IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA GERALD BIBY, ) ) Case No. 4:03CV3206 Plaintiff, ) ) v. ) COMPLAINT AND ) REQUEST FOR JURY TRIAL BOARD OF REGENTS OF THE ) UNIVERSITY OF NEBRASKA AT ) LINCOLN, DARRELL W. NELSON, ) DONALD HELMUTH, AND ) JOHN DOES 1-10 IN THEIR ) INDIVIDUAL AND OFFICIAL ) CAPACITIES. ) ) Defendants. ) COMES NOW the Plaintiff, Gerald Biby, by and through his attorney, and for his causes of action against the Defendants, states and alleges as follows: JURISDICTION 1. The Plaintiff brings this action to redress violations by Defendant ofPlaintiff’s rights under the laws of the United States and the laws of the State ofNebraska. 2. The Plaintiff’s federal law claims seek redress for the violation of the rights secured by the United States Constitution. This Court has jurisdiction over the matter pursuant to 42 U.S.C. §1981 et seq. The Court has pendant jurisdiction over Plaintiff’s state law claims. 3. The unlawful practices complained of herein took place within theDistrict of Nebraska, particularly in Lincoln, Nebraska. PARTIES 5. The Plaintiff, Gerald Biby, is an individual citizen of the UnitedStates and of the State of Nebraska, and was at all times relevant to this action,a resident of Lincoln, Lancaster County, Nebraska. The Plaintiff was an employee of Defendant until his termination on November 12, 1999. 6. The Defendant Board of Regents of the University of Nebraska is the governing body of the University of Nebraska (hereinafter “University”), which is an educational institution created pursuant to Neb. Rev. Stat. § 85-101 et seq. The Defendant Darrell Nelson is Dean and Director of the Agricultural ResearchDivision of the University. Defendant Donald Helmuth was at all times complained of herein the Vice Chancellor for Research and Director TechnologyTransfer at the University. At all times complained of herein, the Defendants acted under color of state law. FACTS 7. The Plaintiff was hired by the Defendant University on or aboutOctober 1, 1993. Plaintiff was employed by the University as a TechnicalAssistance Coordinator for the Industrial Agricultural Products Center (hereinafter“IAPC”) until his employment was terminated. Throughout the time the actions complained of herein took place, Plaintiff maintained an office on University premises. Plaintiff did not share his office, computer or filing space with any other University employee. 8. The IAPC was created by the Defendant University to increase the number and types of non-food and industrial uses of agricultural commodities. During his tenure of employment at the University, Plaintiff and two of his colleagues at the University were involved in numerous projects, including project to develop biodegradable smart cards, specifically phone cards and financial cards. 9. The Plaintiff and the other inventors of the technology for the biodegradable cards engaged a law firm to assist them in obtaining a patent for the technology they invented. On March 13, 1998, the Patent and Trademark Office of the United States Department of Commerce issued an acknowledgment off receipt of the application for a non provisional patent specifically identifying Plaintiff, Milford Hanna and Qi Fang as inventors of the technology. All matters pertaining to the application for a patent were done in accordance with University policy. As owners of the patented technology, the Plaintiff, along with the other owners, were rightfully entitled to royalties from the sale of the technology. 10. Prior to the acknowledgement from the Patent and Trademark Office, the University entered into a Technology Licensing Agreement (hereinafter “TLA”) with Corn Card International, a company involved in the production of certain biodegradable polymers. The TLA specifically provided that the under the applicable patent laws, the University owned the technology in question. 11. The TLA provided for Corn Card to have the exclusive right to use the patent rights within a defined territory to develop, market and sell the biodegradable products. In accordance with the TLA, Corn Card entered into an agreement with Gemplus, a manufacturer of plastic smart cards, to sublicense the technology. 12. After the TLA was entered into between Defendant University andCorn Card, Plaintiff became aware that the Defendants may have breached the agreement with Corn Card by promising the use of the technology to another company and by failing to have proper ownership at the time the TLA was entered into. Eventually Corn Card brought legal action against the University for failurere to abide by the TLA. 13. Plaintiff, as one of the inventors, had a vast amount of documentation and other information concerning Corn Card and the agreementon his computer. Plaintiff was asked by University officials to provide copies of such documentation, which he did. Plaintiff continued to cooperate in the litigation process as requested by the University. However, the Plaintiff did become aware of attempts to subvert the litigation process by failing to make certain information known to Corn Card or its attorneys. Plaintiff was directed not to engage in any form of communication with Corn Card or its attorneys, including disclosure of information known by the Plaintiff that was relevant to the litigation. Plaintiff did iterate on more than one occasion that he believed the University may be in breach of its agreement with Corn Card. Plaintiff continually had concerns that the Defendants were engaging in intentional actions contrary to the agreement with Corn Card. 14. On June 3, 1999, the Defendants sent University personnel, including a plain clothes University police officer, to the Plaintiff’s office to search his computer. Plaintiff declined to allow access to his computer. On June 4,1999, the Defendants sent a uniformed, armed University police officer to force Plaintiff to allow access to all information on his computer. Plaintiff reiterated his refusal to give consent to such a search. The University personnel engaged in a warrantless and non-consensual search of Plaintiff’s office and computer that included information unrelated to Corn Card. Vast amounts of personal and otherwise confidential information was copied or electronically communicated from the Plaintiff’s computer to another computer. The Plaintiff is unaware of any other University employee whose computer was independently searched, with or without consent. 15. At the time of the search, the University had a clear policy stating that computer users can expect the files and data generated by the user to be private information, absent specific circumstances. None of the circumstances provided for in the policy existed, nor were the circumstances in the policy provided to Plaintiff as a reason for the search. The University directly violated said policy by conducting a search of the Plaintiff’s computer without his consent. 16. The litigation between Corn Card and the University resulted in the University’s paying a settlement amount to Corn Card. . 17. After having his computer searched in violation of University policy, the Plaintiff was placed on administrative leave. Plaintiff timely filed a grievance protesting the illegal computer search through the University Ombudsman’s office. After investigation, the Grievance Committee issued a report wherein thecommittee found that the search was “unnecessary, humiliating and insulting.” The committee recommended that the Plaintiff be reinstated, that Dr. Helmuth should issue a letter of apology, and that a letter should be issued to all who received any information from Plaintiff’s computer instructing them to destroy or delete all information not related to the Corn Card case. The recommendations were not adopted by the University and the Plaintiff was not allowed to return to his position. 18. On November 12, 1999, Plaintiff’s employment was terminated and Plaintiff filed a timely grievance protesting the termination. 19. Throughout the time the acts complained of herein took place, the Plaintiff met with the University Ombudsman, the State Ombudsman and Senator Dennis Byers of the Nebraska Unicameral to complain of actions being taken by the Defendants that were inappropriate, illegal or otherwise wrongful. PLAINTIFF’S FIRST CAUSE OF ACTION 20. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through nineteen. 21. The actions of Defendants complained of herein constitute aviolation of 42 U.S.C § 1983 as to Plaintiff’s right to privacy as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of Nebraska. 22. The Plaintiff had a reasonable expectation of privacy in the information confiscated by the Defendants. The Plaintiff’s expectation is basedon, in part, the circumstances surrounding his employment, the nature of his employment, and the policy providing a clear expectation of privacy absent specific circumstances. 23. The Defendants actions complained of herein were unreasonable in both inception and its scope and constitute a violation of Plaintiff’s rights under federal and state law. 24. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S SECOND CAUSE OF ACTION 25. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through twenty-four. 26. The actions of Defendants complained of herein are brought pursuant to 42 U.S.C. § 1983 and constitute a violation of Plaintiff’s right to free speech as guaranteed by the First Amendment of the United States Constitution and the Constitution of the State of Nebraska. 27. Plaintiff engaged in protected activity by speaking out about concerns that the Defendants’ conduct may be unlawful. As a result of his speech, the Plaintiff suffered an adverse employment action, that being termination. There was a causal connection between Plaintiff’s protected activity and his termination of employment. 28. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S THIRD CAUSE OF ACTION 29. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through twenty-eight.
30. The actions of Defendants complained of herein are brought pursuant to 42 U.S.C. § 1983 and constitute a violation of Plaintiff’s right not to be deprived of property without due process of law under the Fifth and Fourteenth Amendments of the United States Constitution. 31. Plaintiff was deprived of property by the Defendants without dueprocess of law. As the owner of the patent, the Plaintiff was due royalties andother incidental benefits. The Defendant’s failure to abide by the licensing agreement deprived the Plaintiff of economic benefits he was due as owner of the patent, and other benefits. 32. As a result of the unlawful acts complained of herein, Plaintiff hasbeen damaged by loss of wages and other incidental employment benefits, lossof royalties to the technology at issue, other future royalties, ownership ofpatents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S FOURTH CAUSE OF ACTION 33. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through thirty-two. 34. The actions of Defendants complained of herein constitute aconspiracy to violate Plaintiff’s Constitutional rights in violation of secured by 42U.S.C. § 1985. 35. The Defendants acted to conspire for the purpose of depriving, either directly or indirectly, the Plaintiff of equal protection of the laws or of equal privileges and immunities of the law. 36. The Defendants, as complained of herein, conspired to deprivePlaintiff of his rights as secured by the United States Constitution. 37. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S FIFTH CAUSE OF ACTION 38. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through thirty-seven. 39. The actions of Defendants complained of herein constitute aviolation of Plaintiff’s rights as secured by 42 U.S.C. § 1985. 40. The Defendants acted to conspire for the purpose of impeding, hindering, obstructing or defeating the due course of justice. 41. The Defendants, as complained of herein, conspired to deprive Plaintiff of acting lawfully as a witness to an ongoing legal proceeding underwhich he had certain duties and obligations to produce information and be truthful as to actions pertaining to the legal proceeding. 42. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S SIXTH CAUSE OF ACTION 43. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through forty-two. 44. The actions of Defendants complained of herein constitute a violation of the Nebraska State Government Effectiveness Act, Neb. Rev. Stat.§81-2701 et seq. 45. The Defendants, as complained of herein, recommended, approved, directed and otherwise took personnel action against Plaintiff becausehe disclosed the Defendants wrong doing to the University Ombudsman, the State Ombudsman and a Nebraska Senator, and as a reprisal of the submission of a wrong doing by Defendants. 46. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S SEVENTH CAUSE OF ACTION 47. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through forty-six. 48. The actions of Defendants complained of herein constitute aviolation of Neb.Rev.Stat. § 20-148. 49. The Defendants actions, as complained of herein, deprived Plaintiff of right, privileges and immunities secured by the United States Constitution and the Constitution and laws of the State of Nebraska. 50. The Defendants, as complained of herein, deprived Plaintiff of his right to privacy, his right to free speech, his right not to be conspired against for acting in the course of justice, his right to report wrong doing to the proper authorities and his right not to be subject to reprisal for reporting wrong doing. 51. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership of patents, and has sustained injury in the form of humiliation, loss of enjoyment oflife, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S EIGHTH CAUSE OF ACTION 52. The Plaintiff incorporates if fully set forth herein, the allegations contained in paragraphs one through fifty-one. 53. The actions of Defendants complained of herein constitute tortious interference with a business relationship. 54. There existed a valid business relationship or expectancy, of which the Defendants had knowledge. The Defendants unjustifiably acted to interfere with Plaintiff’s business relationship causing the Plaintiff loss of the royalties due him as owner of the technology under the TLA and University policy. 55. As a result of the unlawful acts complained of herein, Plaintiff has been damaged by loss of wages and other incidental employment benefits, loss of royalties to the technology at issue, other future royalties, ownership o fpatents, and has sustained injury in the form of humiliation, loss of enjoyment of life, inconvenience, embarrassment, and injury to his reputation. PLAINTIFF’S NINTH CAUSE OF ACTION 56. The Plaintiff incorporates as if fully set forth herein, the allegations contained in paragraphs one through fifty-five. 57. The actions complained of herein constitute a breach of contract to which the Plaintiff was a third party beneficiary. 58. There existed a valid contract between the University and CornCard for the licensing of technology which was invented and patented by the Plaintiff and other University employees. As a direct result of that agreement, Plaintiff was entitled to royalties from the sale and use of the technology. 59. The University breached the contract with Corn Card, causing the loss of the royalties, and other economic benefits the Plaintiff would otherwise have received. 60. As a result of the unlawful acts complained of herein, Plaintiff hasbeen damaged by loss of wages and other incidental employment benefits, lossof royalties to the technology at issue, other future royalties, ownership ofpatents, and has sustained injury in the form of humiliation, loss of enjoyment oflife, inconvenience, embarrassment, and injury to his reputation. PRAYER FOR RELIEF WHEREFORE, the Plaintiff demands judgment against Defendant in thefollowing respects: a. Declaring the acts of Defendant hereinbefore alleged are inviolation of the First Amendment and the Fourth Amendment of the United StatesConstitution and the Constitution of the State of Nebraska; b. Awarding the plaintiff lost wages and benefits, and loss of royaltiesto the technology at issue, other future royalties and ownership of patents; c. Awarding the Plaintiff punitive damages and compensatory damages for his inconvenience, pain and suffering, emotional distress, loss of enjoyment of life, embarrassment and damage to his reputation;
d. Awarding Plaintiff costs in this action, including attorney’s fees; e. Awarding such other relief this Court deems just and proper. REQUEST FOR JURY TRIAL The Plaintiff requests that a jury trial be held in Lincoln, Nebraska. Dated this 2nd day of June, 2003.
By: BALLEW, SCHNEIDER & COVALT Attorneys at Law, PC, LLO 440 South 13th Street, Suite C P. O. Box 81229 Lincoln, NE 68501-1229 (402) 436-3030 Attorneys for Plaintiff BY:_________________________________ Mary C. Gaines, #20068 |