Fredin v. Middlecamp

Filing 39

ORDER Adopting 30 Report and Recommendation; granting in part and denying in part 11 Motion to Dismiss; and overruling 33 Plaintiff's Objections (Written Opinion). Signed by Judge Susan Richard Nelson on 9/26/2018. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Brock Fredin,

Case No. 0:17-cv-3058-SRN-HB
Plaintiff,

v.
Lindsey Middlecamp,
Defendant.

ORDER ADOPTING REPORT AND
RECOMMENDATION AND ORDER

Brock Fredin, 1905 Iris Bay, Hudson, Wisconsin 54016, pro se.
Adam C. Ballinger, Ballard Spahr LLP, 80 S. 8th St., Ste. 2000, Minneapolis, Minnesota
55402; K. Jon Breyer, Kutak Rock LLP, 60 S. 6th St., Ste. 2400, Minneapolis, Minnesota
55402, for Defendant Lindsey Middlecamp.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Report and Recommendation and Order
(“R&R & Order” [Docs. No. 30, 31]) 1 of Magistrate Judge Franklin L. Noel dated April
13, 2018, recommending that Defendant’s Motion to Dismiss Count II of Plaintiff’s
Amended Complaint [Doc. No. 11] be granted, her Motion to Dismiss Count III of the
Amended Complaint [Doc. No. 11] be denied, and granting in part and denying in part
Defendant’s Motion to Strike portions of the Amended Complaint [Doc. No. 5]. Parties
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Magistrate Judge Noel’s R&R & Order is filed twice in the Court’s electronic filing
system. It is filed as a Report and Recommendation at Doc. No. 30 and as an Order at
Doc. No. 31. The two files are identical, but both numbers are provided for clarity. Also,
due to the retirement of Magistrate Judge Noel, this case is now assigned to Magistrate
Judge Hildy Bowbeer.

were given 14 days to object to the R&R & Order. (Id. at 9–10.) Plaintiff Brock Fredin
(“Plaintiff”) filed “Plaintiff’s Objection to the Report and Recommendation and Order”
(Pl.’s Obj. [Doc. No. 33]) on April 30, 2018, three days after the deadline for filing
objections. Plaintiff’s Objections were accompanied by a letter explaining the delay.
(Pl.’s Letter [Doc. No. 34]). Defendant Lindsey Middlecamp (“Defendant”) filed a timely
response. (Def.’s Resp. [Doc. No. 37].) For the reasons set forth below, the Court
overrules Plaintiff’s Objections and adopts the R&R & Order in its entirety.
I. BACKGROUND
The factual and procedural background of this matter is detailed in the R&R &
Order and is incorporated herein by reference. Plaintiff brings this action for defamation
per se, abuse of process, and intentional infliction of emotional distress (“IIED”). 2 (Am.
Compl. ¶¶ 30–43.) He claims that between January and April of 2017, Defendant posted
false and disparaging remarks about him on her twitter account @CardsAgsHrsmt. (Id. ¶¶
1, 23.) This included sharing a post on February 22, 2017 from an unnamed woman who
claimed that Plaintiff had raped her in 2010. (Id. ¶ 20). That post was accompanied by the
message “[t]he power of sharing. Within hours of stalking post going up, a rape survivor
comes forward. He remains free. (Shared w/ her permission).” (Id.) Plaintiff alleges that
either “Defendant solicited this unnamed woman to make these false allegations against
him or, much more likely, Defendant fabricated the existence of this unnamed woman
altogether . . . .” (Id.) Defendant also allegedly posted that Plaintiff was dangerous and a
stalker, and posted Plaintiff’s online dating profiles with similar warnings. (Id. ¶ 23.)
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Counts I, II, and III, respectively
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Plaintiff claims that he has suffered “immense harm” as a result of Defendant’s actions,
including permanent stigma, public ridicule, loss of employment and financial
opportunities, and severe and ongoing mental anguish. (Id. ¶ 22.)
Because of these alleged statements, Plaintiff alleges that he sought out and
discovered the identity of Defendant, who operates the @CardsAgstHrsmt Twitter
account anonymously, by contacting a journalist who had interviewed Defendant about
the account. (Id. ¶ 24.) On April 4, 2017, on his personal Facebook account, Plaintiff
identified Defendant as the owner and operator of the @CardsAgstHrsmt account. (Id.)
On April 14, 2017, Defendant sought and obtained an ex parte Harassment
Restraining Order (“HRO”) against Plaintiff in Ramsey County District Court under
Minn. Stat. § 609.748. (Id.; see Order Granting HRO [Doc. No. 13, Ex. 1].) After two
evidentiary hearings, the Ramsey County Court granted a two-year restraining order on
October 2, 2017. (See Def.’s Mem. Supp. Mot. Dismiss [Doc. No. 14] at 3, Order
Granting HRO at 4–5.) The court found reasonable grounds to believe that Plaintiff
“followed, pursued, or stalked” Defendant and had “frightened [Defendant] with
threatening behavior.” (Order Granting HRO at 2, ¶ 5.) It based this conclusion on
findings that Plaintiff had registered the domain name lindseymiddlecamp.com and the
twitter account @mncourtshq, where he identified Defendant and her employer, accused
Defendant of criminal and professional misconduct, and solicited complaints from others.
(Id. at 3.) It also found that Plaintiff contacted an attorney adverse to Defendant in active
litigation after the ex parte HRO had been issued. (Id. at 4, ¶ 5(g).)

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Plaintiff alleges that Defendant’s conduct was defamatory per se (Am. Compl. ¶¶
19–22), that Defendant initiated the HRO proceedings to maintain her anonymity in
operating the @CardsAgstHrsmt account and to silence Plaintiff, depriving him of his
First Amendment right to criticize a public official, (id. ¶¶ 25–29), and that Defendant
intentionally inflicted emotional distress upon him. (Id. ¶¶ 41–43.)
In support of her Motion to Dismiss, Defendant argues that Count II (abuse of
process) and Count III (IIED) of Plaintiff’s Amended Complaint fail because they do not
state a claim upon which relief may be granted. (Def.’s Mem. Supp. Mot. Dismiss [Doc.
No. 14] at 1.) She contends that the abuse of process claim fails because the protection of
privacy is a stated purpose of Minn. Stat. § 609.748, and thus initiating an action for an
HRO cannot be abuse of process as a matter of law. (Id. at 7.) Defendant also posits that
Plaintiff’s IIED claim fails because Defendant’s alleged conduct was not sufficiently
outrageous to meet the IIED standard and because Plaintiff failed to plead the exact
nature of mental harm that he suffered. (Id. at 9–10.) She additionally moves to strike
several portions of the Amended Complaint as harassing and inflammatory. (Id. at 12–
13.)
In his opposition, Plaintiff argues that he has adequately pleaded his abuse of
process claim. (Pl.’s Opp’n Mem. [Doc. No. 21] at 11–12.) He also posits that false rape
accusations meet the standard for outrageous conduct to support an IIED claim, and that
he has pled “severe and extreme emotional distress” which satisfies the severity of mental
distress requirement. (Id. at 13–14). Finally, he argues that the portions of the Amended

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Complaint that Defendant has moved to strike are both necessary to the complaint and
not overly inflammatory. (Id. at 16–17.)
In the R&R & Order, Magistrate Judge Noel recommends that Defendant’s
Motion to Dismiss Count II (abuse of process) be granted because Defendant’s purpose
in obtaining the HRO, privacy, is within the scope of the proceeding. (R&R & Order at
4–5.) He also recommends that Defendant’s Motion to Dismiss Count III (IIED) be
denied because the allegations in the complaint taken as true, as they must be at the
12(b)(6) stage, sufficiently allege the requisite behavior and mental anguish. (Id. at 5–6.)
Lastly, Magistrate Judge Noel granted in part Defendant’s Motion to Strike, striking from
the Amended Complaint Defendant’s personal information to the degree he found it
irrelevant to the present action. (Id. at 8.) However, he declined to strike any language as
overly inflammatory. (Id.)
Plaintiff specifically contends that the magistrate judge erred in recommending
dismissal of his abuse of process claim. (See Pl.’s Obj. at 15.) In support of this
contention, Plaintiff attempts to introduce evidence of “extortion” as an alternative
collateral purpose of the HRO proceedings based on the existence of a settlement offer.
(Id. at 12–13.) He also attempts to introduce new facts alleging a conspiracy, in violation
of 42 U.S.C. § 1983, between Defendant and Referee Elisabeth Clysdale, the presiding
judicial officer in the HRO proceedings. (Id. at 13–14.)
Neither side specifically challenges Magistrate Judge Noel’s Order partially
granting Defendant’s Motion to Strike, and Defendant does not object to the denial of her
Motion to Dismiss Count III (IIED). (See Id.; Def.’s Resp.)
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II. DISCUSSION
A. Standard of Review
The district court must conduct a de novo review of a magistrate judge’s report
and recommendation on dispositive motions to which specific objections have been
made. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); D. Minn. L.R. 72.2(b). Defendant’s
motions for dismissal under 12(b)(6) are dispositive and must be reviewed under this
standard. D. Minn. L.R. 7(c)(6)(B). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint states a plausible claim for
relief if its ‘factual content ... allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Success need not be
probable to survive a motion to dismiss, but there must be more than the “sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. However,
“legal conclusions or ‘formulaic recitation of the elements of a cause of action’ . . . may
properly be set aside.” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678).
When considering a 12(b)(6) motion, the district court accepts as true all factual
allegations in the complaint and grants all reasonable inferences in favor of the
nonmoving party. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). “[A] pro se
complaint must be liberally construed, and ‘pro se litigants are held to a lesser pleading
standard than other parties.’” Gertsner v. Sebig, LLC, 386 F. App’x 573, 575 (8th Cir.
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2010) (quoting Whitson v. Stone County Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010)).
“However, this standard does not excuse pro se complaints from “alleg[ing] sufficient
facts to support the claims advanced.” Gertsner, 386 F. App’x at 575 (quoting Stone
County, 602 F.3d at 922 n.1).
Generally, courts may not consider matters outside the pleadings on a 12(b)(6)
motion. See FED. R. CIV. P. 12(d). The court may, however, take judicial notice of
matters in the public record. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (citing
Nixon v. Cour D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)). To do so does not
automatically convert the motion into one for summary judgment. Id.
B. Timeliness of Appeal
Plaintiff filed his Objections three days after the close of Magistrate Judge Noel’s
April 27 deadline. Normally, failure to object to a report and recommendation waives the
right to de novo review of those issues. Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.
1994); see also Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000); United
States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998); Borden v. Sec’y of Health & Human
Servs., 836 F.2d 4, 6 (1st Cir. 1987). Defendant argues that this should preclude this
Court from considering Plaintiff’s Objections. However, the Eighth Circuit has observed
that “in circumstances where a petitioner's poverty forces him to proceed pro se, a court
ought not to reject on technical grounds a right asserted within the hand-drawn (pro se)
complaint.” Drone v. Hutto, 565 F.2d 543, 544 (8th Cir.1977). This Court has previously
considered objections by a pro se plaintiff that were filed after the objection period
closed. See Gustafson v. Reiser, No. 14-cv-3351 (JRT/JJK), 2016 WL 6915299, at *5 (D.
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Minn. Nov. 23, 2016); cf. Kruger v. Apfel, 214 F.3d 784, 786–87 (7th Cir. 2000)
(holding that objection period is not jurisdictional, and district court may consider late
objections).
Plaintiff offers as an excuse that he “lacked the energy to timely file” his
Objections. (Pl.’s Letter.) His delay is the result of a family vacation and the supposed
unavailability of the Court’s electronic filing system. Plaintiff argues that permitting his
Objections will cause little prejudice to Defendant. (Id.) Indeed, Defendant admits that
any prejudice suffered from Plaintiff’s delay in objecting is “low.” (Def.’s Resp. at 3.)
Ultimately, however, this procedural issue is rendered moot, because the Objections fail
even if they are permitted. But the Court advises Plaintiff that his justifications for the
delay have little merit, and he should be much more cognizant of the Court’s deadlines in
the future.
C. Plaintiff’s Attempt to Amend his Amended Complaint in his Objection
As noted, Plaintiff apparently seeks to introduce new allegations of extortion and
conspiracy through his Objections (See Pl.’s Obj. at 12–14.) A party cannot seek to
amend a pleading in an objection, however, but must bring a motion to amend. Federal
Rule of Civil Procedure 15(a)(1) states:
A party may amend its pleading once as a matter of course within: (A) 21
days after serving it, or (B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.
Once this time period is passed, pleadings may only be amended “with the opposing
party's written consent or the court's leave. The court should freely give leave when
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justice so requires.” FED. R. CIV. P. 15(a)(2). In interpreting the “freely give leave”
requirement, the United States Supreme Court has said:
If the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded the opportunity to test his
claims on the merits. In the absence of any apparent or declared reason—
such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the
rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178 (1962).
In the present case, Plaintiff has already amended his Complaint once. (See Am.
Compl.) At this point, Plaintiff’s only means to amend is by either consent of opposing
counsel or the Court’s leave. Plaintiff has neither contacted opposing counsel nor
received their approval for any proposed amendments. (Def.’s Resp. at 7.) Plaintiff also
has not properly petitioned this Court for leave to amend his Amended Complaint. (See
Pl.’s Letter, claiming the new information in the Objections was newly-discovered).
Construing Plaintiff’s filings liberally in light of his pro se status, he arguably
petitions the Court for leave to amend in the letter that accompanied his Objections. Even
if this were construed as a motion to amend, it would not be granted. Setting aside the
improper procedural mechanism utilized by Plaintiff to seek amendment of his
Complaint, “[a] district court may appropriately deny leave to amend ‘where there are
compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the non-moving
party, or futility of the amendment.’” Moses.com Securities, Inc. v. Comprehensive

9

Software Systems, Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (quoting Hammer v. City of
Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003)).
Here, permitting Plaintiff to amend his Amended Complaint in this matter would
be futile. Plaintiff still cannot state a claim upon which relief may be granted for the
reasons discussed below.
D. Defendant’s Motion to Dismiss Plaintiff’s Abuse of Process Claim
Plaintiff claims that Defendant committed an abuse of process during the state
court HRO proceedings. Under Minnesota law, an abuse of process claim has two
elements: “(a) the existence of an ulterior purpose, and (b) the act of using the process to
accomplish a result not within the scope of the proceeding in which it was issued,
whether such result might otherwise be lawfully obtained or not.” Hoppe v. Klapperich,
28 N.W.2d 780, 786 (Minn. 1947). “The gist of the action is the misuse or misapplication
of the process, after it has once been issued, for an end other than that which it was
designed to accomplish.” Id. Plaintiff claims that Defendant initiated the HRO
proceedings “for the unlawful purpose of attempting to silence and deprive Plaintiff of
constitutional free speech criticism of a public official.” (Am. Compl. ¶ 29.) His claim
fails for two reasons, however. First, he does not allege that Defendant used the judicial
process to achieve a result outside the scope of the proceeding in which it was issued.
Second, Plaintiff’s Amended Complaint does not raise sufficient facts to support his
claim. Plaintiff also attempts to amend his Amended Complaint to assert that Defendant
had the collateral purpose of extorting him. (Pl.’s Obj at 13–14.) Even if this amendment

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were allowed, Plaintiff fails to allege any facts to support this conclusory allegation
beyond an inadmissible, alleged settlement agreement. (Id. at 12–13, Ex. 3.)
The HRO statute, Minn. Stat. § 609.748, labels a variety of conduct as harassment.
Section 609.748, subd. 1(a)(1) defines harassment as “repeated incidents of intrusive or
unwanted acts, words, or gestures that have a substantial adverse effect or are intended to
have a substantial adverse effect on the safety, security, or privacy of another, regardless
of the relationship between the actor and the intended target.” (emphasis added). The
protection of privacy is an explicit purpose of Minn. Stat. § 609.748.
The Court must take all allegations in the Amended Complaint as true at the
12(b)(6) stage, but is not required to accept conclusory allegations. See Iqbal, 556 U.S. at
678. Though Plaintiff alleges that Defendant acted with the intent to suppress his First
Amendment rights (Am. Compl. ¶ 29), this statement alone is nothing more than a
conclusory allegation that cannot support a claim. Plaintiff tries to support this allegation,
stating “[b]y her own admissions, Defendant commenced the HRO proceeding with the
collateral purpose of retaliating against Plaintiff for publicly linking her to the
@CardsAgstHrsmt Twitter account.” (Id.) Plaintiff fails to specify what these admissions
were, and in his next sentence instead affirms that Defendant’s purpose was to “preserve
her anonymity as the owner and operator of the @CardsAgstHrsmt Twitter account . . . .”
(Id.) He also alleges that Defendant “made baseless allegations that Plaintiff had
‘harassed’ or ‘stalked’ her.” (Id. ¶ 25.) This is not only a conclusory allegation, but one
with which the state court expressly disagreed. (Order Granting HRO at 2–3.) Based on
the record from the state court proceedings and the allegations in the Amended
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Complaint, Plaintiff merely alleges that Defendant instituted the state court HRO
proceedings to protect her privacy and anonymity. Such goals are clearly within the
scope of Minn. Stat. § 609.748, and thus cannot constitute an abuse of process.
Plaintiff also attempts to argue that Defendant’s actions in instituting the HRO
proceeding were for the collateral purpose of “extortion,” citing a settlement proposal
from Defendant in the HRO proceedings. (See Pl.’s Obj., Ex. 3.) Defendant, however,
argues that any reference to a settlement agreement is barred by FED. R. EVID. 408(a)(1).
(Def.’s Resp. at 8–9.) Rule 408(a)(1) prohibits the admission of evidence of “furnishing,
promising, or offering--or accepting, promising to accept, or offering to accept--a
valuable consideration in compromising or attempting to compromise the claim” to
“prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” FED. R. EVID. 408(a) (emphasis added). The
Court agrees with Defendant. “Although this is a rule of evidence, courts have routinely
granted motions to strike allegations in pleadings that fall within the scope of Rule 408.
U.S. ex rel. Alsaker v. CentraCare Health Sys., Inc., No. 99-cv-106 (JRT/RLE), 2002 WL
1285089, at *2 (D. Minn. June 5, 2002) (citing Austin v. Cornell Univ., 891 F.Supp. 740,
750-51 (N.D.N.Y. 1995) abrogated on other grounds, Walsh v. City of Auburn, 942
F.Supp. 788, 797 n. 5 (N.D.N .Y.1996)). Thus, even if Plaintiff were permitted to amend
his Amended Complaint to present this alternative justification for his abuse of process
claim, the claim would still fail for failure to plead a claim upon which relief can be
granted.

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E. Review of the HRO Proceedings and the Rooker-Feldman Doctrine
Though Plaintiff labels his arguments in Sections II and III as objections to the
R&R & Order, he is actually attempting to re-litigate the state court HRO proceedings.
(See Pl.’s Obj. at 4–11.) He argues both that Defendant’s conduct is not anonymous and
thus not protected under Minn. Stat. § 609.748, (id. at 4–7), and that his own conduct is
anonymous and entitled to protection. (Id. at 7–9.) Defendant contends that these
arguments are improper under the Rooker-Feldman doctrine. (Def.’s Resp at 4–5.)
“The ‘basic theory’ of the Rooker–Feldman doctrine is ‘that only the United States
Supreme Court has been given jurisdiction to review a state-court decision,’ so federal
district courts generally lack subject-matter jurisdiction over “attempted appeals from a
state-court judgment.” Friends of Lake View Sch. Dist. Inc. No. 25 v. Beebe, 578 F.3d
753, 758 (8th Cir. 2009) (quoting 18B CHARLES A. WRIGHT, ARTHUR R. MILLER AND
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4469.1, at 97, 101 (2d ed.
2002)). In his Objections, Plaintiff appears to raise a 42 U.S.C. § 1983 claim based on
alleged “collusion” between Defendant and Referee Clysdale. (Pl.’s Obj. at 13.) The
Eighth Circuit “has specifically cautioned against state-court losers seeking victory over
their adversaries in subsequent § 1983 actions in federal court.” Robins v. Ritchie, 631
F.3d 919, 925 (8th Cir. 2010). “Once a party has litigated in state court . . . he ‘cannot
circumvent Rooker–Feldman by recasting his or her lawsuit as a [section] 1983 action.’”
Id. (quoting Dodson, 601 F.3d at 754–55). The Eighth Circuit has also declined to adopt a
fraud exception to the Rooker-Feldman doctrine. Fielder v. Credit Acceptance Corp., 188
F.3d 1031, 1035 (8th Cir.1999); see also Resler v. Messerli & Kramer, P.A., No. Civ. 02–
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2510 PAM/RLE 2003 WL 193498, at *3 (D. Minn. Jan. 23, 2003) (holding a claim for
fraud at the state court that would require reconsidering the verdict is barred by the
Rooker-Feldman doctrine).
This Court agrees that it lacks subject matter jurisdiction to, in effect, review the
decision of a state court. See Dodson v. Univ. of Ark. For Med. Scis., 601 F.3d 750, 754
(8th Cir. 2010). Therefore, even if the Court were to permit Plaintiff to amend his
complaint through his Objections, this Court would lack subject matter jurisdiction to
review his claims. If Plaintiff wishes review of the HRO proceedings, he should invoke
his appellate rights in Minnesota courts.
In conclusion, after a de novo review of the record, the Court finds that Magistrate
Judge Noel properly analyzed Defendant’s Motions to Dismiss for failure to state a claim.
The Court therefore adopts his recommendations, granting Defendant’s Motion to
Dismiss Count II (abuse of process) and denying Defendant’s Motion to Dismiss Count
III (IIED).

III. ORDER
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Objections to Magistrate’s Judge Noel’s Report and Recommendation
and Order [Doc. No. 33] are OVERRULED.
2. Magistrate Judge Noel’s Report and Recommendation and Order of April 13, 2018
[Doc. No. 30] is ADOPTED IN ITS ENTIRETY.

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3. Defendant’s Motion to Dismiss Counts II and III of the Amended Complaint [Doc.
No. 11] is GRANTED IN PART AND DENIED IN PART.

Dated: September 26, 2018

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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