United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON ANTI-SLAPP MOTION TO DISMISS
J. McKINNEY, JUDGE
matter comes before the Court on Defendants', Allison
Vance (“Vance”), Indianapolis Monthly
(“IM”), and Emmis Publishing Corporation
(“Emmis, ” and collectively with Vance and IM,
the “Defendants”), Anti-SLAPP Motion to Dismiss
(the “Motion to Dismiss”). Dkt. No. 61. In the
Motion to Dismiss, the Defendants assert that Plaintiff
Gregory Konrath's (“Konrath's”)
defamation claims against them should be dismissed under
Indiana's Anti-SLAPP statute, Ind. Code §§
34-7-7-1, et seq., because the allegedly defamatory
statements (1) were made in good faith pursuant to their
rights to free speech on matters of public interest and (2)
do not meet the requirements for defamation. See
generally, Dkt. No. 62. Konrath, however, contends that
the Defendants' statements were defamatory and have been
harmful to his reputation in the community. See generally,
Dkt. No. 65.
foregoing reasons, the Court GRANTS Defendants' Motion to
action arises out of an article written by Vance and
published in the July 2015, edition of IM, entitled
“The Proposal” (the “Article”). Dkt.
No. 59 at 2. IM is a magazine operated by Emmis, an Indiana
corporation with its principal place of business in
Indianapolis, Indiana. Id. at 1-2. In the Article,
Vance addressed allegedly criminal activities conducted by
Konrath between 2014 and 2015. Id. at 2.
Specifically, the Article explains how Konrath, an orthopedic
surgeon from Peru, Indiana, plotted to kill his ex-wife and
was later convicted of stalking his ex-wife and
ex-girlfriend. See generally, Dkt. No. 62, Ex. A.
The Article also described Konrath's past legal issues
and episodes of aggressive behavior. Id. at 5.
Konrath alleges that the Article contained numerous
“misrepresentations and outright lies” that
irreversibly damaged his reputation as a respected orthopedic
surgeon, author, and internationally-renowned mountain
climber. Dkt. No. 59 at 3.
KONRATH'S CRIMINAL HISTORY
2014, Konrath and his then-cohabitating girlfriend, Joannah
Bierzychudek (“Bierzychudek”), decided to go on
vacation together to San Juan, Puerto Rico. Dkt. No. 62, Ex.
C-7 (“Press Release”) at 1. On June 29, 2014,
while in San Juan, Puerto Rico, Konrath began discussing with
Bierzychudek specific details of a plan he had formulated to
kill his ex-wife, Ana Konrath (“Ana”), including
steps he had already undertaken to further the plan. Dkt. No.
62, Ex. C-1 (“Attempted Murder P.C. Aff.”) at 1;
Press Release at 1. As Konrath described his murder plan,
Bierzychudek began secretly recording their conversation on
her phone (the “Recording”). Attempted Murder
P.C. Aff. at 1; Dkt. No. 62, Ex. C-8
(“Recording”). Konrath told Bierzychudek that he
planned to make Ana's death look like a suicide by
shooting her in the head and then placing the gun in her
hand. Attempted Murder P.C. Aff. at 1; Recording, 2:15-17.
Konrath also stated that he had already placed hollow point
bullets in Ana's home and had purchased an untraceable
gun that he always handled with gloves. Attempted Murder P.C.
Aff. at 1-2; Recording, 3:5-22, 6:18-7:11. Konrath further
indicated that he planned to wear an extra layer of clothing
that he could dispose of after the murder before going home.
Attempted Murder P.C. Aff. at 1; Recording, 12:14-17.
Moreover, Konrath stated that he researched how best to
position Ana's body to make her death look like a suicide
and drafted text messages to send to Ana's family members
from her phone after the murder that demonstrated suicidal
intent. Recording, 7:12-20, 11:22-12:7. Konrath specified
that he would carry out his plan on a night on which he was
not on call so that he could leave his cell phone at home to
prevent being tracked to Ana's home. Recording,
4:18-5:15. Konrath also stated that he planned kill Ana while
their three children were sleeping in Ana's home.
Id. at 3:23-4:15.
after recording Konrath's detailed plan to kill Ana,
Bierzychudek left San Juan, Puerto Rico, without Konrath to
return to Peru, Indiana. Dkt. No. 62, Ex. B-2 at 3. On July
4, 2014, Konrath called the Miami County Sheriff's
Office, asking for an officer to check on Bierzychudek at the
home the couple shared, claiming that Bierzychudek had made
suicidal statements. Attempted Murder P.C. Aff. at 1. When
the police arrived at the home, Bierzychudek informed the
officers that she was not suicidal and shared the Recording
with them. Id. Upon receiving Bierzychudek's
consent, the officers searched the shared home and discovered
in the garage a .38 caliber revolver inside a plastic bag
that was loaded with hollow point ammunition and covered with
latex gloves. Id. at 2. The officers also discovered
a set of surgical scrubs, black sweatpants, cloth gloves, and
sandals in another bag next to the plastic bag containing the
revolver. Id. In light of the officers'
discoveries, Konrath was arrested and charged with attempted
murder on July 8, 2014. Dkt. No. 62, Ex. C-2.
was released from jail on bond on August 4, 2014. Dkt. No.
62, Ex. C-3 (“Stalking P.C. Aff.”) at 1. Upon his
release, Konrath was served with a No Contact Order, which
required him to have no contact with either Ana or
Bierzychudek. Id.; Dkt. No. 62, Ex. C-4
(“Stalking Warrant Hearing”), 4:7-5:15. However,
Konrath violated the No Contact Order by attempting to
contact both Bierzychudek and Ana shortly after his release.
Dkt. No. 62, Ex. C-5 (“Change of Plea Hearing”),
8:6-9:22. Specifically, Konrath attempted to contact
Bierzychudek through e-mail and physical mail to
Bierzychudek's post office box in order to obtain her
updated address. Stalking P.C. Aff. at 1. Konrath also hired
a private investigator and asked an acquaintance to pose as a
financial loan officer in order to obtain Bierzychudek's
address. Id. Konrath further used his position as a
medical doctor to order a fraudulent prescription for
Bierzychudek and to inquire as to Bierzychudek's current
physician. Id. at 1-2. Moreoever, Konrath's
daughter sent a text message to Bierzychudek, asking
Bierzychudek to meet Konrath for dinner. Id. at 2.
In addition to his attempts to contact Bierzychudek, Konrath
also attempted to contact Ana by having his children speak to
Ana on his behalf. Dkt. No. 62, Ex. C-6 (“Stalking
Sentencing Hearing”), 15:15-16.
on his attempted contacts with Bierzychudek and Ana, Konrath
was charged with two counts of stalking and one count of
ordering a fraudulent prescription on September 9, 2014.
Stalking P.C. Aff. at 1. On December 16, 2014, Konrath plead
guilty to the two counts of stalking. Change of Plea Hearing,
6:19-20. In light of his guilty plea for the stalking counts,
Konrath received a ten-year sentence on January 20, 2015, in
which he was to spend one year in prison, one year in
community corrections, and eight years on probation. Dkt. No.
62, Ex. C-10 (“Stalking Sentencing Order”) at 1.
reviewing the Indiana Court of Appeals decision in
Collier v. State, 846 N.E.2d 340 (Ind.Ct.App. 2006),
and after comparing the facts of that case to Konrath's
case, Miami County Prosecutor Bruce Embrey
(“Embrey”) decided to drop the attempted murder
charge against Konrath. Dkt. No. 62, Ex. C (“Embrey
Declaration”), ¶ 7. Embrey issued a press release
on January 20, 2015, in which he addressed his decision to
drop Konrath's attempted murder charge,
Bierzychudek's recording of Konrath's murder plan,
and Konrath's guilty plea for stalking Bierzychudek and
Ana. Press Release at 1-2.
April 14, 2015, Konrath was released from prison and was
placed on home detention. Dkt. No. 62, Ex. C-9 (“Escape
P.C. Aff.”); Dkt. No. 62, Ex. D at 3-4. Upon his
release, Konrath was required to wear an ankle monitor that
would alert officers when he was within fifty miles of
Ana's home or within twenty miles of Bierzychudek's
home. Stalking Sentencing Hearing, 19:21-20:25. On April 28,
2015, Konrath removed his ankle monitor and fled to
Scottsdale, Arizona, where he was arrested. Escape P.C. Aff.
Based on his attempted escape, Konrath was ordered to serve
another year in prison, which was to run consecutively with
his prior stalking sentence. Dkt. No. 62, Ex. E.
RESEARCH AND DEVELOPMENT OF THE ARTICLE
first learned of Konrath's criminal case after reading an
article published in the Indianapolis Star newspaper
in July 2014. Dkt. No. 62, Ex. B (“Vance
Declaration”), ¶ 4. In March 2015, Vance began
investigating, researching, and writing the Article.
Id. at ¶ 5. Over the course of the next three
months, Vance spent more than one hundred hours researching
and writing the Article, which included conducting several
witness interviews and reviewing public records related to
Konrath's case. Id. When investigating
Konrath's case, Vance interviewed Bierzychudek and Embrey
on multiple occasions and even conducted an interview with
Konrath during his incarceration. Id. at
¶¶ 6-8. Vance also spoke with other individuals
with information regarding either Konrath's alleged
criminal activity or Konrath personally, including Detective
Mike Rogers of the Miami County Sheriff's Department; law
professor, Matthew Lippman, from the University of
Illinois-Chicago; orthopedic product sales representatives,
Garret Pino and Logan Sadtler; private investigator, Dale
Seward; and Konrath's former climbing guide, Guy Cotter.
Id. at ¶¶ 9-13. Vance further attempted to
contact Ana and Konrath's oldest daughter regarding the
Article, but neither agreed to speak with Vance. Id.
at ¶¶ 14-15.
also obtained and reviewed several court records and other
public documents pertaining to Konrath's case.
Id. at ¶ 16. Among other documents, Vance
reviewed probable cause affidavits relating to Konrath's
charges for attempted murder, stalking and ordering a
fraudulent prescription, and escape; arrest warrants; a
transcript of Konrath's search warrant/arrest warrant
hearing on August 22, 2014; a transcript of Konrath's
change of plea hearing on December 16, 2014; a transcript of
Konrath's sentencing hearing on January 20, 2015; and
Embrey's January 20, 2015, press release regarding
Konrath's sentencings. Id. Once she finished
drafting the Article, Vance also submitted the Article to her
editors at IM for editing and fact-checking before it was to
be published. Id. at ¶ 17.
KONRATH'S CURRENT ACTION
alleges that he was defamed by the Article. Dkt. No. 59 at 2.
Specifically, Konrath alleges in his Response in Opposition
to the Motion to Dismiss that the following nine statements
within the Article are defamatory:
(1) Page 78, paragraph 4: Konrath was behind on his child
support payments and owed Ana $1.3 million in child support;
(2) Page 78, paragraph 8: Ana had a $1 million life insurance
policy for which Konrath ...