Spreadbury v. Bitterroot Public Library et al
Filing
249
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 210 Findings and Recommendations and 181 Findings and Recommendations regarding 108 Motion for Summary Judgment filed by Lee Enterprises Incorporated - granting in part and denying in part 108 Motion for Summary Judgment; adopting in part Findings and Recommendations re 181 Findings and Recommendations; adopting in part Findings and Recommendations re 210 Findings and Recommendations. Signed by Judge Donald W. Molloy on 3/6/2012. (APP, ) Copy mailed to Spreadbury this date.
FILED
MAR 062012
PATRICK E. PUFFY, CLERK
By·-;;::oe:;:;:;P\JTY=-::::ru""'RK=-:".
M""ISSOULA=:-::-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICHAEL E. SPREADBURY,
Plaintiff,
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vs.
CV ll-64-M-DWM-JCL
ORDER
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BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC., and
BOONE KARLBERG P.e.
Defendants.
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September 28, 20 II, Defendant Lee Enterprises, Inc. filed a motion for
summary judgment on the counts remaining against it in this matter. United States
Magistrate Judge Lynch entered Findings and Recommendations on November 30,
2011 (dkt # 181). Both Lee Enterprises and Plaintiff Michael E. Spreadbury filed
objections. They are therefore entitled to de novo review of the specified findings
or recommendations to which they object. 28 U.S.C. § 636(b)(I). Because the
parties are familiar with the facts, they will not be restated here except as
necessary to explain the Court's decision.
As a preliminary matter, I do not address Spreadbury's objections which
concern issues not connected to his claims against Lee Enterprises--for example,
the constitutionality of Spreadbury's dealings with the City Defendants or the
incorporation status ofHamilton, Montana-because they are not relevant to the
motion under consideration. Nor do I address Spreadbury's new allegations, the
objections to issues that have already been settled by this Court, or the objections
that are not responsive to specific findings or recommendations made by Judge
Lynch on November 30,2011 (dkt # 181).
Though Spreadbury argues that summary judgment is not appropriate at this
time because he expects additional facts to emerge through interrogatories (dkt #
188,14), he has not met the standard necessary for a continuance under Rule 56(d)
of the Federal Rules of Civil Procedure. He has not identified specific facts he
hopes to obtain or made any showing that the facts he hopes to obtain actually
exist. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d
822,827 (9 th Cir. 2008)(citation omitted). Accordingly, it is proper to consider
Lee Enterprises's summary judgment motion. Id.
The following recommendations are adopted: Lee Enterprises's motion for
summary judgment on Spreadbury's defamation per se, negligence, and tortious
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interference with prospective economic advantage claims is denied to the extent
the claims are predicated on Lee Enterprises's incorrect publication that
Spreadbury was convicted of disturbing the peace when he was actually convicted
of criminal trespass. Summary judgment is granted in favor of Lee Enterprises as
to Spreadbury's other legal claims for the reasons discussed below. I disagree
with Judge Lynch's recommendation to deny summary judgment on the claim for
punitive damages. In my view, Spreadbury has failed to produce any evidence of
malice.
A. Communications Decency Act
Lee Enterprises is entitled to summary judgment on the claims that arose
from comments posted by third parties on its website. Spreadbury's contention
that the Communications Decency Act applies only to "internet service providers
such as AOL, Yahoo, or Matchmaker," dkt # 188, 11, is incorrect.
The Communications Decency Act protects "providers of interactive
computer services against liability arising from content created by third parties."
Fair Housing Council o/San Fernando Valley v. Roommates.Com, UC, 521 F.3d
1157, 1162 (9th Cir.2008). "No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by
another information content provider." 47 U.S.C. § 230(c)(1). "Interactive
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computer services" include websites that encourage users to submit public
"comments." E.g. /d. at 1174 (website where subscribers can post housing
opportunities); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003 (website offering a
listserv or message board); Carafano v. Metrosplash.com. Inc., 339 F.3d 1119 (9th
Cir. 2003)(intemet dating service); Collins v. Purdue U, 703 F.Supp.2d 862,878
(N.D.Ind. 201O)(newspaper website providing opportunities for users to post
comments about articles).
Through its website, Lee Enterprises provides an "interactive computer
service," 47 U.S.C. § 230(e)(3), that "enables computer access by multiple users to
a computer server." Collins, 703 F.Supp.2d at 878 (holding that a newspaper
cannot be held liable for postings by third parties on its website)(quoting DiMeo v.
Max, 248 Fed. Appx. 280, 282 (3rd Cir. 2007)). The website is a "neutral tool"
and offers a "simple generic prompt" for subscribers to comment about articles.
Fair Housing Council, 521 F.3d at 1162, 1174. Lee Enterprises does not develop
or select the comments, require or encourage readers to make defamatory
statements, or edit comments to make them defamatory. See Collins, 703
F.Supp.2d at 878; Miles v. Raycom Media, Inc., Slip Copy, 2010 WL 3419438, *2
3 (Aug. 26, 2010 S.D. Miss. )(holding that a newspaper is not liable for comments
posted by third parties on its website). Accordingly, I agree with Judge Lynch that
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Lee Enterprises is entitled to summary judgment on Spreadbury's claims that are
predicated on third-party comments.
B.
Defamation
I also agree that Lee Enterprises is entitled to summary judgment on
Spreadbury's defamation claims, which are based on statements about his civil
proceedings against various Hamilton officials. These statements were published
in an August 9,2010 article.
Certain publications are privileged and do not constitute defamation.
Montana law provides that a "privileged publication" includes "a fair and true
report [made] without malice of a judicial, legislative, or other public official
proceeding or of anything said in the course thereof." Mont. Code Ann. § 27-1
804(4). If a statement is not privileged, the plaintiff must support a claim of
defamation by establishing that the statement exposed him "to hatred, contempt,
ridicule, or obloquy." Mont. Code Ann. § 27-1-802.
Most of the statements Spreadbury challenges constitute a fair and true
report of his civil proceedings. The record supports the reported amount of
damages sought by Spreadbury. Similarly, the transcript supports the article's
account of arguments made by an attorney at the August 6, 2010 hearing.
Spreadbury has not shown show how Lee Enterprises's report that he stated a law
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student was supervised by an assistant county attorney exposed him "to hatred,
contempt, ridicule, or obloquy." Mont. Code Ann. § 27-1-802. Nor does
Spreadbury show in his objections any grounds for his argument that reporting
quotations from the proceedings "out of context" resulted in an unfair 'report.
Judge Lynch was correct in finding that Spreadbury failed to present any
evidence from which ajury could conclude that Lee Enterprises published any of
its news articles with malice. Dkt # 181,9 n.3. His bare allegations ofmalice do
not suffice to defeat summary judgment. "A plaintiff must put forth 'sufficient
evidence to permit the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication.'" Gorman v. WolpofJ & Abramson, LLP,
584 F.3d 1147, 1168 (9th Cir. 2009)(quoting St. Amant v. Thompson, 390 U.S.
727, 731 (1968». Spreadbury has not shown any evidence of malice behind any
of the statements that he challenges.
Accordingly, summary judgment on Spreadbury's defamation claims is
granted in favor of Lee Enterprises.
C. Defamation per se
The August 9, 2010 article also stated that Spreadbury was convicted of the
crime of disturbing the peace. In fact, he was convicted of criminal trespass.
Spreadbury's claim regarding this statement survives Lee Enterprises's summary
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judgment motion because the statement may constitute defamation per se.
However, the jury must decide whether Spreadbury was a limited public figure or
a private figure at the time the statement was published.
Under Montana law, defamation per se exists when a private actor falsely
accuses an individual of committing a crime. Blue Ridge Homes, Inc. v. Thein,
191 P.3d 374, 378, 382 (Mont. 2008); McCusker v. Roberts, 452 P.2d 408, 414
(Mont. 1969); Keller v. Safeway Stores, Inc., 108 P.2d 605, 608-09 (Mont. 1940).
The plaintiff need not prove damages; they are presumed. McCusker, 452 P.2d at
414. A defendant may be liable for defamation per se where it reports that a
person was convicted of one crime, but the person was convicted of a different
crime. See e.g. Towle v. St. Albans Publg. Corp., Inc., 165 A.2d 363,368 (Vt.
1960).
Here, Lee Enterprises incorrectly reported that Spreadbury was convicted of
disturbing the peace. The standard of care Lee Enterprises must be held to
depends on whether Spreadbury is a private figure or a limited public figure.
Limited public figures are people who have voluntarily injected themselves into a
particular public controversy; they become public figures for that limited range of
issues. Kurth v. Great Falls Tribune Co., 804 P.2d 393, 394 (Mont. 1991)(citing
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). IfSpreadbury was a private
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figure at the time of publication, a negligence standard applies. See Madison v.
Yunker, 589 P.2d 126, 132-33 (Mont. 1978).
Under Montana law, the public figure analysis applies to defamation per se
as well as to defamation. In Kurth v. Great Falls Tribune Co., the Great Falls
Tribune incorrectly reported that the plaintiff was sought for at least nine criminal
charges. 804 P.2d at 394. A false accusation that a person is charged with a crime
constitutes defamation per se under Montana law. McCusker, 452 P.2d at 414.
Though dealing with defamation per se, the Court still considered if any privilege
applied to the statements. Kurth, 804 P.2d at 394. The Court determined that "the
controversy [Kurth was involved in was] a matter ofpublic concern as evidenced
by the news media coverage ofMMI's activities over a period of several years."
ld. at 395. However, the Court held that a genuine issue of material fact existed as
to whether Kurth became a limited public figure through his involvement in the
controversy. ld. at 395,397. The Court held that a jury must determine this issue
under Montana law. ld.
Here, Judge Lynch found that Spreadbury was a private figure when the
August 9, 2010 article was published because he was no longer running for mayor.
Judge Lynch stated that Lee Enterprises "does not argue to the contrary." Dkt #
181,28. However, Judge Lynch did not address whether Spreadbury might be a
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limited public·figure. Nor did Lee Enterprises argue Spreadbury was a limited
public figure in the brief supporting its summary judgment motion. But it did raise
this argument in its reply brief and, in detail, in its objections.
Many facts in the record could support a fmding that Spreadbury's lawsuits
against Hamilton officials constituted a public controversy and that he injected
himself into the forefront ofthis controversy.
If Spreadbury was a limited public figure, malice is required, meaning the
statement must have been published "with knowledge that it was false or with
reckless disregard ofwhether it was false or not." Kurth, 804 P.2d at 394; see
also Williams v. Pasma, 656 P.2d 212, 215 (1982)(citingNew York Times v.
Sullivan, 376 U.S. 254, 279-280 (1964)). Because summary judgment is granted
as Lee Enterprises as to malice, Spreadbury's defamation per se claim would fail if
he was a limited public figure. Beyond his bare assertions, Spreadbury has not
shown any evidence Lee Enterprises acted with reckless disregard of the truth or
published the August 9,2010 article with serious doubts as to its accuracy.
In its objections, Lee Enterprises argues that it is entitled to summary
judgment on defamation per se because Spreadbury was a limited public figure.
However, Spreadbury has not had the opportunity to respond to this argument.
Thus, I do not agree at this point that there is no genuine dispute regarding
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Spreadbury's status as a limited public figure. The question must go to the jury if
there is any dispute in a libel case. Kurth, 804 P.2d at 395,397.
Accordingly, Judge Lynch's recommendation that Spreadbury's claim for
defamation per se should survive summary judgment is adopted. I also adopt
Judge Lynch's finding that Spreadbury has not presented any evidence on which a
jury could conclude that published any of its news articles with malice. However,
at this point I disagree with Judge Lynch's finding that Spreadbury was a private
figure. At a minimum the issue should be addressed on it being properly raised
and briefed.
D. Negligence and tortious interference with prospective economic advantage
Spreadbury's negligence and tortious interference with prospective
economic advantage claims are derivative of, or "companion claims" to,
Spreadbury's defamation and defamation per se claims. Accordingly, they cannot
succeed as independent causes of action; they fail if the predicate claims fail.
Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990){dismissing
claims for product disparagement and tortious interference with business
relationships because predicate defamation failed); Dworkin v. Hustler Magazine,
Inc., 867 F.2d 1188, 1193 n.2-3 (9th Cir.l989){"an emotional distress claim
based on the same facts as an unsuccessful libel claim cannot survive as an
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independent cause of action" (quotation marks and citation omitted»; Leidholdt v.
L.F.P. Inc., 860 F.2d 890,893,893 n. 4 (9th Cir. 1988Xfinding that emotional
distress and false light invasion of privacy claims that are "sufficiently
duplicative" oflibel are subject to the same limitations governing the defamation
claim, including the malice requirement).
Because Lee Enterprises is entitled to summary judgment on Spreadbury's
defamation claims, it is unnecessary to address Spreadbury's objections
concerning the derivative claims that are predicated on the same facts. I will
address his objections concerning those claims where the "gravamen is defamation
[per se J." Dworkin, 867 F .2d at 1193 n. 2 (quotation marks and citation omitted).
Spreadbury's negligence and tortious interference claims cannot succeed
independently of the defamation per se claim; they "succeed or fail together."
Leidholdt, 860 F.2d at 893. Furthermore, the same standards and limitations that
apply to the defamation per se claim will apply to these claims. /d. If Spreadbury
was a limited private figure at the time of the publication, Lee Enterprises will be
subject to a negligence standard of care. If he was a public figure, he will have to
show malice for all the derivative claims. Id.
1. Negligence
Lee Enterprises's summary judgment motion with respect to the negligence
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claim is denied. Each ofus has a duty to refrain from falsely accusing another of
committing a crime. Thus, Lee Enterprises failed to show it owed no duty to
Spreadbury. Ifthe standard of care for the defamation per se claim is negligence
because Spreadbury was a private figure in August 2010, Spreadbury may also
proceed on his negligence claim. If the standard of care requires malice, he may
not.
2. Tortious Interference with Prospective Economic Advantage
In its objections, Lee Enterprises seeks summary judgment on Spreadbury's
claim for tortious interference with prospective economic advantage based on an
argument it failed to raise before Judge Lynch. In its opening brief on this motion
before Judge Lynch, Lee Enterprises argued that it is entitled to summary
judgment on this claim because it committed no wrongful acts. This argument
fails because Spreadbury's defamation per se claim could constitute the predicate
wrongful act. In its reply brief, Lee Enterprises argued Spreadbury failed to show
damages. However, it did not argue, as it does in its objections, that Spreadbury
failed to present any proof that Lee Enterprises intended to cause damage to his
business. See Maloney v. Home & Inv. Ctr., Inc., 994 P.2d 1124, 1132 (Mont.
2000) (describing the elements of an action for tortious interference).
Lee Enterprises should have raised these arguments in its opening brief so
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that Spreadbury would have the opportunity to respond to them. Though Judge
Lynch found, and this Court agrees, that Spreadbury has failed to present any
evidence that Lee Enterprises published any of its news articles with malice, it is
not clear that malice and intent to cause harm to a business require equivalent
proof. A court should not decide new arguments raised in a reply brief or first
raised in objections. Accordingly, I will not address Lee Enterprises's arguments
concerning damages and intent to cause harm. If there is a trial, Spreadbury will
have the opportunity to respond to these arguments. Accordingly, summary
judgment is denied on this claim. Since it is predicated on the same facts as the
defamation per se claim, it will rise or fall with that claim.
E. Negligent and Intentional Infliction of Emotional Distress
Though Spreadbury's claim that Lee Enterprises is liable for both negligent
and intentional infliction of emotional distress is also predicated on his defamation
per se claim, it does not survive summary judgment. "A district court has the duty
of determining the threshold question of whether any proof of such severe
emotional distress exists sufficient to raise a question of fact for the jury." Sacco
v. High Country Independent Press, Inc., 896 P.2d 411, 422 (Mont. 1995)(quoting
First Bank (N.A.)-Billings v. Clark, 771 P.2d 84, 91 (Mont. 1989».
As found by Judge Lynch, Spreadbury has failed to present any evidence
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from which a jury could conclude that he suffered emotional distress "so severe
that no reasonable person could be expected to endure it." Lorang v. Fortis Ins.
Co., 192 P.3d 186,222 (Mont. 2008)(quoting Sacco, 896 P.2d at 425-26, 428-29).
Spreadbury reiterates in his objections that Lee Enterprises's statement that he had
been convicted of disturbing the peace resulted in "permanent disability from
work," "humiliation, embarrassment, and other emotional distress (anger,
others)," and "permanent impairment to health." Dkt # 188, 13. However, he has
provided no factual support for these allegations. Accordingly, his claims for
negligent and intentional infliction of emotional distress fail to meet the "high
standard" that is applied to such causes of action in Montana. See Lorang, 192
P.3d at 222; see also Renville v. Fredrickson, 101 P.3d 773, 775-76 (Mont. 2004)
(discussing standard for severity and seriousness).
Lee Enterprises is thus entitled to summary judgment as to Spreadbury's
claims for negligent and intentional infliction of emotional distress. However, the
issue of damages for emotional distress is open ifhe prevails on his surviving tort
claims. Lorang, 192 P.2d at 223.
F. Punitive Damages
The only recommendation made by Judge Lynch that I disagree with is his
recommendation to deny Lee Enterprises's motion for summary judgment as to
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Spreadbury's punitive damages claim. A plaintiff in a defamation suit may only
recover punitive damages upon a showing of actual malice. Madison, 589 P.2d at
133. I have already adopted Judge Lynch's finding that Spreadbury has failed to
show any evidence from which a jury could find malice. Accordingly, summary
judgment in favor of Lee Enterprises as to this issue is appropriate.
G.
Conclusion
Contrary to Spreadbury's objections, Judge Lynch's factual findings are
supported by the record. Though I disagree with Judge Lynch's determination that
Spreadbury was a private figure when the August 9,2010 article was published
and the recommendation that summary judgment be denied as to the punitive
damages claim, I otherwise adopt Judge Lynch's findings and recommendations.
There is no clear error in the findings and recommendations to which the parties
did not specifically object.
IT IS HEREBY ORDERED that Judge Lynch's Findings and
Recommendations ofNovember 30,2011 (dkt # 181) and January 31, 2012 (dkt #
210) are adopted in part and modified in part.
IT IS FURTIIER ORDERED that Lee Enterprise's motion for summary
judgment (dkt # 108) is GRANTED IN PART and DENIED IN PART. Summary
judgment is entered in favor of Lee Enterprises as to Spreadbury's
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Communications Decency Act, defamation, and negligent and intentional
infliction of emotional distress claims and his claims for punitive damages and
injunctive relief. Summary judgment is also granted in favor of Lee Enterprises as
to the issue ofmalice. Summary judgment is denied as to Spreadbury's claims
against Lee Enterprises for defamation per se, negligence, and tortious interference
with prospective economic advantage.
Dated this
~t-day of March, 2012.
Donal W. Mo loy, District Judge
United State
strict Court
/
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