Spreadbury v. Bitterroot Public Library et al

Filing 278

Reply to Response re 259 MOTION for Summary Judgment DEFENDANT LEE ENTERPRISES INC'S MOTION FOR SUMMARY JUDGMENT DEFENDANT LEE ENTERPRISES INC'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT filed by Lee Enterprises Incorporated. (Smith, Jeffrey) Modified on 5/7/2012 to correct event wording (APP, ).

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]
ahp o e @garl aington. c om
j bsmith@garlington. com

Attorneys for Defendant, Lee Enterprises, Inc.

IN TFM UNITED STATES DISTRICT COURT
FOR TFIE DISTRICT 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
KARLBERG P.C..

DEFENDANT LE,E, ENTERPRISES,
[NC.'S REPLY BRIEF IN SUPPORT
OF MOTION FOR SLMMARY
JTIDGMENT

Defendants.
Lee Enterprises, Inc. ("Lee Enterprises" or "Lee"), through its counsel,

Garlington, Lohn & Robinson, PLLP, respectfully files its Reply Brief in Support of
its Motion for Summary Judgment.

I.

INTRODUCTION

As detailed in Lee's Opening Brief, Plaintiff, Michael Spreadbury
("Spreadbury"), is a local public figure who gained notoriety in the Ravalli County
community by deliberately and persistently creating or interjecting himself into
multiple public controversies for the purpose of affecting the course of public

affairs. These public controversies include alleged comrption, illegal conduct, and
constitutional violations by the local police, judicial system, city and county
governments, state agencies, federal agencies, various public officials, businesses,
and individuals.

In his response, Spreadbury does not refute this or raise any genuine issue of
fact material to his status as a limited public figure. Instead, he uses his Response

Brief and Statement of Disputed Facts to re-argue matters already decided by the
Court and matters not relevant to the issue of whether he was a limited public

figure. For example, Spreadbury argues Lee's August 9,2010, publication was
malicious (Dkt. 267:5-6). He offers no new facts, and the Court has already
determined Lee did not act with malice, as a matter of law. (Dkt. 249.)
Spreadbury's reference to Lee's filing of a corrected affidavit (Dkt. 124) is

immaterial. Spreadbury's arguments about emotional distress, conspiracy, punitive
damages, and

liability for on-line reader comments may be disregarded

have already been decided. (Dkt. 249.)

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as they

Spreadbury's redundant discussion of other issues of concern to him, such

as

his claim that Lee has filed "serial summary judgment fmotions]" (Dkt. 267),that a

law student was not properly supervised, that Lee had no right to exclude him from
its office, the relevance of his record of disability, and so on, do not affect the
outcome of this motion. Nor does his allegation that Backus' Affidavit (Dkt. 2611) makes a false and misleading statement, as that was timely remedied by the

filing of an Amended Affidavit, Dkt 261-l

.

(see Dkts. 272, 277

.) None of these

issues create a genuine issue of material fact on whether Spreadbury was a limited

public figure at the time of the August 9,2010, article, whether Lee breached the
applicable standard of care, or whether Lee acted with malice.

II.
A.

ARGLMENT

Spreadbury Has Not Met His Burden of Demonstrating the Existence of a
Genuine Issue of Material Fact About Whether He Was a Limited Public
Figure

Lee met its initial burden of showing there is no genuine dispute of fact that
Spreadbury was a limited public figure by producing documentary evidence that

permits only that conclusion. (See Anderson v. Liberty Lobby, lnc.,477 U.5.242,
251 0986). Once Lee did so, the burden shifted to Spreadbury to go beyond the
pleadings and identify specffic facts showing there is a genuine issue of fact for

trial. Celotex Corp. v. Cattrett, 477 U.S. 317,324 (1986). Spreadbury cannot
meet that burden by relying on allegations, speculation, or conclusory legal

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theories. Anderson,477 U.S. at 248. Mere disagreement or bald assertion about
the interpretation of a fact does not create a genuine issue of material fact. In Re
Wash.

Mut Overdraft Protection Litig.,539 F. Supp. 2d 1136,ll44 (C.D. Cal.

2008).
Spreadbury does not dispute the legal standard: "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 Trib. Co., 246 Mont. 407, 409, 804 P.2d 393, 394 (1991) (citing Gertz

v.

Robert Welch, Inc.,418 U.S. 323 (1974)). kr his Statement of Disputed Facts,
Spreadbury did not dispute or deny the authenticity of any of the evidence
produced by Lee, showing his local notoriety, public protests, and involvement in

public controversies. Spreadbury admits to thrusting himself into controversy (see

Dkt. 268:fl 4) and admits to being

a

public figure (Dkt. 268:fl 5).

Nor did Spreadbury produce any facts that create a dispute about whether
Lee acted with malice. The Court has already determined that

if

Spreadbury were

a limited public figure, Lee is entitled to judgment as a matter of law on the

remaining claim of defamation per se, because Lee did not act with malice. (Dkt.

249:9,ll.)
Spreadbury does not dispute the facts. He merely argues these undisputed

facts should not be interpreted to find he is a public figure. Thus, the matter is

appropriate for summary judgment.
Spreadbury first cites a concurring opinion in Curtis Publishing Co.v. Butts,
388 U.S. 130 (1967), for the proposition that he cannot be considered a public

figure because he "swears never to have any influence on the finalized public

policy and has no ear on any public official more than any other private citizens."
(Dkt. 267:4.) In other words, he could only be a public figure if he was actually
capable of successfully influencing public affairs. This argument is not supported

by the case cited.
The quote from Curtis is from Justice Warren's concurring opinion in which
he agrees with the results of the majority, but disagrees with the majority's

decision to differentiate between "public figures" and "public officials." See

Curtis Publg.,388 U.S. at 163-165. The quote cited by Spreadbury was Justice
Warren's explanation why he did not agree with the majority's distinction. It does
not change the law. Persons who, like Spreadbury, have voluntarily injected
themselves into a particular public controversy, are limited public figures.

,See

Kurth,804 P.2d at394.l

'

Nevertheless, to the public, Spreadbury proudly claims credit for
successfully affecting public affairs. On April 18,2012, he posted o'an open letter
to George Corn, former Ravalli County Attorney" in which he refers to his
previous writings about Mr. Corn and claims o'I played by the rules AND I kicked
your ass. . . . The best way we put you in your place was to have l5 Million people
in the world wonder who the hell you were. The letter to the first African
American US President about YOUR civil rights violations is a hit. They google

Next, Spreadbury cites to Time, Inc. v. Firestone,424 U.S. 448 (1976), for
the proposition that he cannot be considered a public figure because the August 9,
2010, article reported on judicial proceedings. (Dkt, 267:4.) This is not the

holding of Firestone. The Court in Firestone rejected the petitioner's argument
that all reports from judicial proceedings should be considered matters of public

concern. 424U.5. at 455. Lee is not arguing that Spreadbury was a public figure
because he was present at the August 6,2010, judicial proceedings. As explained

in Lee's Opening Brief, Spreadbury was a public figure long before the August 6,
2010, hearing and the August 9,2010, article. It was his public notoriety that made

his appearance at judicial proceedings a matter of public interest, not the other way

around. Further, Spreadbury's lawsuits were against public servants and policy
makers alleging malfeasance, clearly matters of public concern.
Spreadbury also argues the New York Times standard does not apply to

reports of court proceedings, citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975). Again, Spreadbury's interpretation of case law is incorrect. In Cox
Broadcasting,the Court held the U.S. Constitution prevents states from imposing
sanctions for publication of truthful information contained in official court records

your name, and read this Mr. Corn. . . . I feel a great sense of accomplishment for
bringing you to justice for all of your victims. . . . It is amazing what the people
can do; like showing a tyrant who they actually are. .. ." Signed, Michael E.
Spreadbury. www.nansuroddy.com/

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open to public inspection. Cox Broadcasting,420 U.S. at 495. The case does not

prohibit application of the limited public figure doctrine when the alleged
defamation occurs in a report on judicial proceedings.
Spreadbury's reliance on simply asserting he was a private citizen is

insufficient to create a genuine issue of fact. See Celotex, 477 U.S. at 323-324.

Similarly, Spreadbury's allegations, arguments, and legal conclusions in his
Statement of Disputed Facts (Dkt. 268) and Affidavit (Dkt. 267-l) are not, in fact,
evidence, and do not create a genuine issue of material

fact.

See Fed. R. Civ. P.

s6(cX1).
Spreadbury has failed to satisff his burden of establishing any dispute of fact
on the issue of whether he was a limited public figure at the time of the August 9,

20L0, article. Lee is, therefore, entitled to judgment as a matter of law on
defamation per se and the remaining companion claims. DkL249:10.

B.

Spreadbury Has Not Met His Burden of Demonstrating the Existence of a
Genuine Issue of Material Fact About Whether Lee's Agents Met the
Standard of Care for a Professional Journalist

Even

if

Spreadbury were a private figure, Lee is still entitled to summary

judgment because Lee has produced evidence that negates an essential element of
his negligence claim, and Spreadbury failed to respond with any evidence showing
the existence of a genuine issue of fact. The Court has already determined

if

Spreadbury were a private figure when the August9,2010, article was published, a

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negligence standard applies. (Dkt. 249:7-8,1l.) A breach of the applicable
standard of care is an essential element of a negligence claim. See Dubiel v. Mont.

Dept. of Transp.,2012 MT 35, n A,364 Mont. 175,272P.3d 66, "It is well
established that

if a plaintiff fails to offer proof of any one of the elements of a

negligence claim, the negligence action fails and summary judgment in favor of the
defendant is proper."

Dubiel,ll 12.

Lee provided expert testimony that it did not breach the standard of care

applicable to professional journalists. Spreadbury provided no contrary evidence,

relying on his own mere denial. Therefore, it is undisputed the Ravalli Republic
did not breach the industry standard of care in fact-checking the August 9,2010,
article and issuing the August 24,2010, correction. (Dkt.26l:fl 51.)
Spreadbury realleges his non-expert opinion that the mere existence of an

error in the August 9,2010, article proves negligence. (Dkt. 267.) He did not
dispute that the standard of care for professional journalists is outside the scope

of

the common experience and knowledge ofjurors, and expert testimony is required

to establish the standard of care. See Wilderness Dev., LLC v. Hash,606 F. Supp.

2d

127

5, 1280 (D. Mont . 2009).

Spreadbury's lay opinion regarding the standard is not admissible. Federal
Rule of Civil Procedure 56(c)(1X4) provides:

n665s4

An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testiS on the
matters stated.
Spreadbury has not established that he is competent to testifr on the standard

of

care for journalists with regard to fact checking.

Lee satisfied its burden of bringing forth evidence negating an essential
element of Spreadbury's negligence claim. Nissan Fire & Marine Ins. Co. Ltd.

v.

Fritz Cos., lnc.,210 F.3d 1099, ll02 (9th Cir. 2000). Spreadbury failed to meet
his burden of coming forward with admissible evidence showing a genuine issue

of

disputed fact. Lee is entitled to judgment as a matter of law, even if the standard is
negligence.

C.

Spreadbury Failed to Raise Any Issues of Fact Regarding Malice, and
Without Malice, His Claim for Tortious Interference Fails as a Matter

of

Law
The Court has already determined Lee did not act with malice. (See Dkt.

249.) In his response, Spreadbury offered no new evidence raising an issue of fact
on the question of malice. Lee is, therefore, entitled to summary judgment on

Spreadbury's claim of tortious interference because malice is an essential element

of that claim, and Spreadbury does not have sufficient evidence of that essential
element to ultimately carry his burden at

trial. Nissan,2l0 F.3d at 1102.

As shown in Lee's Opening brief, there is no cause of action for negligent

9

interference with economic advantages in Montana. To establish a case of tortious
interference with prospective business advantage, a plaintiff must show acts which:

(l)

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). Three of the elements require malicious intent. See Bolz
Myers, 200 Mont . 286, 295, 65 |

P

.2d 660, 6l

I

(

1

v.

982).

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. at 323. Because there is no evidence of malice as a matter of law, and malice
is an essential element of tortious interference, summary judgment for Lee
Enterprises on this claim is the proper remedy.

III.

CONCLUSION

Lee satisfied its burden of showing there are no disputed issues of fact
relevant to whether Spreadbury was a limited public figure at the time the August
9, 2010, article was published. Spreadbury failed to meet his burden of showing
the existence of any material fact, responding only with allegations, speculation
and conclusory statements. It is, therefore, undisputed that Spreadbury was a

l0

limited public figure. Since Lee did not act with malice in publishing the article, it
cannot be found liable for defamation per se and the remaining companion claims.

Further, even

if

Spreadbury were found not to be a public figure, despite his

deliberate and persistent efforts to become one, Lee is still entitled to judgment as a
matter of law because it is undisputed Lee did not breach the applicable standard

of

care. Finally, the absence of malice by Lee defeats Spreadbury's claim for tortious
interference with prospective business advantage. There are no genuine issues
material fact for

a

jury to decide. Lee is entitled to judgment

as a matter

of

of law on

all remaining claims.
DATED this 4th day of Muy,2012.

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

ll
I I 66554

ry.

CERTIFICATE OF COMPLIANCE

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

Inc. 's Reply Brief in Support of Motion

for

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 2352

words long, excluding Caption, Certificate of Service and Certificate

of

Compliance.

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

t2
I I 66554

V.

CERTIFICATE OF SERVICE

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

2

I

CIU/ECF
Hand Deliverv

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 one s @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.

l3