Spreadbury v. Bitterroot Public Library et al

Filing 115

RESPONSE to Motion re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Michael E. Spreadbury. (Attachments: # 1 Brief in Support, # 2 Affidavit, # 3 Exhibit to Affidavit) (APP, )

Michael E. Spreadbury
700 S. 4th Street
Hamilton, MT 59840
Telephone: [phone]
mspreadCd),hotmail.com

Pro Se Plaintiff
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

) Cause No: cv-II-64-DWM-JCL

MICHAEL E. SPREADBURY

)

Plaintiff
v.

) BRIEF IN SUPPORT

BITfERROOT PUBLIC LIBRARY,

) OF OPPOSITION TO

CITY OF HAMIL TON,

) DEFENDANT LEE

LEE ENTERPRISES, INC.,

) SUMMARY JUDGMENT

BOONE KARLBERG, PC,

)
)

Comes now Spreadbury with brief in support ofmotion, affidavit to dismiss
summary judgment Defendant Lee Enterprises PC (hereafter "Lee ") in the
aforementioned.
Brief in Support
Defendant Lee Enterprises pleads for summary judgment before this court.

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Plaintiff Brief in OPPOSition of Summary Judgment Cause 9:2011-CV-11-64-0WM-JCl

October 6,2011

Lee Defense Counsel Jeffrey B. Smith presents a foundational affidavit, list of
uncontroverted facts and motion for summary judgment filed on or around
September 28, 2011 before this court.
Plaintiff Spreadbury files motion in opposition, affidavit, this briefin opposition to
summary judgment, leave file motion for sanctions against Defense on this date.
Defense Counsel Smith's foundational affidavit contains several alleged false
statements, representations which are addressed specifically in Plaintiff affidavit in
re: discovery article, defense pleadings ofOctober 6, 2011. Spreadbury seeks
prosecution or suitable sanction for the false swearing by Lee Counsel of record
Jeffrey B. Smith esq. American Communications Assn. v. Douds 339 US 382
(1958), Spreadbury believes sufficient evidence supporting the claimed factual

dispute is contained in Spreadbury Affidavit of October 6, 2011 First Nat'/ Banko!

Ariz v. Cities Service Co. 391 US 253 (1968). With this allegation, Spreadbury
interjects sufficient issue of material fact to preclude summary judgment for
Defendant Lee ibid.
In Defendant Lee statement ofundisputed material facts, #5 served on this court
September 28, 2011 Lee alleges Defendant Public Library owns private property;
is public property owned by the City ofHamiiton, Montana. Spreadbury pled in
TR. # 87 (Objection to Findings & Recommendations) that Bitterroot Public

2

Plaintiff Brief in Opposition of Summary Judgment Cause 9:2011-CV-11-64-DWM-JCL

October 6, 2011

Library is public property using well established original platt map of Hamilton,
Montana 59840USA,
Defendant Lee in #10 of the uncontroverted facts allege verbally abusive behavior
July 9,2009 which has no authentication other then republished malice by Lee,
Boone Defense counsel in non-privileged communication to this court Canada v.

Blain's Helecopters Inc. F. 2d 920925 (!lh eiy., 1987), Montana Code Ann. MCA§
27-1-804(3). Defendant Lee has not established via affidavit or other authenticated

means the alleged misconduct, and threats alleged in Defense pleadings in this
matter ibid at 925.
A major portion ofDefendant Lee Brief was the misapplication of the
Communications Decency Act (CDA) 47 USC§ 230(c) et. seq. Spreadbury plead
9 elements of fraud citing Sprunk v. First Bank W. Missoula 288 Mont at 174
(1987) within 'fR. # 93 and will not be re-addressed here. Defendant Lee relies

heavily on Cox v. Lee Enterprises which is a simple state defamation case,
affirming respondent Lee due to court privilege under Montana Code Ann. MCA§
27-1-804(4); however the aforementioned deals with peaceful assembly on public
property, third party comments from a newspaper publisher such as Defendant
Lee; not protected by 47 USC§ 230 et. seq. the Communications Decency Act, or
court privilege under Montana Code Ann MCA § 27-1-804 et. seq. A motion for
summary judgment claiming false statutory protection falls short of PRCP 56
3

Plaintiff Brief in Opposition of Summary Judgment Cause 9:20U<V-11-64-DWM-JCL

October 6, 2011

standard due to issues of material fact remaining, and unauthenticated facts
regarding third party defamatory online comments published by Defendant Lee

Canada at 925, citing US v. Dibble 429 F.2d 598 601-602 (ljh Cir. 1970).
Publishers of newspapers such as Defendant Lee, are found liable for
" ...publishing or distributing obscene or defamatory material written by others.»
Batzel v. Smith F. 3d at 1026 (9th eir. 2003).
Defendant Lee is not an internet service provider such as American Online (AOL)
and therefore is not immune to defamation liability when third party comments are
published within print media or online assets of Defendant Lee Batzel. Defendant
Lee misleads the court citing Carqfano v. MetrojIash 339 F. 3d 1119 (ljh eir.,

2003) due to the case revolving around an internet service provider, AOL which is
a separate class from Newspaper publisher such as Defendant Lee.
Specific issue of fact as to published defamatory per se comments arise from the
August 9, 2010 article imputing conviction of Distwbing the Peace which
Spreadbury was never charged, or convicted. Subsequent failed attempt at
correction by Defendant Lee brings punitive liability, material fact in case. Issue
of August 9, 2010 Lee article addressed with specifics in Spreadbury affidavit of
October 6, 2011 served upon this honorable court.

4

Plaintiff Brief in Opposition of Summary Judgment cause 9:2Qll-CV-11-64-0WM-JCL

October 6,2011

These issues ofmaterial fact preclude finding of summary judgment for Lee.
Honorable court is directed to Spreadbury affidavit, leave file motion for sanctions
for misconduct ofDefense counsel Jeffrey B. Smith on alleged perjury on several
matters and omissions within his September 27,2011 foundational affidavit served
upon this court. Motion in opposition to Summary Judgment filed in support
October 6, 2011 by Spreadbury. Court is urged to oppose, reject, and dismiss
Defendant Lee motion for summary judgment before this court as issues of
material fact remain which preclude the grantor of summary judgment to
Defendant Lee per PRCP 56.
Certificate of Compliance
From LR 7(dX2XE) US District Court Rules Montana, I certifY that this brief
conforms with 14 point font, New Times Roman typeface, is double spaced,
contains 781 words excluding title page, this compliance.

;k
Respectfully submitted this Co

day of October, 2011

BY:_-"L.~=7--L-_----,.L- _ _ _ _ __

Michael E. Spreadbury, SelfRepresented Plaintiff

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