Vanginderen v. Cornell University et al

Filing 31

MOTION to Strike 25 Amended 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 First Amended Complaint pursuant to Section 425.16 of the California Code of Civil Procedure)(Davidson, Clifford) Modified on 6/30/2008 edit text for counsel(joeh).

Vanginderen v. Cornell University et al

Doc. 31

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 BTM(JMA) Hon. Barry T. Moskowitz NOTICE OF CORNELL'S SPECIAL MOTION AND CORNELL'S SPECIAL MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED 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, Stanley Declaration and Davidson Declaration filed concurrently] Hearing Date: August 22, 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, IF ANY: 2
PLEASE TAKE NOTICE that on August 22, 2008, at 11 a.m., or as soon thereafter as

3 counsel may be heard in the United States District Court for the Southern District of California, 4 Courtroom 15, located at 940 Front Street, San Diego, California 92101, defendant Cornell 5 University ("Cornell") will and hereby does move for an order striking the First Amended 6 Complaint ("FAC") of plaintiff Kevin Vanginderen ("Plaintiff") in its entirety, with prejudice and 7 without leave to amend, and, further awarding Cornell its reasonable attorneys' fees and costs 8 incurred in bringing this special motion to strike. 9 10
This special motion to strike will be and is made upon the following grounds. In 2007, Plaintiff sued defendant Cornell University ("Cornell") for defamation and

11 disclosure related to a 1983 newspaper report of Plaintiff's criminal activities (the "2007 Action"). 12 Cornell removed the 2007 Action to this Court. Deixler served as lead counsel in the 2007 Action. 13 In defending Cornell in the 2007 Action, Cornell, through Deixler, submitted to this Court 14 unsealed records that contained Cornell's investigation and report to police of Plaintiff's criminal 15 activities in 1983 (the "Unsealed Records"). On April 8, 2008, Plaintiff filed an additional lawsuit 16 against Cornell based on alleged libelous information contained in the Unsealed Records and 17 against Deixler for his role in filing them. On May 5, 2008, Cornell and Deixler filed Special 18 Motions to Strike Plaintiff's Complaint. On June 5, 2008, the Court granted Plaintiff leave to file 19 an amended complaint, which Plaintiff filed on June 13, 2008. 20
Plaintiff indisputably has filed a "strategic lawsuit against public participation" ("SLAPP")

21 that is barred by the anti-SLAPP statute, California Code of Civil Procedure § 425.16. Because 22 the FAC is a SLAPP lawsuit, section 425.16(b)(1) and relevant Ninth Circuit authorities require 23 that the FAC be stricken unless Plaintiff makes a prima facie showing that his claims are legally 24 and factually sufficient. Plaintiff cannot show either because, as set forth in detail in Cornell's 25 accompanying Memorandum of Points and Authorities, both Cornell's report to the police and 26 Cornell's filings to this Court in the 2007 Action are protected by the litigation privilege (Cal. Civ. 27 Code § 47(b)) and the Noerr-Pennington Doctrine. Further, the investigation and report to the 28 police were factually accurate.
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As the FAC is a SLAPP lawsuit unsupported by law or fact, Cornell is entitled to recover

2 from Plaintiff Cornell's reasonable attorneys' fees and costs incurred in bringing this special 3 motion to strike, pursuant to California Code of Civil Procedure section 425.16(c) and relevant 4 Ninth Circuit authorities. 5
This special motion to strike will be and is based upon this Notice, the accompanying

6 Memorandum of Points and Authorities; the Declarations of Clifford S. Davidson and Timothy 7 Stanley; the Notice of Bert Deixler's Special Motion and Bert Deixler's Special Motion to Strike 8 Plaintiff's First Amended Complaint Pursuant to Section 425.16 of the California Code of Civil 9 Procedure; the Memorandum of Points and Authorities in Support of Bert Deixler's Special 10 Motion to Strike Plaintiff's First Amended Complaint Pursuant to Section 425.16 of the California 11 Code of Civil Procedure; the records and files in this action; the records and files in dismissed case 12 Kevin Vanginderen v. Cornell University, Case No. 07-CV-2045 BTM(JMA), now on appeal; and 13 upon such further oral and documentary evidence as may be presented at or before the hearing on 14 this special motion to strike. 15 16 DATED: June 30, 2008 17 18 19 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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08-CV-736 BTM(JMA)