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UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

THE HON. MICHAEL J. McSHANE, JUDGE PRESIDING 

THE LANCE AND LINDA NEIBAUER )

JOINT TRUST, by and through LANCE )

NEIBAUER, as trustee, )

) 

Plaintiff, ) 

) 

v. ) No. 6:14-cv-01192-MC 

) 

MICHAEL J. KURGAN, )

 ) 

Defendant. ) 

___________________________________) 

REPORTER'S TRANSCRIPT OF PROCEEDINGS 

EUGENE, OREGON 

WEDNESDAY, SEPTEMBER 3, 2014 

PAGES 1 - 12 

 Kristi L. Anderson 

 Official Federal Reporter 

 United States Courthouse

 405 East Eighth Avenue 

 Eugene, Oregon 97401 

 (541) 431-4112 

 Kristi_Anderson@ord.uscourts.gov 

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 1 of 12
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APPEARANCES OF COUNSEL: 

FOR THE PLAINTIFF: 

Emily Teplin Fox 

Markowitz Herbold Glade & Mehlhaf, PC 

1211 S.W. Fifth Avenue 

Suite 3000 

Portland, OR 97204 

503-295-3085 

Fax: 503-323-9105 

Email: emilyfox@mhgm.com 

FOR THE DEFENDANT (PRO SE): 

Michael J. Kurgan 

6538 Collins Ave. Unit 288 

Miami Beach, FL 33141 

(858) 408-9330 

 

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 2 of 12
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PROCEEDINGS 

WEDNESDAY, SEPTEMBER 3, 2014 

THE CLERK: Now is the time set for Civil Case

14-01192, Lance and Linda Neibauer Joint Trust versus

Kurgan, Rule 16 conference.

THE COURT: Hi folks. This is Judge McShane.

Thanks for joining me this afternoon. If I could have each

representative on the phone, beginning with plaintiff,

please introduce themselves, and if you could spell your

last name for our court reporter.

MS. FOX: Yes. Good afternoon, Your Honor. This

is Emily Teplin Fox, F-O-X, for plaintiff Lance and Linda

Neibauer Joint Trust.

THE COURT: All right. Thank you, Ms. Fox.

MR. KURGAN: Michael Kurgan, K-U-R-G-A-N, the

defendant.

THE COURT: All right. Thank you, Mr. Kurgan. 

So what I want to do is just get us on a schedule

in terms of discovery, dispositive motions, and I do want to

set some trial dates and then talk a little bit about

discovery and just kind of get some sense of what the scope

of that will be.

I guess first I'd like to -- we do need to move

forward. This is a pretty simple contract case. There

seems to be a lot of litigation about where the case should

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 3 of 12
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be.

So Mr. Kurgan, I am going to rule now on your

motions. I am not going to spend a lot of time with the

response. Some of these issues you can reraise at a later

date.

But the motion to dismiss for lack of personal

jurisdiction, I am going to rely on the findings that were

already made by the California court regarding contacts in

Oregon. I am denying that motion.

The motion to dismiss for improper venue is

denied.

The motion to strike the first claim on the

anti-SLAPP theory, I will allow you to reraise that in the

dispositive motion, but it will be denied for now without

prejudice.

Motion to strike claim for attorney fees, I mean,

that just isn't typical that we would raise that issue now.

You can certainly raise it when they seek attorney fees, but

I am denying the motion at this time.

And motion to transfer the matter to the Southern

District of Florida is denied.

The case is going to be tried here and we need to

get moving on it. This isn't a complicated case. It's a

contract case. We need to set a fairly robust schedule and

get a decision out so that you folks know how to move on

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 4 of 12
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with the case.

So you folks, I believe, have already set fact

discovery deadline at November 21st; is that correct?

MS. FOX: Yes, Your Honor.

THE COURT: All right. So Ms. Fox, what are you

envisioning in terms of who you are deposing?

MS. FOX: Your Honor, plaintiff actually agrees

with your assessment of the case. It's a relatively simple

contract dispute. We intend to move for summary judgment

within 30 days, hopefully by the end of the month, without

conducting any discovery.

THE COURT: All right. So is it your thought that

there's just an issue of law regarding the contract that we

maybe should decide first, or are there some -- or do you

have just -- well, I guess that's my question.

Go ahead.

MS. FOX: We think the case can be decided on

issues of law, as you suggest, as well as just undisputed

facts.

THE COURT: All right. Mr. Kurgan, your thoughts

on that?

MR. KURGAN: Um, I personally don't see how that's

possible, but, you know, there's several, I think, disputed

facts that are material to -- you know, that were in the

pleadings that, you know, there was an addendum signed, was

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 5 of 12
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the addendum -- you know, the pleadings, you know, stated

that it terminated on the 14th of this year. There was a

typographical error. I think, you know, that it's -- the

very nature of an addendum to extend a lease is -- you know,

it would have been basically the same day. So that doesn't

make any sense to me.

And then, you know, there's the -- I guess a

triable issue of was there a waiver for the date for me to

exercise the option to purchase the aircraft.

THE COURT: All right. But is that something you

think, other than the documents itself, the contract and any

other surrounding documents as well as your own declarations

with regard to your understanding or things that might have

suggested a waiver, is there a streamlined way we can get to

me deciding what in fact the contract says without having to

take on the costs of deposing -- I mean, I don't know where

it would help you to depose, for instance, the -- you know,

the holders of the trust or the trust representatives, you

know, outside of the contract itself and any declaration you

wanted to add with regard to facts.

MR. KURGAN: Well, it's important -- I mean, I am

a little disappointed that it's -- you know, my motion is

not being heard for the transfer of venue because --

THE COURT: I read your memo. Mr. Kurgan, I think

you are mistaking that you weren't heard. I heard you

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 6 of 12
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because you filed a memo and I read it. And everything that

you plan on telling a court, I need to tell you, you are not

entitled to oral argument. There are times where I find

oral argument is helpful, and I will set oral argument. I

will likely set oral argument on the dispositive motion.

But if you are telling me you forgot to put

something in your writing, then I would advise you you need

to start getting an attorney. I am not hear to listen to

your disappointment about my ruling. Lawyers aren't allowed

to express their --

MR. KURGAN: Okay. 

THE COURT: Don't interrupt.

Lawyers aren't expressing their disappointment

with my rulings, and I will expect the same of you if you

are not going to have a lawyer. You are going to have to

live with my rulings. You don't have to like them. You can

appeal them and it won't hurt my feelings, but I am not

going to sit and listen to your disappointment.

So the question that I have that I want you to

answer is rather than racking up a lot of expenditures over

depositions and exchange of documents, is there a

streamlined legal issue that we can start with over what the

contract actually says?

MR. KURGAN: I guess, Your Honor, when I see the

discovery and the calculations of the damages, then I can

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 7 of 12
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respond to that. The pleadings, you know, on the face

weren't descriptive enough for me to actually -- to make

that determination.

I do believe we have a defense that we were

fraudulently induced to enter the contract. I will need

depositions from the people in Aurora, Oregon and where the

hot section was allegedly supposed to be performed.

I have information in San Diego that the aircraft

was supposed to be delivered in an airworthy condition and

it wasn't, and there should be a cost offset to that.

So I guess at some point, you know, we made our

motions, you denied them, but I also believe the court said

they were going to set a date for me to answer and possibly,

you know, file any countersuit that I have. So I don't have

that date yet either.

THE COURT: My understanding is you filed an

answer in this case. Are you saying you haven't filed an

answer yet?

MR. KURGAN: No, I have not.

THE COURT: Okay. When are you going to file your

answer?

MR. KURGAN: Can I have ten days to file an

answer?

THE COURT: Yes.

MR. KURGAN: Okay.

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 8 of 12
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THE COURT: Okay. So let's do this:

You know, I guess still what I don't understand,

Mr. Kurgan, is whether -- you know, notwithstanding whether

there are certain fact issues about damages, is there at

least an initial decision you think the court should make

about the scope of the contract that might help us all

figure out where we go next, or should we let it all open

and go right into full discovery on everything?

MR. KURGAN: I would suggest we just go into full

discovery on everything.

THE COURT: Okay. And why is that? I mean, if I

were to rule against you on the contract, there might be

other issues, then, that we can narrow. If I rule in your

favor, I would think, you know, it would certainly limit the

plaintiff's case dramatically.

I guess what I would like to do is focus on --

well, let me ask Ms. Fox, I mean, what are you envisioning

the dispositive motion to be focused on?

MS. FOX: Your Honor, we plan to move for summary

judgment on all of our claims. We believe we have

contemporaneous documentation that will establish our

damages to a degree of certainty that would enable the court

to make a summary judgment decision of the case.

If Mr. Kurgan -- perhaps upon seeing our motion,

if Mr. Kurgan can articulate the particular discovery he

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 9 of 12
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believes he needs to properly oppose the motion, you know,

certainly he can do that under the rules.

THE COURT: All right. Why don't we do this:

Mr. Kurgan will file his answer in ten days. And

my understanding, then, is the plaintiffs are going to file

a dispositive motion, are you saying within 30 days?

MS. FOX: Yes.

THE COURT: All right. Within 30 days. For this

period, then, I am going to stay discovery. And let's take

a look at the dispositive motion, give Mr. Kurgan a chance

to respond to it. There would be 14 days to respond plus an

additional -- excuse me -- 21 days to respond and then 14

days for a reply.

And we'll see, really, where the case is. If it

does not look like there can be an appropriate response

without further discovery on the specific issues of the

motion, we can set a status hearing and have a discussion at

that time.

But I would like to take a look, if we can, at the

more narrow issues of the contract and see if those can be

decided without a lot of kind of fact discovery that may or

may not be germane to the contract.

So for now I am going to stay discovery. We'll

take a look at the dispositive motion.

And Mr. Kurgan, if you will call my -- or contact

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 10 of 12
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my courtroom deputy, Ms. Charlene Pew, if you want to set a

further status conference after you receive the dispositive

motion, and if there is some limited discovery you think you

need to do in order to go forward on that dispositive

motion, we can discuss it at that time.

Okay? Any questions for either side?

MR. KURGAN: No, Your Honor.

MS. FOX: Your Honor --

THE COURT: Yes. Go ahead, Ms. Fox. 

MS. FOX: Thank you, Your Honor.

Your Honor, I just wanted to clarify that the

plaintiff will produce all contemporaneous e-mails and other

documentation that it thinks is necessary for its summary

judgment motion to Mr. Kurgan promptly.

THE COURT: Okay. I appreciate that. Let's do

that sooner than later.

All right. So yes, with regards to any exhibits

that you are going to be attaching to a dispositive motion,

please exchange those as soon as possible.

Okay. Anything else?

All right, then. Thank you very much. I

appreciate it.

MS. FOX: Thank you.

(The proceedings were concluded this

 3rd day of September, 2014.) 

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 11 of 12
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I hereby certify that the foregoing is a true and 

correct transcript of the oral proceedings had in the 

above-entitled matter, to the best of my skill and ability, 

dated this 8th day of June, 2015. 

/s/Kristi L. Anderson 

_______________________________________________ 

Kristi L. Anderson, Certified Realtime Reporter 

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Case 6:14-cv-01192-MC Document 62 Filed 06/08/15 Page 12 of 12