Spreadbury v. Bitterroot Public Library et al

Filing 207

OBJECTION to 181 Findings and Recommendations DEFENDANT LEE ENTERPRISES INC'S OBJECTION IN PART TO MAGISTRATE'S FINDINGS AND RECOMMENDATIONS RE MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Anita Harper Poe
Jeffrey B. Smith
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street. P. O. Box 7909
Missoula, MT 59807-7909
Telephone (a06) 523-2500
Telefax [phone]
[e-mail]
j bsmith@garlington. com
Attorneys for Defendant, Lee Enterprises, Inc.

IN THE I.INITED STATES DISTRICT COURT
FOR TFM DISTzuCT OF MONTANA
MISSOULA DIVISION

MICHAEL E. SPREADBURY.

Cause No.

CV-l I-064-M-DWM

Plaintiff.
V.

BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBE,RG P.C..

DEFENDANT LEE ENTERPRISES,
INC.'S OBJECTION IN PART
TO MAGISTRATE' S FINDINGS
AND RECOMMENDATIONS RE:
MOTION FOR SUMMARY
JUDGMENT ON REMAINING
COUNTS

Defendants.

Defendant, Lee Enterprises, Inc. ("Lee Enterprises" or "Lee'o), through its
counsel, Garlington, Lohn & Robinson, PLLP, respectfully submits its objection, in
part, to the Magistrate's Findings and Recommendations regarding Lee

Enterprises' Motion for Summary Judgment (Dkt. 181).

I.

BACKGROTINID

The Findings and Recommendations set out the relevant procedural history.

Briefly, Spreadbury sued numerous defendants, including Lee Enterprises. Lee
moved to dismiss all claims against

it.

The Court dismissed the claims, except for

those based on comments posted by readers on Lee Enterprises' internet website in

connection with its September l0,2009,news article about Spreadbury, including
defamation, negli gence, tortious interference with prospective economic
advantage, negligent and intentional infliction of emotional distress, punitive
damages and injunctive relief.

Spreadbury then filed a second amended complaint adding similar claims
related to a news article dated August 9,2010.
Lee Enterprises moved for summary judgment on all remaining claims

relating to both (1) the online comments posted in response to the September 10,
2009 article and (2) the August 9, 201 0 article.

In the Findings and Recommendations, the Magistrate found that Spreadbury
was not a public figure and, on that basis, recommended denying summary

judgment on Spreadbury's action for defamation per se, negligence, tortious
interference with prospective economic advantage and punitive damages, but only
to the extent those claims are predicated on the 8/9/10 news article that mistakenly
described Spreadbury's criminal charge as disturbing the peace rather than

criminal trespass. The Findings and Recommendations recommend granting
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summary judgment on all other clatms.
Lee Enterprises objects to the Magistrate's factual finding that Spreadbury is

not a public figure, and objects to the recommendation to deny summary judgment
on these remaining claims.

II.

FACTUAL FINDINGS TO WHICH LEE OBJECTS

The Magistrate incorrectly determined Spreadbury was not a public figure,

simply because he had already lost the election for Mayor of Hamilton prior to
publication of the 8l9ll0 article. The Findings state:
Here, although Spreadbury had been a candidate for
mayor in the City of Hamilton, his candidacy ended in
November,2009, upon his defeat in the election. Thus,
at the time of Lee Enterprises' August 9,2010 article
Spreadbury was a private figure, and Lee Enterprises
does not argue to the contrary.

(Dkt. 181:28). However, Lee Enterprises did argue that Spreadbury was a limited
public figure who voluntarily injected himself into his own public controversy.

(Dkt. 126:7).
Spreadbury has deliberately and voluntarily provoked and continued a public

controversy with himself at its center, with his relentless campaign against the
local public library and its staff, local government, and various other individuals in

public service. His campaign began as early as May 2009, when Spreadbury
demanded a letter be placed on reserve at the Bitterroot Public Library (the

"Library") to be available to the public. The letter alleged comrption by local
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officials and was addressed to President Obama. (Dkt. 152, Exs. A- B). Librarian,
Nansu Roddy ("Roddy") declined to add the letter to the Library's collection,

telling Spreadbury the Library was not

a depository

for personal letters. (Dkt. 110

at ufl l -3). Spreadbury said it was not a private letter, that the police and judges in

Ravalli County are corrupt and have ruined his life, and that he would be present at
the next Library Board meeting to address his issues. (Dkt. 152, Ex. A).
Spreadbury also tried to have his letter put on reserve at the North Valley

Library in Stevensville, Montana, with similar results. (Dkt. 152, Ex. C).
Spreadbury wrote to the directors of both libraries arguing the letter was a matter

of public concern. He stated "[t]he subject matter fof the letter] is justice within
Ravalli County and Montana; it meets a public informational need." (Dkt. l52,Ex.
D. at fl 2). Spreadbury further explains "[i]n this case, it is a critical and emergent
situation to civil rights, justice, and general public safety. . . I think the public has a

right to know about these crimes, and the efforts of concerned citizens; this
includes the letter to the President of the United States from March, 2009." (Dkt.
152, Ex. D. at

1l'11

3-4).

Spreadbury clearly intended to make this a public controversy and to interject

himself into it in order to affect the resolution. On June 1 1,2009, after Spreadbury
confronted another Library staff person, his disruptive behavior was reported to

law enforcement. (Dkt. 152, Exs. G - K - some exhibits filed under seal).
Eventually, Spreadbury was banned from the Library. (Dkt. 110 at !J4).
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Spreadbury reacted by complaining to City

Hall.

Spreadbury reported to

Police Officer Jake Auch that he had received a letter banning him from the

Library and he wanted it to be filed as a false report. Office Auch told Spreadbury
that he would investigate. (Dkt. 152, Exs. M, N - some exhibits filed under seal).
Spreadbury defied the ban and returned to the Library, and was charged with

criminal trespass as a result. (Dkt. 110 at'llt| 5-6). He was also charged with
felony intimidation after accosting Roddy outside the Library. Roddy obtained an
Order of Protection against Spreadbury, which Spreadbury appealed. (Dkt. 110 at
,lTfl

1e-20).
Spreadbury escalated the matter with further written demands to the Library,

as

well

as new

allegations. In an email to Library Board member Ellyn Jones, he

alleged he had been banned from the Library after telling the Library Director that
he intended to publicize information which would get her fired. Spreadbury also
accused the Director of committing a crime by giving information to the Hamilton

Police Department. He made it clear he intended to make his issues into a public
controversy, attaching a copy of his internet web page which he claimed "got 500
hits a week," and on which he could inform people about his allegations about the

Library. (Dkt.

152, Ex. Q).

At the same time, Spreadbury expanded his campaign, taking on the local
newspaper, the Ravalli Republic. Multiple heated confrontations by Spreadbury

with employees at the Ravalli Republic 's office in Hamilton resulted in a call to the
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police, and Spreadbury was banned from the newspaper's place of business. (Dkt.
152, Exs.

K, S, T, U - some exhibits filed under seal).

Spreadbury did all he could to keep his complaint in the public eye. On

August 25,2009, he wrote to the Library Board alleging Library employees were

involved in a criminal relationship with the police. (Dkt. l52,Ex. BB). On the
same day, Spreadbury posted on the public website, "Bitterroot Rising," that the

Library Director was violating the law and the Library was working with the
Hamilton Police to commit crimes and to violate civil rights. He claimed that
embezzlement was occurring at the Library, which would soon be made known to
the public in a documentary due out in September. (Dkt. 152, Ex. CC).

On September 10,2009,the Ravalli Republic published a news article
reporting the criminal trespass charge brought against Spreadbury. (Dkt. I l0 at fl

l1). The article was posted on the online version of the newspaper. (Dkt. 110 at
tltT

l3-14). A number of on-line readers posted comments on the article,

demonstrating that Spreadbury had succeeded in making his battle with the Library
a matter of public interest.

(Dkt. 110 at ti'{l| 15-16).

Both the Ravalli Republic andthe Missoulian published news articles
reporting the felony intimidation charges brought against Spreadbury, based on

official Ravalli Counfy Court documents. (Dkt. I l0 at tT'|]T20-21).
Spreadbury lost his bid for Mayor in November 2009, but he kept himself in
the news with public appearances numerous court filings in which he repeated his
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issues and allegations regarding the

Library. In February, 2010, he was found

guilty of criminal trespass by a jury. (Dkt. 110 at 122). He appealed the
conviction. (Dkt. 110 at nzD.
On April 20,2010, Spreadbury issued a written statement to the public

alleging misconduct by City Attorney Ken Bell at a public hearing on the Order of
Protection. The statement concluded with a threat: "Get Ready for a constant
pummeling in the courts. The hunters will become the hunted. Destroying the
lives for ego is pricey on budgets." (Dkt. 152, Ex. KK).
In May 2010, Spreadbury filed separate lawsuits against Librarian Roddy,
attorneys Angela Wetzsteon and George Corn, employees of Ravalli County, and

Kenneth Bell, Hamilton City Attorney. (Dkt. 110 at 1124). A public hearing on
Defendants' motions for summary judgment was held on August 6,2010. (Dkt.
110 at

nzr.

On the same day, apretrial conference for Spreadbury's appeal of his

conviction for criminal trespass was held in the Ravalli courthouse. (Dkt I l0 at fl
2e).

On August 9, 2010, the Ravalli Republic reported on the August 6
proceedings. (Dkt. I l0

at'1T

30.) The article mistakenly stated that Spreadbury had

been charged with disturbing the peace, rather than criminal trespass. On August

24,2010, after being notified of the error by Spreadbury, the Ravalli Republic
published a correction to the August9,2010 article. (Dkt. 110 at fl 34).
Spreadbury has continued to maintain his locally public profile with multiple
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court actions against individuals, businesses and government entities of Ravalli

County. Running for Mayor of Hamilton was only a small part of Speadbury's
local notoriety. Losing the election did nothing to dampen his efforts to remain in
the public eye with his allegations of conspiracy and injustice, and to affect the

resolution of the controversies he created. Spreadbury was a limited public figure
and the Magistrate's finding that he was a private figure is in error.

III.

RECOMMENDATIONS TO WHICH LEE OBJECTS

Lee Enterprises objects to the recommendation that summary judgment be
denied with respect to Spreadbury's claims of defamation per se, negligence,

tortious interference, and punitive damages, arising from the error in the 8l9ll0
article.

A.

Defamation Per Se

The recommendation to deny summary judgment on defamation per se is
based on the eroneous finding that Spreadbury is a private

figure. Instead,

summary judgment should be granted because, on the undisputed facts, Spreadbury
was a limited public figure concerning his self-created and self-perpetuated

controversy, and Lee Enterprises did not act with actual malice in publishing the

8l9ll0 article.

1.

Spreadbury is a Limited Public Figure.

Montana Code Annotated $ 27-l -802 (2011) defines libel:

Libel is a false and unprivileged publication by writing,
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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.
When a plaintiff is a public figure, the plaintiff can only recover damages if
the alleged defamatory statement was made with actual malice. Williams

v.

Pasma,202Mont.66,72,656P.2d212,215 (1982), (citing N. Y. Times Co. v.
Sullivan,376 U.S. 254, 279-280 ( 196$); Madison v. Yunker, 180 Mont. 54, 67 ,
589 P.2d 126,133 (1978).

Public figures in this context are divided into two subcategories: public
figures for all purposes and public figures for a limited purpose.

All

purpose

public figures have achieved such pervasive fame and notoriety that they become
public figures for all purposes and in all contexts. On the other hand, limited
purpose public figures have voluntarily injected themselves into a particular public

controversy and, thereby, become public figures for that limited range of issues.

Kurth v. Great Falls Tribune Co., 246 Mont.
Gertz v. Robert Welch,

Inc.,4l8 U.S.

407

, 408,804 P.2d 393,394 (citing

323 (1974)). In either case, public figure

plaintiffs must show the alleged defamatory statement was made with actual
malice, meaning it was published "'with knowledge that it was false or with
reckless disregard of whether it was false or

not."' Kurth,804

P. 2d at 394 (citing

N. Y. Times,376 U.S. at 280.)
The rationale for the malice requirement with regard to public figures is two-

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fold. First, public figures

are less vulnerable to injury from defamatory statements

because of their ability to resort to effective self-help. "They usually enjoy

significantly greater access than private individuals to channels of effective
communication, which enable them through discussion to counter criticism and
expose the falsehood and fallacies of defamatory statements." Wolston v, Reader's

Digest Assn., lnc.,443 U.S. I 57, 164 (1979) (citing Gertz,418 U.S. at344).
Spreadbury clearly has had access to such channels of communication, and has
used them, including the internet, letters, writings and public statements.

The second rationale for requiring a malice standard is that public figures are
deemed less deserving of protection than private persons because they have

"'voluntarily exposed themselves to increased risk of injury from defamatory
falsehood concerning them."' Wolston,443 U.S. at 164 (citing Gertz,418 U.S. at

345). This particularly applies to Spreadbury, who cannot claim he should be
treated as a private person to whom something just happened, when he "voluntarily
exposed himself to an increased risk of injury from defamatory falsehoods . . ." by

creating the controversy and relentlessly keeping it in the public eye.
The Supreme Court in Gertz identified two ways in which a person may
become a public figure for purposes of the First Amendment:

For the most part those who attain this status have
assumed roles of especial prominence in the affairs of
society. Some occupy positions of such persuasive
power and influence that they are deemed public figures
for all purposes. More commonly, those classed as
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public figures have thrust themselves to the forefront of
particular public controversies in order to influence the
resolution of the issues involved.
Gertz,418 U.S. at345 (emphasis added). The focus is on the "'nature and extent
of an individual's participation in the particular controversy giving rise to the

defamation."' Wolston,443 U.S. at 167 (citing Gertz,418 U.S. at352). A limited
purpose public figure need only gain "local notoriety" with respect to the public

controversy at issue. Williams, 656P.2d

at2l6.

Spreadbury was certainly a public figure when he ran for Mayor of Hamilton

in 2009. However,

as the record demonstrates, he remained

very much a local

public figure at the time the 8l9ll0 article was published, because he had

voluntarily injected himself into the forefront of

a

public controversy

- his very

public and multi-pronged attack on the institutions of local government.

2.

Lee Enterprises Did Not Act With Malice.

Summary judgment is appropriate because Spreadbury is a public figure

plaintiff who has failed to establish actual malice in publishing the 8l9ll0 article.
Williams, 656 P.2d at 215. Lee Enterprises raised this argument in its briefing in
support of its motion for summary judgment, noting Spreadbury had failed to
establish malice. (Dkt. 126:7).
The Magistrate's Findings and Recommendations correctly state

"Spreadbury has failed to present any evidence on which

a

jury could conclude that

Lee Enterprises published any of its news articles with malice
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I

- he has failed to

raise a genuine issue of material fact in that regard." (Dkt.

l8l:9

at

M. 3).

Accordingly, since Spreadbury is a limited public figure, and he has failed to
present facts sufficient to show malice, Lee Enterprises is entitled to judgment as a

matter of law on defamation per

B.

se.

Negligence

Spreadbury's negligence claim cannot survive

if

Spreadbury is a limited

public figure. The duty owed by Lee Enterprises to a limited public figure like
Spreadbury is to avoid acting with actual malice. As noted in the Magistrate's

Findings and Recommendations, the Montana Supreme Court has held a
negligence standard should apply unless the plaintiff is a public figure. (See Dkt.

l8I:27 (citing Madison,589 P.2d at 132-133 (1978)). A finding that Spreadbury

is

a limited public figure with respect to his confrontation with the public Library
necessitates summary judgment for Lee Enterprises on negligence.

C.

Tortious Interference

The Magistrate's finding that Spreadbury produced no evidence of malicious

intent by Lee Enterprises waffants summary judgment on the claim of tortious
interference with prospective economic advantage.

To establish a case of tortious 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
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the part of the actor; and (4) resulted in actual damages or loss. Sebena v. Am.

Automobile Assn.,280 Mont.305,309, 930P.2d 51,53 (1996) (emphasis added).

In a cause of action for intentional interference with prospective economic
advantage ". . . the focus of the legal inquiry is on the intentional acts of the

'malicious interloper' in disrupting a business relationship." Maloney v. Home &

Inv. Ctr., [nc.,2000 MT 34, I142,298 Mont.2l3,994P.2dll24.
Intentional conduct for a malicious purpose is an essential element of a claim
for tortious interference with prospective economic advantage. Montana does not
recognize a tort of negligent interference. The definition itself excludes the

possibility of liability for tortious interference based on negligence.
The first element of tortious interference is that the defendant's conduct must
be "intentional and

willful."

The second and third elements also eliminate

negligence as a cause: the defendant's conduct must be calculated (i.e., intended)

to damage plaintiff

s

business, and must be done with the unlawful purpose (i.e.,

intent) of injuring the plaintiff. Bolz v. Myers,200 Mont .286,2g5,651P.2d 606,

6l I

(

I

982). Unless the plaintiff can produce evidence that the defendant's acts

were calculated to cause damage to the plaintiff, a prima facie case of tortious
interference fails as a matter of law. Hughes v. Lynch, 2007

MT 177,1129,338

Mont. 214,164 P.3d 913.
The Montana Supreme Court has endorsed the Restatement (Second) of Torts,

which states aparty is not liable for economic loss resulting from negligent
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interference with contractual or business relations. Restatement (Second) of Torts
$ 766c (1979); Bolz,651 P.2d at 610.

When the plaintiff fails to make a showing sufficient to establish the existence

of any single element essential to his case, and on which he will bear the burden of
proof at trial, summary judgment is the proper remedy. Celotex, Corp. v. Catrett,
477 U.5.,317,323 (1986). In Montana, malicious intent to cause harm to the

plaintiff is an essential element of a claim for tortious interference. Because there
is no evidence of malice as a matter of law, summary judgment for Lee Enterprises
on this claim is warranted.

D.

Punitive Damages

As the Montana Supreme Court held in Madison, a plaintiff in a defamation
suit may only recover punitive damages upon a showing of actual malice, and such
malice does not mean hatred, personal spite,

ill-will, or a desire to injure.

Madison,589 P.2d at 133. The United States Supreme Court has held "that the
States may not permit recovery of presumed or punitive damages, at least when

liability is not based on a showing of knowledge of falsity or reckless disregard for
the

truth." Gertz,4l8 U.S. at349 (emphasis

added).

Because Spreadbury has failed to establish actual malice as a matter of law,

his claim for punitive damages must fail.

Moreover, since Spreadbury was a limited public figure, the defamation per
se

claim fails, and the derivative punitive damages claim must fail for want of a
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viable theory of recovery. As noted in the Magistrate's Findings and
Recommendations, the absence of an underlying cause of action resulting in an
award of actual damages precludes Spreadbury's claim for punitive damages. See

Doll v. Major Mffier Ctrs., lnc.,208 Mont. 401,414,687 P.2d 48, 55 (198a);
Peterson v. Eichhorn, 200 MT

250,1T37

, 344 Mont. 540,1 89 P.3d 615.

Finally, because Lee Enterprises promptly corrected the alleged defamatory
statement, Spreadbury is precluded from recovering punitive damages. Montana
Code Annotated 527-1-818 (2011) (emphasis added) states:

In order to claim punitive damages because of any defamatory publication in
or broadcast on any newspaper, magazine, periodical, radio or television
station, or cable television system, the defamed person shall first give those
alleged to be responsible or liable for the publication or broadcast a
reasonable opportunitv to correct the defamatory matter. Such opportunity
shall be given by notice in writing speciffing the article or broadcast and the
statements therein which are claimed to be false and defamatory and a
statement of what are claimed to be the true facts. The notice may also state
the sources, if any, from which the true facts may be ascertained with
definiteness and certaintv.
Montana Code Annotated $ 27-l-821 also provides that a timely correction
constitutes a defense against the recovery of punitive damages.
Here, because there was no malice, and Lee Enterprises promptly issued a

correction article on the front page of the publication that constitutes a defense to

punitive damages, Lee Enterprises is entitled to judgment on the punitive damages
claim as a matter of law.

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ry.

CONCLUSION

The Supreme Court in Celotex emphasized that summary judgment is not to
be disfavored but, rather, employed as an "integral part of the Federal Rules as a

whole, which are designed 'to secure the just, speedy and inexpensive
determination of every action."' Celotex,477 U.S. at327 (citations omitted).
Courts must construe Rule 56 with regard to the rights of both parties, including
persons who oppose claims having no basis in

fact. Celotex,477 U.S. at327.

Lee Enterprises is entitled to summary judgment on all remaining counts

of

Spreadbury's Amended Complaint" While the Magistrate's Findings and
Recommendations correctly concluded Lee Enterprises is entitled to judgment on
the majority of Spreadbury's remaining counts, it erred in failing to find
Spreadbury was a public figure. This resulted in an erroneous recommendation to

deny summary judgment on the allegations of defamation per se and negligence.
The finding that there is no evidence of malicious intent defeats the claims for

tortious interference with prospective business advantage and punitive damages.
For all the reasons stated above, Lee Enterprises respectfully requests the
Court grant its Motion for Summary Judgment on Remaining Counts in its entirely.

DATED this

30th day

of January, 2012.

lsl

Jeffrey B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

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CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 72.3(b),I

certiff that DEFENDANT LEE ENTERPRISES,

INC.'S OBJECTION TO MAGISTRATE'S FINDINGS AND
RECOMMENDATIONS RE,: MOTION FOR SUMMARY JUDGMENT ON

REMAINING COUNTS 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 3670 words long, excluding Caption, Certificate of
Service, and Certificate of Compliance.

lsl

Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

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CERTIFICATE OF SERVICE
I hereby certiff that on January 30,2012,acopy of the foregoing document
was served on the following persons by the following means:

I.3
2

CIWECF
Hand Delivery

Mail
Overnight Delivery Service
Fax
E-Mail

l.

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 one s @boonekarlberg. com
tleonard@boonekarlberg. com
Attorneys for Defendants Bittenoot Public Library, City of Hamilton, and
Boone Karlberg P.C.

lsl

Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

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