Vanginderen v. Cornell University et al

Filing 32

MOTION to Strike 25 Amended 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 Bert Deixler's Special Motion to Strike Plaintiff's First Amended Complaint pursuant to Section 425.16 of the California Code of Civil Procedure)(Davidson, Clifford) (vet).

Vanginderen v. Cornell University et al

Doc. 32

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 BTM(JMA) Hon. Barry T. Moskowitz NOTICE OF BERT DEIXLER'S SPECIAL MOTION AND BERT DEIXLER'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 Bert Deixler 5 ("Deixler") will and hereby does move for an order striking the First Amended Complaint 6 ("FAC") of plaintiff Kevin Vanginderen ("Plaintiff") in its entirety, with prejudice and without 7 leave to amend, and further awarding Deixler his reasonable attorneys' fees and costs incurred in 8 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
Through the FAC, Plaintiff indisputably has filed a "strategic lawsuit against public

21 participation" ("SLAPP") that is barred by the anti-SLAPP statute, California Code of Civil 22 Procedure § 425.16. Plaintiff's allegations against Deixler arise entirely from his role in 23 submitting the Unsealed Records to this Court. See Cal. Code Civ. Pro. § 425.16(e). 24
Because Plaintiff has filed a SLAPP lawsuit, section 425.16(b)(1) and relevant Ninth

25 Circuit authorities require that the FAC be stricken unless Plaintiff makes a prima facie showing 26 that his claims are legally and factually sufficient. Plaintiff cannot show either because, as set 27 forth in detail in Deixler's accompanying Memorandum of Points and Authorities, Deixler's 28 submission of the Unsealed Records to this Court in the 2007 Action is protected by the litigation
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08-CV-736 BTM(JMA)

1 privilege (Cal. Civ. Code § 47(b)) and the Noerr-Pennington Doctrine. Further, the contents of the 2 Unsealed Records were factually accurate. 3
As the FAC is a SLAPP lawsuit unsupported by law or fact, Cornell is entitled to recover

4 from Plaintiff Cornell's reasonable attorneys' fees and costs incurred in bringing this special 5 motion to strike, pursuant to California Code of Civil Procedure section 425.16(c) and relevant 6 Ninth Circuit authorities. 7
This special motion to strike will be and is based upon this Notice, the accompanying

8 Memorandum of Points and Authorities; the Declarations of Clifford S. Davidson and Timothy 9 Stanley; the Notice of Cornell's Special Motion and Cornell's Special Motion to Strike Plaintiff's 10 First Amended Complaint Pursuant to Section 425.16 of the California Code of Civil Procedure; 11 the Memorandum of Points and Authorities in Support of Cornell's Special Motion to Strike 12 Plaintiff's First Amended Complaint Pursuant to Section 425.16 of the California Code of Civil 13 Procedure; the records and files in this action; the records and files in dismissed case Kevin 14 Vanginderen v. Cornell University, Case No. 07-CV-2045 BTM(JMA), now on appeal; and upon 15 such further oral and documentary evidence as may be presented at or before the hearing on this 16 special motion to strike. 17 18 19 20 21 22 23 24 25 26 27 28
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DATED: June 30, 2008

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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08-CV-736 BTM(JMA)