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Lozovyy v. Kurtz

United States District Court, M.D. Louisiana

January 26, 2015



JOHN W. deGRAVELLES, District Judge.

This matter comes before the Court on the Special Motion to Strike (R.Doc. 22), the Amended Special Motion to Strike And, Alternatively, Rule 56 Motion for Summary Judgment (R.Doc. 25), and the Motion to Strike Evidence (R.Doc. 32), all filed by Defendants Richard L. Kurtz and Thomas R. Klei (collectively, "Defendants"). Oral argument was heard on January 15, 2015.

Having carefully considered the law, evidence, and arguments of the parties, the Court denies Defendants' Motion to Strike Evidence (R.Doc. 32) and grants Defendants' Special Motion to Strike (R.Doc. 22) and Amended Special Motion to Strike And, Alternatively, Rule 56 Motion for Summary Judgment (R.Doc. 25),

I. Factual and Procedural Background

This is a defamation action. Plaintiff Yaroslav Lozovyy was employed by Louisiana State University at the J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices ("CAMD") on an annual-renewable contract basis as a Research Assistant 5, with his salary paid by CAMD to support beamline activities in the facility. (R.Doc. 22-7, p. 1-2).

LSU is presently, and was at the time of Lozovyy's employment, designated as an Energy Frontier Research Center ("EFRC") by the U.S. Department of Energy. (R.Doc. 22-1, p. 1). LSU's EFRC work relies heavily on experimental research conducted at CAMD. (Id). As an EFRC, LSU is annually awarded federal research funding through a five-year renewable grant from the U.S. Department of Energy. ( Id., p.2). LSU participants and CAMD users have also received federal funding through EFRC Innovation Grants, which are "sub-grants" of EFRC for specific projects within the scope of EFRC. (Id.).

The focus of CAMD's EFRC research is developing an atomic level catalyst design, the practical application of which would include, for example, transforming carbon dioxide into liquid fuel, thereby producing an alternative energy source. (Id.). Defendant claims that the project, if successful, would have a significant impact on the United States economy, as well as the global economy. (Id.).

CAMD's EFRC partners include Clemson University, University of Florida, Georgia Institute of Technology, Grambling University, Oak Ridge National Laboratory, Pennsylvania State University, Texas A&M University, Vienna University of Technology - Institute of Applied Physics, University of Utrecht, and The Ohio State University. (Id.).

In April 2012, a decision was made to not renew Lozovyy's contract, which expired on June 30, 2012. ( Id., p. 5). Lozovyy continued to be paid by CAMD through July 30, 2012. (Id). Nataliya Lozova, Lozovyy's wife, was also employed at CAMD, but her contract was not renewed when it expired on January 31, 2013. ( Id., p. 6).

After Lozovyy departed from CAMD, Peter Dowben of the University of Nebraska-Lincoln contacted Richard Kurtz, defendant and Interim Director of CAMD. ( Id., p. 7). Dowben had a long-term relationship with Lozovyy, and CAMD hired Lozovyy initially on the recommendation and request of Dowben, for whom Lozovyy had done his post doctorate work. ( Id., at 3). When Dowben contacted Kurtz, Dowben demanded an explanation as to the reason or reasons why Lozovyy's contract had not been renewed. ( Id., p. 7). Dowben further demanded that Lozovyy be allowed to return and have access to CAMD as a UNL employee. Dowben requested a conference call to discuss, among other things, Dowben's demands related to Lozovyy. (Id.).

The conference call was held on July 13, 2012. (Id.) There were seven participants. Defendants Richard Kurtz and Thomas R. Klei, Vice Chancellor of Research and Economic Development of LSU, participated. (R.Docs. 22-1, p. 7 and 22-2, p. 1). Additionally, there was Kalliat Valsaraj, Vice Chancellor of Research and Economic Development at LSU, and John Scott, Scientific Director for CAMD. (R.Docs. 22-3, p. 1 and 22-4, p. 1). Finally, from the University of Nebraska - Lincoln, there was Prem Paul, Greg Snow, and Peter Dowben. (R.Doc. 22-1, p. 7).

The central factual issue in this suit is whether, during the telephone call, the Defendants Kurtz and Klei defamed Lozovyy by stating that he destroyed and/or stole data. Defendants claim that, at no time in the conference call did Kurtz, Klei, or any other representative of LSU say or suggest that Lozovyy had destroyed and/or stolen any data. (R.Docs. 22-1, p. 6-8; 22-2, p. 1-2; 22-3, p. 1-2; 22-4, p. 1-2). Four witnesses essentially attest to this fact - Kurtz, Klei, Valsaraj, and Scott. (Id.).

Plaintiff submits the affidavit of Peter Dowben, who also participated on the call. Dowben "states that the defendants, Kurtz and Klei, affirmatively stated that Dr. Lozovyy had stolen or destroyed data of users of CAMD." (R.Doc. 29-1, p. 2; 29-2, p.1). This is the only witness that Plaintiff has offered to the Court who allegedly heard the defamatory remarks directly from the Defendants.

There are no affidavits or declarations of two witnesses - Prem Paul and Greg Snow - both of University Nebraska - Lincoln - the final two participants on the conference call.

With their reply memorandum (R.Doc. 31), Defendants submitted considerable evidence attempting to attack the credibility of Peter Dowben and highlight the close relationship between him and the Plaintiff. These documents generally support the conclusion that Dowben wrote to LSU on Lozovyy's behalf several times, that the two collaborated together on many papers, that the two discussed Lozovyy's strategy toward dealing with people on the projects. They would also complain to one another about people on the project, including the Defendants. Dowben personally loaned money to Lozovyy. Finally, in a June 28, 2012, email, Plaintiff stated that Plaintiff had heard a rumor about his stealing data, which would have occurred a few weeks before the allegedly defamatory statements were even made.

The parties also dispute the extent to which and whether Plaintiff was injured by the alleged defamatory remarks.[1] However, as the Court explained at oral argument, Plaintiff's declaration attesting to the fact that he suffered humiliation and emotional distress is enough, by itself, to satisfy the injury requirement, regardless of the burden imposed on this motion.

Plaintiff filed his Complaint on July 1, 2013. On July 18, 2014, Defendants filed their Special Motion to Strike (R.Doc. 22) seeking dismissal of the action under Article 971 of the Louisiana Code of Civil Procedure.

On July 24, 2014, the Court issued a Notice to Parties (R.Doc. 23) stating that the Special Motion to Strike was converted to a motion for summary judgment and that the Defendants were given 14 days to supplement their motion to dismiss as appropriate for one for summary judgment. Defendants did so on August 7, 2015, when they filed an Amended Special Motion to Strike and, Alternatively, Rule 56 Motion for Summary Judgment. (R.Doc. 25). On September 11, 2014, Defendants filed their Motion to Strike Evidence and Request for Oral Argument. (R.Doc. 32).

On December 16, 2014, the Court issued a notice to counsel (R.Doc. 49) stating that, because the Defendants introduced new evidence when they filed their Reply Brief (R.Doc. 31), Plaintiff had seven (7) days to respond and introduce new evidence.

The next day, the Court issued another notice to counsel (R.Doc. 50) explaining that it reconsidered its previous notice to counsel (R.Doc. 23) and decided that Defendants' Motion to Strike and Amended Motion to Strike (R.Docs. 22 and 25) shall be treated as special motions to strike under Article 971. The parties addressed the significance of this change in their additional briefing. (See R.Docs. 51 and 52).

II. Discussion

A. Motion to Strike Evidence

The Plaintiff submitted four declarations in opposition to Defendants' special motion to strike. Defendants have objected to three of those declarations - that of Evgueni E. Nesterov, that of Carl A. Ventrice, and that of Peter Dowben. Defendants basically object to every statement in these affidavit, for one reason or another.

In sum, Defendant's motion is denied in toto. The Plaintiff's declarations are not perfect, but they are not so defective as to exclude them. The Court will address each declaration, and each objected-to statement, in turn.

1. Nesterov's Declaration

a. " I had heard allegations that Dr. Lozovyy had stolen and destroyed data of CAMD users. " Defendant objects that this is hearsay. The Court finds that this statement is not hearsay because it is not offered for the truth of the matter asserted.

b. " Such allegations harmed Dr. Lozovyy's reputation ..." Defendants object that this statement is unsubstantiated, conclusory, and not relevant. Plaintiff responds that the statement is not unsubstantiated or conclusory because the statement speaks for itself; it is clear from the alleged defamatory remarks why it is damaging. As to the fact that Nesterov did not participate in the conference call, Plaintiff explains, "While the general rule is that the original author of a libelous publication is not to be held liable for the voluntary republication of it by others, an exception exists where the republication is the natural and probable consequence of the defendant's act. Wiggins v. Creary 475 So.2d 780 (La.App. 1st Cir. 1985)." (R.Doc. 36, p. 5). Plaintiff claims that it is easily presumed that, after the conference call, there were other discussions about defendants' allegations among LSU and UNL participants, "and synchtrotron scientists all over the country and even overseas, as a natural and probable consequence of the defendants' actions." ( Id., p. 5-6).

The Court agrees with Plaintiff. These statements are defamatory per se, so it is clear how they harm Plaintiff's reputation. While the Court agrees that it is at least arguable that the declaration fails to establish that Nesterov can link the defamatory words back to the conference call, the Court will construe the declaration as a whole and, in doing so, it is clear that that was the intention of Nesterov. Defendants' objection is overruled.

c. " Dr. John Scott, the Scientific Director of CAMD, submitted a lukewarm recommendation letter for Dr. Lozovyy which mentioned mistakes made by Dr. Lozovyy at CAMD ." Defendant objects that this is irrelevant hearsay. The Court disagrees; Plaintiff is offering the statement to prove the fact that the letter was written, not the truth of its contents. Concerning relevance, Plaintiff was offering this to show that the "mistakes made" were the destruction/theft of data. Thus, Plaintiff is attempting to show damage to reputation. Again, while there is arguably a gap in the testimony, a fair reading of the declaration as a whole shows what Plaintiff intended to prove.

d. " Based on this letter and the awareness of persons on the search committee of internal political struggles at CAMD, the committee's enthusiasm toward further consideration of Dr. Lozovyy's application was reduced in favor of other applications." Defendants object that this is irrelevant and conclusory. The Court disagrees. Nesterov was on the search committee and ...

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