Vanginderen v. Cornell University

Filing 7

MOTION to Strike Plaintiff's Complaint by Cornell University. (Attachments: # 1 Memo of Points and Authorities Memorandum of Points and Authorities in Support of Defendant's Special Motion to Strike Plaintiff's Complaint Pursuant to Cal. Code Civ. Pro. sec. 425.16)(Deixler, Bert) (vet, ).

Vanginderen v. Cornell University

Doc. 7

Case 3:07-cv-02045-BTM-JMA

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Filed 11/02/2007

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1 NELSON E. ROTH, SBN 67350 [e-mail] 2 CORNELL UNIVERSITY 300 CCC Building 3 Garden Avenue Ithaca, New York 14853-2601 4 Telephone: [phone] Facsimile: [phone] 5 BERT H. DEIXLER, SBN 70614 [e-mail] 6 CHARLES S. SIMS, New York Attorney Registration No. 1535640 admitted pro hac vice 7 [e-mail] 8 CLIFFORD S. DAVIDSON, SBN 246119 [e-mail] 9 PROSKAUER ROSE LLP 2049 Century Park East, 32nd Floor 10 Los Angeles, CA 90067-3206 Telephone: [phone] [phone] 11 Facsimile: 12 Attorneys for Defendant, CORNELL UNIVERSITY 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 ) Case No. 07-CV-2045-BTM-JMA KEVIN VANGINDEREN, 16 ) ) Hon. Barry T. Moskowitz Plaintiff, 17 ) ) DEFENDANT'S NOTICE OF v. 18 ) SPECIAL MOTION TO STRIKE ) AND SPECIAL MOTION TO CORNELL UNIVERSITY, 19 ) STRIKE PLAINTIFF'S Defendant. ) COMPLAINT PURSUANT TO 20 ) SECTION 425.16 OF THE ) CALIFORNIA CODE OF CIVIL 21 ) PROCEDURE ) 22 ) [Per chambers, no oral argument ) unless requested by the Court] 23 ) ) [Request for Judicial Notice filed 24 ) concurrently] ) 25 ) Hearing Date: December 21, 2007 11:00 a.m. ) Time: 26 Courtroom 15 Place: 27 28 Action Filed: October 1, 2007

NOTICE OF SPECIAL MOTION TO STRIKE AND SPECIAL MOTION TO STRIKE
Dockets.Justia.com

Case 3:07-cv-02045-BTM-JMA

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Filed 11/02/2007

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1 TO DEFENDANT AND HIS ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on December 21, 2007, at 11 a.m., or as soon 3 thereafter as counsel may be heard in the United States District Court for the 4 Southern District of California, Courtroom 15, located at 940 Front Street, San 5 Diego, California 92101, defendant Cornell University ("Cornell") will and hereby 6 does move for an order striking the Complaint of plaintiff Kevin Vanginderen 7 ("Plaintiff") in its entirety, with prejudice and without leave to amend, and, further 8 awarding Cornell its reasonable attorneys' fees and costs incurred in bringing this 9 special motion to strike. 10 11 This special motion to strike will be and is made upon the following grounds. Plaintiff filed this action after discovering in the electronic archives of the

12 Cornell University Library a 24-year-old report in the Cornell Chronicle that 13 described Plaintiff's criminal activities as a Cornell undergraduate. Plaintiff alleges 14 that the news account is libelous and reflects public disclosure of private facts. 15 The Complaint is indisputably a "strategic lawsuit against public 16 participation" ("SLAPP") that is barred by the anti-SLAPP statute, California Code 17 of Civil Procedure § 425.16. The Complaint's allegations arise entirely out of 18 Cornell's actions in furtherance of the right to engage in "conduct in furtherance of 19 the exercise of the . . . constitutional right of free speech in connection with a public 20 issue or an issue of public interest." Cal. Code Civ. Pro. § 425.16(e)(4). 21 Because the Complaint is a SLAPP lawsuit, Section 425.16(b)(1) and relevant 22 Ninth Circuit authorities require that the Complaint be stricken unless Plaintiff 23 makes a prima facie showing that his claims are legally and factually sufficient. 24 Plaintiff cannot show either because, as set forth in detail in Cornell's 25 accompanying Memorandum of Points and Authorities, the Cornell Chronicle report 26 on Plaintiff's criminal activities is fair and true and any claim would be time-barred. 27 A simple examination of the records of the Ithaca City Court, attached as Exhibit A 28
NOTICE OF SPECIAL MOTION TO STRIKE AND SPECIAL MOTION TO STRIKE

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Case 3:07-cv-02045-BTM-JMA

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Filed 11/02/2007

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1 to the concurrently filed Request for Judicial Notice, demonstrates the truth of the 2 news account of the criminal proceedings. 3 As the Complaint is a SLAPP lawsuit unsupported by law or fact, Cornell is 4 entitled to recover from Plaintiff Cornell's reasonable attorneys' fees and costs 5 incurred in bringing this special motion to strike, pursuant to California Code of 6 Civil Procedure § 425.16(c) and relevant Ninth Circuit authorities. 7 This special motion to strike will be and is based upon this Notice, the 8 accompanying Memorandum of Points and Authorities, the accompanying Request 9 for Judicial Notice and exhibits attached thereto, the Declarations of Valerie Cross 10 Dorn and Anne Richardson Kenney, the records and files in this action and upon 11 such further oral and documentary evidence as may be presented at or before the 12 hearing on this special motion to strike. 13 14 DATED: November 2, 2007 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
NOTICE OF SPECIAL MOTION TO STRIKE AND SPECIAL MOTION TO STRIKE

BERT H. DEIXLER CHARLES S. SIMS CLIFFORD S. DAVIDSON PROSKAUER ROSE LLP NELSON E. ROTH CORNELL UNIVERSITY s/Bert H. Deixler Bert H. Deixler Attorneys for Defendant, CORNELL UNIVERSITY