Spreadbury v. Bitterroot Public Library et al
Filing
109
Brief/Memorandum in Support re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS Def Lee Enterprises Inc's Brief in Support of Motion for Summary Judgment on Remaining Counts filed by Lee Enterprises Incorporated. (Smith, Jeffrey)
Jeffrey B. Smith
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street. P. O. Box 7909
Missoula, MT 59807-7909
Telephone (406) 523 -2500
Telefax (406) 523-2595
j bsmith@garlington. com
Attomeys for Defendant, Lee Enterprises, Inc.
IN THE UNITED STATES DISTRICT COLIRT
FORTHE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No.
MICHAEL E. SPREADBURY.
CV-l l-064-M-DWM
Plaintiff,
BITTERROOT PUBLIC LIBRARY.
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBERG P.C..
DEFENDANT LEE ENTERPRISES,
INC.'S BRIEF IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT ON REMAINING
COUNTS
Defendants.
COMES NOW Co-Defendant, Lee Enterprises, Inc. ("Lee Enterprises"),
through its counsel, Garlington, Lohn & Robinson, pLt-p, and hereby respectfully
files its Brief in Support of its Motion for Summary Judgment on Remaining
Counts.
I.
INTRODUCTION
On July 28,2011, the U.S. Magistrate Judge entered Findings and
t0s8271
Recommendations (Dkt. 75) regarding Lee Enterprises' Federal Rule of CiviL
Procedure l2(bX6) motion to dismiss Plaintiff Michael Spreadbury's
("Spreadbury") Arnended Complaint (Dkt l-1) for failure to state a claim upon
which relief can be granted. The U.S. Magistrate recommended Lee Enterprises'
Motion to Dismiss be granted in part, and denied in all other respects. Specifically,
the Court recommended dismissal of Spreadbury's defamation claim with respect
to the arlicles published by Lee Enterprises, dismissal of Spreadbury's claim
of
defamation per se claim, dismissal of Spreadbury's 42 U.S.C. $ 1983 claim, and
dismissal of Spreadbury's claim of negligence per se. (Dkt. 75.)
More recently, on August 10, 2011, the U.S. Magistrate granted Spreadbury's
request to amend his pleadings with respect to his new claim that Lee Enterprises
published false information in an August 9,2010 article. (Dkt. 85.)
Accordingly, Lee Enterprises provides the following Brief in Support of its
Motion for Summary Judgment as to the remaining claims in Spreadbury's Second
Amended Complaint.
Lee Enterprises expressly reserves the right to further plead if the Honorable
Judge
Molloy rejects or otherwise modifies the U.S. Magistrate's Findings and
Recommendations (Dkt. 75.)
II.
BACKGROTIND
Spreadbury's current dispute with the Defendants stems from an altercation
with Ms. Nansu Roddy ("Roddy") at the Bitterroot Public Library ("Library") in
May or June 2009, when Roddy refused to submit a letter Spreadbury requested to
be placed on the reserve shelf in the
Library. SeeDef. Lee Enterprises, Inc.'s
State. Undisputed Facts Support Mot. S.J. Remaining Counts C'SUF")
(Sept. 28,
201l). As a result, Spreadbury
tlfl l-3
had numerous interactions with Library
staff and, eventually, was banned from the Library. (SUF fl
4.)
Subsequently,
Spreadbury returned to the Library and was charged with criminal trespass (SUF
flfl 5-6.) The Ravalli Republic, a newspaper owned by Lee Enterprises, published
articles stemming from the criminal trespass charges brought against Spreadbury.
(StlF fl 7.) The articles were republished by the Missoulian, and other newspapers
affiliated with Lee Enterprises. (SUF fl 8.) However, none of the articles
contained personal opinions from the reporters but, instead, were based purely on
official Ravalli County Court documents. (SUF fl 9.)
Similarly to Spreadbury's ban from the Library, around the same time period,
Spreadbury was essentially banned from the offices ofthe Ravalli Republic,after
being verbally abusive to Ravalli Republic staff. (SuF fl 10.)
Meanwhile, the Ravalli Republic and the Missoulian continued to report on
the proceedings in Spreadbury's criminal trespass case. (SUF flu l
l-12.)
On
September 10, 2009, the Ravalli Republic published an article regarding the
trespass charges brought against Spreadbury. (SUF
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fl
I
l.)
The article was
published onthe Ravalli Republic's website. (SfJF Tll l3-14.) Third-paty, on-line
readers made comments on the article, (SUF fltT 15-16.) However, the Ravalli
Republic did not encourage, create, or otherwise develop the comments, nor did
it
alter or otherwise edit the comments. (SUF flU 17-18.)
While the criminal trespass proceedings continued, Spreadbury was also
charged with felony intimidation stemming from an encounter between Spreadbury
and Roddy outside the Library. (SUF flfl 19-20.) Roddy sought, and obtained, an
Order of Protection against Spreadbury. (SUF'lT 19.) Like the criminal trespass
charges, both the Ravalli Republic and the Missoulian published articles regarding
the felony intimidation charges brought against Spreadbury, but none of these
articles contained personal opinions from the reporters. Instead, the articles were
based on official Ravalli County Court documents. (SLIF flfl 20-21 .)
On February 18,2010,
a
jury in *re City of Hamilton City Court found
Spreadbury guilty of criminal trespass. (SIIF fl 22.) The Ravalli Republic
published an afticle regarding the conviction. (SUF fl 23.) Spreadbury
subsequently appealed the decision. (SUT tT22.)
In May 2010, Spreadbury filed separate lawsuits against Roddy, a Library
employee, Angela Wetzsteon, and George Com, employees for Ravalli County,
and Kenneth Bell, employee for the City of Hamilton. (SUF ll 24.) The
Defendants filed Motions for Summary Judgment and oral argument was heard
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regarding each motion on August 6,2010. (SUF fl 25.) The Ravalli District Court
also held a pretrial conference regarding Spreadbury's appeal for his conviction
of
criminal trespass on August 6,2010. (SUF fl 29.)
The Ravalli Republic published an article on August 9,2010, regarding the
hearings of August 6,2010. (SUF 1130.) The afticle conectly noted Spreadbury
was previously charged and convicted for criminal trespass. (SUF fl 30.) On
August 17,2010, the criminal trespass charges were dropped. (SUF
!J
32.) On
August 24,2010,the Ravalli Repablic published a correction to the August 9,2010
article, noting the City had subsequently dropped the charges of criminal trespass
against Spreadbury. (SUF fl
34.) Spreadbury had requested the change. (SUF
fl 33.)
It is undisputed that there were no false statements made in the August 9,
2010, Ravalli Republic article, and the alleged defamatory comments were made
by third parly, on-line readers and not the Ravalli Republic. Accordingly, Lee
Enterprises is entitled to judgment as a matter of law as to all of Spreadbury's
remaining counts.
III.
Summary judgment is proper
ARGUMENT
"if
the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to
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a
judgment as a matter of law."
Fed. R. Civ. P. 56(c)(2). "[T]he plain language of Rule 56(c) mandates the entry
of summary judgment . . . against
a party
who fails to make a showing sufficient to
establish the existence ofan element essential to that party's case, and on which
that party
will
bear the burden of proof at
trial." Celotex Corp. v' Catrett,
477 U '5.
317,322 (1986.)
The Court in Celotex emphasized that summary judgment is not to be
disfavored but, rather, employed as an "integral part ofthe Federal Rules as a
whole, which are designed 'to secure thejust, speedy and inexpensive
determination of every action."' Celotex,,477 U.S. at327 (citations omitted).
Courts must construe Rule 56(c) with regard to the rights of both parties, including
persons who oppose claims having no basis in fact. Celotex, 477 U.S. at 327
.A
party's failure to make a sufficient showing on an essential element of a case
entitles the moving party to summary judgment as a matter of law. Celotex, 477
U.S. at 323.
Not all disputes create a genuine issue ofmaterial fact. "A dispute as to a
material fact is 'genuine' ifthere is sufficient evidence for a reasonablejury to
return a verdict for the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735
(9th Cir. 1997) (citation omitted), oveffuled on other grounds by Ellington v. Dir.
of Corrections, 2009 WL 900168, slip op. (Mar.
3I
, 2009). Mere assertions or
allegations by the opposingparty, without factual support from the record, are
10582?i
insufficient to defeat summary judgment. Celotex,477 U.S. at323-324. While
this Court must view the evidence of record in the light most favorable to the non-
moving party, "a mere scintilla of evidence or some metaphysical doubt as to
material facts will not suffice to defeat summary judgment." Scribner
v.
Worldcom, lnc.,249 F.3d 902,907 (9th Cir. 2001) (citation and intemal quotation
omitted). Therefore, if there is no genuine dispute over the facts, this Court may
enter judgment now.
Once the moving party has met its burden, the burden shifts to the non-
moving party to "set forth specific facts showing that there is a genuine issue for
trial''
A.
Andersonv. Liberty Lobby, [nc.,477 U.5.242,256 (1986).
Lee Enterprises Is Entitled to Summary Judgment As a Matter of Law.
It is undisputed that there were no false statements made in the August 9,
2010., Ravalli Republic article, and the alleged defamatory comments were made
by third-party, on-line readers - not the Ravalli Republic.
Once it is shown that Lee Enterprises did not defame Spreadbury, his
remaining allegations fail as a matter of law. Therefore, this brief
will first
examine Spreadbury's claim of defamation, as to the alleged false information
published in the August 9,2010, Ravalli Republic article and, then, examine
Spreadbury's claim of defamation regarding the comments posted on the Ravalli
Republic s website.
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l.
Count 19: Defamation.
Lee Enterprises is entitled to judgment as a matter of law, because it is
undisputed the September 9,2010, article did not contain any false information,
and the alleged defamatory comments Spreadbury complains of in his Second
Amended Complaint were made by third parties.
a.
Defamation. as to the alleeed false information
published in an August 9. 2010 article.
Since it is undisputed the information published in the August 9, 2010, article
was not false, Lee Enterprises is entitled to judgment as a matter of law.
Spreadbury claims an August 9,2010, article published in the Ravalli Republic
contained false information, defaming Spreadbury. However, a review of the
August 9, 2010 article, and the proceedings it summarizes, shows the article did
not contain false information.
Traditionally, the term "libel" refers to defamatory statements made in
writing. Restatement (Second) of Torts $ 568 (WL current through Apr.
201 I ).
Montana Code Annotated $ 27-l-802 (2009) (emphasis added) defines libel:
Libel 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.
However, ceftain communications are privileged. Section 27-l-804(4), "makes a
fair and true report without malice of a judicial proceeding a privileged
publication." Coxv. Lee Enters., lnc.,222 Mont.527, 529,723P'2d238,239-240
(1986). ln Cox,the Montana Supreme Court held pursuant to $ 27-l-804(4):
[A] qualified privilege is available
as a defense for a newspaper
publisher in a defamation case when the alleged defamation consists
of facts taken from preliminary judicial pleadings which have been
filed in court but which have not beenjudicially acted upon.
Cox, 7 23 P.2d at 240. The Court noted the definitions of 'Judicial proceedings"
include:
Any proceeding wherein judicial action is invoked and taken; [a]ny
proceeding to obtain such remedy as the law allows; [a]ny step
taken in a court ofjustice in the prosecution or defense ofan action.
Cox ,,723 P.2d at 240 (citation and intemal quotation omitted). The Court also
noted a modem trend ofjurisdictions applying a qualified privilege to reports
of
judicial pleadings which have not yet been the subject ofjudicial action.
Certainly, the administration ofjustice is of utmost importance to
the citizenry. While we are aware that pleadings are one-sided and
may contain, by design, highly defamatory statements, we believe
the information found in such pleadings is of sufficient value as to
warrant the encouragement of its publication.
Cox,723 P.2d at 240 (quoting Newell v. Field Enters., lnc.,415 N.E.2d 434,444
(Ill. App. 1980) (intemal quotations omitted).
Spreadbury's Second Amended Complaint alleges an August 9, 2010, article
published by the Ravalli Republic contains false information about Spreadbury's
". . . criminal behavior, prior lawsuits filed, and comments made by Plaintiff in oral
arguments before Judge Larson, in the
2l't Judicial district court."
(SLJF tf 41.)
However, a review of the transcripts from the August 6,2010, hearings, which the
August g,2Ol0, article summarizes, clearly shows the article does not contain false
information. As such, it is a privileged publication pursuant to $ 27-1-804(4)' and
Lee Enterprises is entitled to judgment as a matter of law.
First, with regards to the claim that the August 9,2010, article contains false
information about Spreadbury's "criminal behavior," the article conectly notes that
Spreadbury was earlier found guilty of criminal trespass in an incident at the
Library, and that on Friday, August 6,2010, the Ravalli District Court had a
pretrial hearing on an appeal by Spreadbury regarding the criminal trespassing
conviction. (SUF'llfl 22,29-30.) Spreadbury apparently believes the August 9,
2010, article contained false information about his "criminal behavior" because the
criminal trespass charges were subsequently dropped on August 17,2010. (SUF
fl 32.) However, this does not change the truth of the August 9, 2010, article.
After the charges were dropped, Spreadbury asked the Ravalli Republic to make
the appropriate correction to the August 9,2010 article. (SUF fl 33.) Accordingly,
the Ravalli Republic made a correction in an August 24,2010 article, noting the
charges ofcriminal trespass had been subsequently dropped. (SUF fl 34.)
Contrary to Spreadbury's allegations in his Second Amended Complaint, the
August 9,2010, article does not contain false information conceming his "criminal
behavior."
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l0
Secondly, as it pertains to Spreadbury's allegations that the August 9,2010,
article contained false information regarding prior lawsuits filed by Spreadbury,
the article simply summarizes arguments made by the City and County attomeys in
cases brought by Spreadbury. (SUF
ff124-31') The article's information
concerning Spreadbury's prior law suits is true. As the transcripts from the August
6,20ll
hearings show, counsel for Defendant Bell, an employee of the City
of
Hamilton, argued for summary judgment pertaining to an Amended Complaint
filed by Spreadbury in May 2010. (SUF 1fl24-25.) On the same day, attomeys for
Wetzsteon and Corn, employees for Ravalli County, argued for summary judgment
pertaining to an Amended Complaint filed by Spreadbury in May 2010. (SUF
fln24-25.) Similarly, attomeys for Roddy,
a Library employee, also argued
for
summary judgment stemming from an Amended Complaint filed by Spreadbury in
May 2010. (SUF fl 24-2s.)
The article further provides that in his Complaints against the City and
County, Spreadbury claimed earlier prosecutions against him were made on
improper grounds and with intentional malice. (SUF flfl 30-3
L)
Again, this is true.
(srrF 1T25.)
Finally, a review of the transcripts from the August 6,2010, hearings shows
that the August 9,2010, article does not contain false information regarding
comments made by Spreadbury. With regard to Spreadbury's claim against the
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1l
County, the article provides Spreadbury argued "Prosecutorial immunity did not
cover the county attomey in this case . . . , because ofthe nature ofthe office's
actions." (SUF fl 30.) A review of the transcripts shows this is, in fact, what
Spreadbury argued. (SUF fl'l] 25-27.) The article continues quoting Spreadbury as
saying,
"I'm not
sure how George Corn is entitled to any immunity whatsoever'"
(SUF !| 30.) Although a review of the transcript shows Spreadbury actually said, "1
don't see how George Corn is entitled to any immunity whatsoever," this is not
evidence of the article being false. (SUF fl 26-27 (emphasis added).)
The article further provides Spreadbury argued immunity was not appropriate
because his trial against him was argued by an unsupervised law student. (SUF
fl 30.) The article is accurately summarizing what was said during the hearing.
(suF fl 27.)
The August 9,2010, article then summarizes the arguments made during the
hearing for the City's motion for summary judgment. (SUF
1]
30.) The article
conectly notes Spreadbury argued Bell had no authority to try a prior case against
him. (SUF fl'lT 28, 30.) Further, the hearing's transcript correctly notes Spreadbury
said,
".
. . he's lost in space . . . , and
the August 9,2010, article. (SUF
!]t
would be another year offun," as stated in
ffl 28, 30.) Similarly, page five of the hearing's
transcript shows Spreadbury said the City's actions were "outrageous." (SUF
fllT28, 30.)
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t2
Clearly, the August 9,2010, article correctly noted the comments made by
Spreadbury during the August 6,2010 hearings, and it did not contain false
information as alleged in Spreadbury's Second Amended Complaint.
Therefore, like the other articles Spreadbury claims were defamatory, the
August 9,2010, article alleged in Spreadbury's Second Amended Complaint to be
defamatory is a privileged publication pursuant to $ 27-1-804(4), since it was a fair
and true report of
a
judicial proceeding. Accordingly, Lee Enterprises is entitled to
judgment as a matter of law.
b.
Def4mation. as to the comments published by Lee
Enterprises.
Similarly, Lee Enterprises is entitled to judgment as a matter of law
conceming the comments to the September 10, 2009 article, since it is undisputed
the comments were made by third party, on-line readers, and not the Ravalli
Republic.
"Section 230 of the CDA [Communications Decency Act] immunizes
providers of interactive computer services against liability arising from content
created by third parties." Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC,521 F.3d 1157,1\62 (gth Cir. 2008). Specifically,
$ 230(c) provides:
"[n]o provider or user ofan interactive computer service shall
be treated as the publisher or speaker
ofany information provided by another
information content provider." 47 U.S.C. $ 230(c)-
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l3
"The CDA is intended to facilitate the use and development of the Intemet by
providing certain services an immunity from civil liability arising from content
provided by others." F.T.C. v. Accusearch lnc.,570 F.3d 1187, 1195 (1Oth Cir.
2009) (citation omitted). "Absent $ 230, a person who published or distributed
speech over the Intemet could be held liable for defamation even
if he or
she was
not the author of the defamatory text, and, indeed, at least with regard to
publishers, even if unaware of the statement." Batzelv. Smith,333 F.3d 1018,
1026-1027 (9th Cir. 2003) (citation omitted).
Lee Enterprises should be considered an "interactive computer service" as to
the claims that Lee Enterprises published defamatory comments about Spreadbury
onthe Ravalli Republic website. "Recognizing that the Intemet provided a
valuable and increasingly utilized source of information for citizens, Congress
carved out a sphere of immunity from state lawsuits for providers of interactive
computer services to preserve the vibrant and competitive free market of ideas on
the Intemet." Nemet Chevrolet, Ltd. v. Consumeraffairs,com,
Inc.,59l
F.3d 250,
254 (4th Cir. 2009) (citations and internal quotations omitted); 47 U.S.C.
$ 230(bX2)
(WL current through July 2011). "Through this provision, Congress
granted most intemet services immunity from liability for publishing false or
defamatory material so long as the information was provided by another party."
Carafano v. Metrosplash.com, lnc.,339 F.3d I119, I122
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(9ft Cir,
2003).
t4
The term "interactive computer seryice" means any information
service, system, or access software provider that provides or
enables computer access by multiple users to a comPuter server,
including specifically a service or system that provides access to
the Intemet and such systems operated or services offered by
libraries or educational institutions.
47
u.S.c.
$ 230(0(2).
The definition of "interactive computer service" includes a wide range
of
cyberspace services. Carafano,339 F.3d at 1123 (". . . reviewing courts have
treated $ 230(c) immunity as quite robust, adopting a relatively expansive
definition
of
interactive computer service' . .
.");
see e.g. Gentry v. eBay, Inc,,
99 Cal. App.4th 816,831 n.7, (Cal. App.2 Dist.2002) (on-line auction website is
an "interactive computer service"); Schneider v. Amazon.com,
App. 454, 460-461 (Wash. App. Div.
hc.,
108 Wash.
I 2001) (on-line bookstore Amazon.com
an "interactive computer service."); see also Ben Ezra, Weinstein,
is
& Co. v. Am.
Online 1nc.,206 F.3d 980, 984 (lOth Cir. 2000) (parties conceded that AOL was an
interactive computer service when it published an on-line stock quotation
services); Zeranv. Am. Online, lnc.,129F.3d327,328-329 (4th Cir. 1997) (AOL
assumed to be interactive computer service when it operated bulletin board service
for subscribers).
"The prototypical service qualifuing for this statutory immunity is an online
messaging board (or bulletin board) on which Intemet subscribers post comments
and respond to comments posed by others." F.T.C.,570 F.3d at 1195 (citation
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l5
omitted). In fact, Congress enacted the CDA in response to Stratton Oakmont, Inc.
v.
Prodigt Sems. Co.,1995 WL 323710 *5 (N.Y. Sup. Ct. May 24,1995)
(unpublished) , superseded by statute by Zeran, which held a provider of an online
message board could be liable for defamatory statements posted by third parties.
See
Fair Hous. Council,52l F.3d at 1163 (en banc).
ln Collins v, Purdue University, T03 F. Supp. 2d 862 (N.D. Ind. 2010), the
U.S. District Court was recently faced with the question of whether a newspaper
that publishes articles on-line is liable for subsequent comments made about the
articles by third parties. On January 13,2007, Timothy J. Collins ("Collins"), a
Purdue University student, reported being assaulted on the Purdue campus. On
January 16,2007, three days after Collins' alleged assault, another Purdue
University student, Wade Steffey ("Steffey"), was repofted missing. A search
ensued, ending in Steffey's body being found in a
utility closet on campus. Police
questioned Collins regarding Steffey's death and later charged Collins with
numerous criminal charges based on the results
ofa polygraph test. The School's
newspaper ran an article regarding the charges brought against Collins. The article
was later published on the newspaper's website, which allowed readers to post
comments about the article. Numerous comments were made resulting in hostile
treatment of Collins. Collins,703 F. Supp. 2d at867-869. Collins brought suit,
alleging the University defamed him by publishing the comments made on the
t6
website. The Court dismissed these claims; finding the newspaper's website was
an interactive computer service as defined under the CDA and immune from
liability.
Similarly, in Nemet Chevrolet ("Nemet"), the Fourth Circuit determined
Consumeraffairs.com was immune from liability under the CDA. Nemet brought
suit against Consumeraffairs.com, alleging defamation and tortious interference
with business expectancy, for publishing posts made by third parties regarding
Nemet's car business. However, the district court's order dismissing Nemet's
complaint was upheld by the Fourth Circuit because the comments were made by
third parties, and Consumeraffairs.com, an interactive computer service, did not
develop or create the comments.
Likewise, in Johnson v. Arden,6l4 F.3d 785 (8th Cir. 2010), the Eighth
Circuit upheld the dismissal of Plaintiffs' complaint of defamation against
InMotion Hosting Inc., an intemet service provider pursuant to the CDA. Johnson,
614 F.3d
at792. The Johnsons owned and operated
an exotic cat breeding
business known as the Cozy Kitten Cattery. A third party allegedly made
defamatory corrunents about the Johnsons' business on the interactive website
www.ComplaintsBoard.com. The Johnsons filed suit against numerous parties,
including InMotion Hosting, Inc., the intemet service provider who hosted the
www.ComplaintsBoard.com website. Johnson,6l4 F.3d at 789. The district court
r0s827l
l7
entered an order dismissing the claims against InMotion with prejudice, because
the CDA barred Johnsons' claims against InMotion. The Eighth Circuit upheld the
dismissal since it was undisputed that InMotion did not originate the material that
the Johnsons deemed damaging. Johnson,614 F.3d at 791.
Most recently,in Miles v. Raycom Media, lnc.,2010 WL 3419438 at *3, slip
op. (S.D. Miss. Aug. 26,2010), the U.S. District Court dismissed Miles' claim
of
defamation against her former employer, because the employer was immune from
liability under the CDA. While working
as a news anchor for Raycom Media, Inc.,
Miles was arrested in a drug raid at a home she was visiting. As
a result
of the
arrest, Miles was terminated from her employment. The television station ran a
story on-line regarding the arrest and allowed third parties to make comments.
Miles brought suit, alleging among other things, that Raycom defamed her by
allowing third parties to make false comments about her on the website. Miles,,
2010 WL 3419438 at *
l.
However, the court dismissed Miles' claim pursuant to
the CDA since it was undisputed third parties made the comments, not Raycom.
Miles,2010 WL 3419438 at *3.
Ravalli Republic's website is an interactive computer service as defined by
the CDA. The Ravalli Republic published articles on its website and allowed third
parties to make comments. (SUF
fl 14.) It is undisputed that the alleged
defamatory corffnents to the September 10, 2009, article were made by third
t058271
18
parties. (SUF
fl'lT
14-16) Accordingly, Lee Enterprises cannot be liable for
publishing the comments made by third parties and they are entitled to judgment as
a matter
of law.
Arguably, the Ravalli Republic could also be considered an information
content provider because it publishes articles on its website. Nevertheless, the
Ravalli Republic would still be immune from liability regarding the comments
because they were made by third parties, and the Ravalli Republic did not create or
develop the comments.
"Under the statutory scheme, an 'interactive computer service' qualifies for
immunity so long as it does not also function as an oinformation content provider'
for
the
portion of the statement or publication at issue." Carafano,339 F.3d at
1123 (emphasis added).
Critically, however, $ 230 limits immunity to information provided
by another information content provider. An information content
provider is defined by the statute to mean any person or entity that
is responsible, in whole or in part, for the creation or development
of information provided through the Internet or any other
interactive computer service. The reference to another information
content provider . . . distinguishes the circumstance in which the
interactive computer service itself meets the definition of
information content provider with respect to the information in
question.
Batzel,333 F.3d at 103 I (internal quotations and citations omitted) (emphasis in
original).
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l9
To clariS,
A website operator can be both a service provider and a content
provider: Ifit passively displays content that is created entirely by
third parties, then it is only a service provider with respect to that
content. But as to content that it creates itself, or is "responsible, in
whole or in part" for creating or developing, the website is also a
content provider.
Fair Hous. Council,52l F.3d at1162.
Even though the newspaper provided the September 10, 2009, article which
sparked the allegedly defamatory cornments, the Ravalli Republic is still immune
from liability because it did not create or develop the posted comments, nor did it
encourage the readers to comment on the articles in a defamatory manner. Collins,
703 F. Supp. 2d at 878-879. See Carafano, 339 F.3d I I I 9 (even
if a party is
considered an information content provider, $ 230(c) precludes treatment
ofa
publisher if the information was provided by another information content
provider).
"[A]
service provider is "responsible" for the development of offensive
content only
if it in some way specifically
encourages development of what is
offensive about the content." F.T.C.,570 F.3d at 1199; see also Carafano,339
F.3d at 1124 ("Under $ 230(c), therefore, so long as a third party willingly
provides the essential published content, the interactive service provider receives
full immunity regardless of the specific editing or selection process.").
The development of information means substantially more than making edits
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20
and selecting material for publication. See Batzel,333 F.3d at
l03l
(the mere
selection and minor alterations to an email did not make party the content provider
of email for purposes of $ 230). Even if an information content provider edits
comments made by a third party, they are not liable for the comments. See Batzel,
333 F.3d at 103
I (making minor alterations to an email did not make party the
content provider for purposes of $ 230).
Nor can Lee Enterprises be liable for comments made by third parties, even
after being put on notice of the comments. See Murawski v. Pataki,514 F. Supp.
2d 577,591 (S.D. N.Y. 2007) (citation omitted) ("Deciding whether or not to
remove content or deciding when to remove content falls squarely within
Ask.com's exercise of a publisher's traditional role and is therefore subject to the
CDA's broad immunity.");see also Zeran, l29F.3d at 330 (CDA immunized AOL
from liability for failing to remove a defamatory posting from an online bulletin
board); Green v. Am. Online,,
3I
8 F.3d 465 (3d Cir. 2002) (service provider not
negligent for failing to police comments); Global Royalties, Ltd. v. Xcentric
Ventures, LLC,544 F. Supp. 2d929 (D. Ariz. 2008) (even after service provider is
put on notice of allegedly defamatory comments, they are still immune from
liability under CDA).
Lee Enterprises is immune from liability regarding the allegedly defamatory
comments because it is undisputed they were made by third parties. (SUF flfl
10582? I
l4-
2l
16.) A review of the comments clearly shows they were made by third parties and
Spreadbury admits they were made by third party, on-line readers, and not the
Ravalli Republic. (SUF tlfl l4-16.) Further, Lee Enterprises did not encourage,
create, or otherwise develop the comments made by third parties. (SUF
fl
17.)
Moreover, the Ravalli Republic has not altered or otherwise edited the comments
made by third parties onthe Ravalli Republic website. (SUF
11
18.) Accordingly,
Lee Enterprises is immune from liability under the CDA and entitled to judgment
as a matter of law.
2.
Count 8: Tortious lnterference With Prospective Economic
Advantage.
Since Lee Enterprises cannot be liable for comments made by third parties on
the Ravalli Republic website and for the August 9, 2010 article, they have
committed no wrongful acts. Therefore, Lee Enterprises is entitled to summary
judgment for Spreadbury's claim of tortious interference with prospective
economic advance.
To establish a case of intentional interference with prospective business
advantage, a plaintiff must show acts which: (1) were intentional and
willful;
(2) were calculated to cause damage to the plaintiff s business; (3) were done with
unlawful purpose of causing damages or loss, without right or justifiable cause on
the part of the actor; and (4) resulted in actual damages or loss.
Sebenav. Am. Automobile Assn.,280 Mont. 305, 309, 930P.2d 51, 53 (1996). In a
r058271
22
cause of action for intentional interference with prospective economic advantage
". . . the focus on the legal inquiry
is on the intentional acts of the malicious
interloper in disrupting a business relationship." Maloney v, Home & Inv. Ctr.,
lnc.,2000 MT 34, 142,298 Mont. 213, 994P.2d 1124.
Under this theory a person who is involved in an economic
relationship with another, or who is pursuing reasonable and
legitimate prospects of entering such a relationship, is protected
from a third person's wrongful conduct which is intended to
disrupt the relationship.
Maloney,
Jf
42 (intemal quotations and citation omitted).
ln Hughes v. Lynch,2007 MT 177,, 338Mont. 214, 164 P.3d 913, the
Montana Supreme Court determined Hughes failed to establish a tortious
interference claim because, among other reasons, Hughes' allegations that Lynch's
actions were done with the unlawful purpose of causing damages were supported
by nothing but speculation.
Like in Hughes, Spreadbury's claim is not supported by anything but
speculation. Spreadbury claims the comments on Ravalli Republic's website
defamed
him. However, as provided above,
since these comments were made by
third parties, Lee Enterprises cannot be liable. Likewise, the August 9,2010,
article was a privileged publication, as it is a true report based on judicial
proceedings. Therefore, as a matter of law, Lee Enterprises did not take any action
without right or justification and Lee Enterprises is entitled to judgment as a matter
105827r
of law.
3.
Count
l8:
Neeligence.
Like Spreadbury's claim of tortious interference with prospective business
advantage, his claim for negligence fails since it is undisputed Lee Enterprises did
not have a duty regarding publishing comments made by third parties on the
Ravalli Republic website and the August 9,2010, article is a privileged
publ ication.
"Negligence is the failure to use the degree ofcare that an ordinarily prudent
person would have used under the same circumstances." Peterson v. Eichhorn,
2008 MT 250,\t23,344 Mont.540, 189 P.3d 615.
To maintain an action in negligence, the plaintiff must prove four
essential elements: (1) the defendant owed the plaintiff a legal
duty, (2) the defendant breached that duty, (3) the breach was the
actual and proximate cause ofan injury to the plaintiff, and (4)
damages resulted.
Peterson, !l
23. "The question of whether a duty exists is one of law. Absent
a
duty, breach ofduty cannot be established and a negligence action cannot be
maintained." Sikorski v. Johnson,2006 MT 228,n 13,333 Mont. 434,143 P.3d
l6l.
In accordance with $ 230 of the CDA, Lee Enterprises cannot be liable for
comments made on the Ravalli Republic website. Therefore, it cannot be found
negligent for these comments as a matter of law. Similarly, Lee Enterprises cannot
1058271
74
be negligent for the August 9, 2010, article since it is a privileged publication
pursuant to $ 27- l-804(4).
4.
Count 20: Intentional Infliction of Emotional Distress.
Likewise, Spreadbury's claims of Intentional and Negligent Infliction of
Emotional Distress ("IIED" and "NIED") fail as a matter of law.
Montana law allows IIED to be pled as a separate cause of action. See Sacco
v. High Country Indep. Press,
Inc.,27l Mont.
209, 235,896 P.2d 411,427 (1995).
However, the plaintiff has the burden of coming forth with material and substantial
evidence to support hisiher claim. See McConkey v. Flathead Elec. Coop.,2005
MT 334, lJ 54, 330 Mont. 48, 125 P.3d I l2l
.
In tum, the trial court must
determine "whether a plaintiff has introduced sufficient evidence to support
a
prima facie case for intentional infliction of emotional distress." Sacco,896P.2d
at427 (citingDoohanv. Big Fork Sch. Dist. No. 38,247 Mont.125,142,805 P.2d
1354,1365 (1991), overculed on other grounds by Sacco). Ifthe evidence
presented by the plaintiff is insufficient as a matter of law, his claim must fail,. See
McConkey,\ 54.
Lee Enterprises is entitled to judgment as a matter of law with regard to
Spreadbury's claim for IIED, because Lee Enterprises cannot be liable for what
allegedly caused the emotional distress. As provided above, Lee Enterprises is
immune from liability under the CDA because it is undisputed the alleged
1058271
25
defamatory comments on the Ravalli Republic were made by third parties
-
not the
Ravalli Republic. Lee Enterprises also cannot be liable for the August 9, 2410,
article because it is a privileged publication.
Similarly, Lee Enterprises is entitled to judgment as a matter of law regarding
Spreadbury's claim of NIED, since Lee Enterprises is immune from Spreadbury's
claim of negligence.
A cause of action for negligent infliction of emotional distress will
arise under circumstances where serious or severe emotional
distress to the plaintiffwas the reasonably foreseeable
consequence of the defendant's negligent act or omission.
Sacco, 896 P.2d at 425.
lt logically follows that for
Spreadbury to have a claim
of
NIED he must show Lee Enterprises was negligent and the negligence caused the
alleged emotional distress. See Ll/ages v. lst Natl. Ins. Co. of Am.,2003 MT 309,
fl 23,
3
1
8 Mont. 232, 79
P
.3d 1 095 (noting duty and foreseeability are inextricably
linked in a negligent infliction of emotional distress claim); Sacco,896 P.2d at
422-423 (in the absence offoreseeability, there is no duty; in the absence ofduty,
there is no negligence).
Since Lee Enterprises cannot be found negligent for the comments made by
third parties, and the August 9,,2010 article, Lee Enterprises is also entitled to
judgment as a matter of law with regards to Spreadbury's claim of NIED.
Accordingly, Lee Enterprises is entitled to j udgment as a matter of law
conceming Spreadbury's claim for both IIED and NIED.
1058271
26
5.
Count 23: Iniunctive Relief.
Lee Enterprises is entitled to judgment as a matter of law with regards to
Spreadbury's claim for injunctive relief, as to the comments published on the
Ravalli Republic website and conceming the August 9,2010 article.
Spreadbury's Second Amended Complaint essentially requests the Court
order Lee Enterprises to stop publishing comments and articles about Spreadbury'
However, Lee Enterprises is not liable for these comments since they were made
by third parties. Further, Lee Enterprises cannot be liable for the August 9,2010,
article because it is a privileged publication. Since it does not appear that
Spreadbury is entitled to the reliefdemanded, an injunction is not proper. See
Mont. Code Ann. $ 27-19-201 (2009).
Further, within Count 23 of Spreadbury's Second Amended Complaint is
a
request for civil arrest of Lee Enterprises' employee and reporter, Perry Backus,,
per Montana Code Annotated $ 27- 16- I 02(2). Lee Enterprises is entitled to
summary judgment regarding this portion of Count 23 because 5 27-16-102(2)
gives Spreadbury no authority to civilly arrest anyone.
6.
Count 26: Punitive Damaees.
Lee Enterprise is entitled to judgment as a matter of law regarding
Spreadbury's claim for punitive damages.
"[N]o plaintiff is ever entitled to exemplary
1058271
damages as a matter of right,
z1
regardless of the situation or the sufficiency of the facts." Maulding v. Hardman,
257 Mont. 18, 26-27 ,847
P
.2d 292, 298 ( 1993) (intemal quotations and citations
omitted) (finding an award of punitive damages was improper since there was no
evidence to support
plaintiff s claim). 'osection 27-l-221, MCA, govems the
award of punitive damages. It provides that reasonable punitive damages may be
awarded in a non-contract action when a defendant has been found guilty of actual
fraud or actual malice." Trifad Ent., Inc. v. Anderson,200l MT 227, fl 53, 306
Mont. 499, 36 P.3d 363.
"All
elements of punitive damages must be supported by clear and
convincing evidence. Clear and convincing evidence means evidence in which
there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence." Trifad Ent., tf 54; Mont. Code Ann. 5 27-l-221(5)
(200e).
Spreadbury's claim that Lee Enterprises acted with malice fails as a matter
of
law because Lee Enterprises cannot be liable for the comments posted on the
Ravalli Republic website, and the August 9,2Q10, article is a privileged
publication.
Moreover, Spreadbury's claim for punitive damages against Lee Enterprises
fails if his other Counts are dismissed. See Maulding, 847 P.2d aI 298.
Spreadbury's claim for punitive damages cannot stand alone. Therefore,
28
since Lee Enterprises is entitled to judgment as a matter of law as to Spreadbury's
remaining Counts, it follows that Lee Enterprises is entitled to judgment with
regards to Spreadbury's requested relief of punitive damages as well.
IV.
CONCLUSION
Lee Enterprises is entitled to judgment as a matter of law with respect to the
remaining Counts against Lee Enterprises contained in Spreadbury's Second
Amended Complaint. It is undisputed the comments complained of in
Spreadbury's Second Amended Complaint were made by third parties, not the
Ravalli Republic. Further, it is undisputed the August 9,2010, article is a
privileged publication as it did not contain false information. Accordingly, Lee
Enterprises cannot be liable for Spreadbury's remaining claims and Lee
Enterprises is entitled to judgment as a matter of law.
DATED this 28th day of September, 201 1.
lsl
Jeffrey B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.
t05827 t
29
CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(dX2XE), I certify that this DEFENDANT LEE
ENTERPRISES, INC.'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT ON REMAINING COLTNTS is printed with proportionately spaced
Times New Roman text typeface of 14 points; is double-spaced; and the word
count, calculated by Microsoft Office Word 2007, is 6425 words long, excluding
Caption, Certificate of Service, and Certificate of Compliance.
lsl
Jeffrey B. Smith
Attomeys for Defendant, Lee Enterprises, Inc.
1058271
30
CERTIFICATE OF SERVICE
I hereby certiff that on September 28,201l,
a copy
ofthe foregoing
document was served on the following persons by the following means:
]J
2
CM,ECF
Hand Delivery
Mail
Overnight Delivery Service
Fax
E-Mail
1.
Clerk, U.S. District Court
2
Michael E. Spreadbury
P.O. Box 416
Hamilton, MT 59840
Pro Se Plaintiff
3.
William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowley@boonekarlberg.com
npj ones@boonekarlberg. com
tleonard@boonekarlberg. com
Attomeys for Defendants Bitterroot Public Library, Cify of Hamilton, and
Boone Karlbers P.C.
lsl
Jeffrey B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.
1058271
3l
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