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Konrath v. Vance

United States District Court, S.D. Indiana, Indianapolis Division

April 18, 2017




         This 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.

         For the foregoing reasons, the Court GRANTS Defendants' Motion to Dismiss.

         I. BACKGROUND

         This 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.


         In June 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.

         Shortly 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.

         Konrath 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.

         Based 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.

         After 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.

         On 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.


         Vance 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.

         Vance 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 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]:

(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 ...

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