Vanginderen v. Cornell University et al

Filing 13

MOTION to Strike Plaintiff's Complaint Pursuant to Section 425.16 of the California Code of Civil Procedure by Cornell University. (Attachments: # 1 Memo of Points and Authorities in Support of Cornell's Special Motion to Strike Plaintiff's Complaint Pursuant to Section 425.16 of the California Code of Civil Procedure)(Davidson, Clifford) Modified on 5/6/2008, incorrect courtroom listed on pleading (aje).

Vanginderen v. Cornell University et al

Doc. 13

1 Nelson E. Roth, SBN 67350 2 CORNELL UNIVERSITY 3 Garden Avenue 4 Telephone: 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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[e-mail]

300 CCC Building

Ithaca, New York 14853-2601 [phone] Facsimile: [phone]

Bert H. Deixler, SBN 70614 e-mail: [e-mail] Clifford S. Davidson, SBN 246119 e-mail: [e-mail] PROSKAUER ROSE LLP 2049 Century Park East, 32nd Floor Los Angeles, CA 90067-3206 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant,

11 CORNELL UNIVERSITY
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KEVIN VANGINDEREN, Plaintiff, v. CORNELL UNIVERSITY, BERT DEIXLER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08-CV-736-W-JMA Hon. Barry T. Moskowitz NOTICE OF CORNELL'S SPECIAL MOTION AND CORNELL'S SPECIAL MOTION TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO SECTION 425.16 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE [Per chambers, no oral argument unless requested by the Court] [Memorandum of Points and Authorities, Davidson Declaration and Stanley Declaration filed concurrently] Hearing Date: July 3, 2008 Time: 11:00 a.m. Place: Courtroom 15 Action Filed: April 8, 2008

Dockets.Justia.com

1 TO DEFENDANT AND HIS ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on July 3, 2008, 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. In 2007, Plaintiff sued defendant Cornell University ("Cornell") for

12 defamation and disclosure related to a 1983 newspaper report of Plaintiff's criminal 13 activities (the "2007 Action"). Cornell removed the 2007 Action to this Court. 14 Deixler served as lead counsel in the 2007 Action. In defending Cornell in the 2007 15 Action, Cornell, through Deixler, submitted to this Court unsealed records that 16 contained Cornell's investigation and report to police of Plaintiff's criminal 17 activities in 1983 (the "Unsealed Records"). Plaintiff now has filed an additional 18 lawsuit against Cornell based on alleged libelous information contained in the 19 Unsealed Records and against Deixler for his role in filing them. 20 Plaintiff indisputably has filed a "strategic lawsuit against public 21 participation" ("SLAPP") that is barred by the anti-SLAPP statute, California Code 22 of Civil Procedure § 425.16. Because the Complaint is a SLAPP lawsuit, section 23 425.16(b)(1) and relevant Ninth Circuit authorities require that the Complaint be 24 stricken unless Plaintiff makes a prima facie showing that his claims are legally and 25 factually sufficient. Plaintiff cannot show either because, as set forth in detail in 26 Cornell's accompanying Memorandum of Points and Authorities, both Cornell's 27 report to the police and Cornell's filings to this Court in the 2007 Action are 28 protected by the litigation privilege (Cal. Civ. Code § 47(b)) and the Noerr8085/21177-001 Current/11121208v

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1 Pennington Doctrine. Further, the investigation and report to the police were 2 factually accurate. 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 section 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 Declaration of Clifford 9 S. Davidson; the Declaration of Timothy Stanley; the Notice of Bert Deixler's 10 Special Motion and Bert Deixler's Special Motion to Strike Plaintiff's Complaint 11 Pursuant to Section 425.16 of the California Code of Civil Procedure; the 12 Memorandum of Points and Authorities in Support of Bert Deixler's Special Motion 13 to Strike Plaintiff's Complaint Pursuant to Section 425.16 of the California Code of 14 Civil Procedure; the records and files in this action; the records and files in related 15 case Kevin Vanginderen v. Cornell University, Case No. 07-CV-2045-BTM-JMA 16 pending before this Court; and upon such further oral and documentary evidence as 17 may be presented at or before the hearing on this special motion to strike. 18 19 DATED: May 5, 2008 20 21 22 23 24 25 26 27 28
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Nelson E. Roth CORNELL UNIVERSITY Bert H. Deixler Clifford S. Davidson PROSKAUER ROSE LLP /s/ -- Clifford S. Davidson Clifford S. Davidson Attorneys for Defendant, CORNELL UNIVERSITY

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