However, [a]s with sanctions imposed pursuant to a courts inherent power, in the 1927
context, bad faith may be inferred only if actions are so completely without merit as to require
the conclusion that they must have been undertaken for some improper purpose such as delay.
Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999) (quoting Shafii v.
British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996)).
[I]t is one thing to be convinced of something; it is another thing to prove it. I can think
of no better way for a lawyer to damage his clients case than by making a pretrial accusation of
perjury that he is unable to prove. John Doe v. The Federal Grievance Commission (In re
Grievance Committee of United States Dist. Court), 847 F.2d 57, 64 (2d Cir. 1988) (concurring).
Plaintiff and his former counsel should have heeded the Second Circuits wise advice in Doe.
Plaintiff has taken an issue of factwhat was said during a meeting on April 26, 2006and
turned it into a time consuming sideshow. Plaintiff has already raised, ad nauseam, his belief
that Mr. Mutua lied about the meeting in opposing Defendants Motion for Summary Judgment.
(See Pls Opp. to S.J. at 1, 26-27.) Plaintiff now attempts to use his Rule 11 Motion to have a
trial by affidavits on the issue of whether Defendants recollection of the meeting is correct.
Anderson v. Liberty Lobby, Inc., 477 US 242 (1986) ([The Court] by no means authorizes trial
on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. . . .)
A Rule 11 motion is not the proper vehicle to emphasize Plaintiffs argument:
To submit full briefing in opposition to a summary judgment motion and then
submit the same grounds as supporting a separate Rule 11 motion is patently
unreasonable: one opposition is both sufficient and all a party is entitled to. Despite
Attorney Josephs contention at oral argument that she felt strongly that BCIs
position was incorrect, a firmly held conviction of the correctness of ones position
does not authorize collateral attack on an opponents legal arguments by resort to
Rule 11. To hold otherwise would be to condone wasteful motion practice as well
as invite responsive cross-motions for sanctions.
8
On Time Aviation, Inc. v. Bombardier Capital Inc., 570 F. Supp. 2d 328, 332 (D. Conn. 2008)
affd at 354 Fed. Appx. 448 (2d Cir. 2009). Nor is Rule 11 to be used as a tactical device:
A request for sanctions under Rule 11 is not a tactical device. Asserting a request
for strategic reasons when there is any colorable argument supporting an
adversarys position constitutes an improper purpose within the meaning of the
Rule. When a substantive motion is involved, courts are best able to rule on
requests for sanctions after deciding the underlying motion.
Nakash, 708 F. Supp. at 1370. Plaintiffs Rule 11 Motion has but one purpose, to emphasize the
point that Plaintiff has a firmly held conviction that the Defendant lied. Plaintiff has already
repeatedly made his point that he believes Defendant lied in Plaintiffs Opposition to Defendant
Mutuas Motion for Summary Judgment (ECF No. 61). Plaintiffs Rule 11 Motion is merely an
improper attempt to further repeat that same argument. See On Time Aviation, 570 F. Supp. 2d
at 332. Moreover, a determination regarding Defendants credibility is not for Plaintiff to
decide, it is for the jury, were this matter to proceed to trial. Rule v. Brine, Inc., 85 F.3d 554 (2d
Cir. 1996) (Assessments of credibility and choices between conflicting versions of the events
are matters for the jury, not for the court on summary judgment.)
Because Plaintiff and his former counsel have unreasonably and vexatiously multiplied
the proceedings in this case, they should be required to satisfy personally the excess costs,
expenses, and attorneys fees reasonably incurred by Defendant as a result of Plaintiffs Rule 11
Motion, including the attorneys fees and costs associated with bringing this Motion and
opposing Plaintiffs Rule 11 Motion. 28 U.S.C. 1927.
III.
The Court Should Consider Whether to Hold Plaintiff in Civil Contempt

On March 23, 2012, this case was automatically referred to mediation. (ECF No. 3.) On
October 24, 2012, a copy of the ADR Plan for the Western District of New York, as revised June
24, 2011 (the ADR Plan), was forwarded by the Court to counsel for the parties. (ECF No.
9
25.) The Court entered a Case Management Order directing mediation in accordance with the
ADR Plan. (ECF No. 26.) On December 12, 2012, the Court denied the parties request to optout of mediation, and ordered the parties to mediation. (ECF No. 28.) Mediation was held on
March 1, 2013 and dates thereafter. (ECF Nos. 34, 51.) The ADR Plan provides, inter alia:
CONFIDENTIALITY. Each of the interventions and processes under this ADR Plan
shall be confidential as set forth in the corresponding sections below. 4.4
Prohibition Against Filing. Mediation Memoranda shall not be filed and the
assigned Judge shall not have access to them. They shall be subject to the
confidentiality of the mediation process and treated as a document prepared for
settlement purposes only. 5.6(B)
CONFIDENTIALITY IN MEDIAITON. Confidential Treatment. Mediation is

confidential and private. No participant in the mediation process or any portion
thereof may communicate confidential information acquired during mediation
without the consent of the disclosing party. 5.10 (A.)
The ADR Plan provides that violations may result in sanctions. (ADR Plan 2.3.)4
The ADR Plan is implemented by a Standing Order of this Court dated January 20, 2010.
Local Rule 16(a) of the Local Rules of Civil Procedure for the Western District of New York
provides that [t]his Court has adopted an Alternative Dispute Resolution Plan (ADR), as
implemented by Standing Order, under which certain civil cases are referred automatically to
ADR upon filing. The Clerk of Court will provide notice to the parties when a case is
automatically referred. . . . The ADR process is confidential. L.R.Civ.P. 16(a).
In direct contravention of the confidentiality provisions of the ADR Plan, the Courts
January 20, 2010 Standing Order and Local Rule 16(a), Mr. Malkan discussed the confidential
mediation with a reporter for The Spectrum, a student publication of the University at Buffalo:
On March 1, mediation was held. Malkan said he was there with his attorneys,
along with Ewing, SUNY Counsel Jim Jarvis, Esq., and Assistant Attorney General
David Sleight.
4
Although the ADR Plan provides a mechanism whereby parties may inform the Court of violations, and the Court
may issue an order to show cause as to why sanctions should not be imposed, the ADR Plan does not appear to limit
a partys ability to seek sanctions and civil contempt by motion. (ADR Plan 2.3.)
10
According to Malkan, Mutua did not show up to the mediation, claiming that he had
more important business elsewhere. Malkan claims this is a violation of the rules.
Malkan also claims the attorney general asked for time until March 21 to come back
with a settlement offer but later asked for an extension until April 2. The attorney
general informed Malkan that UB declined to make any settlement offer, saying the
case will be going to trial in federal court before the end of 2013.
This is disappointing, of course, because over the five years of this dispute SUNY
Buffalo has refused to make any settlement offer at all, not one dollar, and has
blocked me from obtaining a teaching job at any other law school, Malkan wrote
in an email. Im also afraid that the trial in federal court will be harmful to the law
schools reputation because the facts that will be revealed will not be flattering.
The Spectrum, April 29, 2013, Former UB law professor proceeds with federal suit against UB
Law School, Sleight Dec. 53. Mr. Malkan has also sent email missives to non-parties to this
lawsuit discussing the mediation. (Sleight Dec. 13.)
Most egregiously, Mr. Malkan posted his mediation statement publicly on the web
publishing platform Scribd. (Sleight Dec. 54.)5 Publicly posting a mediation memorandum
on the internet is a direct violation of the ADR Plans Prohibition Against Filing. As such, Mr.
Malkan may have violated the ADR Plan, the Courts Standing Order and Local Rule 16(a).
The power to punish for contempts is inherent in all courts; its existence is essential to . .
. the due administration of justice. Ex parte Robinson, 86 U.S. 505, 510 (1874). 18 U.S.C.
401 provides that [a] court of the United States shall have power to punish by fine or
imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . .
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. The
Court should consider whether Mr. Malkans violation of the confidentiality provision of the
ADR Plan should subject him to sanctions and civil contempt under 18 U.S.C. 401.
A copy of Plaintiffs mediation statement is publicly available on the internet at

http://www.scribd.com/doc/217761477/statement-of-facts-and-damages-submitted-2-27-2013.
11
IV.
Plaintiff Should be Sanctioned Pursuant to the Courts Inherent Power

Courts of justice are universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum, in their presence, and submission to their lawful
mandates. Anderson v. Dunn, 19 U.S. 204 (1821). All federal courts possess the power to
sanction parties that appear before them. Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991).
This Courts inherent authority includes the ability to order outright dismissal of a lawsuit as
well as all lesser sanctions. Id. at 45. Conduct that might be otherwise sanctionable by rule or
statue can nonetheless be sanctioned pursuant to the Courts inherent power if the Court deems it
appropriate. Id. at 46 ([N]either is a federal court forbidden to sanction bad-faith conduct by
means of the inherent power simply because that conduct could also be sanctioned under the
statute or the Rules.) Unlike sanctions under Rule 11, bad faith is a prerequisite to the Courts
use of its inherent sanctioning power when considering representational conduct. Id. (inherent
sanctioning power is both broader and narrower than other means of imposing sanctions.).
The conduct of Plaintiff and his former counsel in this case warrants sanctions pursuant
to the Courts inherent power, including the drasticbut warrantedsanction of dismissal of
Plaintiffs lawsuit. Plaintiff has engaged in a campaign of harassment directed at AAG Sleight,
Mr. Mutua, and other members of the Law School and the Buffalo legal community. While such
actions would be sanctionable if carried out by any litigant, they are particularly egregious given
that Mr. Malkan is an attorney and was previously a professor at the Law School.
A. Plaintiffs Repeated Violations of Ethics Rules Warrants Sanctions
Although federal courts do not generally enforce state bar disciplinary rules, they have
the inherent power to address attorney misconduct that occurs during the course of litigation. In
doing so, they often look to the standards of professional conduct in the state where the federal
12
court sits. Alexander Interactive, Inc. v. Adorama, Inc., 12 Civ. 6608, 2014 U.S. Dist. LEXIS
91052, at *5 (S.D.N.Y. June 26, 2014). Here, the relevant standards are New Yorks Rules of
Professional Conduct. Mr. Malkans conduct appears to have potentially violated several of the
RPCs, including 3.1, 3.4, 4.2 and 8.4. Mr. Ostroves conduct may have violated RPC 3.1.
1. Plaintiff And His Former Counsel May Have Violated RPC 3.1
RPC 3.1, Non-Meritorious Claims and Contentions provides, in relevant part,:
Non-Meritorious Claims and Contentions
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so that is not frivolous.
(b) A lawyers conduct is frivolous for purposes of this Rule if:
(1) the lawyer knowingly advances a claim or defense that is unwarranted under
existing law, except that the lawyer may advance such claim or defense if it can be
supported by good faith argument for an extension, modification, or reversal of
existing law;
(2) the conduct has no reasonable purpose other than to delay or prolong the
resolution of litigation, in violation of Rule 3.2, or serves merely to harass or
maliciously injure another; . . . .

Plaintiff and Mr. Ostrove may have violated RPC 3.1 for the reasons outlined in Sections I-II,
infra. Plaintiffs Rule 11 Motion is frivolous and appears to have been filed to harass AAG
Sleight. Disturbingly, it appears that Mr. Malkans counsel knew that Plaintiffs Rule 11 Motion
was frivolous prior to filing it, but did so anyway. In a December 5, 2014 email, Mr. Malkan
wrote I have to find $25,000 by next week to finance my Rule 11 motion. . . . The Universitys
disrespect and defiance has continued to the point that I have to demand that my lawyers,
against their own wishes, hold the AAG personally responsible for the fraudulent pleadings he
has signed. (Sleight Dec. 13.) (emphasis added).
While attorneys should advocate zealously for their clients, they are not permitted to file
a frivolous motion merely because a client demands it. See Fed.R.Civ.P. 11. Mr. Ostroves
obligations under the RPC and the Federal Rules required him to refrain from filing Plaintiffs
13
Rule 11 Motion if he believed it was frivolous. Plaintiffs demand does not relieve Mr.
Ostrove of this obligation. It is unclear whether the $25,000 fee referenced by Mr. Malkan is an
additional retainer payment or a risk premium required by Mr. Ostrove prior to filing a motion
he knew to be baseless. This issue may warrant further investigation by the Court.
It is also worth noting that Mr. Ostrove and his firm were recently referred to the
Committee on Grievances by the United States District Court for the Eastern District of New
York. C.M. v. Syosset Cent. Sch. Dist., 11-cv-1402, 2013 U.S. Dist. LEXIS 157346 (E.D.N.Y.
Oct. 24, 2013) adopted by 2013 U.S. Dist. LEXIS 166529 (E.D.N.Y. Nov. 22, 2013). In C.M.,
the court found it troubling that Leeds Brown charged a client a 40% contingency fee and
payment of hourly attorneys fees and costs by the plaintiff. Id. at *26. The firm was alleged to
have told the parents of the infant plaintiff to [g]o mortgage your home to continue paying the
firms legal bills because the case was worth millions. Id. at * 34. The court concluded that
no reasonable attorney could possibly value this matter as a case having a value in the
millions. Id. The court determined that the proposed settlement was inadequate as it provided
the plaintiff with $17,500, while $75,000 in fees had been paid by plaintiff to Mr. Ostrove and
his firm, for a total effective rate of 429%. Id at *28-29. The court found statements by Mr.
Ostrove in the settlement process to be highly misleading. Id. at *35. The court held that
[t]aken together, these failings may implicate NYPRC 3.3. Id. at *39.
Given his prior conduct in other matters, Mr. Ostroves questionable conduct in this case
may merit further investigation. Defendant leaves this issue to the sound discretion of the Court.
14
2. Plaintiff May Have Violated RPC 3.4

RCP 3.4 is titled Fairness to Opposing Party and Counsel. RPC 3.4(e) provides that A
lawyer shall not: present, participate in presenting, or threaten to present criminal charges solely
to obtain an advantage in a civil matter.6
Mr. Malkan has repeatedly threatened to prosecute, or refer for prosecution, Defendant,
AAG Sleight, President Tripathi, Interim Dean Gardner and many faculty members of the Law
School, among others. (Sleight Dec. Id. 5-6, 12, 15-17, 23, 26, 35, 37-38.) Indeed, he has
made good on these threats and has presented charges to the Albany County District Attorneys
Office, among other law enforcement entities. Id. 24. Most recently, in the Malkan
Declaration, Plaintiff stated [a]ll that is left of this case is a crime, its cover-up, and a failing law
school. This is a job for law enforcement and regulatory agencies, not for me. Id. 43.
The apparent purpose of these threats is to convince Defendant, the Law School and
AAG Sleight to settle this matter with a substantial payout to Mr. Malkan to avoid further
reputational injury. Mr. Malkan has made too many threats to discuss them all in this
memorandum, and Defendant refers the Court to the Sleight Declaration for a fuller recitation
thereof. However, a cursory examination of some of Mr. Malkans myriad threats shows the
inherent inappropriateness of his conduct:
I believe that the involvement of law enforcement is inevitable, and that all of this will
quicken the downward spiral of this Law School. (Sleight Dec. Ex A. at Bates No. 75.)
Im writing to let you know that in mid-March, the U.S. federal district court will have
the evidence before it on the issue of former-Dean Makau W. Mutuas perjury. I believe
that federal law enforcement will then have probable cause to take over the criminal
aspect of this matter in all of its dimensions. Id. 74.
This language is identical to the language in the prior Disciplinary Rules. See DR 7-105(A). Because the language
is identical, analysis of DR 7-105(A) is equally relevant to analyzing RPC 3.4(e). See In re Amgen Inc., No. 10MC-0249 (SLT) (JO) 2011 U.S. Dist. LEXIS 68960, *36-37 n. 15 (E.D.N.Y. Apr. 6, 2011) (applying analysis of old
Disciplinary Rule to RPC where language was substantially the same).
15
President Tripathis sworn affidavit was false in almost every single respect. This is a
serious crime and I will not drop this matter until he is held legally accountable. The
President of the flagship campus of the SUNY system is not above the law. Id. at 97.
Indeed, on October 18, 2014, Mr. Malkan sent AAG Sleight a copy of a complaint Mr.
Malkan had sent to the Office of the District Attorney for Albany County accusing Mr. Mutua of
perjury. Id. 24. Mr. Malkan sent a copy of the letter to his attorneys, who were thus aware of
Mr. Malkans inappropriate conduct. Id.
Equally troubling is the fact that Mr. Malkan has repeatedly sent messages with the
veiled threat that Defendants failure to settle the case will result in criminal prosecution and
reputational injury for Defendant and others at the Law School:
Against my will, I am bound to this case until justice is done. This case could have
been settled for one years severance pay (maybe less) on February 15, 2009 (PERB
mediation) and for 2.6 million (maybe less) on March 1, 2013 (federal mediation).
Much has happened since last March and all of it devastating to the Law School.. . .
. Meanwhile, over the past seven years, I have not received a settlement offer of
even one dollar. The faculty is now looking at triple damages with interest,
attorneys fees, investigative expenses to account for and recover misappropriated
funds, internal disciplinary proceedings, further litigation in the criminal justice
system, etc.
Id. 13. Additional messages on this topic are discussed in the Sleight Declaration.
Mr. Malkans conduct appears to be a clear violation of RPC 3.4(e). This court has
heretofore expressed its disapproval of using threats of criminal prosecution as a means of
forcing a settlement of civil claims. . . Where the threat to begin criminal proceedings is followed
by the actual institution thereof the offense is still more serious. In re Gelman, 230 A.D. 524,
527 (N.Y. App. Div. 1930); In re Abrahams, 158 A.D. 595, 599 (N.Y. App. Div. 1913) ([A]
lawyer is never justified in using a criminal proceeding to collect a civil debt or enforce a civil
right . . . .); In re Hyman, 226 A.D. 468, 470 (N.Y. App. Div. 1929) (There is no question that
respondent was guilty of reprehensible conduct . . . in writing the letter threatening criminal
16
action.); In re Glavin, 107 A.D.2d 1006, 1007 (N.Y. App. Div. 3d Dept 1985) (same) (citing
DR 7-105); Realuyo v. Diaz, 98 CV 7684, 2006 U.S. Dist. LEXIS 11420, at *32 (S.D.N.Y. Mar.
17, 2006) (finding that attorney violated DR 7-105 where, inter alia, Plaintiff indicated that Mr.
Hahms attitude in not settling this matter for a larger amount invites an investigation into [Mr.
Hahms] alleged criminal activities . . . .); Zubulake v. UBS Warburg LLC, 230 F.R.D. 290,
293 (S.D.N.Y. 2003) ([A] party to civil litigation cannot threaten to instigate criminal charges
solely to gain a strategic advantage.)
Threatening to have an adverse party or witnesses prosecuted for perjury has been held to
violate RPC 3.4(e) and its predecessor, DR7-105. Kalyanaram v. New York Inst. of Tech., 63
A.D.3d 435, 439 (N.Y. App. Div. 1st Dept 2009). In Kalyanaram, an attorney sent an adverse
witness a letter stating:
I determined that it was my clients position that statements made in your affidavit
were untrue. . . . If indeed your sworn allegations were knowing falsehoods,
without a retraction, you could be guilty of perjury. . . if you change your affidavit
to rectify any untrue statements before the proceeding in New York State Supreme
Court is over, you may have a defense to the perjury charges.
Id. The Court concluded that [t]here can be no question, however, that the communications
with the witness and with respondents campus security directors, whether or not amounting to
an outright accusation of perjury, were intended to harass or maliciously injure respondents
witness. The communications transgressed the former Code of Professional Responsibility DR
7-105. . . . Id. at 439-440 (internal citations omitted).
Similar threats have also resulted in the imposition of sanctions. Jalor Color Graphics,
Inc. v. Universal Advertising Sys., 183 Misc. 2d 294, 299-300 (N.Y. Civ. Ct. 1999) affd by 193
Misc. 2d 76, 77 (N.Y. App. Term 2002) affd by 2 A.D.3d 165, 166 (N.Y. App. Div. 1st Dept
2003). In Jalor, [d]uring the actual trial, defense counsel sought to impeach plaintiffs vice-
17
president with certain prior sworn statements which defense counsel claimed were perjurious.
183 Misc. 2d at 295-296. Following trial, defendants attorney, a former ADA, sent opposing
counsel a letter stating that he was continuing to investigate . . . the commission of a felony
specifically perjury and related offenses. Id. at 296. The Court issued sanctions finding that
that defense counsels letter was part of a calculated, deliberate strategy designed to harass
plaintiff into folding its litigation hand . . . . Id. at 299. The First Department affirmed, finding
defendants counsel had engaged in in terrorem tactics and that, [s]uch baseless threats
constituted frivolous conduct undertaken primarily to harass and intimidate an adversary, and to
frustrate resolution of this commercial litigation. 2 A.D.3d at 616.
New York Ethical Canon 7-21 (although no longer operative) provides context for the
motivation behind RCP 3.4(e):
The civil adjudicative process is primarily designed for the settlement of
disputes between parties, while the criminal process is designed for the
protection of society as a whole. Threatening to use, or using, the criminal
process to coerce the adjustment of private civil claims or controversies is
a subversion of that process . . . .
New York State Bar Association Opinion 772 interpreted DR 7-105(A) noting that it does not
prohibit all threats to present criminal charges; it prohibits only those that are made solely to
obtain an advantage in a civil matter. (NYSBA Op. 772 at B.) However, the opinion noted
that a lawyer who sends a letter containing such a communication is exposed to professional
discipline based upon the disciplinary authorities interpretation of the lawyers intent in sending
the letter or statement. (Id. at A.) Opinion 772 further explains that:
[W]hen a lawyer threatens criminal charges unless the recipient takes specified
action, the threat is likely to have one clear purpose the doing of that specified act.
Thus, when a lawyer threatens to present criminal charges unless an action is taken
which remedies a civil wrong, a presumption is likely to arise that DR 7-105(A) has
been violated.
18
(Id. at B.) Mr. Malkans repeated threats of criminal prosecution, his filing of a complaint with
the Albany District Attorney, and his statements implying a linkage between his threats of
prosecution and the failure of Defendant at the Law School to settle all suggest that Mr. Malkan
may have violated RCP 3.4(e).
RPC 4.2, Communication With Person Represented By Counsel, provides that:
(a) In representing a client, a lawyer shall not communicate or cause another to
communicate about the subject of the representation with a party the lawyer knows
to be represented by another lawyer in the matter, unless the lawyer has the prior
consent of the other lawyer or is authorized to do so by law.
(b) Notwithstanding the prohibitions of paragraph (a), and unless otherwise
prohibited by law, a lawyer may cause a client to communicate with a represented
person unless the represented person is not legally competent, and may counsel the
client with respect to those communications, provided the lawyer gives reasonable
advance notice to the represented persons counsel that such communications will
be taking place.
(c) A lawyer who is acting pro se or is represented by counsel in a matter is subject
to paragraph (a), but may communicate with a represented person, unless otherwise
prohibited by law and unless the represented person is not legally competent,
provided the lawyer or the lawyers counsel gives reasonable advance notice to the
represented persons counsel that such communications will be taking place.
Rule 4.2, known as the no-contact rule, provides, in subsection (c), that the rule applies to a
lawyer who is acting pro se or is represented by counsel. A lawyer may only contact an
opposing represented party upon consent or after reasonable advance notice to the represented
persons counsel. Id. Subsection (c) is a codification of NYSBA Ethics Opinion 879:
Even when a lawyer is permitted to communicate with a counterparty
(e.g., with the prior consent of opposing counsel or authorized by law to
do so), the lawyer should keep in mind the broad goals underlying the nocontact rule, whose main purpose is to protect the represented party. Thus,
when communicating with a represented counterparty, a lawyer (a) must
avoid overreaching and abusive, harassing, or unfair conduct toward
the represented person . . . .
Id. (emphasis added).
19
Neither Mr. Malkan nor his former counsel ever provided AAG Sleight with advance
notice of Mr. Malkans intent to contact Mr. Mutua. (Sleight Dec. 4.) Indeed, Mr. Ostrove
was repeatedly asked to have his client stop harassing Defendants and their counsel. Id. 8, 2122. Despite these requests, Mr. Malkan repeatedly contacted Mr. Mutua via email and on social
media regarding this case, often with the clear intent to abuse and harass Mr. Mutua. Moreover,
Mr. Malkan repeatedly insulted and impugned the integrity of AAG Sleight to members of the
legal community and press, knowing full well that AAG Sleightbound by the no-contact
rulecould not respond to defend himself. The fact that Mr. Malkan is now proceeding pro se
does not change the fact that he is bound by, and repeatedly violated, the no contact rule.
Mr. Malkan has on various occasions emailed Mr. Mutua and others to state that Mr.
Mutua is corrupt and incompetent, foolish and dishonest, and a liar and a felon. (Sleight
Dec. Ex B at Bates Nos. 174, 190.) Mr. Malkan stated that Mr. Mutuas conduct has been an
open book of vanity, arrogance, treachery, hypocrisy, and deceit. Id. at 191. These comments
barely scratch the surface of Mr. Malkans ad hominem attacks. Mr. Malkan has repeatedly
emailed AAG Sleight, calling his conduct unethical and illegal, as well as unethical and
immoral. Id. at 276, 284. Most recently, Mr. Malkan stated that If I were you I would consult
with the ethicists and experts in criminal law in your office and consider your options for
returning to the path of the law before you are disbarred, along with your criminal client. Id. at
323. Mr. Malkan has forwarded his screeds to many in the legal community and the press in an
attempt to impugn AAG Sleights reputation. (See Sleight Dec.)
Mr. Malkans repeated contact with Mr. Mutua is a clear violation of RPC 4.2. The
abusive and harassing tenor of Mr. Malkans messages make the violation all the more
egregious. See NYSBA Ethics Opinion 879.
20

RPC 8.4, titled Misconduct, provides, in relevant part, that A lawyer or law firm shall
not: . . .(h) engage in any other conduct that adversely reflects on the lawyers fitness as a
lawyer. Sending harassing messages has been found to violate RPC 8.4(h). See, e.g., Matter of
Panetta, 127 A.D.3d 99, 102 (N.Y. App. Div. 2d Dept 2015) ([T]he respondents email to Ms.
Curry was designed to harass her, and his conduct adversely reflects on his fitness as a lawyer.).
Mr. Malkans harassing messages reflect adversely on his fitness as a lawyer.
B. The Court Should Consider Whether Referral For Discipline Is Appropriate
A federal court has the power to discipline attorneys who appear before it. See Ex parte
Burr, 22 U.S. 529 (1824). Mr. Malkans and Mr. Ostroves conduct, to the extent it violated
applicable disciplinary rules, is a basis for sanctions. Alexander Interactive, Inc., 2014 U.S. Dist.
LEXIS 91052, at *5. Whether Mr. Malkan and Mr. Ostrove should be referred for discipline is a
matter left within the sound discretion of the Court.
C. Plaintiffs Conduct Warrants Dismissal of this Action as a Sanction
The Supreme Court has held that outright dismissal of a lawsuit, while a particularly
severe sanction is clearly within the courts discretion. Chambers, 501 U.S. at 45. However,
because of the very potency of a courts inherent power, it should be exercised with restraint
and discretion. United States v. International Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir.
1991) (quoting Chambers, 501 U.S. at 45). Thus, the courts factual findings of bad faith must
be characterized by a high degree of specificity. Milltex Indus. Corp. v. Jacquard Lace Co.,
55 F.3d 34, 38 (2d Cir. 1995) (internal quotations omitted).
This case bears a striking similarity to Blum v. Schlegel, No. 91-CV-633S, 1996 U.S.
Dist. LEXIS 21598, (W.D.N.Y. May 9, 1996) affd, No. 96-7705. 1997 U.S. App. LEXIS 5442
21
(2d Cir. Mar. 21, 1997). Jeffrey M. Blum was a former associate professor of law at the Law
School who alleged various constitutional violations against the dean of the law school, the
president of the university, and other officers and professors. Id. at *3. The defendants moved
for sanctions and contempt against Blum for violating a protective order and his disrespectful
conduct. Blum sent a variety of letters containing ad hominem attacks against defense counsel,
the Attorney General and others. Id. at *7. For example, Blum stated that former defense
counsel admittedly was never the smartest, handsomest or kindest person I have met. Id.
Judge Skretny dismissed Blums action as a sanction pursuant to the Courts inherent
power given Blums repeated inappropriate conduct and his violation of a protective order. Id.
Judge Skretny explained that a litigant acts in bad faith sufficient to warrant the imposition of
sanctions where his actions are entirely without color and motivated by an improper purpose. Id.
at 17-20. The Court applied a five factor test set out by the Ninth Circuit in Anheuser-Busch,
Inc. v. Natural Beverage Distributors to determine whether dismissal was warranted:
(1) the publics interest in expeditious resolution of litigation; (2) the courts need
to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.
69 F.3d 337, 348 (9th Cir. 1995). While this test is not mandatory, it provides a useful rubric.
Here, Mr. Malkans actions rise to the level of bad faith. Mr. Malkans repeated attacks
on AAG Sleight, President Tripathi, Mr. Mutua, and others on the faculty of the Law School are
all entirely without color and designed to harass. As Judge Skretny explained in Blum, I do not
take lightly the fact that Blum has personally attacked opposing counsel as never the
handsomest person I have ever met, a short, clever, shifty-eyed, slightly napoleonic, ItalianAmerican, and a butcher, respectively. Blum, 1996 U.S. Dist. LEXIS 21598 at *18-19. Such
personal attacks are de facto entirely without color and are improper. Id. Applying the five
22
factor test from Anheuser-Busch, it is apparent that Mr. Malkans conduct warrants dismissal of
this action:
1) the publics interest in expeditious resolution of litigation
Plaintiffs Rule 11 Motion was frivolous and was filed merely to belabor a point already
made by Plaintiff in his Opposition to Defendants Motion for Summary Judgment. Plaintiffs
decision to file his Rule 11 Motion has led to the current side-show that is needlessly occupying
the Courts time and docket, which would be better spent adjudicating the merits of other cases.
2) the courts need to manage its dockets
This factor is related to the first. As Judge Skretny explained in Blum, [t]he Court, in
other words, must be able to fairly apportion its time to each case before it. Where litigants and
their attorneys impose artificial roadblocks, as in this case, the entire docket suffers. Id. at *2728. Here, Mr. Malkan has repeatedly acted in an inappropriate manner, baselessly attacking
AAG Sleight, President Tripathi and others at the Law School. He has also demonstrated a
disrespect for this Courts authority by stating that he will defy any civil contempt citation
entered against me . . . . (Sleight Dec. 44.) Mr. Malkan has also wasted the Courts time by
filing a frivolous Rule 11 Motion, rather than litigating on the merits.
3) the risk of prejudice to the party seeking sanctions
Mr. Malkan has sought to litigate his claims in a variety of forums, including the New
York State Public Employment Relations Board and the New York State Court of Claims. Mr.
Malkan has lost in every other forum where he has raised claims relating to the termination of his
employment with the Law School.7 Moreover, Mr. Malkans conduct in filing a frivolous Rule
Mr. Malkan has pursued, inter alia, an improper practice charge under his union contract, a grievance with the Law
Schools Grievance Committee, an improper practice charge at the PERB, and a claim for breach of contract in the
N.Y. Court of Claims. See Plaintiffs Rule 56.1 Counterstatement of Material Facts 46 (ECF No. 63-8); Sleight
Dec. 32.
23
11 Motion and repeatedly harassing Defendant and his counsel has prevented this case from
proceeding to any merit-based disposition. Blum, 1996 U.S. Dist. LEXIS 21598 at *28.
4) the public policy favoring disposition of cases on their merits
This factor is similar to the third. Mr. Malkans repeated attacks on opposing counsel,
and his stated intention to disobey the lawful orders of this Court demonstrate that he is not
entitled to an adjudication on the merits. Indeed, [w]hen a litigant resorts to such tactics, rather
than respect the judicial process as a means to litigate the substance of his claims, he eviscerates
the Courts ability to fairly adjudicate them on the merits. Id. at *29.
5) the availability of less drastic sanctions
Here, Mr. Malkan has already stated his intention to defy this Courts orders, and as such
[i]ssue and evidence preclusion . . . would hardly suffice in this case, because Mr. Malkans
obstructionist and abusive tactics would continue undeterred with respect to whatever issues
remained. Id. at 30. Moreover, a monetary sanction against Mr. Malkan is not likely to be
effective in deterring future conduct, given his apparent disregard of the Courts authority.
Finally, Defendant has been informed that Mr. Malkan does not have substantial
monetary resources. Mr. Malkan purportedly only has approximately $3,000 in his checking
account. (Sleight Dec. Ex A. at Bates No. 30.) Here, a monetary sanction is amply warranted,
but imposing such a sanction where the party lacks the means to pay any financial sanction
imposed, would serve little purpose. Blum, 1996 U.S. Dist. LEXIS 21598 at *32. Indeed, a
monetary sanction here may in fact be the harsher sanction, as compared with dismissal. Id.
Given that Mr. Malkan has acted in bad faith, and has met the five factor test adopted in
Blum, Defendant respectfully submits that the Court dismiss this action, with prejudice.
24
D. Plaintiff Should Be Directed to Cease Harassing AAG Sleight and Mr. Mutua
Mr. Malkans conduct in repeatedly sending harassing emails to AAG Sleight and Mr.
Mutua should not be countenanced. While Mr. Malkan has the right to express his views, as
protected by the First Amendment, he is also an attorney and cannot be allowed to engage in
harassing and offensive conduct towards his opponents in litigation.
In Blum, Judge Skretny issued an order preventing Mr. Blum from filing further frivolous
papers in his contempt proceedings. Id. at * 24. Here, the Court should issue a similar order
directing Mr. Malkan to cease his ad hominem attacks on Defendant and his counsel.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Court (i) sanction Mr.
Malkan, Mr. Ostrove and Leeds Brown pursuant to Rule 11, 28 U.S.C. 1927 and the Courts
inherent power, (ii) dismiss this action with prejudice, (iii) enter an Order directing Mr. Malkan
to cease harassing Mr. Mutua and AAG Sleight, (iv) award attorneys fees and costs associated
with bringing this Motion, and (v) such other relief as the Court deems proper. Defendant also
respectfully requests that the Court consider whether (i) to hold Mr. Malkan in civil contempt for
violating the ADR Plan, and (ii) to refer Mr. Malkan and Mr. Ostrove for discipline.
Dated: July 23, 2015
Buffalo, NY
Attorney General of the State of New York
Attorneys for Defendant
BY:
/s/ Christopher L. Boyd_
.
8
CHRISTOPHER L. BOYD
DAVID J. SLEIGHT
Assistant Attorneys General of Counsel
Main Place Tower, Suite 300A
350 Main Street
Buffalo, NY 14202
(716) 853-8457 | [email protected]
AAG Boyd is entering a limited appearance for the purpose of bringing this Motion. Defendant will continue to be
represented by AAG Sleight.
25

_______________________________________
JEFFREY MALKIN,
DECLARATION
Plaintiff,
vs.
12CV0236(A)
MAKAU W. MUTUA,
Defendant.
________________________________________
DAVID J. SLEIGHT, declares under penalty of perjury that the following is true and
correct:
1.
I am an Assistant Attorney General, of counsel to Eric T. Schneiderman, Attorney
General of the State of New York, attorney for Defendant Makau W. Mutua. This declaration is
submitted in support of Defendants motion for sanctions against Plaintiff, his counsel, Fredric
D. Ostrove, Esq., and Mr. Ostroves firm, Leeds Brown Law P.C. for their filing of a frivolous
Rule 11 Motion and for Plaintiffs conduct during the course of this litigation that warrants
sanctions. Defendant is also asking the Court to consider whether Plaintiff should be held in civil
contempt and whether to refer Plaintiff and Mr. Ostrove for discipline because their conduct may
have violated the New York Rules of Professional Conduct (RPC).
2.
The frivolous nature of Plaintiffs Rule 11 motion is addressed in the memorandum
of law submitted in support of this motion and in Defendants memorandum of law in opposition
to Plaintiffs Rule 11 motion. This Declaration will address Plaintiffs sanctionable conduct that
has occurred during the course of this litigation. It is worth noting that Plaintiff is an attorney and
is admitted to the New York State Bar. 1
1
Mr. Malkans bar registration number is 2232221.
-1-
3.
Since before this litigation began, starting in 2011, Plaintiff has been broadcasting
to the world his belief that Defendant Makau Mutua intentionally testified falsely, first at a
PERB hearing and later at his deposition in this action, about his recollection of what occurred at
a meeting of the UB Law School faculty on April 28, 2006. Initially, these broadcasts consisted
of letters to various individuals involved in his PERB case or administrators at the University of
Buffalo, which he would then post copies of on the internet. 2 Beginning sometime in 2013, Mr.
Malkan began using e-mails to broadcast his accusations and the scope of those accusations
widened to include wrongdoing by people he had told about his belief that Mr. Mutua testified
falsely who did not act on his accusations. In October 2013, he began including lawyers in the
community who are somehow involved with the Law School on these e-mails. In late 2013,
Plaintiff began sending his accusatory e-mails directly to members of the Law School faculty,
including Mr. Mutua and former Defendant Charles Ewing. By mid-2014, Plaintiff was regularly
sending e-mails to the entire Law School faculty, lawyers in UB counsels office 3 involved in
this case, and to UB administrators. Finally, in October 2014, he began communicating directly
with me and regularly copying me on his e-mails, with ever expanding accusations of
misconduct.
A.
Plaintiffs Correspondence and E-mails to Outside Parties
4.
Attached as Exhibit A is a compilation of Plaintiffs correspondence to outside
parties. 4 The compilation attached as Exhibit A may not be comprehensive; however, as the
Court will see, it includes over 50 separate pieces of correspondence. For the purposes of this
Plaintiff primarily posted information using the web publishing platform Scribd located at www.scribd.com, but
also used other web publishing and social media platforms.
3
The lawyers in UB counsels office involved in this case are Robert Ruggeri, James Jarvis and Jessica Baker.
4
Certain documents attached to this declaration have been redacted for privilege and to eliminate irrelevant material
such as the prefatory material in forwarded email messages.
-2-
motion, this portion of the declaration will highlight some of the ones that: 1) are a direct
communication with a party to this action; 2) threaten criminal charges in connection with this
action; 3) make collateral attacks on the arguments Defendant has made on summary judgment;
or, 4) are just plain rude, outrageous and harassing. It is important to note that neither Mr.
Malkan nor his counsel ever requested my consent to communicate directly with my client, Mr.
Mutua, nor did they inform me of their intention to do so.
5.
On June 18, 2012, September 5, 2012 and September 20, 2012, Plaintiff sent
Satish Tripathi, SUNY at Buffalo President, and Charles Zukoski, SUNY at Buffalo Provost,
letters via certified mail accusing Mr. Mutua of perjury based on his PERB testimony. Exhibit A,
Bates No. 3-7. These letters also accuse President Tripathi of being complicit in covering up Mr.
Mutuas perjury and threaten Tripathi with criminal consequences for his failure to act on his
accusations. Id. As time goes on, President Tripathi becomes a more frequent object of
Plaintiffs ire and, eventually, is also labeled a criminal by Plaintiff.
6.
On August 22, 2013, Plaintiff sent Law School Professor James Gardner an e-mail,
copied to Mr. Mutua and Mr. Ewing, who was still a defendant at the time. Id. at Bates Nos. 1719. This e-mail recounts in detail Plaintiffs version of the events of the last seven years and
again accuses Mr. Mutua and Mr. Tripathi of crimes. The letter goes on to rail against Mr.
Gardner because, seven years earlier, he had opposed his continuation as Director of the
Research and Writing Program at the Law School. As with Mr. Tripathi, Mr. Gardner goes on to
become a frequent target of Plaintiffs rage.
7.
On August 24, 2013, Plaintiff sent Vice-Dean Alan Carrel a rude and disrespectful
e-mail after having read a copy of an e-mail between Mr. Carrel and Mr. Ewing that was
-3-
produced as part of discovery in this action. Id. at Bates No. 21. Plaintiff starts off by telling Mr.
Carrel that he is not very bright and accuses him of slandering him. This e-mail concludes
with this passage that drips with sarcasm: Feel free to circulate this e-mail to whoever you want,
but the best person to cry to is your confidante Chuck Ewing. I dont know if Jim Gardner will
be in the mood. Dont mention it to our donors; a guy like Steve Barnes might feel like you
picked his pocket. Id.
8.
In August and September of 2013, Plaintiff continued his direct communication
with Mr. Ewing, who was a party at the time and represented by counsel. Id. at Bates Nos. 24-31.
These e-mails contain the by now familiar accusations of criminal misconduct, but are also
noteworthy because they reflect Plaintiffs response to an early attempt by Mr. Ewings attorney
to reign in Plaintiffs use of e-mail to harass people in connection with this action. In the e-mail
exchange between Mr. Ewing and Mr. Carrel discussed previously, Mr. Ewing states that he had
asked his attorney to stop the harassing e-mails to people with no involvement in the case. Id. at
Bates No. 20. Mr. Ewings counsel, Randolph Oppenhiemer, asked Plaintiffs counsel if they
could get their client to stop the harassing e-mails. Plaintiff completely ignores this request and,
in his e-mail to Mr. Ewing on September 3, 2013, instead tries to justify his behavior in a
paranoid rant about alleged shortcomings in Mr. Ewings legal and moral obligations,
including accusing both defendants counsel of withholding discoverable material. Id. at Bates
Nos. 26-27.
9.
In two e-mails dated August 27, 2014 and September 25, 2014, addressed to UB
Provost Zukowski, and Law School Vice Deans Chiesa, Binder, Connolly and Meidinger,
Plaintiff demands that these individuals resign their administrative positions as a protest against
-4-
Mr. Tripathi and Mr. Mutua. Id. at Bates No. 52-53. These e-mails are copied to several faculty
members, including Mr. Mutua and Mr. Ewing, and lawyers in UB counsels office. These emails are also notable in that they mark the beginning of Plaintiffs expanded accusations of
misconduct in connection with the UB Foundation and the administration of the Law School
generally.
10.
In a September 29, 2014 e-mail to what appears to be the entire Law School faculty
and lawyers in UB counsels office, Plaintiff comments on a Twitter post by Mr. Mutua, who
was out of the country at the time. Id. at Bates No. 54-55. This marks the beginning of a trend
that has continued to this day. Plaintiff follows Mr. Mutuas Twitter feed and makes snarky
comments about Mr. Mutuas tweets.
11.
On October 3, 2014, Plaintiff began e-mailing his diatribes to outside lawyers in
the Buffalo legal community that are members of the Deans Advisory Council. Id. at Bates No.
58-59.
12.
In one of the more astonishing e-mails, Plaintiff reacts in a fit of pique to a response
from one of the Law School faculty to his October 3, 2014 e-mail. Id. at Bates Nos. 60-62. In
addition to lambasting Professor Rick Su for having the temerity to tell him that maybe after five
years he should leave governance of the Law School to those that actually still work there,
Plaintiff goes on to disclose details of confidential settlement discussions that I recently had with
his counsel:
In addition , there is nothing for me to celebrate because my attorneys received a
message from the Attorney General on Monday informing us that this still a no pay
case unless I am willing to accept one-years salary in total settlement and also
apologize to the SUNY Distinguished Professor and former-Dean Makau W. Mutua.
-5-
Id. at Bates No. 61. Not only is this disclosure a violation of the Courts ADR rules, but the
details of what Plaintiff says are wrong. There was never such an offer or demand for an
apology. Plaintiff goes on in this same e-mail to threaten Mr. Tripathi with criminal prosecution
for obstruction of justice and perjury.
13.
On December 5, 2014, Plaintiff sent Mr. Ewing (then a party to the action) and
Susan Mangold (a fact witness who was deposed) an e-mail about having to raise money to make
a Rule 11 motion. Id. at Bates Nos. 68-69. This e-mail is troubling and inappropriate on many
levels. First, he is communicating with an adverse party represented by counsel and broadcasting
this communication to others. Second, he is communicating with fact witnesses. Third, he
discusses the substance of confidential settlement negotiations. Fourth, he makes threats of
criminal prosecution in the same breath in which he laments not having received a settlement
offer, the clear implication being that Defendants should settle or face criminal prosecution.
Finally, and perhaps most troubling, from the statements he makes, it appears his counsel was
only willing to make a Rule 11 sanctions motion if Plaintiff would pay them a risk premium in
the form of an additional $25,000.00 in fees:
The sheer perversity of what has happened to me (or hasnt happened) since
September 22, 2013, and the thoughtless backlash at me from such faculty members
as Professors Su, Steilen, Chiesa, and Connolly, not to mention the entire legal
writing staff, will be costs that must be paid. In the meantime, I have to find
another $25,000.00 because the state persists in presenting the same lies, slanders
and perjury to yet another judge. Against my will, I am bound to this case until
justice is done. This case could have been settled for one year's severance pay
(maybe less) on February 15, 2009 (PERB mediation) and for 2.6 million (maybe
less) on March 1, 2013 (federal mediation). Much has happened since last March
and all of it devastating to the Law School. The Universitys disrespect and defiance
has continued to the point that I have demanded that my lawyers, against their
own wishes, hold the AAG personally responsible for the fraudulent pleadings he
has signed. Meanwhile, over the past seven years, I have not received a settlement
offer of even one dollar. The faculty is now looking at triple damages with interest,
attorneys' fees, investigative expenses to account for and recover misappropriated
-6-
funds, internal disciplinary proceedings, further litigation in the criminal justice

system, etc.
Id. at Bates No. 68 (emphasis added).
14.
In March 2015, Plaintiff sent a series of bizarre and troubling e-mails to the entire
Law School faculty in which he accused Mr. Mutua of using a news story about a campus
shooting to embellish his PERB testimony about a March 2008 faculty meeting. Id. at Bates Nos.
82-83. In the initial e-mail, Plaintiff references a story about a University of Alabama professor
who calmly sat through a faculty meeting and then, at the end, pulled out a gun and shot and
killed several of her colleagues because she had been denied tenure. The e-mail attached a link to
a New Yorker article that explores the incident in detail. This initial e-mail was disturbing
enough to several faculty members that they contacted the UB campus police. The UB campus
police applied some kind of threat assessment program and determined that they should speak to
Plaintiff, which they did. Nothing came of the incident, but of course in Plaintiffs mind, the fact
that he was contacted by campus police had nothing to do with the obviously inappropriate email he had sent, but instead was an effort to intimidate him by Professor Gardner, who had been
named interim Dean after Mr. Mutua stepped down. Id. at Bates No. 88.
15.
On March 12, 2015, Plaintiff again accused President Tripathi of committing a
crime by submitting a false affidavit in this case:

President Tripathis sworn affidavit was false in almost every single respect. This is a
serious crime and I will not drop this matter until he is held legally accountable. The
President of the flagship campus of the SUNY system is not above the law.
Id. at Bates No. 97.
16.
On May 9, 2015, Plaintiff wrote another e-mail to the entire Law School faculty and
SUNY counsel accusing President Tripathi and Mr. Mutua of a crime:
-7-
What makes this matter more urgent is the evidence that Satish K. Tripathi
committed perjury and obstructed justice in order to protect the former-Dean of the
Law School. The case is in the hands of the federal district court and will not go
away. No reasonable person would entrust large sums of money, without any
accounting, to a state official who has been accused of lying under oath. He seems to
think that using his office staff to insulate him from allegations of criminal
misconduct by one of his top administrators is a credible defense to obstruction of
justice and violations of civil rights laws.
Id. at Bates Nos. 125.
17.
Two days later, on May 11, 2015, Plaintiff sent another e-mail to the entire Law
School faculty and SUNY counsel again accusing President Tripathi of perjury and obstruction
of justice. Id. at Bates No. 126-127.
18.
On May 18, 2015, Plaintiff sent another e-mail to the entire Law School faculty and
SUNY counsel attacking interim Dean Gardner for no other reason than that he had opposed his
continued directorship of the Research and Writing Program nine years earlier:
Jim, Why are you such a coward? For the past nine years you have been attacking
me with every libel, slander, and dirty trick imaginable, but always in a secretive way
so that I couldnt answer you face-to-face in front of the faculty. Any obsequious
dimwit who wants to jump to your defense is free to do so, but I wouldnt rely on any
of them putting themselves in the position of justifying what cannot be justified. You
and Makau Mutua are two deflated balloons. Im sure hes already shopping for a
tropical paradise without an extradition treaty to the U.S. I doubt youll be eligible
for employment here or at any academic institution when this is over. Satish
Tripathis secrets about the mysterious ebbs and flows of the one-billion dollar
endowment (as well as the mysterious $375 million dollar medical school building)
will be exposed as soon as law enforcement comes in with search warrants. The
Universitys fabric of lies and slander may fall apart all at once or it may take me
another seven years to break through, but it is only a matter of time.
Id. at Bates Nos. 135-136.
19.
What is set forth above is merely a sampling of the constant barrage of
communication by Plaintiff with outside parties connected to UB and the Law School about
issues involved in this case and other wrongs Plaintiff perceives he has suffered at the hands of
-8-
people associated with the Law School. This inappropriate and harassing conduct has continued
unabated to this day.
B.
Plaintiffs Direct Communication with AAG Sleight
20.
As indicated above, beginning in October 2014, Plaintiff began communicating
directly with this declarant. Attached as Exhibit B are the over fifty communications that
Plaintiff has either addressed to me directly or copied me on. I consider Plaintiffs
communications with me to be inappropriate and to serve no other purpose than to vex and
harass me.
21.
Plaintiffs counsel has been aware of this direct communication since late October
2014, 5 but it continued. On two separate occasions, I specifically asked that Plaintiffs counsel
stop their client from communicating with me directly. On November 24, 2014, I forwarded to
Plaintiffs counsel an e-mail that Plaintiff had sent me directly (copied to the Law School faculty
and SUNY counsel), and asked that counsel instruct their client to stop communicating with me
directly. 6 In spite of this request, Plaintiffs direct communication with me continued unabated.
22.
On March 12, 2015, I wrote Plaintiffs counsel in response to their continued threat
to file a Rule 11 motion. A copy of this letter is attached as Exhibit D. In this letter, I again
asked Plaintiffs counsel to instruct their client to stop communicating with me directly. I
explained the scope of Plaintiffs contact with me and advised that it was not appropriate since
he was represented by counsel and I could not respond. Again, the contacts have continued
unabated.
23.
The first e-mail Plaintiff sent me was on October 2, 2014. Exhibit B, Bates No. 174-
175. It is addressed to local attorneys that are members of the Deans Advisory Council and
5
6
See Exhibit B, Bates No. 176-179, which was copied to Plaintiffs counsel.
A copy of this e-mail is attached as Exhibit C.
-9-
copied to Mr. Mutua and me, among others. In the e-mail, he repeats his accusations of criminal
misconduct and malfeasance against Mr. Mutua and President Tripathi.
24.
On October 18, 2014, Plaintiff sent me a letter directly, with a copy to his counsel.
Id. at Bates Nos. 176-179. In this letter, Plaintiff accuses me of having violated Rule 11 because
I have prolonged [this case] for six years 7 for the sole purpose of harassing an innocent person
and of having signed statements in which I have made factual claims that I know were untrue. Id.
at Bates No. 182. The letter also attaches a copy of Plaintiffs complaint to the Albany County
District Attorneys Public Integrity Bureau in which he accuses Mr. Mutua of perjury. Id. at
Bates Nos. 177-179.
25.
Plaintiff sent me an e-mail on November 26, 2014 in which he admonished me to
[p]lease consider the possible consequences, and [my] professional duties, when a person who
is capable of committing perjury has access over a period of six years to millions of dollars of
public money. Id. at Bates No. 182. This e-mail is also another example of Plaintiff making
snarky comments in response to Mr. Mutuas Twitter posts.
26.
Plaintiff e-mailed me again on December 3, 2014 and copied the entire Law School
faculty and UB Counsel. Id. at Bates No. 186. Again, he accuses Mr. Mutua and President
Tripathi of the crimes of perjury and obstruction of justice. As to my transgressions, he writes:
My position is that you may not use the legal process as an instrument to further
injure and harass me. Prolonging this travesty, which has already been going on for
almost seven years, when you know that your client already induced a miscarriage of
justice in state court with perjured testimony, is illegal. The State must
acknowledge that I have been the victim of a crime, and that the crime has been
protected to the present day, through perjury and obstruction of justice, by the
President of the University.
Id.
7
At that time, this action had only been pending for a little over two and a half years.
- 10 -
27.
On December 8, 2014, Plaintiff sent me another e-mail copied to the entire Law
School faculty and UB counsel. Id. at Bates No. 190. This e-mail contains the by now familiar
accusations of perjury and obstruction of justice by Mr. Mutua and continues
I continue to live in the shadow of his crime. After six years of stonewalling and
cheating by the State, you must inform the Court that you can no longer defend the
indefensible. The Rules of Professional conduct do not permit you to use the
unlimited resources of the State in dilatory motions to exhaust an injured person until
he falls by the wayside.
Id.
28.
Plaintiff e-mailed me and copied the entire Law School faculty and UB counsel
again on December 11, 2014. Id. at Bates Nos. 191-192. In this e-mail he makes collateral
attacks on Defendants summary judgment motion:
It is not only ill-advised, but inconceivable that you would ask the Court to grant
[Mutua] summary judgment. His conduct in office over the past seven years is an
open book of vanity, arrogance, treachery, hypocrisy, and deceit. On the last point,
the conclusive evidence is that your clients defense is based on two premeditated
and calculated lies. The first lie is about a fact and the second is a lie about the law.
They are both lies about crucial and dispositive issues in this case.
Id.
29.
On December 14, 2014, Plaintiff sent Mr. Mutua an e-mail, copy to me and the
entire Law School faculty and UB counsel. Id. at Bates No. 193-194. In this e-mail, Plaintiff
critiques Mr. Mutuas tenure as Dean, accuses him of crimes and threatens him with criminal
prosecution.
30.
On December 26, 2014, Plaintiff e-mailed the entire Law School faculty, with
copies to me and UB counsel. Id. at Bates Nos. 206-212. Again, he continues his accusations of
criminal misconduct:
This litigation, which began in December of 2008, has passed the threshold of its
eighth year, and has escalated over those years from bullying and defamation, to antiunion animus, to breach of contract, to violation of federal due process rights, to
- 11 -
fraud on the ABA, to perjury and obstruction of justice in federal court. These events
represent an attack on academic freedom and faculty governance as well as the worst
outburst of criminality by a state university administration since the Penn State
scandal. . . . I was the victim of a crime by the State.
31.
On January 9, 2015, Plaintiff sent an e-mail to me, SUNY counsel and the UB
Provost. Id. at Bates Nos. 214-215. In this e-mail, he again couples his accusations of criminal
misconduct with laments about the States failure to settle with him:
Everyone should know by now that I have never rejected any offer over the past
seven years that would end this senseless litigation because I have never been offered
anything to reject. This cannot go on and yet it will go on into 2016, with
consequences that will include a showdown with the ABA and the spectacle of civil
and criminal trials of the senior administration of this University in federal court.
Id. at Bates No. 215 (emphasis in original).
32.
On January 22, 2015, Plaintiff sent another e-mail to the entire Law School faculty,
copied to me, SUNY counsel and the UB Provost, which again couples his accusations of
criminal misconduct with laments about the States failure to settle with him:
The back pay and compound interest owed to me at this point for breach of contract
is 1.3 million dollars, with an additional $520,000.00 in front pay. With former
Dean Mutua having been removed from office for his malicious and criminal
conduct, I am optimistic that the Court of Claims will be viewing this matter quite
differently now. 8 Since the fall of 2008, when my damages were nothing more
than a token sum for severance pay, I have not been offered one cent of restitution or
even the slightest contrition.
Id. at 218-219.
33.
On March 13, 2015, Plaintiff sent me another e-mail, again copied to the faculty
and other UB administrators, including the Provost and President of the University, alleging
criminal misconduct. Id. at Bates Nos. 221-228. Plaintiff states, among other things:
By Decision and Order dated March 23, 2015, the Court of Claims denied Plaintiffs motion for leave to file a late
claim based, primarily, on its conclusion that Plaintiffs breach of contract claim lacked merit.
- 12 -
This is a Law School faculty and I must report criminal misconduct so that the
faculty can try to mitigate the damage to the institution . . . . My dispatch of these
messages serves the purpose of establishing that every single member of the voting
faculty has received constructive notice of my allegations, which may have legal or
regulatory consequences at a future date.
34.
On March 24, 2015, Plaintiff sent me another e-mail accusing Mr. Mutua of
committing perjury and requesting that I forward the alleged evidence of such to the Albany
County District Attorney. Id. at Bates No. 231.
35.
On May 27, 2015, Plaintiff sent local attorney Francis Letro, Chair of the UB
Foundation Board, an e-mail accusing Mr. Mutua and President Tripathi of perjury and
obstruction of justice. Id. at Bates Nos. 236-237. This e-mail is, again, copied to the entire Law
School faculty, me, various administrators and UB counsel. In it, Plaintiff states:
Im sure that you are aware of the allegations pending in federal district court that
the former-Dean of the Law School, Makau W. Mutua, committed perjury and
destroyed subpoenaed documents at a deposition on December 19, 2013, as well as at
previous proceedings before a state administrative agency . President Tripathi, in
turn, committed perjury in a sworn declaration in order to protect former-Dean
Mutua.
Id. at Bates No 236.
36.
I received more of the same from Plaintiff on June 1, 2015:
The Governor is standing between two men who lied under oath in federal district
court, one to cover-up for the other. They are flanked by a non-elected official who
controls access to the billion dollar endowment of SUNY Buffalo, entirely without
public oversight, and the chief law enforcement officer of the county in which the
state university is located. . . . Albany County D.A. David Soares . . . refused to
investigate my allegation that the former-Dean had committed perjury at the Public
Employment Relations Board, which is in his jurisdiction. . . . The Attorney General
still refuses to investigate the evidence that the former-Dean repeated his perjury in
federal district court on December 19, 2013.
- 13 -
37.
On June 2 and June 5, 2015, Plaintiff posted comments on the Attorney Generals
web site in the form of letters to me, and then sent those postings via e-mail to his usual list of
copyees. Id. at Bates Nos. 248-249, 251-253. Both contain the by now familiar accusations of
criminal misconduct by Mr. Mutua and President Tripathi, and the submission on June 5 makes
collateral attacks on Defendants summary judgment motion;
This case has been protracted by the State over a period of seven years, during which
time I have suffered endless hardship, losing my career, my vocation, my livelihood,
my reputation, and all of my savings and possessions. .Your client turned an
injustice into a crime by committing perjury in his testimony in front of the Public
Employment Relations Board . Your client committed perjury again at the federal
deposition on December 19, 2013 . President Satish Tripathi, for his part,
submitted a false declaration December 5, 2013 . All of your legal arguments on
the summary judgment motion are based on lies, which is unethical and immoral.
You made these arguments for the sole purpose of delaying my case in the hope of
burdening me with further hardship, emotional distress, and financial risk, and
exhausting me with the unlimited resources of the State. This case is nothing less
than a nightmare of criminality. It is not a crime of violence, but is a crime of the
highest magnitude.
38.
In e-mails dated June 6, 2015 and June 8, 2015, to the Law School Vice-Deans,
with the usual list of copyees, Plaintiff again demanded their resignation in protest over his
accusations of criminality. Id. at Bates Nos. 254, 259. In the June 8 e-mail he writes: [m]y
lawsuit against former-Dean Makau Mutua is doing irreparable harm to the Law School. He is a
criminal. If you chose to stand with President Satish K. Tripathi and Interim Dean James A.
Gardner, then I will make my best effort to see that you are indicted for obstruction of justice and
your tenure is revoked. Id. at Bates No. 259 (emphasis in original).
- 14 -
39.
On June 10, 2015, Plaintiff posted another letter to me on the OAGs web site. Id. at
Bates No. 276-278. In this letter, he accuses me of blocking his attempts to inform the Attorney
General about his allegations of criminal misconduct:
I believe that the manner in which you have been handling this case since the
depositions of November and December of 2013 is unethical and illegal. I strongly
suspect that you have been acting beyond your authority at OAG by blocking my
evidence-based allegations of criminal misconduct from reaching the Public Integrity
Bureau. . . . I expect that my role in this case will be over by Labor Day although, of
course, I will comply with any interview, testimony, and document requests needed
by law enforcement in the prosecutions of University and State officials.
Id.
40.
Plaintiff e-mailed me again on June 11, 2015, and again accused me of covering-up
crimes: I dont possibly see how Mr. Schneiderman could approve of your role in the cover-up
of crimes against the judicial process and breaches of fiduciary duties by New York officials at
the highest levels of government and the legal profession. Im placing you on notice that, if you
proceed as you have threatened to do, I expect Mr. Schneiderman will countersign your
submissions to the Court. Id. at Bates No. 280.
41.
In a June 17, 2015 e-mail, Plaintiff admonished me to not respond to his Rule 11
motion (Docket No. 70), but to instead confess my clients alleged crimes to the Court:
You must act in the public interest and take appropriate action to repair the damage
done by your clients crimes against the judicial process by the return date of the
Rule 11 motion. This case should have ended, at the latest, in September of 2014. It
has been unlawfully protracted for seven years and it cannot proceed for a single day
more beyond June 26, 2015. The States efforts to use the legal process to inflict
further harm on the victim of a crime must go no further.
42.
On June 18, 2015, Plaintiff sent me an e-mail, copied to the entire Law School
faculty and UB counsel, in which he comments on a twitter post made by Mr. Mutua while on
- 15 -
vacation in Venice: [t]his is what you are facing a Rule 11 motion to defend. This is what
you have to tell the Magistrate next Friday is a worthy cause that warrants defiance by the Office
of the Attorney General of the principles of due process and professional responsibility. Id. at
Bates Nos. 303 (emphasis in original).
43.
On June 22, 2015, Plaintiff sent me an e-mail, copy to the entire Law School faculty
and UB counsel, entitled notice to AAG Sleight re June 26 deadline. Id. at Bates Nos. 310-311.
In this e-mail he writes:
I understand that you think I am vexing and harassing you with my attempts to
remind you of your duty to acknowledge and investigate the evidence of your clients
perjury and obstruction of justice. Every aspect of your summary judgment
motion is nullified by your clients perjury. Even if you truly believe that this
summary judgment motion which bears your signature is not entirely nullified by
your clients perjury and obstruction of justice, you would still have an independent
duty as an agent of the Attorney General to inform the Court of his criminal
misconduct. There are no issues left to litigate. All that is left is a crime, its coverup, and a tarnished law school. This is a job for law enforcement and regulatory
agencies, not for me. Your clients crime was premeditated and calculated to
cause maximum injury to an innocent person simply for the sadistic pleasure of
doing so. You cannot continue to inflict further damage in the hope that I will fall
by the wayside. That is truly vexation and harassment. I assume your threat to file a
cross-motion for sanctions against me and Mr. Ostrove was simply a sign that you
are becoming exhausted by your attempts to defend the indefensible.
Id. (emphasis in original).
44.
On June 23, 2015, Plaintiff sent an email to the Law School faculty, copy to me, in
response to Defendant serving Plaintiff with a Notice of Motion for Defendants Motion for
Sanctions against Plaintiff. Id. at Bates Nos. 312-313. Mr. Malkan repeats his well-worn
allegations:
[T]he crime I am trying to report is a crime against the judicial process by the Dean
of the Law School, that it was committed in both state and federal courts at an
interval of three years, and that it has been covered-up by the highest level officials at
this University as well as by the legal agencies at SUNY Central, the Governor's
Office, and the Attorney General's Office since November 11, 2011. . . .
- 16 -
Id. Most egregiously, Mr. Malkan goes on to state that he will defy any civil contempt citation
entered against me by the Court. Id. at 312.
45.
On June 26, 2015, I responded to Plaintiffs Rule 11 motion (Docket Nos. 72-78).
Plaintiffs predictable response was to upload all of the response papers onto the internet and email them to [j]ournalists (print and social media). 9 Exhibit A at Bates Nos. 167-173.
46.
In an e-mail to me dated July 8, 2015, copied to the entire Law School faculty,
Plaintiff advised me that he had terminated his attorneys and was now proceeding pro se. Exhibit
B at Bates Nos. 319-320. He takes the opportunity to again lecture me about my failure to abide
by my professional responsibilities and the consequences that will befall me: [y]our refusal to
inform the Court of your actual knowledge that Makau W. Mutua committed the most shocking
crime imaginable against the judicial process requires, in my opinion, sanctions against you
and your disbarment. Id. at Bates No. 319.
47.
In his last e-mail directly to me on July 10, 2015, again, copied to the entire Law
School faculty, Plaintiff goes on a two page paranoid rant about what I have done to him and
threatens me with disbarment:
When you first came into this case in 2012, you could have advised your client to
bring this travesty to an end. Instead, you took up the cause of inflicting even
more damage on me, without any legal justification. You have taken full
advantage of the unlimited resources of the state to exhaust an innocent person and
leave him by the wayside. Your reaction to my Rule 11 motion was to file a
retaliatory Rule 11 cross-motion. 10 Your only basis for filing a Rule 11 cross-motion
against me is because I filed a Rule 11 motion against you. The federal district court
is not a playground. But, returning to David J. Sleight, Esq., my responsive papers
are due July 24, and I will explain what you have done to me in compelling detail.
My ethical responsibilities with regard to former-Dean Mutua and President Tripathi
9
Even though my name does not appear in the distribution list, I received this e-mail from Plaintiff, most likely as a
blind copyee.
10
This is Plaintiffs second reference to this declarant having filed a cross-motion. Presumably, he is confusing
Defendants opposition to his Rule 11 motion as being a cross motion when in fact Defendants Rule 11 sanctions
motion was only recently filed with this declaration in support.
- 17 -
are clear, but I am not sure what I am required to do about you. If I were you I would
consult with the ethicists and experts in criminal law in your office and consider your
options for returning to the path of the law before you are disbarred, along with your
criminal client. This is my admonition to you.
48.
The foregoing is, again, only a sampling of Plaintiffs constant barrage of e-mails to
me over the course of the last ten months.

49.
Lastly, I am compelled to address Plaintiffs counsels recent attempt to relieve
himself of responsibility for filing a frivolous Rule 11 motion. On June 19, 2015, my office
served Mr. Ostrove by overnight mail with a copy of our Motion for Sanctions and notice
pursuant to FRCP Rule 11(c)(2). A copy of these materials is attached as Exhibit E.
50.
On July 16, 2015, counsel filed a motion seeking: 1) to withdraw his firm as
counsel of record for Plaintiff; 2) to withdraw Plaintiffs Rule 11 motion pursuant to Rule 11s
safe harbor provision; and, 3) a nunc pro tunc order from the Court deeming the Rule 11
motion as having been exclusively filed by Plaintiff, pro se. In his declaration in support of this
motion, counsel states that he is 100% positive that the Rule 11 motion is not frivolous, but
that, nonetheless, he wants to exercise his safe harbor rights because his client fired him.
51.
In the first instance, counsels effort to exercise his safe harbor rights is untimely.
Under the safe harbor provisions of Rule 11, a party has 21 days from the date the proposed
sanctions motion is served to withdraw the challenged paper. Accordingly, counsel would have
had to withdraw Plaintiffs Rule 11 motion by July 13, 2015.
52.
In addition, I submit that the safe harbor provision of Rule 11 does not permit an
attorney to make a meritless Rule 11 motion and then back away from it and let the client pick it
up and carry it forward. In Plaintiffs own words, Defendants reply to his Rule 11 motion
- 18 -
intimidated 11 Mr. Ostrove, which is what led Plaintiff to terminate his services. I suspect that
what Plaintiff means is that once counsel saw our response to their Rule 11 motion they realized
its multiple deficiencies and wanted to withdraw it, but Plaintiff would not consent to it, so he
terminated their services. Thus, I submit that Mr. Ostroves effort to exercise his safe harbor
rights is not unrelated to the merits of the motion as he claims.
C.
Plaintiffs Disclosure of Confidential Mediation Material
53.
On April 29, 2013, The Spectrum, a student newspaper for UB published an article
titled Former UB law professor proceeds with federal suit against UB Law School, in which
Mr. Malkan discusses the mediation that occurred in this case on March 1, 2013 at length:
On March 1, mediation was held. Malkan said he was there with his attorneys, along
with Ewing, SUNY Counsel Jim Jarvis, Esq., and Assistant Attorney General David
Sleight.
According to Malkan, Mutua did not show up to the mediation, claiming that he had
more important business elsewhere. Malkan claims this is a violation of the rules.
Malkan also claims the attorney general asked for time until March 21 to come back
with a settlement offer but later asked for an extension until April 2. The attorney
general informed Malkan that UB declined to make any settlement offer, saying the
case will be going to trial in federal court before the end of 2013.
This is disappointing, of course, because over the five years of this dispute SUNY
Buffalo has refused to make any settlement offer at all, not one dollar, and has
blocked me from obtaining a teaching job at any other law school, Malkan wrote in
an email. Im also afraid that the trial in federal court will be harmful to the law
schools reputation because the facts that will be revealed will not be flattering.
Exhibit A at Bates Nos. 10-12.
54.
Mr. Malkan also publicly posted Plaintiffs confidential mediation statement on the
internet using the web publishing platform Scribd. A screenshot showing Plaintiffs mediation
statement as publicly available is attached as Exhibit F. As of the date this declaration was
11
See Exhibit B, Bates Nos. 143, 146.
- 19 -
executed, Plaintiffs confidential mediation statement was publicly available at

http://www.scribd.com/doc/217761477/statement-of-facts-and-damages-submitted-2-27-2013.
D.
Conclusion
55.
It has been clear to me for some time now that Mr. Ostrove and Mr. Arbeit had little
control over Plaintiffs conduct. As a practicing attorney for over 25 years I sympathize with
them: clients do not always heed their attorneys advice and sometimes act against their own
interests. However, when a client wants an attorney to do something that they know, or should
know, is not supported by law or fact, the proper response is to refuse to do it, regardless of the
consequences to the attorney-client relationship; not to do it against your better judgment for
another $25,000.00 in fees.
56.
As for Mr. Malkan, he long ago lost whatever perspective he might have had about
this case. He has lost sight of the fact that this is civil lawsuit between two parties that he
commenced in order to answer a very simple question: was he entitled to more due process than
he received when his term contract was non-renewed? Instead, for him, this case has become a
crusade to destroy Makau Mutua, and to root out phantom evil and corruption at the Law School,
UB and in State government. And, instead of allowing the litigation process to run its course, he
has used the internet as a megaphone to try this case in the court of public opinion. Finally, he
has sought to enflame, and in some ways has enflamed, long standing internecine conflicts
amongst the faculty at the Law School.
DATED:
Buffalo, New York

July 23, 2015
s/David J. Sleight
DAVID J. SLEIGHT
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Exhibit C

Attorney General and Former-Dean Mutua Rule 11 Cross-Motion For Sanctions

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Case 1:12-cv-00236-RJA-HKS Document 83 Filed 07/23/15 Page 1 of 4

Case 1:12-cv-00236-RJA-HKS Document 83 Filed 07/23/15 Page 2 of 4

Case 1:12-cv-00236-RJA-HKS Document 83 Filed 07/23/15 Page 3 of 4

Case 1:12-cv-00236-RJA-HKS Document 83 Filed 07/23/15 Page 4 of 4

UNITED STATES DISTRICT COURT

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 1 of 27

UNITED STATES DISTRICT COURT

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 2 of 27

Plaintiffs Rule 11 Motion is Frivolous and Warrants Sanctions ....................................... 4

Plaintiff Should be Sanctioned Pursuant to 28 U.S.C. 1927............................................ 7

Plaintiff May Have Violated RPC 3.4 .................................................................... 15

Plaintiff May Have Violated RPC 4.2 .................................................................... 19

Plaintiff May Have Violated RPC 8.4 .................................................................... 21

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 3 of 27

On June 26, 2015, Plaintiff informed

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 4 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 5 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 6 of 27

Plaintiffs Rule 11 Motion is Frivolous and Warrants Sanctions

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 7 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 8 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 9 of 27

Plaintiff Should be Sanctioned Pursuant to 28 U.S.C. 1927

under 28 U.S.C. 1927, which provides that:

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 10 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 11 of 27

The Court Should Consider Whether to Hold Plaintiff in Civil Contempt

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 12 of 27

CONFIDENTIALITY IN MEDIAITON. Confidential Treatment. Mediation is

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 13 of 27

A copy of Plaintiffs mediation statement is publicly available on the internet at

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 14 of 27

Plaintiff Should be Sanctioned Pursuant to the Courts Inherent Power

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 15 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 16 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 17 of 27

2. Plaintiff May Have Violated RPC 3.4

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 18 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 19 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 20 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 21 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 22 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 23 of 27

4. Plaintiff May Have Violated RPC 8.4

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 24 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 25 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 26 of 27

Case 1:12-cv-00236-RJA-HKS Document 83-1 Filed 07/23/15 Page 27 of 27

Case 1:12-cv-00236-RJA-HKS Document 84 Filed 07/23/15 Page 1 of 20

UNITED STATES DISTRICT COURT

I am an Assistant Attorney General, of counsel to Eric T. Schneiderman, Attorney

The frivolous nature of Plaintiffs Rule 11 motion is addressed in the memorandum

Mr. Malkans bar registration number is 2232221.

Case 1:12-cv-00236-RJA-HKS Document 84 Filed 07/23/15 Page 2 of 20

Plaintiffs Correspondence and E-mails to Outside Parties

Attached as Exhibit A is a compilation of Plaintiffs correspondence to outside

Case 1:12-cv-00236-RJA-HKS Document 84 Filed 07/23/15 Page 3 of 20

Case 1:12-cv-00236-RJA-HKS Document 84 Filed 07/23/15 Page 4 of 20

In August and September of 2013, Plaintiff continued his direct communication