Spreadbury v. Bitterroot Public Library et al

Filing 203

RESPONSE to Motion re 202 MOTION in Limine filed by Bitterroot Public Library, City of Hamilton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Crowley, William)

DEBBIEHASMON, CLERK

HON. JAMES A. HAYNES

mqw 7* ?n«

District Judge -Dept. 2
Twenty-First Judicial District

J/j//
s/lslMt^

Ravalli County Courthouse

DEPUTY

205 Bedford-SuiteB

Hamilton, Montana 59840
[phone]
Fax [phone]

MONTANA TWENTY-FIRST JUDICIAL DISTRICT COURT, RAVALLI COUNTY
MICHAEL E. SPREADBURY,

Cause No. DV 2010-639JbO
Department No. 2

'

Plaintiff,
vs.

KENNETH S. BELL and CITY OF

OPINION AND ORDER

HAMILTON,
Defendants.

Plaintiff Michael E. Spreadbury ("Plaintiff Spreadbury") is representing himself.
Defendants Kenneth S. Bell ("Bell") and City of Hamilton (the "City") (collectively,

"Defendants") are represented by William L. Crowley and Natasha Prinzing Jones of
Boone Karlberg P.C.

The Court now considers the following motions still pending before the Court:1

'At thehearing on July 20,2011, theCourt summarily dismissed Plaintiff
Spreadbury's Requestfor Order (Doc. # 50) and such request is therefore no longer
pending before the Court. Similarly, at that hearing, the Court noted that the Motion to
Accept Admissions Pleading (Doc. #14) was inappropriate because, pursuant to local
rule, discovery is not filed unless a motion is pending. See Rules ofPractice, 21st Jud.
Dist, R. 10.

OPINION AND ORDER

Page 1

EXHIBIT E

1. Defendants' Motionfor Summary Judgment (Doc. #19);
2. Defendants' Motion to Compel (Doc. #35)

3. Plaintiff Spreadbury's Motion to Stay Order Pending Summary Judgment
(Doc. #38)

4. Defendants' Motion inLimine (Doc. # 39);

5. PlaintiffSpreadbury's Motion toSet Aside, Stay Defense Motion in Limine
(Doc. #41);

6. PlaintiffSpreadbury's Bill ofCosts (Doc. # 51); and

7. Defendants' Objection to BillofCosts and Notice ofMotion (Doc. # 53)
TheDefendants' Motionfor Summary Judgment (Doc. # 19) is fully briefed and

the Court held a hearing onthemotion onJuly 20,2011. The time forbriefing the other
motions under Montana Uniform District Court Rule 2 hasnow passed. Accordingly, the
above motions are ripe for decision.
A. BACKGROUND

OnNovember 16, 2010, Plaintiff Spreadbury suedDefendants for negligence
(Count One), a 42 U.S.C. § 1983 claim under ArticleII, section 6 of the Montana

Constitution and under the First Amendment to the United States Constitution (Count
Two), a § 1983 claimfor violation of Equal Protection as set forth in the Fourteenth
Amendment to the United States Constitution andin Article n, section 4 of the Montana

Constitution (Count Three), Abuse ofProcess (Count 4), Misrepresentation (Count 5),
Negligent Hiring, Supervision, and Training (Count 6), Custom orPolicy-Equal

OPINION AND ORDER

~"

^2

Protection under the Fourteenth Amendment to the United States Constitution as to Bell

(Count 7), and Punitive Damages (second Count 7). Pi's. Amend. Compl. (Doc. # 10).
Although not stated as a Count inthe Complaint or Amended Complaint, the Court found

that this action also contained a request for declaratory relief. (Doc. # 49).
Defendants timely provided the Court with two documents (the "Reports"),
which the Court reviewed. On June28,2011, the Courtdeemed and reformulated

PlaintiffSpreadbury's MotionforDeclarative Judgment (Doc. #16) and Motionfor
Summary Judgment (Doc. # 17) to together request partial summary judgment onthe

issue ofwhether and to what extent Plaintiff Spreadbury was entitled to the Reports under
Article II, section 9 of the Montana Constitution. (Doc. # 49). The Court granted Plaintiff
Spreadbury declaratory reliefin part, declaring that Plaintiff Spreadbury was entitled to

the Reports asredacted by the Court inaccordance with the June 28,2011 Opinion and
Order. (Doc. # 49 p.23). PlaintiffSpreadbury's reformulated motion was denied in all
other respects. Id.
B. DISCUSSION

B.l. Defendants' Summary Judgment Motion

A party may move for summary judgment at anytime, unless the Court orders

otherwise. Mont. R. Civ. P. 56(c)(1)(A). Summary judgment on all or part ofaclaim
should be rendered if thepleadings, the discovery and disclosure
materials onfile, and any affidavits show that there is no genuine issue as
to any material fact and thatthe movant is entitled tojudgment as a
matter of law.

OPINION AND ORDER

Page 3

Mont. R. Civ. P. 56(c)(3). Issues of fact are identified bylooking at the substantive law
governing the proceedings. Carelli v. Hall, 279 Mont. 202,207, 926 P.2d756,760

(1996). "Asupporting or opposing affidavit must be made onpersonal knowledge, set
outfacts that would be admissible in evidence, and show that the affiant is competent to
testify onthematters stated." Mont. R. Civ. P. 56(e)(1). "When a motion for summary
judgment is properly made and supported, an opposing party may not rely merely on

allegations ordenials in its own pleadings." Mont. R. Civ. P. 56(e)(2). The opposing
party's response must, by affidavitor as otherwise specified in MontanaRuleof Civil
Procedure 56, "set out specific facts showing a genuine issue for trial." Mont. R. Civ. P.

56(e)(2). "If the opposing partydoes notsorespond, summary judgment should, if
appropriate, be entered againstthatparty." Id. The Court has discretion to deny summary
judgmentevenwhenit appears that there is no genuine issue of material fact. Order, AF
07-0157, Comm. Notes, Mont. R. Civ. P. 56 (Apr. 26,2011).2
B.l.a. Federal § 1983 Claims

The Court will first address Defendants' request for summary judgment with
respect to Plaintiff Spreadbury's federal claims.

2While the Court applies the version ofMontana Rule of Civil Procedure 56
effective October 1,2011, the Court notes that it would have reached the same result

under the previous version ofthe rule, which gave the Court less discretion indenying
summary judgment motions.

OPINION AND ORDER

Page 4

B.l.a(i) Count Two

Court Two is a 42 U.S.C. § 1983 claim based onthe right to petition government
under Article II, section 6 of the Montana Constitution and under the First Amendment to

the United States Constitution. Plaintiff Spreadbury's Amended Complaint also mentions
Montana Constitution Art. n, section 9, stating:
[b]y not providing information guaranteed by common law of the State

of Montana, Defendants are violating Plaintiff [sic] right to petition
government as fully defined in Amendment 1 U.S. Constitution and Art.
II s. 9 Constitution of the State of Montana.

(Doc.#10p.4).
Defendants argue that violations of state law are not enforceable under 42 U.S.C.

§ 1983, thattheFirst Amendment to the United States Constitution's right to petition the
government forredress of grievances does notinclude a right thatthepetition be acted
upon,.andthat there is no applicable"right to know" in the U.S. Constitution.

With respect to Defendants' first argument, Defendants cite a Sixth Circuitcase

and a Tenth Circuit case for the proposition thatstate lawviolations are not enforceable

under 42U.S.C. § 1983. The Eighth Circuit also appears to follow this rule. See Booker
v. City ofSt. Louis, 309 F.3d. 464,467 (8th Cir. 2002); Doe v. Gooden, 214 F.3d. 952,

956 (8th Cir. 2000) citing Ebmeier v. Stump, supra.; Ebmeier v. Stump, 70F.3d. 1012,

1013 (8th Cir. 1995); Kornblum v. St. Louis County, Mo., 48 F.3d. 1031 (8th Cir. 1995).
The United States Supreme Court implicitly supported this rule inBaker v. McCollan,

443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). The Court finds this argument
persuasive.

OPINION AND ORDER

\

p^TJ

Regarding Defendants' second argument, the Montana Supreme Courtheld in

1993 that although an individual has a rightto petition the government underthe First
Amendment to the U.S. Constitution, there is no corresponding right that the petition be
acted upon. Gehring v. All Members ofthe State 1993 Legislature, 269 Mont. 373, 378,

889 P.2d 1164,1166 (1995). Thus, assuming arguendo that PlaintiffSpreadbury's
request for informationwas a petition for the redressof grievances, the Defendants'
failure to respond would not constitute a First Amendment violation. The Court also

finds this argument persuasive.

Defendants assert that there is no "right to know" provision of the U.S.

Constitution. In response, Plaintiff cited no authority for the proposition that the U.S.
Constitution contains a "right to know." The Court's research has not found a case

holding that there is a specific "right to know" provisionunder the U.S. Constitution.
Accordingly, Defendants' motion for summary judgment on Count Two should
be granted.

B.l.a(ii) Count Three

Count Three is a § 1983 claim for violation of Equal Protection as set forth in the
Fourteenth Amendment to the United States Constitution and in Article II, section 4 of
the Montana Constitution.

Defendants argue that (a) the state law violation is not enforceable, (b) even ifthe

state law claim were enforceable, the HumanRights Commission, not this Court, has

OPINION AND ORDER

Page 6

jurisdiction over the claim, and (c) PlaintiffSpreadbury has no proof that hewas treated
differentlyin support of his Fourteenth Amendment claim.
As discussed above, § 1983 claims based on violations of state laws are

unenforceable. Therefore, the Court proceeds to consider Plaintiff Spreadbury's § 1983
claim pursuant to the Fourteenth Amendment to U.S. Constitution.

Defendants argue thatthey are entitled to summary judgment on this issue

because Plaintiff Spreadbury cannot provide evidence that he was treated differently.
In response, Plaintiff stated:

As Defendant Bell gives information to the public, Steffancucci, andnot

Spreadbury, example ofprocedural due process deprivation as supported
by state statute Mendez v. INS 563 F.2d 956 (9th Cir. 1977) [for federal
statute].

(Doc. # 22, p. 3-4; PL Objection Defense Summary Judm. Request; Mtn. Find PL) The
record inthis cause contains no affidavit orother evidence showing that someone named

"Steffancucci" orotherwise was treated differently from Plaintiff Spreadbury.
Moreover, Mendez is inapposite here. InMendez, animmigration case, the Ninth

Circuit stated that "departure" ofan alien from the United States must be done "legally"

in the sense that the alien's counsel must be served. The Mendez Court specifically
relied on administrative law instead of the FourteenthAmendment.

Therefore, Defendants should be granted summary judgment onCount Three.
B.l.a(iii) Count Seven

Count Seven isa claim that Defendant Bell had a custom orpolicy ofviolating
the equal protection clause of theFourteenth Amendment to the United States

OPINION AND ORDER

Page 7

Constitution. The Amended Complaint describes the policy thus: "By rejecting

Plaintiffs requests for public information, Bell made [sic] new policy regarding public
information."

There isno evidence in the record that Bell even rejected Plaintiffs requests for

public information; indeed, Plaintiff Spreadbury's requests included non-public
information.3 Plaintiff Spreadbury's Count Seven focuses onDefendant Bell and does

not mention Defendant City, except by incorporation ofthe previous paragraphs.
In support oftheir motion, Defendants argue that Plaintiff Spreadbury has no
evidence ofwidespread practices or evidence of repeated constitutional violations or of
deliberate indifference to a constitutional right.4

Plaintiff, instead ofresponding with evidence ofother practices, relies upon

Pembaur v. City ofCincinnati, 475 U.S. 469,106 S. Ct. 1292, 89 L. Ed. 2d452 (1986)
for the proposition that civil liability may attach under § 1983 for a single decision by a

municipal policy maker who possesses final authority to establish municipal policy.5

3The Court notes that even if Count Seven is construed to include a claim thatthe
policy orcustom was a failure to train, a 2011 U.S. Supreme Court decision, Connick v.

Thompson, _ U.S. _ 131 S. Ct. 1350,179 L. Ed. 2d 417 (2011) is onpoint. That case
rejected a custom orpolicy argument involving failure-to-train-attorneys based on one
incident because, given the regime oflegal training that lawyers receive, violations of

constitutional issues for failure to train are non-obvious. Connick,

U.S. at , 131 S

Ct. at 1363,179 L. Ed. 2d at 430.

"Defendants also state that Defendant Bell is not the City's final policy maker
concerning the release of confidential information.

5Plaintiff Spreadbury's briefstates:

Defendant Bell, as official policymaker for the City of
OPINION AND ORDER

Page 8

The underlying claim in Pembaur was a violation ofthe Fourth Amendment as

applied tothe states through theFourteenth Amendment. Pembaur, 475 U.S. at 474-475,
106 S. Ct.at 1295-1296, L. Ed. 2d at 459-460 (1986). The Court therefore finds

Pembaur inapposite here - intheequal protection context inwhich Plaintiff Spreadbury
has failed to provide evidence that Defendants treated him differently even one time.
Moreover, Defendants, although mis-citing the correct MCA section, appear to
arguethat under § 7-4-4604, MCA, Belldid not, as a matterof law, have final
policymaking authority. Section 7-4-4604, MCA states:
7-4-4604. Duties. The city attorneyshall:

(1) appear before the city court andother courts and prosecute on
behalf of the city;

(2) serveuponthe attorney general within 10days of the filing or
receipta copy of anynoticeof appeal that the cityattorney files or
receives in a criminal proceeding;
(3) when required, draftfor the city council contracts and
ordinances for the government of the city;
(4) when required, giveto the mayor or city council written
opinions on questions pertaining to the duties andthe rights, liabilities,
and powers of the city; and

(5) perform other duties that pertain to the functions of the city
council or that the city councilprescribes by resolution.

Hamilton as department headis liable for every decision
with respectto the City as making official policy:
"Municipal liability maybe imposed for a singledecision

by municipal policymakers"...citing Pembaur v. City of
Cincinnati 475 US 469 (1986).
(Doc. # 22 p. 3).

OPINION AND ORDER

Page 9

Section 7-4-4604, MCA requires Defendant Bell to give written opinions to the
mayor or city council but does notgive Defendant Bell any authority to implement the

opinion given. This section implies that the mayor could decide policy differently. Given
that city attorneys hold office for two years unless suspended orremoved for neglect,
violation or disregard for duties, the it is not unlikely that a mayor might seek a second
opinion. See 7-4-4602-4603, MCA.6

Plaintiff Spreadburyhas presented no other evidence of Defendant Bell's

authority to make policy. One letter from Defendant Bell to Spreadbury states thatBell
had beeninstructed by the County Attorney's Office not to disseminate confidential

criminal justice information to defendants that office was prosecuting.
Therefore, Defendants should be granted summary judgment on Count Seven.

6 Plaintiff Spreadbury's brief also states:
The US Supreme Court held that "Government
officials performing discretionary functions are shielded
from liability for civil damages only where their conduct

does not violate clearly established statutory of [sic]
constitutional rights Harlow v. Fitzgerald 457 US 800
(1982).

(Doc. # 22p. 4). InHarlow, the issue was the scope of immunity ofhigh level
advisors tothePresident ofthe United States ina suit for damages for their official acts
based upon the FirstAmendment and federal statutory rights. The Court fails to see
Harlow's relevance to a prima facie claim ofmunicipal liability under theFourteenth
Amendment's equal protection clause for a single municipal decision. Indeed,
Defendants have not argued that theyare immune from federal suit.
OPINION AND ORDER

Page 10

B.l.a(iv) Second Count Seven (Punitive Damages)

Second Count Seven, punitive damages, contains both federal § 1983 and state

law aspects. As discussed above, Defendants are entitled to summary judgment onthe
substantive § 1983 claims; therefore, Defendants should begranted summary judgment
on the punitive damages claims based on those federal claims..
B.l.b. State Law Claims

TheCourt proceeds to Plaintiff Spreadbury's state law claims. In relation to

those claims, theCourt first discusses the immunity issues relating to Defendant Bell.
B.l.b(i). Defendant Bell

TheCourt notes initially that Plaintiff Spreadbury made no allegations against
Defendant Bellin Count Six, negligent hiring andsupervision.
Defendants argue that Plaintiff Spreadbury'sstate law claims should be

dismissed withrespect to Defendant Bell because Defendant Bellis entitled to immunity
from any damage award under § 2-9-305, MCA. This argument has merit.
Section 2-9-305, MCA statesin pertinentpart:
2-9-305. Immunization, defense, and indemnification of

employees. (1) It is the purpose of this section to provide for the
immunization, defense, and indemnification of public officers and
employees civilly sued for their actions taken within the course and
scope of their employment.

(5) Recovery against a governmental entity under the provisions
of parts 1 through 3 of this chapter constitutes a complete bar to any
action or recovery of damages bythe claimant, by reason of the same
subject matter, against theemployee whose negligence or wrongful act,
error, omission, or other actionable conduct gaverise to the claim. In an
action against a governmental entity, the employee whose conduct gave
rise to thesuitis immune from liability by reasons of the same subject
OPINION AND ORDER

Page \ i

matterifthegovernmental entity acknowledges or is boundby a judicial
determination that the conduct upon which theclaim is brought arises
outofthe course andscope oftheemployee's employment, unless the
claim constitutes an exclusion provided insubsections (6)(b) through
(6)(d).

(6) In a noncriminal action in which a governmental entity
employee is a party defendant, the employee may notbe defended or
indemnified bythe employer for any money judgments or legal expenses,
including attorney fees, to which theemployee may be subject as a result
of the suit ifa judicial determination is madethat:
(a) the conduct upon which the claim is based constitutes
oppression,fraud, or malice or for any otherreason does not arise out of

the course and scope of the employee's employment;
(b) the conduct of the employee constitutes a criminal offense as
defined in Title 45, chapters 4 through 7;
(c) the employee compromised or settled the claim without the
consent ofthe government entityemployer; or

(d) the employee failed or refused to cooperate reasonably in the
defense of the case.

(7) If a judicial determination hasnotbeen made applying the
exclusions provided in subsection (6), the governmental entity employer
may determine whether those exclusions apply[.]
(Emphasis added).

The Montana Supreme Court has interpreted the second sentence of § 2-9-305(5),

MCA to warrant the dismissal of statelaw claims against a government employee where
the action was brought against a governmental entity based on actionable conduct by an
employee andthe entity acknowledged that theconduct arose out of the course and scope
of the employee's official duties. Kenyon v. Stillwater County, 254 Mont. 142,146, 835
P.2d. 742,745 (1992), overruled on other grounds, 275 Mont. 322, 331, 912 P.2d 787,

793 (1996); Germann v. Stephens, 2006 MT 130, ffi[ 41-44 , 332 Mont. 303, 137 P.3d
545.

OPINION AND ORDER

page n

Here, Defendants cited Kenyon and Germann for the proposition that "Bell is

immune from Plaintiffs state law claims" intheir Defendants' Answer to Complaint and
Defendants Answer to Amended Complaint. Def's. Ans. Compl. \ 22; DefsAns. Amend
Compl. \ 22. Furthermore, Defendants' brief insupport ofDefendants' Motionfor
Summary Judgment states:

The City of Hamilton is a Defendant in this action. Further, the
alleged acts or omissions of Defendant Bell occurred within the course

and scope of his employment withthe City.

Def's Br. Opposition PL 's Mtn. Summary Judm. Declaratory Judm. Def's Br. Support
Mtn. Summary Judm. p. 16. This isan admission that Bell was acting inthecourse and
scope of his employment. Therefore, under § 2-9-305, MCA, Defendant Bell is immune

from the state law claims against him and Defendant Bell should be granted summary
judgmenton all remaining statelaw claims.
B.l.b(ii). Defendant City

The Court proceeds to consider the state law claims against Defendant City.
B.l.b(ii)(A) Count One

Count One alleges negligence. Plaintiff Spreadbury has notprovided any

evidence ofdamages, a required element in a negligence claim. Accordingly, Defendant
City is entitledto summary judgment on Count One.
B.l.b(ii)(B) Count Four

Count Four alleges abuse ofprocess. Defendants argue that Plaintiff Spreadbury

has not pointed to any evidence that any City representative, including Defendant Bell,
OPINION AND ORDER

page 13

used process for apurpose not proper in the regular conduct ofproceedings. Defendants
cite Seipel v. Olympic Coast Investments, 2008 Mont. 237, K10, 344 Mont. 415,188
P.3d. 1027, which relied upon aline ofcases originating in Brault v. Smith, 209 Mont. 21,

679 P.2d 236 (1984). In Brault, the Montana Supreme Court, relying on Prosser, Law of
Torts, 4th Edition, for the first time acknowledged that:

Essential to proofofabuse ofprocess is (1) an ulterior purpose and (2) a
willful act in the use ofthe process not proper inthe regular conduct of
the proceeding.
Brault, 209 Mont, at 28, 679 P.2d at 240.

Plaintiffhas not pointed to any evidence ofthe use ofany process, let alone

process for amalicious purpose. Therefore, Defendant City should be granted summary
judgment on Count Four.

B.l.b(ii)(C) Count Five

Count Five alleges misrepresentation. Defendants argue that PlaintiffSpreadbury
has pointed to no admissible evidence ofnegligent misrepresentation orfraud.

According to the Amended Complaint, Plaintiff Spreadbury alleged Defendant

Bell advised him in writing that he would not talk to him and he should speak with
Defendant Bell'sattorney because Defendant Bell was a defendant in another action

PlaintiffSpreadbury had brought. PlaintiffSpreadbury's Amended Complaint alleges that
"Bell had full ability to provide public mfbrmation to Plaintiff."

In Montana, the prima facie elements ofaclaim for negligent misrepresentation
are:

OPINION AND ORDER

Page 14

a. the defendant made arepresentation as to apast or existing material

fact;

b. the representation must have been untrue;
c. regardless of its actual belief, the defendant must have made the

representation without any reasonable ground for believing itto be true;
d. the representation must have been made with the intent to induce the'
plaintifftorelyonit;

e. the plaintiffmust have been unaware ofthe falsity ofthe
representation; it must have acted inreliance upon the truth ofthe
representation and itmust have been justified in relying upon the
representation;

f. the plaintiff, as aresult ofits reliance, must sustain damage.

May v. Era Landmark Real Estate ofBozeman, 2000 MT 299, K60, 302 Mont. 326,15
P.3dll79.

The Montana Supreme Court has also approved the definition ofnegligent

misrepresentation as set forth in the Restatement (Second) ofTorts §552, which
provides:

One who, in thecourse ofhis business, profession or

employment, or in any other transaction in which he has apecuniary
interest, supplies false information for the guidance ofothers intheir
business transactions, issubject to liability for pecuniary loss caused to
them by their justifiable reliance upon the information, ifhe fails to

exercise reasonable care or competence in obtaining or communicating
the information.

M*y,1[3l.

With respect to aclaim for fraud, aplaintiffmust establish aprima facie case by
providing evidence of:

1. a representation;
2. its falsity;
3. its materiality;

4. the speaker's knowledge ofits falsity or ignorance of its truth;
OPINION AND ORDER

Page 15

5. the speaker's intentthat it should be acted uponbythe personand in
the manner reasonably contemplated;
6. the hearer's ignorance of its falsity;
7. the hearer's reliance upon its truth;
8. the right of the hearerto rely upon it; and

9. the hearer's consequent andproximate injury or damage.
May, K21.

Plaintiff Spreadbury has presented no admissible evidence that Bell's

representation was untrue, that Bell had no reasonable grounds to believe the

representation, that PlaintiffSpreadbury relied uponthe representation, or that Plaintiff
Spreadbury sustaineddamage or pecuniary loss.

Accordingly, Defendants shouldbe granted summary judgment on Count Five.
B.l.b(ii)(D) Count Six

CountSix alleges negligent hiring, supervision, and training of Defendant Bell.

The City argues that it had no duty to Plaintiff Spreadbury with respect tonegligent
hiring and that Plaintiffhas nototherwise pointed toa legal duty that a City representative
breached which caused Plaintiff Spreadbury damage or injury.
As discussed above, PlaintiffSpreadbury hasprovided no admissible evidence of

damages, a required element in a negligence claim. See Nelson v. Nelson, 2005 MT 263,
K18, 329 Mont. 85,122 P.3d 1196.

Accordingly, Defendants should be granted summary judgment on Count Six.

OPINION AND ORDER

Page~16

B.l.b(ii)(E) Second Count Seven

With respect to PlaintiffSpreadbury's punitive damages claim based upon state

law, Defendants argue that the City is immune under state law pursuant to §2-9-105,
MCA. Section 2-9-105, MCA states:

2-9-105. State or other governmental entityimmune from
exemplary and punitive damages. The state and other governmental
entities are immune from exemplary and punitive damages.

Hie City meets the definition of"other governmental entity" in §2-9-101, MCA

because it is a"political subdivision" under §2-9-101(5), MCA. The Montana Supreme
Court hasheld that § 2-9-105, MCA is not unconstitutional because it satisfies the

rational basis test. White v. St., 203 Mont. 363,661 P.2d 1272 (1983), overruled on other
grounds, Meech v. Hillhaven W.,23% Mont. 21 (1989).

Accordingly, Defendants are also entitled to summary judgment with respect to
their state law claims in Second Count Seven.

B.2. Defendants* Motion to Compel (Doc. # 35)

Defendants sought to compel PlaintiffSpreadbury to provide certain discovery
related to (1) Plaintiffs alleged "actual damages" and (2) possible witnesses.
Because the Court has granted Defendants' motion for summary judgment on all
the remaining claims inthis action, Defendants' motion should be denied asmoot.

OPINION AND ORDER

Page 17

B.3. Plamtiff Spreadbury's Motion to Stay Order Pending Summary
Judgment(Doc. # 38)

Plaintiff Spreadbury requested a stay ofDefendants' Motion to Compel pending
the Court's summary judgment decision in this case. Plaintiffs motion was not

accompanied by a briefin support. Because the Court has now decided all pending
summaryjudgment motions in this case, the motionshould be denied as moot.

B.4. Defendants* Motion inLimine (Doc. # 39)

Defendants moved the Court to exclude any evidence, testimony, orreference

concerning (1) Plaintiff Spreadbury's actual damages and (2) whether the reports inthis
matter are confidential criminal justice information.

Because all claims have been resolved in this matter, Defendants' motion should
be denied as moot.

B.5. PlamtiffSpreadbury's Motion toSet Aside, Stay Defense Motion in
Limine (Doc. # 41)

Plaintiffmoved the Court "to setaside, stay" Defendants' Motion in Limine.
Because Defendants' Motion in Limine has been deniedas moot and all claims in this

matter have been resolved inadvance oftrial, Plaintiff Spreadbury's motion should be
denied as moot.

B.6. Plaintiff Spreadbury's Bill ofCosts (Doc. # 51) and Defendants*
Objection to Bill ofCosts and Notice ofMotion (Doc. # 53)
On July 5, 2011, Plaintiff Spreadbury submitted his Bill ofCosts inthe amount of

$98.82 on the theory that he was entitled to costs as the "prevailing party for partial
OPINION AND ORDER

Page 18

summary judgment"pursuant to § 25-10-501, MCA andMontana Rule of Civil

Procedure 54(d). On July 7,2011, Defendants filed Defendants' Objection to Bill of
Costs and Notice ofMotion, arguing that (1) the Court did not accept Plaintiff

Spreadbury's arguments in support ofhis motion for declaratory judgment, (2) other
claims in this action remain outstanding, and (3) Plaintiff Spreadbury's motions have not
been sustained.

Section 25-10-501, MCA provides inpertinent part:
The party in whose favor judgment is rendered and who claims the

party's costs shall deliver to the clerk and serve upon the adverse party,
within 5 days after the verdict or notice of decision of the court... a

memorandum oftheitems ofthe party's costs and necessary
disbursements in the action or proceeding.
Section 25-10-502, MCAprovides:

Aparty dissatisfied with the costs claimed may, within five days after
notice of filing of the bill of costs, file andservea notice of a motionto

have the same taxed by the court inwhich the judgment was rendered or
by the judge thereof at chambers.

As used inthe Montana Rules ofCivil Procedure, ajudgment "includes a decree

and any order from which an appeal lies." M. R. Civ. P. 54(a). Unless the Court directs

entry ofafinal judgment on aclaim, "any order or other decision, however designated,

that adjudicates fewer than all the claims... does not end the action as to any ofthe

claims or parties and may be revised at any time before the entry ofajudgment
adjudicating all the claims...." M. R. Civ. P. 54(b).

Because the Court did not direct entry ofafinal judgment with respect to Plaintiff
Spreadbury's request for declaratory relief inaccordance with Montana Rule of Civil
OPINION AND ORDER

Page 19

Procedure 54(b), the decision in the Court's June 28,2011 Opinion and Order was not a
"judgment."

Nonetheless, the Montana Supreme Court has ruled, inthe context ofa bench

trial, that abill ofcost is timely even when it was filed prematurely. See Poeppel v.
Fisher, 175 Mont. 136, 572 P.2d 912 (1977) (In acase involving ajury trial, the statute

requires aparty to file amemorandum ofcosts within five business days after the jury
returns its verdict. Doyle v. Clark, 2011 MT 117, fflf 40-41, 360 Mont. 450, 254 P.3d
570).

The Court therefore deems ituseful to a speedy and just resolution ofthis matter

to address this issue now. With respect to PlaintiffSpreadbury's claim that he is entitled

to costs under §25-10-202, MCA for his Motionfor Declarative Judgment (Doc. # 16)
and Motionfor Summary Judgment (Doc. # 17), the Court notes initially that the Court

deemed and reformulated these two motions "to together request partial summary
judgment" on the issue of"whether and to what extent PlaintiffSpreadbury is entitled to

the Reports under Article II, section 9ofthe Montana Constitution." (Doc #49: Op. Or.
p. 4). Therefore, the Court construed the documents as asingle motion. With respect to
that reformulated motion, the Court granted it in part and denied it in part. Id. at 23.

Therefore, the Court concludes that no party was "the losing party" under §25-10-202,
MCA and no party will be required to pay another party's costs pursuant to such section.

With respect to costs pursuant to 25-10-502, MCA, consistent with this Opinion
and Order and the Court's previous Opinion and Order (Doc. #49) resolving all ofthe

claims in the case at bar on motions for summary judgment, there is no party in whose
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Page 20

favor summary judgment wasentirely rendered pursuant to Montana Rule of Civil
Procedure 56. After considering the record in this case, the Courtdetermines that each
party should bear his or its own costs.
ORDER

IT IS THEREFORE ORDERED:

1. Defendants' MotionforSummary Judgment (Doc. # 19) is hereby
GRANTED; summary judgment on all remaining claims in this action is therefore
granted in favor of the Defendants.

2. Defendants 'Motion to Compel (Doc. # 35)is DENIED as moot;

3. Plaintiff Spreadbury's Motion to Stay Order Pending Summary Judgment
(Doc. # 38) is DENIED as moot;

4. Defendants' Motion inLimine (Doc. # 39) is DENIED as moot;
5. Plaintiff Spreadbury's Motion to Set Aside, Stay Defense Motion inLimine
(Doc. # 41) is DENIED as moot;

6. Each partyshallbear his or its own costs; and

7. Plaintiff Spreadbury's Bill ofCosts (Doc. # 51) and Defendants' Objection to
Bill ofCosts and Notice ofMotion (Doc. #53) are DENIED to the extent they are
inconsistent with this Opinion andOrder.

DATED this^^C day ofNovember, 2011.

cc:

counsel of record

MichaelE. Spreadbury, pro se

OPINION AND ORDER

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