Spreadbury v. Bitterroot Public Library et al

Filing 260

Brief/Memorandum in Support re 259 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT DEFENDANT LEE ENTERPRISES INC'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Anita Harper Poe
Jefhey 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

LINITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

TFIE,

MICHAEL E. SPREADBURY

Cause No.

CV-l I-064-M-DWM

Plaintiff.
V.

BITTERROOT PUBLIC LIBRARY.
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBERG P.C.,
Defendants.

|49491

DEFENDANT LEE ENTERPRISES,
INC.'S BRIEF IN SUPPORT OF
MOTION FOR STII\4MARY
JUDGMENT

TABLE OF CONTENTS
Page

I.

FACTUAL

BACKGROUND

A.

Public

B.

Alleged Comrption of Elected

C.

Ravalli Countv

D.

The Public

E.

National Institutes of Health Rocky Mountain

F.

The Law

G.

Ravalli Republic News

Nuisance

.............

Officials............

Government..........

Librarv

Coverage

BACKGROUND....

IIII.

STANDARD OF REVIEW

ry. ARGLMENT.........
Se...........

Defamation Per

B.

"Companion Claims"

n49491

...........

3

...............

5

.............

8

............9

PROCEDI.TRAL

2.

Lab.........

School

A.

3

........ 6

II.

l.

,,,..,,,,..2

...........

.................9
......... 1I

..,.,...I2
..... 13
............ 13

.......

l8

V.

CONCLUSION

..,,.,,...,23

VI.

CERTIFICATE OF COMPLIANCE

..........24

VII.

CERTIFICATE OF

n49491

SERVICE.........

..........25

TABLE OF AUTHORITIES
Page
Cases

Bolz v. Meyers,
200 Mont.286,65l P.Zd 606

(1982)........

Celotex Corp. v. Catrett,
477 U.S.3r7 (t986)........

....21,23

t2-t3,23

Freeman v. Arpaio,
125 F.3d 732 (9th Cir. 1997), overruled on other grounds by Ellington v. Dir. of
... 13
Corrections,2009 WL 900168, slip op. (8.D. Cal. Mar. 31,2009)
Gertz v, Robert Welch, Inc.,
418 U.S. at323

(1974)

......., 15

Hughes v. Lynch,
2007 MT 177,338 Mont. 214,164P.3d

913.........

Kurth v. Great Falls Tribune Co.,
246Mont. 407,804 P.2d 393 (1991)........
Madison v. Yunker,
180 Mont. 54, 589 P.2d 126 (1978)

........

Maloney v. Home & Inv. Ctr., Inc.,
2000 MT 34,298 Mont.213,994P,2d1124..,.....

McClellan v. I-Flow Corp.,
710 F. Supp. 2d 1092 (D. Or.

2010)

Peterson v. Eichhorn,
2008 MT 250, 344 Mont.540,l89 P.3d

.............23

..........14

............ 14

..............22

...20

615.........

....,........

18

Iil

Sebena v. Am. Automobile Assn.,
280 Mont. 305, 930P.2d 5l

(1996)

Sikorski v. Johnson,
2006 MT 228,333 Mont. 434, 143 P.3d
Wilderness Dev., LLC v. Hash,
606 F. Supp. 2d 127 5 (D. Mont .

Williams v. Pasma,

202Mont. 66,656P.2d212

....22

161..........

2009)

(1982)..,.....

Wolstonv. Reader's Digest Assn., Inc.,
443 U.S. ts7

(t979)

....... 18-19

............... 19

............ 14

............

ls

Other Authorities
Restatement (Second) of Torts $ 766c

(1979)

.........21

IV
fi49491

Defendant, Lee Enterprises, Inc. ("Lee Enterprises" or "Lee"), through its
counsel, Garlington, Lohn

& Robinson,

PLLP, respectfully files this

Brief in

Support of Motion for Summary Judgment.

I.

FACTUAL BACKGROUND

While people outside of Ravalli County may not be familiar with Michael
Spreadbury ("Spreadbury"), he is a well-known local public figure because he has

deliberately and persistently interjected himself into a number of highly visible

public controversies, most of his own creation. A self-described public watchdog,
Spreadbury has devoted years to a vocal and visible crusade against what he
perceives as corruption and constitutional violations by the local police, judicial
system, city and county govemments, state agencies, federal agencies, various

public officials, businesses, and individuals. One of his efforts to keep his issues in
the news and affect the outcome was a run for mayor in 2009. However, his loss in

that election did nothing to dampen his public advocacy.

As set out fully in the Statement of Uncontroverted Facts ("S[IF"), his
campaign began as early as 2006 and is unabated to this day. An exhaustive

description of the public controversies Spreadbury has created or become publicly

involved in would be impossible. But just a sampling will demonstrate there is no
genuine dispute of fact that Spreadbury was a limited public figure at the time

of

the August9,2010 article in the Ravalli Republic. The following are just a few

lL49491

examples of the public issues into which Spreadbury has interjected himself for the
purpose of affecting their resolution.

A.

Public Nuisance
In 2006, Spreadbury determined some pallets stacked near his property

constituted a fire hazard and a public nuisance. He reported his concerns to the

Ravalli County Sheniff s Department and the County Sanitarian. He circulated

a

petition to have the site declared a public nuisance. SIIF at 3. Dissatisfied, he
wrote to Montana Attorney General Mike McGrath and Governor Brian

Schweitzer. SUF at 4. The dispute ultimately led to a confrontation in which
Spreadbury was cited for misdemeanor assault. SUF at

5. Spreadbury

has

continued to try and keep the issue alive in the courts and on internet blogs. SUF

at26,45.

B.

Alleged Corruption of Elected Officials

Beginningin2007, Spreadbury sought to force recall elections of Ravalli
County Sheriff Chris Hoffrnan ("Hoffman") and County Attomey George Corn
(o'Corn"), claiming these officials were incompetent and failed to protect Ravalli
County citizens. He tenaciously pursued the effort, in spite of receiving two legal
opinions that his petitions did not meet the requirements of the law. Spreadbury

re-filed both petitions in 2009. He appealed to Montana Secretary of State Linda
McCulloch and complained to Senator Baucus' staff that the peoples' rights were

ll4949l

being denied by the county. SUF at 6-11.

In addition to soliciting signatures for his petitions in public places,
Spreadbury took his campaigns against Hoffman and Corn to the intemet, posting
countless scathing articles and videos on multiple sites claiming these public
servants are corrupt, incompetent and criminal. A quick internet search
demonstrates the campaign has not let up from 2007 to the present.

Spreadbury's accusations against Hoffman and Corn are wide-ranging, and
include failure to provide citizens with a clean environment, failure to protect
citizens, comrption, cover ups, and conspiracies to deprive citizens of civil rights --

all issues of public concern. SUF at 9-10. Taking his attack a step further,
Spreadbury filed

civil lawsuits against Hoffman, Corn,

and others, including

deputies, seeking over $3.6 million in damages. See SUF at 45.

Spreadbury's unrelenting efforts to solicit public support for his positions on
such local matters are demonstrated in his prolific blog postings about them.

In addition, Spreadbury has filed a petition for the recall of State Attorney
General, Steve Bullock ("Bullock"), claiming he "presides over

a

justice system

that is top to bottom comrpt" and that Bullock o'does not uphold justice." SUF at

13. Again, Spreadbury is out in front of the public on issues he believes are of
public concern. He remains a limited public figure in Ravalli County.

C.

Ravalli Counfy Government
Spreadbury took his concerns about justice and citizens' rights to the Ravalli

County Commissioners. His conduct at the Courthouse eventually resulted in a
letter accusing him of "disorderly conduct and intimidation of county employees."
Referring to Spreadbury's visits to the Clerk and Recorder's office on February 13,
and February 5,2009, the Commissioners stated "both of these visits caused

disruptions of the operations of the Clerk and Recorder's office and other adjacent

offices, and were alarming enough to have county employees contact law
enforcement." The letter warned Spreadbury that "[i]nappropriate, abusive
behavior toward employees will not be tolerated...[and] if you wish to continue to
conduct business at the Ravalli County Offices, we are advising you to conduct

yourself appropriately at all times by not yelling, making abusive remarks, or
attempting to intimidate our employees in any manner." SUF at 12.
Spreadbury engaged in a public demonstration in which he photographed

himself standing in front of the courthouse with a paper bag over his head holding
an upside down American

flag. This deliberate publicity stunt got the attention of

the public. The Ravalli Republic reported on the demonstration in an article dated

February 19,2009. The article identified Spreadbury as someone who was seeking
to recall Hoffman, Corn and Bullock, and had been alleging comrption by city and
county government since 2006. SUF at 15.

n49491

D.

The Public Library
In May or June of 2009, Spreadbury attempted to have a letter addressed to

President Obama added to the Reserve collection at the Bitterroot Public Library.

The lengthy letter alleged pervasive corruption by local officials and law
enforcement, stating "ft]here are no civil rights here, there is no justice here, and
there is no one to appeal

to." The letter describes Ravalli County

as the

"Holy

Grail of Injustice in America." It describes County Attorney Corn as "an all
powerful entity, above the laws of the United States, openly protected by the State
and our National Representatives." SUF at 16.

In addition, the letter complained that the City of Hamilton did not exist, the

City's Fire Department was not equipped to handle potential flrehazards at the
Rocky Mountain Lab, and articulated numerous specific complaints about Ravalli
County law enforcement officers, Attorney Corn and Sheriff Hoffman. The letter
compares Ravalli County to the Soviet Union and recounts the efforts of the author

to get the attention of the entire Montana congressional delegation about these

problems. SUF at 16.
In his own words Spreadbury acknowledged he was involving himself in

a

public controversy: "[t]he subject matter [of the letter] is justice within Ravalli
County and Montana; it meets a public informational need." SUF at 19.
Spreadbury further explained

tt4949l

"[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." SLIF at 19.
The librarian, N. Roddy, declined to accept the letter for the Library's

collection. Spreadbury insisted it was a matter of great public importance as it
concerned justice, civil rights and public safety, and matters the public had a right

to know. SUF at 17-19. Clearly, Spreadbury was interjecting himself into this
controversy in the hopes of affecting its resolution.
Refusing to take no for an answer, Spreadbury continued to press his case in
various ways, eventually getting himself banned from the Library premises. SUF

at20-21. When he returned in violation of the ban, he was charged with criminal
trespass. His continued attempts to accost library personnel with his agenda led to
a protective order

to stay away from Roddy, and a felony intimidation charge.

SUF at 22-23,37 , 40.
The Rqvalli Republic reported on these newsworthy public events by a local

public figure. An article on September 10,2009 was headlined "Mayoral
candidate charged with trespass." The matters were of public interest, as
evidenced by comments made about the articles on-line. SUF at 37-38.

Spreadbury's campaign against the Library included accusing the Director

of

criminal acts and embezzling, and publicly discouraging its fund-raising efforts,
saying the library misuses public funds. Online Spreadbury says the library "is run

n49491

by terrorists worried that the rule of law, and the US Constitution will return to

Hamilton, Montana." SUF at3l-33. Spreadbury boasts 10 million people have
viewed the letter addressed to President Obama online. SLIF at 31. Certainlv.
Jr

Spreadbury has created a public controversy about access to the library and

interjected himself into the center of that controversy.
Spreadbury then proceeded to file

civil lawsuits against the library, library

board members and employees, and other

civil servants, alleging the same issues

of citizen rights, comrption, and incompetence of public servants. SUF at 46. This
occurred well after the mavoral election in November 2010 and was also
considered newsworthy by the local paper.

E.

National Institutes of Health Rocky Mountain Lab
For several years, Spreadbury has been in the forefront of controversies

about the NIH Level

IV lab built in Hamilton. His complaints include allegations

of fraud, low frequency noise, environmental concerns, safety of infectious agents
such as ebola, and fire safety. SUF at

30. In August 23,2009, Spreadbury

spoke

out at a public meeting telling Montana Representative Rehberg he had been trying

for over two years to get a federal fire station at the Lab. SUF at 36. In 2010, he

filed a lawsuit against the United States Department of Health and Human
Services, the National Institutes of Health, Francis Collins, and the local director

the Hamilton lab, Marshall Bloom, which he continues to pursue. SUF at 47.

n49491

of

These issues are well documented in his web postings and both predated and
postdated Spreadbury's unsuccessful run for mayor.

F.

The Law School
Another of Spreadbury's enduring public complaints relates to the

supervision of a law student intern, Angela Wetzsteon, by the Ravalli County

Attorney. Spreadbury has filed and published numerous documents alleging
impropriety by Wetzsteon and Attomey Corn, as well as the University of Montana
School of Law, and its Deans, Ed Eck and Irma Russell. He accuses the law
school of supporting criminal activity and the deans of refusing to meet with him.

SUF at 43.

G.

Ravalli Republic News Coverage
Finally, Spreadbury's frequent appearance in the local news media over a

period of years also demonstrates he was a limited public figure. The Ravalli
Republic reports on matters of local interest. It began reporting on Spreadbury in
2008, when he had demonstrated in front of the courthouse to protest the Clerk's

treatment of his recall petitions. SUF at 2.
Coverage continued through and after the mayoral election in November

2009. SUF at 2. ln September 2009, the paper described Spreadbury as one who
"characterizes himself as a public watchdog and champion of free speech and civil
rights who is dedicated to exposing a vast criminal conspiracy in the Bitterroot

Valley." SUF at 37.
On the day of the mayoral election, the Ravalli Republic reported
Spreadbury had spent the previous day in court on procedural matters bearing on

his criminal trespass case. SUF at 39. After the election, Spreadbury did not fade

into local obscurity, but kept himself front and center in multiple local
controversies.

Shortly after the election, for example,

a

news article entitled, "Former

candidate charged with intimidation" reported on the felony charge that alleged
Spreadbury threatened a library employee. SUF at 41.

When Spreadbury began filing lawsuits against numerous individuals,
businesses, and government officials in the City of Hamilton, it made headlines

again. SUF at 45.
On August 6, 2010, Spreadbury represented himself in hearings in two
separate matters, one

civil and one criminal. The Ravalli Republic reported on

both, because by then, Spreadbury had become a local public figure and the
hearings were newsworthy. SUF at 2,48-49.
The

August9,20l0 article accurately reported on the hearings of August 6,

but in background, mistakenly stated that Spreadbury had previously been
convicted of disturbing the peace. SUF at 49. Spreadbury notified the newspaper

of the mistake, and on August 24,2010, the Ravalli Republic published

a

l0
n49491

correction. SUF at 50.
By his own admission and his own actions as a "public watchdog"
Spreadbury has purposely and repeatedly interjected himself into issues of public

controversy in Ravalli County from 2006 to the present. His run for mayor

of

Hamilton was only one of the many tools he used to keep himself and his causes in
the public eye. A year later, he was still making headlines and was still

indisputably a public figure when the August9,2010 article was published.
Lee did not act with malice, nor did it breach the applicable standard of care.

It followed the standard fact-checking practices in the newspaper industry and
promptly published a correction. SUF at 51.

U.

PROCEDURAL BACKGROUND

As a result of pretrial motions and orders, the only claims remaining against
Lee are defamation per se, negligence, and tortious interference with prospective
economic advantage. Dkt. 249. The Court declined to rule on whether Spreadbury
was a limited public figure when the

August9,20l0 article was written, finding

the issue was not properly raised in Lee's Opening Brief. Dkt.249 at 10.

In its Order, the Court clarified the standard for Spreadbury's remaining
claims. If Spreadbury was a private figure when the August 9, 2010 article was
published, a negligence standard applies. Dkt. 249 at7-8,11. On the contrary,if
Spreadbury was a limited public figure, Lee is entitled to judgment as a matter

of

ll
I t49491

law on all remaining claims, because it has already been determined that Lee did
not act with malice. Dkt. 249 at 9. I l.

ru.

STANDARD OF REVIEW

Summary judgment is proper:

if the pleadings, the discovery

and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a

matter of law.

[T]he plain language of Rule 56(c) mandates the entry of
summary judgment . . . against aparty who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S.

3 17

,317 (1986).

The 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(c) with regard to the rights of both parties, including
persons who oppose claims having no basis in

fact. Celotex,477 U.S. at327. A

party's failure to make a sufficient showing on an essential element of a case
entitles the moving party to summary judgment as a matter of law. Celotex, 477
U.S. at 323.

t2
n49491

Not all disputes create a genuine issue of material fact. "A dispute

as

to a

material fact is 'genuine' if there is sufficient evidence for a reasonable jury to
return a verdict for the non-moving party." Freeman v. Arpaio, 125 F .3d 732,735
(9th Cir. 1997) (citation omitted), overruled on other grounds by Ellington v. Dir.

of Corrections,2009 WL 900168, slip op. (E.D. Cal. Mar. 31,2009). Mere
assertions or allegations by the opposing party are insufficient to defeat summary

judgment. Celotex,477 U.S. at 323-324.

IV.

ARGUMENT

Lee Enterprises is entitled to judgment as a matter of law because it is

undisputed Spreadbury was a limited public figure when the August 9, 2010 article
was published and Lee did not act with malice. Alternatively, even

if

Spreadbury

was a private figure, Lee is still entitled to summary judgment since it did not
breach the applicable standard of care.

A.

Defamation Per

Se

Since Spreadbury was a public figure, he must prove Lee Enterprises acted

with malice in publishing the August 9,2010 article.
Libel is a false and unprivileged publication by writing,
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.

Mont. Code Ann. 5 27-l-802 (2011).

t3

However,

if a plaintiff in a defamation

case is found to be a public figure,

the plaintiff can only recover damages if the alleged defamatory statement was
made with actual malice. Williams v. Pasma,202 Mont. 66,72, 656 P.2d 212,215

(1982) (citing N.Y. Times v. Sullivan,376 U.S. 254, 279-280 (1964)). Stated

differently,

a

public figure may only recover if the alleged defamatory publication

was made "with knowledge of its falsity or reckless disregard for its truth or

falsity." Madison v. Yunker, I 80 Mont. 54, 66,589 P.2d 126, 133 ( 1978).
Public figures 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, "fl]imited 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 Trib. Co.,246Mont.407,408, 804 P.2d393,394 (1991) (citing Gertz

v.

Robert Welch, Inc.,4l8 U.S. 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 at394 (citing N.Y.
Times,376 U.S. at 280).
The rationale for the malice requirement with regard to public figures is two-

l4
|49491

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., Inc., 443 U.S. I 57, 164 (1979) (citing Gertz,

41 8

U.S. at 344).

Second, public figures are less deserving of protection than private persons
because public figures, like public officials, have "voluntarily exposed themselves

to increased risk of injury from defamatory falsehood concerning them." Wolston,
443 U.S. at 164 (citation omitted).
As the Supreme Court in Gertz identified, there are 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 sociefy. Some occupy
positions of such persuasive power and influence that they are
deemed public figures for all purposes. More commonly, those
classed as public figures have thrust themselves to the forefront of
particular public controversies in order to influence the resolution
of the issues involved.
Gertz v. Robert Welch,

Inc.,4l8 U.S. at323,345 (1974)

(emphasis added).

Spreadbury was a limited public figure when the August 9,2010 article was

published. He deliberately and voluntarily provoked and perpetuated a public
controversy with himself at its center, with his relentless campaign against various

l5

individuals, public officials, businesses, the local public library, and the
government in Hamilton, Montana and Ravalli County.
The public controversies began in 2006 when Spreadbury called attention to
an alleged public nuisance. He continued thrusting himself into public

controversies in order to influence the resolution of local issues, filing the recall

petitions in2007 and2009, confronting the County Commissioners and Clerk and
Recorder in2009, and claiming Rocky Mountain Labs posed serious noise and fire
hazards to the community. These were clearly matters of public concern.
Spreadbury did all he could to keep the controversy in the public eye. In

addition to complaints, petitions, public meetings, and demonstrations,
Spreadbury's strategies included running for mayor, lawsuits and prolific intemet

blogging. Apparently, he has been successful at reaching a larger target audience
through the intemet, claiming his website "gets 500 + hits per week." SUF at 22.
Spreadbury made himself newsworthy. Accordingly, the Ravalli Republic

reported on matters of public interest in which he was involved. Even after he lost
his bid for Mayor in November 2009, his local public profile did not diminish.
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

t6
n49491

lives for ego is pricey on budgets." SLIF at 44. Multiple pro se filings followed,
further ampliffing Spreadbury's public profile. In May 2010, he filed the lawsuit
against Corn, Hoffman and others. That same month, Spreadbury filed separate
suits against Roddy, the library employee, Angela Wetzsteon, and George Corn,

employees for Ravalli County, and Kenneth Bell, employee for the City

of

Hamilton. SUF at 45-46. In July 2010, he filed a Complaint against the U.S.
Department of Health and Human Services, National Institute of Health, Francis

Collins, and Marshall Bloom. SUF at 47.

Filing lawsuits may not, in itself, make one

a

public figure, but Spreadbury's

lawsuits are against public servants and policy makers alleging failure to properly

perform public duties, violations of citizens' rights, and malfeasance. These were
not a person seeking to right a personal

wrong. Spreadbury's campaign for Mayor

of Hamilton was only a small part of his 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 long before and after running for

Mayor. His campaign continues.
Since Spreadbury was a limited public figure with respect to the issues in the

August 9,2010 article, and Lee did not act with malice as a matter of law, Lee is
entitled to judgment.

t7
n49491

Nevertheless, as explained below, even

if

Spreadbury was a private figure

and the negligence standard applied, Lee would still be entitled to summary

judgment on all of Spreadbury's claims, because it is undisputed Lee did not
breach the applicable standard of care.

B.

"Companion Claims"
Spreadbury's claims for negligence and tortious interference derive from the

defamation per se claim, and cannot proceed

if it fails.

Because Spreadbury is a

limited public figure and Spreadbury cannot show Lee acted with malice in
publishing the August 9,2010 article, the defamation per se claim, and the
companion claims, all

fail. Dkr.249 at 10. Only if the Court finds that

Spreadbury, with all of his political efforts, remained a private figure on those
matters, is negligence considered.

1.

Negligence

"Negligence is the failure to use the degree of care that an ordinarily prudent
person would have used under the same circumstances." Peterson v. Eichhorn,
2008 MT 250, 1123,344 Mont. 540, 189 P.3d 615.

To maintain an action in negligence, the plaintiff must prove four
essential elements: ( I ) the defendant owed the plaintiff a legal
duty, (2) the defendant breached that duty, (3) the breach was the
actual and proximate cause of an injury to the plaintiff, and (4)
damages resulted.

Peterson,nn. "The

question of whether a duty exists is one of

law. Absent

a

l8

duty, breach of duty cannot be established and a negligence action cannot be

maintained." Sikorski v. Johnson,2006}dT 228, !l 13, 333 Mont. 434,143 P.3d
161.

With respect to reporting on a public figure, including a limited public
figure, Lee had a duty not to act with malice. Since it is undisputed Lee did not act

with malice in publishing the August 9,2010 article, Lee is entitled to judgment
a matter

as

of law.

Alternatively, even if Spreadbury was

a private

figure, Lee is entitled to

summary judgment on Spreadbury's negligence claims because, on the

uncontroverted facts, Lee did not breach the applicable standard of care.
Since this claim is governed by state substantive law, the Court must look at

Montana law to determine whether expert opinion is required to establish the
standard of care. See Wtlderness Dev., LLC v. Hash,606 F. Supp. 2d 1275,1280

(D. Mont.2009). Montana law recognizes negligence claims against professionals
or persons involved in skilled trades are outside the scope of the common
experience and knowledge of lay jurors, and expert testimony is required to
establish the standard of care. See Wilderness Dev., LLC,606 F. Supp. 2d at 1280.

Journalists and editors are highly-educated, skilled professionals. What
constitutes reasonable fact-checking standards and practices in the newspaper

industry requires specialized knowledge outside the scope of the common

t9
tt4949l

experience and knowledge

ofjurors. Consequently, expert opinion is necessary to

establish the applicable standard of care.

In accordance with the Court's Scheduling Order (Dkt. 227), on March

13,

2012, Lee disclosed its Liability Experts, Sherry Devlin ("Devlin") and Perry

Backus ("Backus"). Devlin has a bachelor's of science degree in News/Editorial
Journalism from the University of Colorado. She has over thirty-five years

of

work experience in the newspaper industry and taught at the University of
Montana School, School of Journalism for ten years. SUF at 51. Backus has a
bachelor's degree from the University of Montana. He has worked in the
newspaper industry for over twenty-five years. SUF at 51.

Backus and Devlin have specialized knowledge necessary to assist the trier

of fact in understanding the standards and practices of fact checking in the
newspaper industry. Their testimony is relevant to Spreadbury's claims and
be helpful to the

juty. See McClellan

v.

will

I-Flow Corp.,7l0 F. Supp. 2d 1092,ll0l

(D. Or. 2010) ("Rule 702 permits expert testimony that is helpful to the trier of
fact, reliable and relevant."). Both are highly qualified with proper knowledge,

skill, experience, training and education to render such opinions.

,See

Fed. R.

Evid. 702. Their opinions are based on the facts and circumstance surrounding the
August 9,2010 article.

Devlin and Backus agree that it is not common for newspapers to have

20
I 149491

written policies on fact-checking and corrections procedures, however, there are
well-established standard industry practices. SUF at 51. Based on their expertise,

Devlin and Backus have both testified the Ravalli Republic comported with
industry standards of care in fact-checking the August 9, 201 0 article and issuing
the August24,2010 correction. SUF at 51.
Spreadbury is not able to raise an issue of fact about the applicable standard

of care and whether Lee met the standard, because he failed to disclose a liability
expert witness. Accordingly, even

if

Spreadbury was a private figure, Lee

Enterprises is still entitled to judgment as a matter of law on Spreadbury's

negligence claims because there is no issue of fact on the question of negligence.

2.

Tortious Interference

Even

if

Spreadbury was a private figure, Lee is entitled to summary

judgment on Spreadbury's tortious interference claim because it is undisputed Lee
did not act with the malice that is an essential element of the claim. Montana does
not recognize a tort of negligent interference with prospective economic advantage.
The Montana Supreme Court has endorsed the Restqtement (Second) of Torts,

which states a party is not liable for economic loss resulting from negligent
interference with contractual or business relations. Restatement (Second) of Torts
$ 766c (1979); Bolz v. Meyers,2O0

Mont.286,293,651 P.2d 606,610 (1982).

Intentional conduct for a malicious purpose is an essential element of a

2l
n49491

claim for tortious interference with prospective economic advantage. To establish
a case

of intentional 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 the part of the actor;
and (4) resulted in actual damages or loss. Sebena v. Am. Automobile Assn., 280

Mont. 305, 309, 930 P.2d 51, 53 (1996). In a cause of action for intentional
interference with prospective economic advantage ". . . the focus on the legal

inquiry is on the intentional acts of the 'malicious interloper' in disrupting
business relationship." Maloney v. Home

Mont.

a

& Inv. Ctr., Inc., 2000 MT 34, n 42,298

213 , 994 P .2d | 124 .

The first element of tortious interference is that the defendant's conduct must
be "intentional and

willful." This rules out a cause of action for negligent

interference with prospective economic advantage. This Court has already
determined Lee did not publish the article with malice, i.e., knowledge of its falsity
or in reckless disregard for the truth. DkL249 at 6. Thus, the mistake was not

willtul.
The second and third elements also eliminate negligence as a cause and
require malicious intent: the defendant's conduct must be calculated (i.e.,
intended) to damage plaintiff s business, and must be done with the unlawful

22

purpose (i.e., intent) of injuring the

plaintiff. Bolz,

651 P.2d at

6lL.

Unless the

plaintiff can produce evidence that the defendant's acts were calculated to cause
damage to the plaintiff rather than for any legitimate business reason of its own, a

prima facie case of tortious interference fails as a matter of law. Hughes v. Lynch,
2007

MT

I 77 , n

29, 338 Mont. 214, 164 P .3d 913 .

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 attrial, summary judgment is the proper remedy. Celotex,477 U.S. at323.
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.

V.

CONCLUSION

Lee Enterprises is entitled to summary judgment because Spreadbury was a

limited public figure for purposes of the issues in the August 9,

201

0 article.

Accordingly, since it is undisputed Lee did not act with malice in mistakenly
reporting Spreadbury was convicted of disturbing the peace rather than criminal
trespass, Lee is entitled to judgment as a matter of law on defamation per se.

Alternatively, even if Spreadbury was a private figure, Lee is still entitled to
judgment because it did not breach the applicable standard of care and was,
therefore, not negligent. Finally, Spreadbury's tortious interference claim fails

since the Court has already determined Lee did not act with malice.

For all the reasons stated above, Lee Enterprises respectfully requests the
Court grant its Motion for Summary Judgment.

DATED this 4th day of April, 2012.

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

VI.

CERTIFICATE OF COMPLIANCE

Pursuant to L.R. 7.1(d)(2)(E), I certifu that this Defendant Lee Enterprises,

Inc's Brief in Support of Motionfor Summary Judgment is printed with
proportionately spaced Times New Roman text typeface of l4 points; is doublespaced; and the word count, calculated by Microsoft Office Word 2007, is 5136

words long, excluding Caption, Certificate of Service and Certificate

of

Compliance.

isl

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

24

VII.

CERTIFICATE OF SERVICE

I hereby certiff that on the 4th day of Apil,2012, a copy of the foregoing
document was served on the following persons by the following means:

2

CM/ECF
Hand Delivery

Mail
Overnight Delivery Service
Fax

E-Mail

L

Michael E,. Spreadbury
P.O. Box 416
Hamilton. MT 59840
Pro Se Plaintiff

2.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowley @boonekarlberg. com
npj ones@boonekarlberg. com
tl eonard@boonekarlberg. com
Attomeys for Defendants Bitterroot Public Library, City of Hamilton,
and Boone Karlbere P.C.

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

25

tt4949l