Page 1 - PLAINTIFF AND COUNTERCLAIMANT DEFENDANTS’ JOINT MOTION 

TO STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

Lisa A. Kaner, OSB #881373 

LisaKaner@MHGM.com 

Emily Teplin Fox, OSB #121720 

EmilyFox@MHGM.com

MARKOWITZ HERBOLD PC 

Suite 3000 Pacwest Center 

1211 SW Fifth Avenue 

Portland, OR 97204 

Tel: (503) 295-3085 

Fax: (503) 323-9105 

 Attorneys for Plaintiff-Counterclaim Defendants 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

THE LANCE AND LINDA NEIBAUER 

JOINT TRUST, by and through LANCE 

NEIBAUER, as trustee, 

Plaintiff,

vs. 

MICHAEL J. KURGAN, 

Defendant.

No. 6:14-cv-01192-MC

PLAINTIFF AND 

COUNTERCLAIMANT 

DEFENDANTS’ JOINT 

MOTION TO STRIKE, AND 

MEMORANDUM IN SUPPORT 

OF MOTION TO STRIKE

Fed. R. Civ. P. 56(c)(2) and 

Local Rule 56-1(b)

L.R. 7-1 CERTIFICATION 

Pursuant to L.R. 7-1(a)(1)(A) and L.R. 56-1(b), the undersigned counsel for plaintiff the 

Lance and Linda Neibauer Joint Trust (“the Trust”) and counterclaim defendants Lance Neibauer 

and Linda Neibauer (collectively “Neibauer”) certifies that the undersigned counsel made a good 

faith effort to discuss the issues addressed in this motion with defendant Michael Kurgan 

(“Kurgan”) through telephonic communication but Kurgan declined to confer telephonically and 

Case 6:14-cv-01192-MC Document 31 Filed 10/27/14 Page 1 of 6
Page 2 - PLAINTIFF AND COUNTERCLAIMANT DEFENDANTS’ JOINT MOTION 

TO STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

the parties were unable to resolve the dispute through email communication. (See Decl. of Emily 

Teplin Fox; Ex. 1.) 

MOTION TO STRIKE 

Pursuant to Fed. R. Civ. P. 56(c)(2) and L.R. 56-1(b),1 Neibauer moves the Court (a) to 

strike certain portions of the Declaration of Defendant Michael J. Kurgan in Support of his 

Motion for Summary Judgment, or in the Alternative, Partial Motion for Summary (“Kurgan 

Declaration”) (ECF # 27), specifically paragraphs 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17, 19, 21, 

22, 26, 29, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 55, 56, 60, 61, 62, 

63, 64, 65, 66, 67, 71, 72, 73, 74, and 75; (b) to exclude all 30 exhibits submitted in support of 

Kurgan’s Motion for Summary Judgment (ECF # 29, 29-1); and (c) to exclude all 33 exhibits in 

support of Kurgan’s Opposition to Plaintiff’s Motion for Summary Judgment and Dismissal of 

Counterclaims and Memorandum in Support (“Opposition”). (ECF #30-1, 30-2, and 30-3.) 

MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

Kurgan has moved for summary judgment on the Trust’s claims and his own 

counterclaims against Neibauer (“Motion for Summary Judgment”). (ECF # 23.) However, the 

filings submitted in support of his motion – the Kurgan Declaration and 30 documents purporting 

to be exhibits – are improper and impermissible under the Federal Rules of Civil Procedure and 

the Federal Rules of Evidence. Likewise, Kurgan has opposed Neibauer’s Motion for Summary 

Judgment and for Dismissal of Counterclaims with improper exhibits. 

Rule 56 provides the Court with wide discretion in addressing evidentiary failures in the 

summary judgment context. Fed. R. Civ. P. 56(e). Here, the Court should strike those portions 

of Kurgan’s submissions which run afoul of the Federal Rules. 

I. The Court should strike certain portions of the Kurgan Declaration. 

Pursuant to Rule 56, a declaration submitted in support of a summary judgment motion 

“must be made on personal knowledge, set out facts that would be admissible in evidence, and 

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 

 1

 LR 56(b) permits, but does not require, a party to assert evidentiary objections in its 

response or reply memorandum. 

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Page 3 - PLAINTIFF AND COUNTERCLAIMANT DEFENDANTS’ JOINT MOTION 

TO STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

56(c)(4). Although FRE 701 “allows opinion or inference testimony of a lay witness if it is 

rationally based on the perception of the witness and helpful in understanding a fact in issue[,]” 

facts that are purely legal argument must be stricken. See Hess v. Multnomah Cnty., 211 F.R.D. 

403, 405 (D. Or. 2001). The Kurgan Declaration is replete with legal arguments, factual 

statements about which he has no personal knowledge, and unsubstantiated expert opinions 

which he is not competent to offer. 

For example, Kurgan asserts that “the Plaintiffs’ intent in making the statements were 

made were [sic] to induce the Defendant into entering the agreement.” (ECF # 27 (Kurgan 

Decl.) at 3.) He also asserts that “the Plaintiff breached the agreement to pay the taxes and the 

brokers’ commissions[,]” that “Plaintiff suffered no harm in Oregon, or at all[,]” and that “[t]he 

statements claimed by the Plaintiff as interference with the buyer are clearly privileged and the 

Defendant is absolutely immune.” (Id. at 6, 9, 10.) These sentences are a combination of factual 

statements about which Kurgan has no personal knowledge and unfounded legal argument. 

There are many in the Kurgan Declaration. 

The Trust moves to strike the following paragraphs from the Kurgan Declaration, in 

whole or in part: 

Basis for moving to strike Paragraphs to be stricken in whole or in part 

No personal knowledge/improper expert 

opinion 

5, 7, 8, 11, 12, 13, 14, 21, 22, 26, 29, 32, 34, 37, 42, 

43, 56, 60, 62, 63 

Legal arguments/conclusions 2, 3, 5, 6, 7, 8, 10, 11, 13, 14, 17, 19, 22, 32, 36, 37, 

38, 39, 40, 41, 43, 45, 46, 47, 48, 49, 51, 52, 53, 55, 

56, 61, 62, 64, 65, 66, 67, 71, 72, 73, 74, 75 

Attached as Exhibit 2 to the Declaration of Emily Teplin Fox is a copy of the Kurgan 

Declaration highlighting the specific portions Neibauer is moving to strike. 

II. The Court should exclude all 30 of Kurgan’s exhibits submitted in support of his 

Motion for Summary Judgment. 

The Court should exclude all of the exhibits submitted by Kurgan in support of his 

Motion for Summary Judgment. “Where a party attempts to introduce an exhibit by attaching it 

to a declaration or affidavit, FRCP 56(e) requires that the declarant or affiant have personal 

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TO STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

knowledge of the exhibit.” Chao v. Westside Drywall, Inc., 709 F. Supp. 2d 1037, 1053 (D. Or. 

2010). Improperly authenticated exhibits are inadmissible as evidence. Id.; see also FRE 901(a), 

(b)(1). None of the exhibits submitted in conjunction with the Kurgan Declaration are properly 

authenticated. In the Kurgan Declaration, Kurgan appears to reference only some of the exhibits 

(1, 3, 4, 5, 7, 8, 9, 10, 12, 16,17, 19, 21, 22, 24, 26, 27, 28), but he does not explain his personal 

knowledge of the contents of any. On that ground alone the Court should exclude Kurgan’s 

exhibits. 

Many of Kurgan’s ‘exhibits,’ moreover, are not really exhibits. Exhibit 14, for example, 

is a bare statement: “PUNITIVE DAMAGES, IN AN AMOUNT OF THREE TIMES THE 

AMOUNT OF COMPENSATORY DAMAGES AWARDED IN THE SUM OF $178,062.90.” 

(ECF # 29-1 at 4.)2

 Kurgan has proffered no precedent for a court making a punitive damages 

award – fundamentally a jury determination – on summary judgment; his ‘exhibit’ is no more 

than an unsubstantiated, argumentative, and inappropriate demand. As another example, Exhibit 

22 begins with a blank page containing the statement “AVIONICS UPGRADE PROPOSAL – 

CONDITION PRECEDENT TO INSTALLATION WAS THE G500 RIGHT HAND 

PRIMARY FLIGHT DISPLAY $13,995 PLUS INSTALLATION WHICH WOULD HAVE 

BEEN THE RESPONSIBILITY OF THE SELLER.” (Id. at 43.) This statement – a 

combination of unsupported factual assertions and legal argument – is wholly insufficient to 

explain the presence or import, let alone Kurgan’s personal knowledge of the contents, of Exhibit 

22. The spreadsheet Kurgan submitted as Exhibit 24 appears to be a table reflecting Kurgan’s 

own interpretation of certain bills that are themselves in-authenticated exhibits. 

The Court should consider only those properly authenticated exhibits that are actual 

exhibits, i.e. contemporaneously created documents purporting to prove or disprove a relevant 

fact. None of Kurgan’s ‘exhibits’ fit that description. The Court should exclude them. 

 2

 The pincites to Kurgan’s exhibits refer to the ECF-designated numbering. 

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TO STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 

III. The Court should exclude all 33 exhibits submitted with Kurgan’s Opposition. 

The Court should exclude all 33 exhibits in support of Kurgan’s Opposition. (ECF #30-

1, 30-2, and 30-3.) None are authenticated, or even referenced, in any declaration or affidavit, by 

anyone. As such, they are not properly before the Court. The first 30 of these ‘exhibits,’ 

moreover, are identical to the 30 submitted in conjunction with Kurgan’s Motion for Summary 

Judgment and suffer from the same evidentiary deficiencies set forth above. 

CONCLUSION 

For the reasons stated above, the Court should strike certain portions of the Kurgan 

Declaration, exclude all 30 of his exhibits submitted in support of his Motion for Summary 

Judgment, and exclude all 33 of his exhibits submitted with his Opposition. 

DATED this 27th day of October, 2014. 

MARKOWITZ HERBOLD PC

By: /s/ Emily Teplin Fox

Lisa A. Kaner, OSB #881373

Emily Teplin Fox, OSB #121720 

(503) 295-3085 

Attorneys for Plaintiff-Counterclaim 

Defendants

415460

Case 6:14-cv-01192-MC Document 31 Filed 10/27/14 Page 5 of 6
CERTIFICATE OF SERVICE 

ATTORNEY CERTIFICATE OF SERVICE 

 I hereby certify that on October 27, 2014, I have made service of the foregoing 

PLAINTIFF AND COUNTERCLAIMANT DEFENDANTS' JOINT MOTION TO 

STRIKE, AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE on the 

party/ies listed below in the manner indicated: 

Michael Kurgan 

6538 Collins Avenue, Unit 288 

Miami Beach, FL 33141 

 U.S. Mail 

 Facsimile 

 Hand Delivery 

 Overnight Courier 

 Email: n461bb@gmail.com 

Electronically via USDC CM/ECF system

 DATED this 27th day of October, 2014. 

 /s/ Emily Teplin Fox ____________________________________ 

 Emily Teplin Fox, OSB #121720 

 Attorney for Plaintiff-Counterclaim Defendants 

Case 6:14-cv-01192-MC Document 31 Filed 10/27/14 Page 6 of 6