Spreadbury v. Bitterroot Public Library et al
Filing
209
Reply to Objection to Findings and Recommendations re 181 FINDINGS AND RECOMMENDATIONS re 108 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS filed by Lee Enterprises Incorporated. DEFENDANT LEE ENTERPRISES INC'S RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF'S OBJECTION TO PART AGREE IN PART COURT FINDINGS IN RE LEE ENTERPRISES 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 (406) 523-2595
ahpoe@garlington.com
j bsmith@garlington. com
Attorneys for Defendant, Lee Enterprises, Inc.
IN TI{E I.INITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICHAEL E. SPREADBURY.
Cause No.
CV-l 1-064-M-DWM
Plaintiff.
V.
BITTERROOT PUBLIC LIBRARY.
CITY OF HAMILTON, LEE
ENTERPRISE,S, INC., and BOONE
KARLBERG P.C.,
DEFENDANT LEE ENTERPRISES,
INC.'S RESPONSE BRIEF IN
OPPOSITION TO PLAINTIFF' S
.OBJECTION TO PART, AGREE IN
PART; COURT FINDINGS IN RE:
LEE ENTERPRISES INC.'
Defendants.
Defendant, Lee Enterprises, Inc. ("Lee Enterprises"), through its counsel,
Garlington, Lohn & Robinson, PLLP, respectfully submits this Response in
Opposition to Plaintiff s 'Objection to Part, Agree in Part; Findings in Re: Lee
Enterprises Inc.' (Dkt. 188).
I.
BACKGROLIND
The Findings and Recommendation, (Dkt. 181, "Findings") sets out the
relevant procedural history. Briefly, Spreadbury brought multiple claims against
Lee Enterprises, many of which were dismissed on Lee's Motion to Dismiss. The
claims that remained arose from comments posted by readers on Lee Enterprises'
internet website in connection with a September 10,2009, news article about
Spreadbury, and included claims of defamation, negligence, 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 making the same claims in relation to a news article
dated August 9,2010.
Lee Enterprises moved for summary judgment on all remaining claims arising
from (1) the online comments posted in response to the 9ll0l09 item and, (2) the
8l9ll0 news article.
In the Findings, the Magistrate recommended summary judgment for Lee on
all claims related to the 9ll0l09 article. However, the Magistrate recommended
denying summary judgment as to certain claims related to the 8l9ll0 article,
because of an erroneous finding that Spreadbury was not a public
figure. In
particular, the Magistrate recommended denying summary judgment for Lee on
Spreadbury's claim of defamation per se, negligence, tortious interference with
prospective economic advantage and punitive damages, 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.
Lee Enterprises objected to the Magistrate's factual finding that Spreadbury is
a
private figure, and to the resulting denial of summary judgment on those
remaining claims. Spreadbury filed objections as
well.
Lee Enterprises now
responds to Spreadbury's objections.
il.
DISCUSSION
Although captioned an objection to the findings, Spreadbury's pleading
spends the first seven pages re-arguing issues already decided by this Court and
issues not relevant to this Defendant; in particular, whether he was properly
excluded from the public library for his conduct. He raises again his conspiracy
theory that was previously rejected and dismissed and argues that this Court is
denying him of his Constitutional Rights. These arguments may be disregarded
as
irrelevant to the pending motion and Findings.
Plaintiff s objection to the Findings does not begin until page eight of his
Brief. In order to defeat
summary judgment, Spreadbury must do more than repeat
his allegations and beliefs, however, that is exactly what he has done. He has
failed to come forward with material issues of fact.
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A.
Defamation and Defamation Per
I
.
Se
Statements in the 8/9/ I0 Article
True or privileged statements are not defamatory even if the plaintiff believes
they portray him in a negative light. The Findings correctly recommend judgment
for Lee with respect to statements in the 8l9ll0 article that fairly described
allegations in a judicial proceeding, including the amount of money being
demanded by Spreadbury in his various lawsuits, comments about the scope
of
duties of the City Attorney, and the supervision of a law student.
The Findings correctly recommend judgment for Lee on a statement about the
student's supervision, which was a summary of Spreadbury's argument, and not a
direct quote. As noted in the Findings, while he argued that the summary
misstated his position, Spreadbury failed to show how the statement could subject
him to hatred, contempt or ridicule. Spreadbury does not specifically object to
these recommendations and judgment should be granted with respect to these
statements.
2.
Evidence of Malice
The Findings also properly conclude that Spreadbury produced no evidence
whatsoever from which
a
jury could conclude that Lee Enterprises
acted with
malice in publishing any news articles about him. (Dkt. 1 81 at 9, n. 3.)
Spreadbury objects that any false statement proves malice, but his assertion is
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unsupported by the law on which he relies.
Spreadbury cites to Time, Inc. v. Pape,40l U,S. 279 (1971), for the
proposition that "any falsification establishes actual malice." (Dkt. 188 at p. 8). To
the contrary, the holding in Pape was that, in the context of the whole article, the
failure of a news magazine article to state that certain conduct it reported was only
an allegation, was not a falsification sufficient to
justify a finding of actual malice.
Pape,401 U.S. at 279-281.
In that case, Time Magazine reported on a 1961 report from the Civil Rights
Commission ("Report"). The Report described alleged police brutality. The Time
article reported an incident from the Report and did not say that it was describing
the allegations made by a plaintiff in litigation. Pape,4O1 U.S.
one of the police officers, sued TimeMagazine for
libel. The
at28l-282.
Pape,
question before the
United States Supreme Court was whether Time's failure to clarifu it was reporting
no more than allegations, created
a
jury
issue of "actual
malice." Pape,40l U.S. at
282.
Even though, in the Pape case, the omission was "admittedly conscious and
deliberate," the Court found, in the context of the full article, the omission was not
sufficient to create a jury issue of malice. Pape,401 U.S. at285,289.
Spreadbury appears to argue for a heightened duty when the reporter is an
"eyewitness." In Pape, the word "eyewitness" appears only once and does not
| | t7259
create a special rule. The Court said only, in dicta, that the instant case was not
one in which the libel purports to be an "eyewitness or other direct account
events that speak for themselves."
of
Pape,40l U.S. atZ85.
Spreadbury's reliance on old Dominion Branch No. 496, National
Association of Letter Carriers, AFL-CIO, et al. v. Austin et al., 418 IJ.5.264
(1974) is likewise misplaced. In that case, the Court held that federal labor law
takes precedence over state libel law and overturned judgments for mail carriers
who claimed union publications labeling them scabs and traitors were libelous.
The Court emphasized the common law definition of "malice" as ill-will or spite
was not the correct standard. Rather, recovery can be permitted only
if the
defamatory publication was made with knowledge that it is false, or with reckless
disregard of whether it was false or
not. Old Dominion Branch,
418 U.S.
at28l.
Spreadbury cites Masson v. New Yorher Magazine, Inc., 501 U.S. 496, 111
S. Ct. 2419 (1991), presumably for the proposition that malice was demonstrated in
Lee's 8l9ll0 article by quoting his comment that Attorney Bell was "lost in space."
In Masson,lhe writer put statements in quotation marks that he knew did not
convey what the speaker said. In this case, Spreadbury does not deny he made the
quoted statement and the transcript shows he did (Dkt.
11
l-5 atp.7).
Spreadbury
argues only that the quote was taken out of context. Mqsson does not further his
cause. The Court aeain held that even a deliberate alteration of the words uttered
by the plaintiff does not equate with knowledge of falsity or malice. Masson, 501
U.S, at 518.
In its Objections, Lee Enterprises addresses the requirement of the actual
malice standard to these facts as Spreadbury is a limited public figure with respect
to the subject matter of the news articles. Because there is no evidence of actual
malice, Lee urges that summary judgment be granted on all defamation claims.
3.
The 8/24/10 Correction
Spreadbury's argument that Lee's August 24,2010 correction was
insufficient has already been raised and rejected by this Court, which found the
correction article to be a privileged description ofjudicial proceedings (Dkt. 85 at
13). There is no new evidence to revisit this issue.
4.
On-Line Reqder Comments
The Magistrate correctly recommended Lee Enterprises is entitled to
judgment as a matter of law concerning public comments to the September 10,
zXlgarticle, since it is undisputed the comments were made by third party, on-line
readers, and not the Ravalli Republic.
Spreadbury objects that Lee is immunizedby the Communications Decency
Act, however, he raises no genuine issue of fact to defeat summary judgment. As
stated in the Findings, his only argument is that Lee should not be considered an
interactive computer service provider under the Act with respect to its internet
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news website, but his argument fails as a matler of law.
The definition of o'interactive computer service" includes a wide range
of
cyberspace services. Carafano v. Metrosplash.com, 1nc.,339 F.3d at l l l g,ll23
(". . . reviewing courts have treated $ 230(c) immunity as quite robust, adopting
relatively expansive definition
of
a
interactive computer seryice' . . . "); see e.g.
Gentry v. eBay, Inc.,99 cal. App. 4th 816, 83 | n.7 (cal. App. 2 Dist. 2002) (on-
line auction website is an "interactive computer service"); Schneider
Amqzon.com, Inc., 108 wash. App. 454,460-461
(wash.App.Div.
v.
I 2001) (on-
line bookstore Amazon.com is an "interactive computer service."); see also Ben
Ezra, Weinstein, & Co. v. Am. Online lnc.,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); Zeran v. Am. Online,
Inc.,
129 F .3d 327 , 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 Internet subscribers post comments
and respond to comments posed by others."
F. Trade Commn.
v. Accusearch, Inc.,
570 F. 3d 1 187, I 195 (citation omitted). In fact, Congress enacted the CDA in
response to previous cases, which had held a provider of an online message board
could be liable for defamatory statements posted by third parties. Shiamill v. Real
| | t72s9
Est. Group of NY,17 N.Y. 3d281 (2011); Fair Hous. Council of San Fernando
Valley v. Roommates.com,
LLC,52l F.3d ll57,l163
(en banc).
A newspaper's website is an interactive computer service as defined under
the CDA and immune from
liability,
See
Collins v. Purdue tJniversity, T03 F.
Supp. 2d 862 (N.D. Ind. 2010).
The Magistrate correctly determined Ravalli Republic is an interactive
computer service provider as defined by the CDA. It is undisputed that the alleged
defamatory comments to the September I0,2009, article were made by third
parties. (Dkt. 110 at Utl l4-16). Accordingly, Lee Enterprises is immune from
liability for any allegedly defamatory comments made by readers.
B.
Additional Discovery
Spreadbury argues that further discovery would support his claim that Lee
should not be immune under the CDA; stating "[t]he Plaintiff requested production
via interrogatory of Defendant Lee of any person who acquires internet service in
Montana or elsewhere pending before this court." (Dkt. 188 at I 1). In order to
avoid summary judgment to do more discovery, Spreadbury is required to show
what information he is seeking and how it would preclude summary judgment.
Hillv.
State of
Hawaii,79IF.2d759,76l (9thCir. 1986). If furtherdiscovery
could not elicit evidence that would raise genuine issues of material fact, summary
judgment is appropriate. Klingele v. Eihenb€rr!,849 F.2d 409, 412 (9h Cir.
1fi7259
le88).
Spreadbury has not met this burden. The discovery Spreadbury seeks
will
not elicit facts that would raise a genuine issue of material fact. The Ravalli
Republic site is an interactive computer services provider as a matter of law. It is
undisputed the allegedly defamatory comments were made by third party, on-line
readers, and not the Ravalli Republic. (Dkt. 110 at tTfl 14-16). Accordingly, Lee
Enterprises is immune from liability under the CDA and the Magistrate conectly
recommended it is entitled to judgment as a matter of law.
C.
Infliction of Emotional Distress
The Magistrate correctly recommended dismissal of Spreadbury's claims
of
Intentional and Negligent Infliction of Emotional Distress ("IIED" and "NIED"),
because "Spreadbury has not identified . . . any . . . facts or evidentiary matters"
supporting such a claim, (Dkt. 181 at 31). Spreadbury's response is to rely on and
repeat his allegations that he has suffered distress. He has not met his burden
of
coming forth with material and substantial evidence to support his claim. See
McConkey v. Flathead Elec. Coop.,2005 MT 334, n 54,330 Mont. 48, 125 P.3d
tt2t.
Spreadbury misunderstands the distinction between emotional distress as an
element of damages, and a separate cause of action. He urges this Court to rely on
Johnson v. Supersave Markets Inc., 686 P.2d 209 (overruled by Jacobsen v.
l0
1117259
Allstate Ins. Co., 2009 MT 248,tT 66, 35 I Mont. 464,
Sacco v. High Country Indep. Press, Inc., 27
2I
5 P.3d 649) rather than
| Mont. 209, 235, 896 P.zd 4ll
(1995). Johnson addressed parasitic emotional distress damages and does not
lower the threshold for making a claim for an independent cause of action for
emotional distress.
Spreadbury claims thatNiles v. Big Sky Eyewear,236 Mont. 455,771 P,2d
114 (1989) (also overruled), shows that being falsely accused of a crime is always
sufficient to support an independent emotional distress claim. Niles does not stand
for such a broad holding. In that case, there was evidence from the plaintiff, her
husband and a clinical psychologist of the emotional distress suffered by the
Plaintiff. No such evidence exists
here.
Further, Spreadbury seems to argue the 8l9ll0 article was the cause of his
emotional distress that occurred three years earlier:
As Defendant Lee falsely attributes Spreadbury speech for Wetzsteon's
supervision in the August 9,2010 article it triggers severe Emotional Distress
due to false arrest, booking, abuse of power by Ravalli County Sheriff as
middle of night warrant attempt 0330hrs August 11,2007.
(Dkt. 188 at 14). Clearly, Lee Enterprises' 8l9ll0 article could have not have
caused any emotional distress in 2007 .
Spreadbury has not met his burden of coming forward with admissible
evidence of severe emotional distress he has experienced as a result of Lee
Enterprises' conduct in publishing the articles about him. The Magistrate correctly
ll
n17259
recommended summary judgment for Lee Enterprises on Spreadbury's claims for
both IIED and NIED.
D.
Injunctive Relief
The Magistrate correctly recommended Lee Enterprises is entitled to
judgment as a matter of law with regard to Spreadbury's claim for injunctive relief.
As noted in the Magistrate's Findings and Recommendations, "[t]he courts
lack authority to impose injunctive relief which broadly requires a person to simply
obey the
law." (Dkt. l8l
at 32,referencing, N.L.R.B. v. Express Publg.
Co.,3l2
u .s, 426, 435-436 ( 1941)).
III.
CONCLUSION
To avoid summary judgment, Spreadbury had the burden to come forward
with evidence, not simply more allegations. He has not met his burden. Summary
judgment for Lee on all claims is warranted.
DATED this 3 I st day of January , 2012.
lsl
Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.
t2
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CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(dX2XE), I
certiff that this Defendant Lee Enterprises,
Inc.'s Response Brief in Opposition to Plaintiff s 'Objection to Part, Agree in Part;
Court Findings in Re: Lee Enterprises Inc.' 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 2716 words long, excluding
Caption, Certificate of Service and Certificate of Compliance.
lsl
Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.
l3
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CERTIFICATE OF SERVICE
I hereby certifu that on January 31,2012, a copy of the foregoing document
was served on the following persons by the following means:
2
I
CIWECF
Hand Delivery
Mail
Overnight Delivery Service
Fax
E-Mail
1.
Michael E. Spreadbury
P.O. Box 416
Hamilton, MT 59840
Pro Se Plaintiff
2.
William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowl ey @boonekarlberg. com
npj ones@boonekarlberg. com
tleonard@boonekarlberg. com
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlberg P.C.
lsl
Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.
l4
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