Vanginderen v. Cornell University et al

Filing 40

OBJECTION by Cornell University, Bert Deixler to Affidavit of Plaintiff Kevin Vanginderen in Support of Plaintiff's Memorandum of Points and Authorities in Opposition of Defendants' Special Motions to Strike Plaintiff's First Amended Complaint. (Davidson, Clifford) Modified on 8/15/2008 - clarify text (vet).

Vanginderen v. Cornell University et al

Doc. 40

1 Bert H. Deixler, SBN 70614 3 PROSKAUER ROSE LLP 5 Facsimile: 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Telephone:

2 Clifford S. Davidson, SBN 246119 4 Los Angeles, CA 90067-3206
[phone] [phone]

e-mail: [e-mail] e-mail: [e-mail]

2049 Century Park East, 32nd Floor

6 Attorneys for Defendant,

CORNELL UNIVERSITY

Lary Alan Rappaport, SBN 87614 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, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KEVIN VANGINDEREN, Plaintiff, v. CORNELL UNIVERSITY, BERT DEIXLER Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08-cv-00736 BTM(JMA) DEFENDANTS' EVIDENTIARY OBJECTIONS TO AFFIDAVIT OF PLAINTIFF KEVIN VANGINDEREN IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION OF DEFENDANTS' SPECIAL MOTIONS TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT [Per chambers, no oral argument unless requested by the Court] Hearing Date: August 22, 2008 Time: 11:00 a.m. Place: Courtroom 15 Action Filed: April 8, 2008

13 BERT DEIXLER

Dockets.Justia.com

1

Defendants Cornell University ("Cornell") and Bert Deixler ("Deixler") respectfully make

2 the following objections to the Affidavit of Plaintiff Kevin Vanginderen in Support of Plaintiff's 3 Memorandum of Points and Authorities in Opposition of Defendant's Motion to Strike Plaintiff's 4 Complaint ("Affidavit").1 5 6
INTRODUCTION In his Affidavit, Plaintiff fails to identify, much less authenticate or lay foundation for, any

7 of the exhibits or their contents attached to his Affidavit. These exhibits should not be considered 8 by the Court. The remainder of the Affidavit consists almost entirely of improper legal 9 argumentation, hearsay, irrelevant information, speculation and statements for which Plaintiff 10 lacks foundation. 11 12 13 14 802). 15
Defendants object to the purported exhibits on the ground that the Affidavit does not Objected to Portion: Objection: EVIDENTIARY OBJECTIONS All exhibits attached to the Affidavit.

Lack of authentication (Fed. R. Evid. 901); hearsay (Fed. R. Evid. 801 and

16 include evidence sufficient to support a finding that the purported attached exhibits, and the 17 contents thereof, are what they claim to be. Plaintiff's Affidavit does not identify any actual 18 exhibits and provides no foundation for the contents thereof, and none of the purported exhibits is 19 self-authenticating. 20
Defendants further object to the purported exhibits as hearsay, to the extent that Plaintiff

21 relies on them to prove the truth of the matters asserted therein. The manner in which Plaintiff 22 purports to incorporate the exhibits is unintelligible and therefore Defendants are unable to 23 24 25 26 27
1

For the Court's convenience, Defendants note that these Evidentiary Objections are substantially

identical to Defendants' Evidentiary Objections to Affidavit of Plaintiff Kevin Vanginderen in Support of Plaintiff's Memorandum of Points and Authorities in Opposition of Defendants'

28 Special Motions to Strike Plaintiff's First Amended Complaint (Dkt. #29).
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1 decipher with certainty what those matters asserted might be and the propositions those exhibits 2 are intended to support. 3
Objection to Portion: page 1, paragraph 3 in its entirety: "The causes of action

4 originate from a libelous article published in the Cornell Chronicle by Cornell University 5 (Defendant) regarding an arrest and a single charge brought against myself in March of 1983, and 6 the subsequent litigation as a result of that article." 7
Objection: Best evidence rule (Fed. R. Evid. 1002 and 1003); lack of foundation (Fed.

8 R. Evid. 602); inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703); relevance 9 (Fed. R. Evid. 402). 10 12
Defendants object to this portion on the ground that it violates the best evidence rule. The

11 Chronicle article itself is the best evidence of the contents of the Chronicle article.
Defendants further object to this portion on the ground that Plaintiff has not established the

13 foundation for his assertion that the Chronicle publication was based on "a single specific 14 incident." 15 17
Defendants further object to this portion on the ground that it contains legal argumentation,

16 specifically, that the Chronicle article was "libelous."
Defendants further object to this portion on the ground that it is irrelevant as it does not

18 have any tendency to make the existence of any fact that is of consequence to the determination of 19 the action more probable or less probable than it would be without the portion. 20 22 . . . ." 23 24 26
Objection: Inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703) Defendants object to this portion on the ground that it contains legal argumentation, Objection to Portion: page 2, paragraph 10, portion: "I first learned that a libelous

21 article regarding myself was contained within the March 17, 1983 edition of the Cornell Chronicle

25 specifically, that the Chronicle article was "libelous."
Objection to Portion: page 2, paragraph 13 in its entirety: "On October 30, 2007,

27 Defendant Bert Deixler placed a phone call to myself during which he stated that if the underlying 28 original claim was not dismissed forthright, this matter would lead to further publicity of the
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1 circumstances regarding the original Private Disclosure of Public Facts claim. He reiterated this 2 not so veiled threat in a written correspondence to myself dated October 31, 2007." 3 4 1003). 5
Defendants object to this portion on the ground that it is irrelevant as it does not have any Objection: Relevance (Fed. R. Evid. 402); best evidence rule (Fed. R. Evid. 1002 and

6 tendency to make the existence of any fact that is of consequence to the determination of the 7 action more probable or less probable than it would be without the portion. 8 10
Defendants further object to this portion on the ground that Deixler's letter is the best

9 evidence of the contents of that letter.
Objection to Portion: page 2, paragraph 15 in its entirety: "On October 29, 2007, two

11 days prior to the Defendants' ultimatum to drop the initial case, the Internet profile of myself 12 included no offending statements other than the original libelous account posted by the Cornell 13 library web site." 14 16
Objection: Relevance (Fed. R. Evid. 402); lacks foundation (Fed. R. Evid. 602);

15 inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703).
Defendants object to this portion on the grounds that it is conclusory and lacks foundation

17 and consists of subjective belief, opinion, speculation and argument that are irrelevant and 18 inadmissible, and does not have any tendency to make the existence of any fact that is of 19 consequence to the determination of the action more probable or less probable than it would be 20 without the portion. 21 23
Defendants further object to this portion on the ground that it contains legal argumentation,

22 specifically, that the Chronicle article was "libelous."
Objection to Portion: page 3, paragraph 16 in its entirety: "On December 15, 2007, I

24 first learned that the Defendants had obtained from numerous sources the entire formerly sealed 25 record of the incident that was reported in the Cornell Chronicle edition dated March 17, 1983, 26 and then published the entire record upon the Internet, on the Web Site Justia.com." 27
Objection: Lacks foundation; lack of personal knowledge; speculation (Fed. R. Evid.

28 602); inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703).
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Defendants object to this portion on the grounds that it is conclusory and lacks foundation

2 and consists of subjective belief, opinion, speculation and argument that are irrelevant and 3 inadmissible. 4 6
Defendants further object to this portion on the ground that it contains improper legal

5 argumentation, specifically, the assertion that Defendants "published" the entire record.
Objection to Portion: page 3, paragraph 17 in its entirety: "On December 15, 2007, I

7 first learned of a libelous report regarding myself produced by Barbara Bourne dated March 8, 8 1983, when it was delivered to me by the Defendant Bert Deixler in a court filing." 9 11
Objection: Lacks foundation; lack of personal knowledge; speculation (Fed. R. Evid.

10 602); inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703).
Defendants object to this portion on the grounds that it is conclusory and lacks foundation

12 and consists of subjective belief, opinion, speculation and argument that are irrelevant and 13 inadmissible. Plaintiff has no personal knowledge as to whether Barbara Bourne produced the 14 alleged report. 15 17
Defendants further object to this portion on the ground that it contains improper legal

16 argumentation, specifically, the assertion that the report was "libelous."
Objection to Portion: page 3, paragraph 19 in its entirety: "On March 24, 2008, it

18 became apparent to me that the Defendant Bert Deixler had thoroughly polluted my Internet 19 profile with references to virtually nothing other than the entire previously sealed record." 20
Objection: Lacks foundation; lack of personal knowledge; speculation (Fed. R. Evid.

21 602); Inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703); relevance (Fed. R. 22 Evid. 402). 23
Defendants object to this portion on the grounds that it is conclusory and lacks foundation

24 and consists of subjective belief, opinion, speculation and argument that are irrelevant and 25 inadmissible. 26
Defendants further object to this portion on the ground that it does not have any tendency

27 to make the existence of any fact that is of consequence to the determination of the action more 28 probable or less probable than it would be without the portion.
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Objection to Portion:

page 3, paragraph 21 in its entirety: "The publication of the

2 entire sealed record of this incident upon the Internet has resulted in great emotional distress to 3 myself and has caused my business to suffer greatly. I have signed ninety percent fewer clients at 4 my business since these disclosure became public in 2007." 5
Objection: Lacks foundation; lack of personal knowledge; speculation (Fed. R. Evid.

6 602); inadmissible opinion and legal argument (Fed. R. Evid. 701, 702, 703); relevance (Fed. R. 7 Evid. 402). 8
Defendants object to this portion on the grounds that it is conclusory and lacks foundation

9 and consists of subjective belief, opinion, speculation and argument that are irrelevant and 10 inadmissible. Plaintiff presents no evidence linking the alleged "publication" to the suffering of 11 his business. Further, even if true, such information does not have any tendency to make the 12 existence of any fact that is of consequence to the determination of the action more probable or 13 less probable than it would be without that information. 14
Defendants further object to this portion on the ground that it contains improper legal

15 argumentation, specifically, the assertion that the record was "sealed" and that the records were 16 "published." 17 18 19 20 21 22 23 24 25 26 27 28
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DATED: August 12, 2008

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

DATED: August 12, 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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08cv736 BTM(JMA)