Vanginderen v. Cornell University et al

Filing 14

MOTION to Strike Plaintiff's Complaint Pursuant to Section 425.16 of the California Code of Civil Procedure by Bert Deixler. (Attachments: # 1 Memo of Points and Authorities in Support of Deixler'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 number listed on pleading (aje).

Vanginderen v. Cornell University et al

Doc. 14

1 Lary Alan Rappaport, SBN 87614 3 PROSKAUER ROSE LLP 5 Facsimile: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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2 Clifford S. Davidson, SBN 246119 4 Los Angeles, CA 90067-3206
Telephone: [phone] [phone]

e-mail: [e-mail]

e-mail: [e-mail]

2049 Century Park East, 32nd Floor

6 Attorneys for Defendant,
BERT DEIXLER 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 BERT DEIXLER'S SPECIAL MOTION AND BERT DEIXLER'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 Bert Deixler ("Deixler") will and hereby does 6 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 Deixler 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. Plaintiff's allegations against Deixler arise entirely 23 from his role in submitting the Unsealed Records to this Court. See Cal. Code Civ. 24 Pro. § 425.16(e). 25 Because Plaintiff has filed a SLAPP lawsuit, section 425.16(b)(1) and 26 relevant Ninth Circuit authorities require that the Complaint be stricken unless 27 Plaintiff makes a prima facie showing that his claims are legally and factually 28 sufficient. Plaintiff cannot show either because, as set forth in detail in Deixler's
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1 accompanying Memorandum of Points and Authorities, Deixler's submission of the 2 Unsealed Records to this Court in the 2007 Action is protected by the litigation 3 privilege (Cal. Civ. Code § 47(b)) and the Noerr-Pennington Doctrine. Further, the 4 contents of the Unsealed Records were factually accurate. 5 As the Complaint is a SLAPP lawsuit unsupported by law or fact, Cornell is 6 entitled to recover from Plaintiff Cornell's reasonable attorneys' fees and costs 7 incurred in bringing this special motion to strike, pursuant to California Code of 8 Civil Procedure section 425.16(c) and relevant Ninth Circuit authorities. 9 This special motion to strike will be and is based upon this Notice, the 10 accompanying Memorandum of Points and Authorities; the Declaration of Clifford 11 S. Davidson; the Declaration of Timothy Stanley; the Notice of Cornell's Special 12 Motion and Cornell's Special Motion to Strike Plaintiff's Complaint Pursuant to 13 Section 425.16 of the California Code of Civil Procedure; the Memorandum of 14 Points and Authorities in Support of Cornell's Special Motion to Strike Plaintiff's 15 Complaint Pursuant to Section 425.16 of the California Code of Civil Procedure; the 16 records and files in this action; the records and files in related case Kevin 17 Vanginderen v. Cornell University, Case No. 07-CV-2045-BTM-JMA pending 18 before this Court; and upon such further oral and documentary evidence as may be 19 presented at or before the hearing on this special motion to strike. 20 21 DATED: May 5, 2008 22 23 24 25 26 27 28
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Lary Alan Rappaport Clifford S. Davidson PROSKAUER ROSE LLP /s/ -- Clifford S. Davidson Clifford S. Davidson Attorneys for Defendant, BERT DEIXLER

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