Rapp v. Hampton Inns Management LLC

Filing 35

ORDER denying 32 MOTION to Compel filed by Jeffrey S. Rapp. Motions terminated: 32 MOTION to Compel filed by Jeffrey S. Rapp. FINDINGS AND RECOMMENDATIONS re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Hampton Inns Management LLC, and 30 MOTION for Summary Judgment filed by Jeffrey S. Rapp. Signed by Magistrate Judge Jeremiah C. Lynch on 7/24/2018. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
JEFFREY S. RAPP,
CV 18-16-BU-BMM-JCL
Plaintiff,
ORDER, and FINDINGS AND
RECOMMENDATION

vs.
HAMPTON MANAGEMENT LLC,
Defendant.

Before the court is Hampton Inns Management LLC’s (“Hampton Inns”)
Fed. R. Civ. P. 12(b)(6) motion to dismiss Plaintiff Jeffrey Rapp’s complaint. Also
before the Court are Rapp’s two pleadings filed as a “Demand for Summary
Judgment”, and a “Motion to Compell [sic] Truthful Answers Participate in
Mediation.”
For the reasons discussed, the Court recommends Hampton Inns’ motion to
dismiss be granted in part, and denied in part. And Rapp’s motions are subject to
denial.
I. Background
Rapp commenced this action with his complaint filed in the Montana
Eighteenth Judicial District Court, Gallatin County. Hampton Inns removed the
case to this Court based upon the Court’s diversity of citizenship jurisdiction
provided at 28 U.S.C. § 1332.
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Rapp worked for Hampton Inns when its General Manager, Doris Fleming,
began making statements to Hampton Inns about Rapp which he asserts were false.
Fleming accused Rapp of (1) engaging in inappropriate conduct with a young
female co-worker, (2) being an incompetent employee for failing to install batteries
in smoke detectors, and (3) fraudulently reporting his work hours. Hampton Inns’
Human Resource Manager, Robert Blom, repeated the statements to the Montana
Department of Labor, in workers’ compensation matters, and to Hampton Inns’
attorneys. Rapp also alleges “Defendant[, through Fleming,] spread it all over town
that Rapp was a pervert, [a] thief, and derelict/incompetent in his duties[.]” (Doc. 9
at 4.) Rapp asserts the defamatory statements damaged his reputation, and that he
is entitled to an award of compensatory damages.
II Applicable Law
A. Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) permits a party to move for dismissal where the
allegations of a pleading “fail[] to state a claim upon which relief can be granted.”
A cause of action may be dismissed under Fed. R. Civ. P. 12(b)(6) either when it
asserts a legal theory that is not cognizable as a matter of law, or if it fails to allege
sufficient facts to support an otherwise cognizable legal claim. SmileCare Dental
Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996). In
addressing a Rule 12(b)(6) challenge the Court accepts all factual allegations in the

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complaint as true (Hospital Bldg. Co. v. Trustees of the Rex Hospital, 425 U.S.
738, 740 (1976)), and construes the pleading in the light most favorable to the
nonmoving party. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989).
The Court’s standard of review under Rule 12(b)(6) is informed by Fed. R.
Civ. P. 8(a)(2) which requires that a pleading “must contain a ‘short and plain
statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v.
Iqbal, 556 U.S. 662, 677-678 (2009) (quoting Rule 8). Although Rule 8(a)(2) does
not require “detailed factual allegations”, a plaintiff must set forth more than bare
allegations that the defendant unlawfully harmed the plaintiff. Id. (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft, 556 U.S. at 678. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
B. Application of Montana Law
Because jurisdiction over this action is founded upon diversity of
citizenship, the Court applies the substantive law of Montana, the forum state.
Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies,
Inc., 306 F.3d 806, 812 (9th Cir. 2002).

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III. Discussion
A. Hampton Inns’ Motion to Dismiss
Under Montana law, defamation occurs through either libel or slander.
Mont. Code Ann. § 27-1-801. “Slanderous words are spoken words, whereas
libelous words are written.” Tindall v. Konitz Contracting, Inc., 783 P.2d 1376,
1382 (Mont. 1989). In general, liability for libel and slander can arise from a false
and unprivileged publication or statement made about a person which causes harm
to that person. Mont. Code Ann. §§ 27-1-802 and 803. Specifically,
[l]ibel is a false and unprivileged publication by writing, printing, picture,
effigy, or other fixed representation that exposes any person to hatred,
contempt, ridicule, or obloquy or causes a person to be shunned or avoided
or that has a tendency to injure a person in the person’s occupation.
Mont. Code Ann. § 27-1-802. And “[s]lander is a false and unprivileged
publication other than libel that: […] (3) tends directly to injure a person in respect
to the person's office, profession, trade, or business, either by imputing to the
person general disqualification in those respects that the office or other occupation
peculiarly requires or by imputing something with reference to the person's office,
profession, trade, or business that has a natural tendency to lessen its profit[.]”
Mont. Code. Ann. § 27-1-803(3).
The statutes defining libel or slander establish a three-part requirement for
the claim. “[F]irst, the publication must be false; second, the publication must not
be privileged; and third, the publication must be defamatory, in that it exposes the
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person to ‘hatred, contempt, ridicule, or obloquy,’ or causes ‘a person to be
shunned or avoided,’ or has a tendency to injure the person in his or her
occupation.” Lee v. Traxler, 384 P.3d 82, 86 (Mont. 2016).
As noted in the elements of the claim, defamation occurs only with respect
to “unprivileged” publications or statements. McLeod v. State, 206 P.3d 956, 960
(Mont. 2009). Privileged publications are defined in Mont. Code Ann. § 27-1-804.
Hampton Inns argues Rapp’s pleading relies upon privileged statements in
his defamation claims. According to Hampton Inns, Rapp alleges Fleming made
the alleged defamatory statements to “Defendant”, Hampton Inns, which makes the
statements privileged intracompany communications. And it argues Robert Blom’s
statements to the Department of Labor, workers’ compensation officials, and “their
attorneys[,]” are also privileged statements. (Doc. 9 at 4.)
With respect to Blom’s statements he made to Department of Labor and
workers’ compensation officials, Montana law establishes that a statement or
publication is privileged if it is made “in any legislative or judicial proceeding or in
any other official proceeding authorized by law[.]” Mont. Code Ann. § 27-1804(2). Therefore, under section 27-1-804(2) statements made to Department of
Labor or workers compensation officials are privileged statements and cannot form
the basis of a defamation claim. Berg v. TXJ Companies, 2013 WL 3242472, *9
(D. Mont. 2013). See also McLeod v. State, 206 P.3d 956, 961 (Mont. 2009). Thus,

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Rapp’s defamation claims predicated upon Blom’s statements to the Department of
Labor and workers’ compensation officials are subject to dismissal.
Hampton Inns further argues Fleming’s statements she made to Hampton
Inns, and Blom’s statements to Hampton Inns’ attorneys are privileged
intracompany communications. Montana law provides that a privileged publication
includes statements made “in a communication without malice to a person
interested therein by one who is also interested or by one who stands in such
relation to the person interested as to afford a reasonable ground for supposing the
motive for the communication innocent or who is requested by the person
interested to give the information[.]” Mont. Code Ann. § 27-1-804(3). This
privilege protects communications between an employer and its employees, so
long as the communication is made without malice. Berg v. TXJ Companies, 2013
WL 3242472, *8 (D. Mont. 2013).
Although Fleming’s statements to Hampton Inns, and Blom’s statements to
Hampton Inns’ attorneys would otherwise constitute privileged intracompany
communications, the privilege is qualified by the requirement that the statements
be made “without malice.” But Hampton Inns does not argue that Rapp’s
allegations establish that Fleming and Blom acted without malice.
With respect to privileged communications, malice refers to “reckless
disregard for the truth, [or] knowledge that the matter is false[.]” Hale v. City of

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Billings, 986 P.2d 413, 421 (Mont. 1999). Here, Rapp alleges the subject
communications were “malicious, intentional lies[.]” (Doc. 9 at 4.) And Rapp
asserts Fleming made the false statements about him allegedly to divert attention
away from Fleming’s own embezzlement and fraud she committed against
Hampton Inns. (Id.) Finally, Rapp alleges Fleming and Blom knew the statements
“were completely untrue.” (Doc. 9 at 4.) Therefore, the Court finds Rapp’s
allegations at least plausibly suggest that Fleming and Blom made the
intracompany communications with malice which, if true, would render
inapplicable the privilege set forth in Mont. Code Ann. § 27-1-804(3). Hampton
Inns’ motion to dismiss should be denied in this respect.
Finally, Hampton Inns contends Rapp’s pleading contains a separate vague
and unspecified allegation of defamation which is deficient. Rapp alleges Hampton
Inns, through Fleming, “spread it all over town that [he] was […a] thief[.]” (Doc. 9
at 4.) Hampton Inns complains this allegation lacks sufficient factual content to
plausibly state a claim.
But the Court finds Rapp’s allegation contains sufficient factual specificity.
If Fleming told member of the community that Rapp “was a thief”, such a
statement accuses Rapp of a crime and, thus, qualifies as slander under Mont.
Code. Ann. § 27-1-803(1). See Keller v. Safeway Stores, Inc., 108 P.2d 605, 609
(Mont. 1940) (concluding that statements accusing a person of committing a crime

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constitute slander per se). Rapp’s allegations suggest Fleming accused him of
fraudulently reporting his work hours, thereby allegedly stealing money from
Hampton Inns like a “thief”. And it is at least plausible that Fleming could have
reported this information to members of the community around town as Rapp
alleges. Therefore, the Court finds Rapp’s allegations at least state a claim for
slander, and Hampton Inns’ motion should be denied in this respect.
B. Rapp’s Motion for Summary Judgment
Rapp requests the Court grant summary judgment in his favor on his claims
advanced in his Complaint. He perceives that Hampton Inns has failed or refused
to properly defend against, and truthfully answer his accusations against it. He
believes Hampton Inns has fraudulently deceived the Montana Department of
Labor and workers’ compensation officials to deprive him of his rights. He
contends Hampton Inns unjustly claims ignorance to all of his assertions and,
therefore, his allegations should be deemed well-taken which entitles him to
summary judgment.
To obtain summary judgment as provided in Federal Rule of Civil Procedure
56(a) a party must establish “that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” As the Plaintiff in this
action Rapp bears the burden of persuasion at trial, and on summary judgment he
bears the “initial burden of establishing the absence of a genuine issue of fact on

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each issue material to [his] case.” C.A.R. Transportation Brokerage Co., Inc. v.
Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000). To do so he must cite
“to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
other materials[.]” Fed. R. Civ. P. 56(c)(1)(A). And Rapp is obligated to file a
statement of undisputed facts in support of his motion for summary judgment
which provides the specific citations to the evidentiary material contained within
the record which supports each of his assertions of fact. L.R. 56.1(a)(2).
The Court finds Rapp has failed to support his summary judgment motion
with any facts and evidentiary materials in the record of this case as required. And
he has failed to establish that any set of facts entitle him to summary judgment as a
matter of law – he does not cite to legal principles or theories which support his
theory of liability and warrant the imposition of summary judgment. When a party
fails to meet his burden to establish he is entitled to summary judgment under the
requirements of Rule 56, the motion must be denied. Nissan Fire & Marine Ins.
Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).
C. Rapp’s Motion to Compel
Rapp perceives that Hampton Inns and its counsel have acted immorally,
unethically, and untruthfully in this litigation. He asserts they fraudulently

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provided false information to the Montana Department of Labor to Rapp’s
detriment, and that they have refused to seek the truth from witnesses in this case.
In substance, Rapp moves the Court for an order requiring Hampton Inns and its
counsel to act appropriately. But he does not cite to any legal authority in support
of his motion.
Rapp’s accusations of misconduct are vague as he does not provide specific
factual descriptions of alleged misconduct. With respect to conduct in this
litigation, all parties are already subject to Fed. R. Civ. P. 11 which requires
counsel and unrepresented litigants to advance pleadings and theories in good
faith, for a proper purpose, and with support from law and facts reasonably
believed to exist. Rule 11(b). But without specific details of any actual misconduct
supported by evidence, the Court will presume all parties are complying with Rule
11 and all other applicable rules of ethical conduct. Thus, there is no need for the
Court to issue an order imposing compliance with rules to which all parties are
already subject. Rapp’s motion is denied as unnecessary.
III. Conclusion
Based on the forgoing, IT IS RECOMMENDED that Hampton Inns’ motion
to dismiss be GRANTED with respect to Rapp’s allegations of defamation
predicated upon Hampton Inns’ statements, through Blom, made to the Montana
Department of Labor and workers’ compensation officials, and those claims of

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defamation should be dismissed. But Hampton Inns’ motion should be DENIED in
all further respects.
IT IS FURTHER RECOMMENDED that Rapp’s motion for summary
judgment be DENIED.
Finally, IT IS ORDERED that Rapp’s motion to compel is DENIED as
unsupported and unnecessary.
DATED this 24th day of July, 2018.

______________________________
Jeremiah C. Lynch
United States Magistrate Judge

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