Montgomery v Risen #258 | Joint Status Report

8/20/2019 Montgomery v Risen #258 | Joint Status Report

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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Dennis L. Montgomery,

Plaintiff,

v. No. 1:16-cv-00126-RC

James Risen, Houghton Mifflin Harcourt

Publishing Co., et al.,

Defendants.

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JOINT STATUS REPORT

Pursuant to this Court’s February 3, 2016 Order, ECF No. 257, the parties met and

conferred on February 11, 2016, and provide the following joint status report:

1. Each party’s summary and assessment of:

a. The history of this litigation to date, including any related actions.

i. Plaintiff

As set forth in the Amended Complaint, Defendants James Risen, Houghton Mifflin

Harcourt Publishing Company (“HMHPC”), and Houghton Mifflin Harcourt Company

(“HMHC”), have published vicious, highly defamatory statements, both in their book Pay Any

Price: Greed, Power, and Endless War, and on television and radio, which have severely

damaged, if not totally destroyed, the reputation and financial ability of Plaintiff, Dennis

Montgomery, to earn a living. Suffering from an acute brain aneurism, and destitute with huge

medical and hospital bills, he brought this action to not only clear his name, but to become

financially whole such that he can have the means to tend to his failing health and the family he

may have to leave behind. At the first status conference, the Honorable Jose Martinez thus

Case 1:16-cv-00126-RC Document 258 Filed 02/17/16 Page 1 of 16


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understood that the case needed to be tried before a jury of Plaintiff’s peers at the earliest

practicable date, particularly after defense counsel callously denigrated Mr. Montgomery’s

medical condition.

Now, almost a year into the case, and at the last minute, Defendants belatedly move for

summary judgment, incredibly having bothered to only take one deposition, of Mr. Montgomery

himself, and on the last day of the pretrial order designated defectively an expert witness, in

violation of the Local Rules of this Court. [Dkt # 143]. In so doing, Defendants disingenuously

named an expert who does not even have a security clearance to analyze the alleged software,

which they say is crucial to defend the case. Indeed, as argued at the recent hearing before

Magistrate Judge Goodman, and as he himself recognized, this case concerns much more than

allegations that the software, which Mr. Montgomery developed and which was sold to the

government by his employers, did not work. See Transcript of Hearing of January 5, 2016 (“Jan.

6 Transcript”) at pgs. 138-142, Exhibit 1. Importantly, the majority of the defamatory statements

have nothing to do with the software or whether it worked in whole or part, as Magistrate Judge

Goodman has recognized. Id . The Defendants have only one real defense to their outrageous

conduct; that Mr. Montgomery did not produce his software for analysis by their bogus expert.

But Mr. Montgomery could not do so, even if he had it in his possession, as it is highly

classified, as confirmed in the context of this case by the Central Intelligence Agency (“CIA”)

and its counsel the U.S. Department of Justice. Mr. Montgomery is currently a government

witness in an on-going FBI criminal investigation concerning the widespread mass surveillance

of judges, congressmen and other high level persons by the intelligence agencies and any

classified software was required to be turned over to the FBI under immunity agreements.

Exhibits 2, 3 to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment.



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For example, at page 32 of Pay Any Price, Defendant James Risen writes:

Montgomery was the maestro behind what many current

and former U.S. officials and others familiar with the case now

believe was one of the most elaborate and dangerous hoaxes in

American history, a ruse that was so successful that it nearlyconvinced the Bush administration to order fighter jets to start

shooting down commercial airliners filled with passengers over the

Atlantic. Once it was over, once the fever broke and governmentofficials realized that they had been taken in by a grand illusion,

they did absolutely nothing about it. The Central Intelligence

Agency buried the whole insane episode and acted like it had neverhappened. The Pentagon jus kept working with Montgomery.

Justice Department lawyers fanned out across the country to try to

block any information about Montgomery and his schemes from becoming public, invoking the state secrets privilege in a series of

civil lawsuits involving Montgomery.

That Risen and the Defendant publishers would trash Mr. Montgomery by publishing that

he was “the maestro behind what many current and former U.S. officials and others

familiar with the case now believe was one of the most elaborate and dangerous hoaxes in

American history, a ruse that was so successful that it nearly convinced the Bush

administration to order fighter jets to start shooting down commercial airliners filled with

passengers over the Atlantic[,]” goes far beyond anything that had been written about

Montgomery in so-called prior publications. In fact, Risen having been thrown out the door by

his original publisher, Simon & Schuster because he could not back up his false and misleading

claims, had to peddle his defamatory book elsewhere. This occurred because, without

maliciously manufacturing sensational facts about Montgomery as “The Emperor of the War on

Terror,” which is the title of the Chapter 2 of Pay Any Price, which became the centerpiece of

“Pay Any Price,” the book would not sell. For this reason alone, Simon & Schuster summarily

rejected publication of an author who it had coveted in the past.



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Shamelessly undaunted by the rejection, Risen, through his book agent Tina Bennett,

approached Defendants HMHPC and HMHC, and ironically, after falsely calling Montgomery a

con, Defendant Risen “conned” these publishers to publish his book. Not even bothering to fact-

check Risen’s grossly exaggerated story (nor later issue a correction when Plaintiff’s counsel

asked HMHPC and HMHC to do so pursuant to Florida Statute § 770.01, see Plaintiff’s

Statement of Disputed Material Facts (“PSDMF”) to Plaintiff’s Opposition to Defendants’

Summary Judgment Motion at ¶ 3, 105, Exhibit 4, and without any named sources that would

corroborate that Mr. Montgomery had perpetrated the biggest hoax in American history such that

the president could order civilian airliners to be shot down, HMHPC and HMHC greedily

published Pay Any Price hoping that the sensational but unsubstantiated story would sell large

amounts of books in Florida – one its biggest markets where it also resides – and elsewhere.

PSDMF at ¶ 72, Exhibit 4 to Plaintiff’s Opposition to Defendants’ Motion for Summary

Judgment.

The depositions of Risen and the Defendant publishers HMHPC and HMHC which Mr.

Montgomery’s counsel took show that Risen could not or would not name more than three

sources that he actually spoke with about Mr. Montgomery. None of these so-called sources

provided credible information about Risen’s wild, unsubstantiated claims that Mr. Montgomery

has perpetrated the biggest hoax in American history. Nor, as set forth below, can this be gleaned

from any prior publications. And, even had there been prior publications to this effect,

Defendants never bothered to use due diligence to corroborate statements in publications such as

the “highly respected” literary disgrace of Playboy Magazine, a pornographic rag. Nor do

Defendants claimed reliance on public documents carry the day for them. None of these so-

called public documents state that Mr. Montgomery committed the biggest hoax in American



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history such that President Bush gave authority to order the shoot down of civilian planes. In

fact, the bottom line is that no one was killed or even harmed, and there is evidence that the

president himself was never even told of this claimed hoax. Nor has Mr. Montgomery ever been

indicted or prosecuted for his falsely claimed fraud which could have, according to Defendants,

resulted in death to many persons. And, the government never even asked Mr. Montgomery or

his employers for reimbursement of what it spent to acquire the dis-encryption technology. In

short, and to use an old phrase by Vice President Walter Mondale when he ran for the presidency

against Governor Ronald Reagan, “where is the beef?” This is no beef, only a lot of pork in a

book that ironically itself has no clothes – that is, verifiable facts – as observed by the first

publisher Simon & Schuster – to back up this make-believe fiction. Risen and the rest of the

Defendants simply cannot cover up their sensationalized hoax by putting “lipstick on a pig.”

Thus, Defendants’ argument that the so-called Fair Reporting Doctrine protects them, fails

miserably.

Mr. Montgomery is not a public figure, as Defendants incorrectly argue. Plaintiff, who to

this day holds a top secret security clearance (if there was fraud it would have been revoked),

was undercover for the government’s intelligence agencies and did not seek public recognition

for the work he did in dis-encrypting terrorist messages following the tragedy of September 11,

2001. Thus, mere negligent publication of the defamatory statements by Defendants is the legal

frame of reference for these defamatory publications. And, even if Mr. Montgomery is found to

be a limited public figure, as Defendants strain to argue, as set forth below there is plenty of

actual malice involved in their publications, as set forth in detail below.



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In sum, Defendants’ belated Motion for Summary Judgment must be summarily denied

as the facts at issue are at a minimum controverted, and this case should proceed to trial, if

possible, on the respectfully requested previously set deadlines of the the transferor court.

Finally Plaintiff Montgomery is a government witness in an on-going criminal

investigation concerning the harvesting of telephonic metadata, internet communications and

other confidential materials of justices of the Supreme Court, including the Chief Justice, other

judges, congressmen and senators and other prominent persons. This investigation, being run out

of the General Counsel’s office of the Federal Bureau of Investigation (FBI), by Director James

Comey and General Counsel James Baker, is on-going, as set forth in the outstanding pleadings.

Plaintiff and his counsel had met with the Honorable Royce C. Lamberth of this Court, who put

them in contact with General Counsel James Baker of the FBI, which facilitated this on-going

criminal investigation. General Counsel Baker then briefed Director Comey and field agents

were then assigned to conduct the criminal investigation and work with Assistant U.S. Attorney

Deborah Curtis of the Washington, D.C. United States Attorney’s Office, who negotiated two

immunity agreements with Plaintiff and his counsel.

ii. Defendants

A year ago, Plaintiff Dennis Montgomery brought this libel action against Pulitzer Prize-

winning author James Risen, and his publisher Houghton Mifflin Harcourt Publishing Co.

(“HMH”), and Houghton Mifflin Harcourt Company, improperly sued as HMH Holdings, Inc.,

concerning a chapter in the book Pay Any Price: Greed Power, and Endless War , published in

October 2014. ECF No. 1. On April 9, 2015, Defendants moved to dismiss or transfer this

action, ECF No. 25; that motion became moot when Plaintiff filed an amended complaint, ECF



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No. 44. On May 15, Defendants renewed their motion to dismiss or transfer, ECF No. 52, which

was fully briefed on June 11, ECF No. 77.

Without a ruling from the district court on these threshold issues, discovery commenced

and closed November 19, 2015. The discovery process was overseen by Magistrate Judge

Goodman, who issued several orders on the parties’ discovery motions including a series of

orders related to and granting Defendants’ motions to compel Plaintiff to produce the “critical

evidence” in this case – Mr. Montgomery’s software. Discovery proceedings culminated in a

four-plus hour hearing January 5, 2016, on Defendants’ motion for sanctions for Plaintiff’s

failure to produce the software. ECF No. 215, Minute Entry; ECF No. 230, Jan. 5, 2016 Hr’g Tr.

Defendants submitted their motion for summary judgment on December 14, 2015, the

deadline for dispositive motions. On the eve of submitting their reply brief in support of their

motion, the Southern District of Florida granted Defendants’ motion for transfer pursuant to 28

U.S.C. § 1404(a), and transferred this case to the District of Columbia. ECF No. 247.

There are currently three, fully-briefed, dispositive motions pending before the Court

including: (1) Defendants’ motion for summary judgment; (2) Defendants’ motion to dismiss

pursuant to Rule 12(b)(6); and (3) Defendants’ motion for sanctions for dismissal or other relief.

Defendants request oral argument on each of these dispositive motions, and resolution of the

motions before any further proceedings in this action –particularly before any pretrial

proceedings urged by the Plaintiff.

Although Plaintiff’s counsel often claims Mr. Montgomery could die at any moment, all

medical records produced in this case suggest Plaintiff’s condition is stable. See, e.g., ECF No.

100, Defs.’ Mot. to Modify Scheduling Order 12-13. Montgomery was diagnosed with an

aneurysm in 2011, and sustained a stroke in May 2014, but the medical records he submitted to



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the Court confirm that his condition continues to be stable. ECF No. 256-1. Indeed, on August

20, 2015, Montgomery appeared in Miami for a deposition in this libel case, having rejected

Defendants’ offer to take his deposition in Seattle, near where he lives. See ECF No. 119.

As recently as February 10, 2016, Mr. Montgomery, through counsel, informed the

Nevada court that he remained too ill to appear in criminal proceedings against him for alleged

felony theft, drawing and passing a check without sufficient funds with intent to defraud, and

other related charges. Nevada v. Montgomery, Case No. C-10-268764-1, Clark Cty., Nev. Dist,

Ct. If, as he claims, he has remained too ill for nearly two years to stand trial in Nevada, there is

all the more reason for this Court to act on the dispositive motions pending in this proceeding

where early resolution of libel cases is encouraged to avoid a chilling effect on speech involving,

as here, matters of such public concern. See ECF No. 201, Summ. J. Mot. 15. If the Court in

fact disposes of the case further to the motions, then not only will Defendants be spared the

further, chilling effect on speech but Mr. Montgomery will be spared the unnecessary travels and

participation in what would be a vigorously contested trial.

Accordingly, the Court should rule on Defendants’ pending dispositive motions before

setting any pretrial proceedings or setting a trial date. The Southern District of Florida had set a

two-week trial schedule to begin March 21, 2016 – a schedule that cannot be met before

resolution of the parties’ pending motions. This case, which the parties have already mediated

per court order, has not and will not settle. See ECF No. 231, Mediation Report.

b. Any impending events or proceedings that may effect the course of this

litigation.

i. Plaintiff

The Court has listed the pending motions, with the exception of a motion for protective

order with regard to a deposition of a third party witness Istvan Burgyan. In addition, Plaintiff



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will be requesting leave to file a surreply to correct certain misstatements of law and fact, and

respond to some new argument, in Defendants’ reply to their motion for summary judgment.

Plaintiff also requests oral argument on the pending motions. This will aid the Court in

coming up to speed on this case, which was only recently transferred to it.

Defendants have misstated the status of their below comment; based on past history and

other factors, it is clear that the government does not intend to pursue prosecution of Plaintiff.

Moreover, Defendants’ outrageous statement is irrelevant and is intended only to prejudice this

Court against Plaintiff.

ii.

Defendants

Plaintiff is next scheduled to appear in his criminal prosecution in Clark County, Nevada

on May 11, 2016. Nevada v. Montgomery, Case No. C-10-268764-1, Clark Cty., Nev. Dist, Ct.

c. Which motions and issues remain pending before the Court.

i. Plaintiff

See above.

ii.

Defendants

Summary Judgment. Defendants timely moved for summary judgment on all claims on

the grounds that (1) Plaintiff’s deliberate failure to produce the software at the heart of his claim

compels the conclusion that he cannot meet his burden to prove falsity as a matter of law; (2)

even if Plaintiff could carry his burden to prove falsity, as a limited-purpose public figure, he has

not and cannot put forth “concrete,” “affirmative evidence” that would allow a reasonable jury to

find, by clear and convincing evidence, that Defendants published with actual malice, i.e., with

knowledge of falsity or serious doubts as to the truth of the challenged statements; (3) the

statements Plaintiff challenges are non-actionable expressions of opinion and rhetorical



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hyperbole, not verifiable statements of fact; (4) the Amended Complaint is barred by the fair

report privilege; and (5) Plaintiff’s other tort claims are barred for the same reasons as the libel

claims and because he cannot prove the elements of those claims. ECF No. 201, Summ. J. Mot.;

ECF No. 202, Defs.’ Statement of Material Facts; ECF No. 203, Decl. of James Risen; ECF No.

204, Decl. of Laura Handman; ECF No. 250, Reply to Opp. to Summ. J. Mot.; ECF No. 251,

Defs.’ Reply to Pl.’s Additional Material Disputed Facts.

Rule 12(b)(6) Motion to Dismiss. As indicated, infra at subpart e, Defendants’ argument

that the Southern District of Florida lacked personal jurisdiction over the Defendant Risen, was

an improper venue and an inconvenient forum, has been mooted by the transfer of this case to the

District of Columbia. Defendants had also moved for a stay of discovery pending resolution of

their motion to dismiss or transfer, which was denied by the Florida court. ECF No. 55, Mot. for

Stay of Discovery; ECF NO. 76, Reply in Support of Mot. for Stay of Discovery; ECF No. 93,

Notice of Suppl. Auth. Re Mot. to Stay Discovery; ECF. No. 130, Paperless Order denying Mot.

to Stay Discovery. The remainder of Defendants’ motion to dismiss remains pending, see ECF

No. 247, Order Granting Mot. to Transfer 4, and the Court may dismiss Plaintiff’s amended

complaint, in its entirety, pursuant to Rule 12(b)(6) because Plaintiff fails to plead a plausible

claim for defamation or other related torts. Defendants’ motion asserts three of the four grounds

for dismissal as their motion for summary judgment – i.e., opinion, fair report, no actual malice –

but under the different standard of failure to state a claim upon which relief may be granted,

rather than the standard of no genuine material facts in dispute required for summary judgment.

ECF No. 52, Mot. to Dismiss § III.D; ECF No. 77, Reply to Pl.’s Opp. to Mot. to Dismiss § II.D.

Motion for Sanctions. Defendants seek sanctions on the grounds that Plaintiff has

violated three court orders and spoliated “what could be the most important evidence in the



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entire case,” ECF No. 122, Stay Order 6, the software central to Plaintiff’s burden to prove

falsity in this libel claim, which the Southern District of Florida and previous courts have

determined is not classified, see ECF No. 250, Defs.’ Reply to Opp. to Summ. J. Mot. 12-14.

ECF No. 166, Mot. for Sanctions; ECF No. 184, Reply in Support of Mot. for Sanctions; ECF

No. 191, Order Scheduling H’rg on Defs.’ Spoliation Sanctions Mot.; ECF. No. 196, Defs.’

Supp. Auth.; ECF No. 209, Defs.’ Suppl. Mem. on Defs.’ Spoliation Sanctions Mot.; ECF No.

212, Pl.’s Suppl. Mem. on Defs.’ Spoliation Sanctions Mot. Magistrate Judge Goodman held a

nearly four and a half hour hearing on Defendants’ motion on January 5, 2016, and thereafter

issued an administrative order seeking additional information and authorities from the parties,

with which each party timely complied. ECF No. 217, Post-Sanction Hearing Admin. Order;

ECF No. 226, Pl.’s List of Authorities Pursuant to Order of Jan. 6, 2016; ECF No. 227, Defs.’

Notice of Filing of Tr. of Montgomery Dep.; ECF No. 228, Pl.’s Notice of Filing Related to

Alleged Software; ECF. No. 299, Defs.’ Notice of Conventional Filing (of DVDs of

Montgomery Dep.); ECF No. 230, Tr. of Jan. 5, 2016 Hearing; ECF No., 232, Defs.’ List of

Authorities Pursuant to Order of Jan. 6, 2016. Accordingly, Defendants’ motion for dismissal

sanctions, or alternatively preclusion of evidence, is fully-briefed and pending for the court.

Sealing Motions. Each party has submitted various motions to seal documents marked

confidential during discovery. Plaintiff’s pending motions to seal include ECF No. 156; ECF

No. 159; ECF No. 160; ECF No. 180; ECF No. 236. Defendants’ pending motions to seal

include ECF No. 210; ECF No. 239; ECF No. 253.

Plainti f f’ s Objections to Magistrate Goodman’ s Orders. There also remains pending

several objections lodged by Plaintiff to orders issued by Magistrate Goodman related to

discovery matters. ECF No. 125, Pl.’s Objection to Portions of Order of Aug. 22, 2015; ECF



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No. 140, Defs.’ Opp. to Pl.’s Objection to Portions of the Magistrate Judge’s Aug. 22, 2015

Order; ECF No. 143, Pl.’s Objection to Limited Portions of Magistrate Judge’s Post-Discovery

Hearing Order; ECF No. 144, Pl.’s Supp. to Objection to Limited Portions of Magistrate Judge’s

Post-Discovery Hearing Order; ECF No. 164, Pl.’s Objection to Magistrate Judge’s Oct. 19,

2015 Order and Request to Stay; ECF No. 176, Defs.’ Opp. to Pl.’s Objection to magistrate

Judge’s Oct. 19, 2015 Order; ECF No. 188, Pl.’s Suppl. to Objections to Magistrate Judge’s

Orders Concerning Software

Motion for Protective Order . Plaintiff identified Istvan Burgyan, Plaintiff’s son-in-law

and former co-worker, a Washington State resident, as a trial witness. Defendants sought to

serve Mr. Burgyan with a subpoena duces tecum to appear for deposition. Mr. Burgyan evaded

service several times, and then once served on November 5, 2015, waited three days before his

deposition was to take place and the close of discovery to object to the subpoena. Defendants

moved to compel Mr. Burgyan’s compliance with the subpoena. Montgomery v. Risen, No. 15-

cv-1922 (W.D. Wash. Dec. 7, 2015). At a hearing on February 3, 2016, the Western District of

Washington granted Defendants’ motion to compel, ordered the deposition to take place within

30 days, and denied Mr. Montgomery’s request to certify the ruling for interlocutory appeal. Id .

(ECF No. 16.) Defendants and Mr. Burgyan have scheduled his deposition for March 1, 2016

after Mr. Burgyan denied being available at earlier requested dates in February. On the eve of

the hearing on Defendants’ motion to compel, Plaintiff moved this Court for a protective order

“that the deposition of Istvan Burgyan not proceed.” ECF No. 255. Defendants will submit a

brief in opposition to Plaintiff’s motion in the ordinary course.



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d. Whether any party seeks to withdraw any pending motions.

i. Plaintiff

Plaintiff does not seek to withdraw any pending motions.

ii. Defendants

Defendants do not seek to withdraw any pending motions.

e. Whether, due to any intervening events, any pending motions have

become moot, have become subsumed by other motions, or require

additional briefings.

i. Plaintiff

As set forth above, Plaintiff asserts that a surreply to Defendants’ reply to their motion

for summary judgment is necessary to correct certain misstatements of fact and law and to

address some new argument put forth by them, as well as to address Defendants continuing ad

hominem attacks on him.

ii. Defendants

Defendants do not seek to withdraw their Motion to Dismiss, but can confirm that the

arguments in their motion – that the Southern District of Florida lacks personal jurisdiction, is

the improper venue, and is an inconvenient forum – have been mooted by the transfer of this case

to the District of Columbia. See ECF No. 52, Mot. to Dismiss § III.A. To the extent the motion

to dismiss tracks the summary judgment motion, the court can deem it subsumed by the

subsequent summary judgment motion.

In addition, Plaintiff’s Motion for a Protective Order, ECF No. 255, has been mooted by

the February 3, 2016 Order of Judge Robart granting Defendants’ Motion to Compel the

deposition and document production. Montgomery v. Risen, No. 15-cv-1922 (W.D. Wash. Feb.



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3, 2016) (ECF No. 16). Plaintiff has refused to withdraw his Motion for a Protective Order and,

accordingly, Defendants will submit a brief in opposition in the ordinary course.

If, as indicated above, Plaintiff seeks leave to file a surreply, Defendants will oppose in

due course.

f. Whether any pending motions should be consolidated.

i. Plaintiff

Plaintiff’s position is that the motions and related pleadings concerning the alleged

software and the summary judgment motion should NOT be consolidated. However the Court is

requested to read Plaintiff’s reasons for not being able to produce the alleged software as the CIA

and its counsel, the U.S. Department of Justice has advised that any such software is classified

and not relevant to this case in any event, and thus the CIA refuses to produce any such software.

To produce any such software in Plaintiff’s case could subject him to criminal prosecution and as

set forth above and as recognized by Magistrate Judge Goodman of the transferor court, this case

concerns much more than what Defendants disingenuously claim it does.

ii.

Defendants

The parties’ sealing motions may be consolidated and taken up by the Court together with

the motions to which they apply. Thus, Plaintiff’s motions to seal communications between

Plaintiff, and/or Plaintiff’s counsel and the FBI concerning the turning over of Montgomery’s

software and the efforts to retrieve it from the FBI, ECF No. 156, ECF No. 159, ECF No. 160,

ECF No. 180, can be considered with Defendants’ motion for sanctions. ECF No. 166.

The parties’ motions to seal documents marked confidential by non-parties, pursuant to

their Protective Order, in conjunction with summary judgment briefing, ECF No. 210, ECF No.



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236, ECF No. 239, ECF No. 253, can likewise be considered with Defendants’ pending motion

for summary judgment.

Plaintiff’s objections to Magistrate Goodman’s orders, which all relate to Plaintiff’s

failure to produce the software at issue in this case, can be consolidated with Defendants’ motion

for sanctions and the parties’ briefing and supplemental filings related to that motion.

g. The order in which the Court should address the pending motions.

i. Plaintiff

Plaintiff has no position on the order in which the Court addresses the pending motions.

ii.

Defendants

Defendants seek a ruling first on their motion for sanctions because it seeks dismissal of

Plaintiff’s claims or, alternatively, the preclusion of evidence offered by Plaintiff that his

software exists or that it works or ever worked. Such a ruling will have significant implications

for the resolution of Defendants’ summary judgment motion and any proceedings going forward.

2. A joint proposed schedule to govern further proceedings in this case:

a.

Plaintiff

Plaintiff advocates adhering to and adopting the pre-trial schedule set by the Honorable

Jose Martinez of the transferor court, the U.S. District Court for the Southern District of Florida,

particularly in light of Plaintiff’s poor health and deteriorating and potentially terminable health

condition. See attached doctors’ letters and evaluations. In addition, this case was inexplicably

transferred to this Court on the apparent basis of forum non-conveniens after 12 months of

intensive pre-trial litigation and the close of discovery and Plaintiff thus relied on the expedited

trial date, at great time and expense, in litigating this case with all due speed given his health.

Plaintiff is a destitute individual and lacks the huge resources of Defendants, whose net worth is



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in the billions collectively. Defendants counsel’s recitation of Plaintiff’s health is false and

offensive, and this was one of the reasons the transferor court accelerated the trial date given the

heavy dockets in the U.S. District Court for the Southern District of Florida. At the first status

conference, lead counsel for the Defendants callously misstated the gravity of Plaintiff’s failing

health, and she later taunted him about his health at deposition. These matters are set forth in the

pleadings now pending before this Court.

b. Defendants

Defendants propose that the pretrial conference be scheduled following the Court’s

rulings on the outstanding dispositive motions. The Court should schedule pretrial motions and a

trial date at the pretrial conference.

Dated: February 17, 2016 Respectfully submitted,

By: /s/ Larry KlaymanLarry Klayman Esq. (Bar No. 334581)

2020 Pennsylvania Ave. NW #800Washington, DC 20006

Telephone: (310) 595-0800

[email protected]

Attorney for Plaintiff

DAVIS WRIGHT TREMAINE LLP

By: /s/ Laura R. Handman

Laura R. Handman (Bar No. 444386)Lisa B. Zycherman (Bar No. 495277)

1919 Pennsylvania Avenue, NW, Suite 800

Washington, DC 20006Telephone: (202) 973-4200

Facsimile: (202) 973-4499

[email protected]@dwt.com

Counsel for Defendants


Documents

Montgomery v Risen #258 | Joint Status Report