Garth Ancier Files Motion to Dismiss Sex Abuse Case

5:02 PM PST 05/29/2014 by Jonathan Handel
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Garth Ancier

Citing plaintiff Michael Egan III's own deposition and arguing that he attempted to bribe a potential witness in an earlier abuse lawsuit, Ancier urges the Hawaii court to find that he was never on the island with Egan.

Television executive Garth Ancier, who was one of four men sued last month in Hawaii by Michael Egan III for teen sex abuse that allegedly occurred there in 1999, filed a motion to dismiss the case Thursday for lack of jurisdiction, quoting Egan’s own sworn deposition from 2003 to demonstrate that Ancier was never in Hawaii with him and that Ancier never sexually abused him.

Ancier’s filing included portions of a deposition in a 2000 sex abuse lawsuit filed by Egan and two others in which a potential witness said that Egan and a co-plaintiff offered to give the witness half of any recovery from the lawsuit. The witness – Melvin Berman, a personal chef to one of the 2000 suit defendants – said in the deposition that he didn’t believe that Egan and the other plaintiff had actually been abused. Ancier was not a defendant in the 2000 suit.

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Accompanying his motion to dismiss, Ancier included declarations from his then-assistant and others that he didn’t travel to Hawaii during the period in question, and that Egan didn’t either. Ancier also said that he had reviewed his calendar entries, credit card statements, expense reports, telephone records and travel-related documents, and they "show that there is no way he could have been in Hawaii" as alleged in the complaint.

The filing comes a week after defendant Gary Goddard filed a similar motion. Previously, defendants Bryan Singer and David Neuman filed similar motions as well.

Goddard's motion included copies of over 300 pages of receipts, theater and movie ticket stubs, and handwritten calendar pages to document his absence from Hawaii during the three-month time period at issue.

Neuman's motion cited a 2003 declaration in which Egan said he'd "never had any kind of physical contact" with Neuman other than nonsexual social contact and that Neuman "never acted improperly."

All four motions cite two passages in Egan's deposition, which was taken in the course of a 2000 sex abuse lawsuit that Egan filed against three executives of the now-defunct Digital Entertainment Network (DEN). In one passage, Egan says he’s "never had any trips outside the continental U.S." with the 2000 defendants, contradicting assertions in the 2014 suit that he did go on such trips, in groups that he asserted included both the 2000 defendants and the 2014 defendants.

In another passage, Egan says in response to a question about "this thing that happened to you" that no one other than the 2000 defendants had been "partaking in all this stuff."

The 2014 lawsuits, filed in Hawaii federal court against Singer, Goddard, Neuman and Ancier, cover much the same time period and some of the same geography as the 2000 suit, yet the prior suit did not name or even mention the 2014 defendants.

Egan's current counsel, Jeff Herman, has yet to offer an explanation of the omission despite publicly promising to obtain one. Nor has Egan's counsel in the 2000 suit, who represented him as recently as 2011, provided any explanation as to why the 2000 suit didn’t name the four men whom Egan sued last month. Indeed, Neuman, like the 2000 defendants, was a top DEN executive.

The four 2014 defendants were each sued separately, but all of the suits are before the same judge, Susan Oki Mollway. Ancier's, Singer’s and Goddard’s motions reserve the right to seek sanctions, while Neuman has already served a sanctions motion.

Herman and his media director did not immediately respond to a request for comment on Ancier’s motion to dismiss. However, Herman said previously, "Mike maintains that he was in Hawaii with the defendants and his mother maintains that she spoke to [2000 suit defendant] Chad Shackley and authorized him to take Mike to Hawaii on at least two occasions."

In response to the Singer motion, Herman said, "I do have a response, but I am restricted in that I can only talk about what is in the court record. Many of the things being reported are being taken out of context or you’re only hearing one side of the story. At the appropriate time and in the appropriate venue, we will respond."

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Egan lives in Nevada and the four 2014 defendants in Los Angeles. The 2014 complaints premise the Hawaii court’s jurisdiction on the assertion that the alleged wrongful acts occurred there -- but Egan's sworn 2003 statements cast doubt on the court’s jurisdiction and, indeed, on whether the allegations in the 2014 suit are true at all.

A hearing on the motions to dismiss is scheduled for July 28. Egan’s responses to the motions are not yet due, and it’s unknown what approach Herman will take to the evidence that has surfaced.

Ultimately, Mollway has wide discretion in how to handle the motions. If she opts to decide them by simply reading the declarations and attachments, the legal burden of proof on Egan is quite light. Thus, seemingly, if he declares that he was indeed in Hawaii with the 2014 defendants, that might suffice notwithstanding his apparently contradictory 2003 statements and the other evidence. The suit would then move forward and ultimately, at trial, a higher and more balanced standard of proof would apply: the "preponderance of the evidence" standard.

STORY: Gary Goddard Files Motion to Dismiss Sex Abuse Case, Includes 300 Pages of Evidence

But the startling contrast between those statements and the new lawsuits, coupled with the white-hot publicity that Herman has sought and obtained in the case, may put pressure on the judge to resolve the jurisdictional matter more decisively, even if that inevitably means treading into an early resolution of the case itself.

If Mollway goes in this direction, she could order discovery -- depositions, written questions, and exchange of documents -- on the issue of jurisdiction, and could even demand that the witnesses appear before her in open court and tell their apparently conflicting stories while she looks them in the eye. The preponderance of evidence standard applies under such a procedure, just as it would in a full-blown trial. Such a hearing would be unusual, but not beyond the judge’s power, and might be the only way to reliably determine just who was on the island of Oahu in 1999.

Email: jh@jhandel.com
Twitter: @jhandel

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