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Vanginderen v. Cornell University

January 6, 2009

KEVIN VANGINDEREN, PLAINTIFF,
v.
CORNELL UNIVERSITY; BERT DEIXLER, DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING DEFENDANTS' SPECIAL MOTIONS TO STRIKE

Defendants Cornell University ("Cornell") and Bert Deixler ("Deixler") have filed special motions to strike Plaintiff's Complaint and First Amended Complaint. For the reasons discussed below, Defendants' motions are GRANTED.*fn1

I. FACTUAL BACKGROUND

A. Criminal Case and Investigation

In 1983, Cornell's Department of Public safety became interested in Plaintiff when they discovered evidence linking Plaintiff to the theft of two books from Fernow Hall. A March 8, 1983 report filed by Officer Barbara Bourne, an officer with Cornell's Department of Public Safety, indicates that further investigation into Plaintiff's activities pointed to Plaintiff's involvement in nine additional cases involving thefts of items from Fernow Hall and five cases involving thefts of textbooks from Bradfield Hall. (Ex. F to Cornell's Supplemental Request for Judicial Notice filed in Case No. 07cv2045 BTM(JMA) ("SRJN") at 14-19.)

On June 7, 1983, a Tompkins County Grand Jury returned an indictment charging Plaintiff with two counts of burglary in the second degree. (Ex. F to SRJN at 69.) On August 1, 1983, the County Court granted Plaintiff's motion to dismiss the indictment as defective (for mistakenly charging burglary in the second degree instead of the proper charge of burglary in the third degree). (Ex. F at 90, 92-93.) The People were given permission to refile. (Id.) However, Plaintiff agreed to plead guilty to a misdemeanor in City Court upon the condition that the People not refile felony charges in County Court and agree to recommend a penalty no harsher than probation. (Ex. F at 91.)

On August 17, 1983, Plaintiff was charged with petit larceny, a misdemeanor, in City Court. (Ex. A to Cornell's Request for Judicial Notice filed in Case No. 07cv2045 BTM(JMA) ("RJN") at 7.) On August 22, 1983, Plaintiff entered a plea of guilty to the petit larceny charge. (Ex. A at 8.) On March 5, 1985, the County Court issued an order sealing official records regarding the second degree burglary charges in the County Court proceedings. (Ex. F at 95.) The order was sent to the Cornell police and the District Attorney. (Ex. F. at 94.) The City Court records were not sealed.

On March 17, 1983, the Cornell Chronicle, a weekly University publication, included the following paragraph on page 6 (as part of the "Blotter Barton" column):

Department of Public Safety officials have charged Kevin G. Vanginderen of 603 Winston Court Apartments with third degree burglary in connection with 10 incidents of petit larceny and five burglaries on campus over a period of a year. Safety reported recovering some $474 worth of stolen goods from him. (Ex. B to RJN)

Plaintiff claims that he was not aware of the Cornell Chronicle article until he "Googled" himself in September, 2007. One of the Google search results linked to a digitized version of the article that is stored in Cornell University Library's institutional repository, known as eCommons.

B. First Lawsuit

On October 1, 2007, Plaintiff filed suit against Cornell, asserting claims of libel and public disclosure of private facts (Case No. 07cv2045 BTM(JMA)). After removing the action, Cornell brought a special motion to strike Plaintiff's Complaint pursuant to Cal. Civ. Proc. Code § 425.16.

The Ithica City Court records, which were not sealed, were filed with Cornell's moving papers. Subsequently, Cornell obtained an order unsealing the records of the County Court, the Tompkins County District Attorney's Office, and the Cornell University Police. These records, including Barbara Bourne's reports, were filed as Exhibit F to the SRJN.

In an order filed on June 3, 2008, the Court granted Cornell's special motion to strike. The Court held that Plaintiff had failed to establish that he would prevail on his claims because the gist of the Cornell Chronicle article was true. The Court explained that although Plaintiff was not charged with all fifteen crimes, the charge arose out of an investigation that linked Plaintiff to the other crimes. Thus, the ...


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