Spreadbury v. Bitterroot Public Library et al

Filing 282

REPLY to Response to Motion re 262 MOTION in Limine DEFENDANT LEE ENTERPRISES INC'S MOTIONS IN LIMINE DEF LEE ENTERPRISES INC'S REPLY BRIEF IN SUPPORT OF MOTIONS IN LIMINE filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Anita Harper Poe
Jeffrey B. Smith
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street. P. O. Box 7909
Missoula, MT 59807-7909
Telephone (a06) 523-2500
Telefax [phone]
ahp o e @garl aington. c om
j [e-mail]

Attorneys for Defendant, Lee Enterprises, Inc.

IN THE T'NITED STATES DISTRICT COURT
FOR TFIE, DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL E. SPREADBURY

Cause No.

CV-l I-064-M-DWM

Plaintiff.
DEFENDANT LEE ENTERPRISES,
INC.'S REPLY BRIEF IN SUPPORT
OF MOTIONS IN LIMINE

V.

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

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

& Robinson,

Support of Its Motions in Limine.

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PLLP, respectfully files its Reply Brief in

I.
On April

INTRODUCTION

ll,20l2,Lee filed its Motions

in Limine and Brief in Support

(Dkt. 262,263) to ensure the jury will only hear admissible evidence and to help

clariff whether

some of the evidence and argument that is still being raised by the

Plaintiff Pro Se in his pleadings will not be permitted at trial under the Federal
Rules of Civil Procedure. Spreadbury's responses in opposition reinforce the need

for Lee's Motions.

U.
MOTION NO.

1

-

ARGUMENT

Portrayal of Lee Enterprises and Appeal to Local Bias

Lee seeks an Order to prevent any questioning, evidence, argument,
innuendoo or reference to its size, assets, net worth or financial condition. The

Motion also seeks to prohibit Spreadbury from making any argument referencing
Lee's status as an out-of-state cotporation or appealing to local bias.
o'asks
court to restrict Lee's corporate
Spreadbury responds that Lee

personhood. . .

."

Dkt. 274 at 3. This is not true. The Motion does not ask the

Court to prohibit Spreadbury from acknowledging that Lee is a corporation.

However, its corporate status, size, wealth or headquarters is not relevant to any
issues in the case and Spreadbury should not be permitted to appeal to potential
bias.

MOTION NO. 2 - Failure to Call Witnesses
This Motion seeks to prohibit Spreadbury from making any argument or
statement or question that Lee has failed to call any particular witness, whom the

Plaintiff himself could have called. Spreadbury responds that the requested
Motion "violates Federal Rules of Civil Procedure

as to presenting a case, or

commenting on opposing witnesses." (Dkt. 274 at 3.) Spreadbury fails to cite to a

particular rule which the motion allegedly violates. Arguing or suggesting that Lee
could have called a witness and did not, when that witness was equally available to
Spreadbury, would be irrelevant, and, even

if relevant, the probative value would

be substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the

jury, and undue waste of time. Fed. R. Evid. 401, 403 .

MOTION NO. 3 - Conduct of Discovery
Motion No. 3 asks the Court to prohibit Spreadbury from arguing that Lee or
its counsel objected to discovery requests or failed to provide any information to
Spreadbury in discovery. In response, Spreadbury implies he does intend to raise
such an argument.

(Dkt. 274 at3.) Spreadbury's Motion to Compel discovery

has

been decided by the Court, and to the extent Spreadbury disagrees with the Court's

disposition, those objections are not properly presented by him to the jury.

254. Any such argument would be irrelevant

,See

Dkt.

and highly prejudicial. See Fed. R.

Evid. 401,403. The case law cited by Spreadbury does not support his objection.

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MOTION NO. 4 - Golden Rule Argument
Lee moves that Spreadbury be prohibited from asking jurors to apply the

"Golden Rule" by putting themselves or their loved ones in Plaintiffls position and

giving Plaintiff what they would want if they or their loved ones were similarly
damaged, as this interferes with the jury's objectivity. Spreadbury responds that

this would be a violation of his freedom of speech, and "of federal procedure to

allow fair, and free discourse and ability to make any argument supporting case."
(Dkt. 274 at 3.) Spreadbury cites no authority for his assertion that federal rules
allow him to make any argument to the jury he wishes. The trial court is required
to be the "gatekeeper," allowing the jury to hear only admissible evidence, and
evidence which is more likely to assist than to mislead. Fed. R. Evid. lOa(a).

Spreadbury's first amendment rights are not implicated by Motion in Limine No.

4. The Golden Rule argument is recognizedinMontana
an improper interference with the

courts and others as being

jury's objectivity.

MOTION NO. 5 - Exclusion of Comments on Pretrial Motions
Motion in Limine No. 5 is to prohibit any questions, comments, or references
to any pretrial motions, including the foundational affidavit which was timely
corrected (Dkt. I I

l)

and Spreadbury's contention that Defendants violated his

right to privacy by obtaining his medical records. In response, Spreadbury argues
this information is a material fact. (Dkt. 274.) He is mistaken. Spreadbury's

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disagreement with the Court's pretrial rulings is not appealable to the jury, nor are
these pretrial arguments relevant to Spreadbury's remaining claims. Their only

purpose would be to appeal to bias and prejudice.

MOTION NO. 6 - Plaintiff

s Closing

Argument

Motion No. 6 is to prohibit Plaintiff from reserving or taking more time for
rebuttal in his closing argument than used in his opening argument, and from
raising new information during rebuttal that was not raised in his opening

argument. In response, Plaintiff argues that "[a]ny limitation on Spreadbury's time
in court is in violation of court rules, ethics, and abuse of discretion. . . ." Dkt.

27

4

simply asks, reasonably, that Spreadbury's rebuttal be actual rebuttal. See Misch

v.

at

4.

Spreadbury cites to no authority, and the Court clearly has discretion to

manage the

trial. Moreover, Lee's Motion does not seek to limit Spreadbury's

time in Court, but only to prohibit him conduct that would deprive Lee of an
opportunity in its closing to rebut matters raised in Spreadbury's closing. Lee

C. B. Contracting Co.,394 S.W.2dg8,l03 (Mo.

App.

1965).

Motion No. 7 - Order of Witnesses
Motion No. 7 seeks to require all parties advise opposing counsel by 5:00
p.m. on the last business day before trial begins and at the close of each trial day,
the identities of witnesses counsel expects to call the following day. This Motion

will

assist the parties in trial and

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will help avoid delay and wasted time.

Spreadbury argues he does not have the resources ofLee's counsel and, therefore,

will not know what witnesses he will call within

the time suggested in Lee's

Motion No. 7. Lee acknowledges Spreadbury is pro se, and reiterates that Lee's
Motion will assist both parties in preparing for trial and will avoid wasting the

jury's time. As such, the Motion is not unreasonable and should be granted.
Motion No. 8 - Statements Made By Unavailable Witnesses
Spreadbury does not object to Lee's Motion No. 8 seeking to prohibit

Plaintiff from introducing statements made by witnesses not available to testi$ at

trial. Accordingly,

the Motion should be granted.

Motion No. 9 - Liability Insurance
In accordance with Federal Rule of Evidence 4l1, Lee seeks an order
prohibiting any reference to liability insurance. Lee does not understand
Spreadbury's objection, which is "[t]he request to limit the spectrum of a corporate
person in a court of law is not available as a matter of law, status of Lee before this

court and should be rejected." DVJ.274 at

4. Regardless, Rule 41 I clearly

prohibits reference to liability insurance. Since no exception to Rule 411 exists in
this matter, the Motion should be granted.

Motion No. l0

-

Matters Already Decided

Lee seeks an order prohibiting Plaintiff from presenting to the jury any
questions, evidence, argument or other reference to matters already decided by the

6
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Court. Spreadbury has offered no valid objection, and his responses to these
motions makes it clear he does intend to raise issues before the jury which this
Court has already decided. For example, in his response, Spreadbury continues to
argue the Court was wrong to hold Lee is protected by the Communications

Decency Act and, therefore, not liable for on-line comments of readers and he

clearly intends to argue this issue to the jury. @kt. 274.) Trial is not the proper
appeal of decisions with which Spreadbury does not agree. Arguing to the jury
about matters of law already decided by the Court is irrelevant, prejudicial and

confusing and should be prohibited.

Motion No. l1

- Other Articles Not At Issue

Motion No. l1 seeks to prohibit Spreadbury from presenting any evidence or
argument that he was injured by articles other than the August 9,2010, article

published by the Ravalli Republic. The Court's rulings have limited the remaining
issues for trial to this one article. In response, Spreadbury continues to raise new
issues and attempt to characterize the excluded claims in new ways. Reviving

dismissed claims or raising new ones is irrelevant and any probative value would
be substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading of the

jrry,

Motion No. 12 - Plaintiff

s

and undue waste of

time. Fed. R. Evid. 40I,403.

Opinion Testimony

Spreadbury does not object to Lee's motion to preclude Plaintiff from

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testiffing

as an expert

attrial and from stating legal conclusions. Accordingly,

Lee's Motion in Limine No. 12 should be granted.

Motion No. 13 - Speculative Statements Unsupported By Evidence
Motion No. 13 seeks to prohibit Spreadbury from presenting purely
speculative statements, unsupported by factual evidence. In response, Spreadbury
claims his bid for Mayor is a material fact as to whether he was a public figure.
Spreadbury misconstrues the motion. Lee agrees that the fact Spreadbury ran for

mayor is relevant evidence. It is also not speculative, so is not the type

of

statement Lee seeks to exclude. On the contrary, Spreadbury's statement that he

lost his bid for Mayor because of Lee is unsupported by any testimony or evidence,
is speculative only, and should be excluded as such, along with similar
speculations.

Motion No. 14 - Unrelated Complaints and Character Attacks
Lee seeks an order prohibiting Plaintiff from presenting questions, evidence
and argument which have no relation to whether the Ravalli Republic article at
issue was defamatory or caused him damages. This Motion is based on

Plaintiff

s

past insults and personal attacks against Lee's personnel and its counsel, as well as

other defendants. Spreadbury responds that such a restriction is not necessary and
can be handled by the Court. While Lee is confident that these matters can and

will

be handled by the Court, Lee urges that is best done prior to

trial.

See Fed. R.

Evid.403.
Motion No. l5

-

Expert Testimony

Because Spreadbury failed to disclose any liability and damage experts,

Motion in Limine No. l5 seeks to prohibit Plaintiff from presenting expert opinion
testimony at trial. Spreadbury apparently objects, suggesting it does not take an
expert to opine on the standard of care. SeeDkt.274. Spreadbury can, of course,
cross-examine Lee's experts and argue about their qualifications, independence
and opinions. However, he is not an expert, nor has he disclosed any expert

opinions, so he should not be permitted to offer such testimony to the jury on
standard of care, or damages.

ilI.

CONCLUSION

Lee's Motions are intended to remove confusing, irrelevant and highly
prejudicial matters from the trial so that the jury can focus on the material disputed
issues. Spreadbury's responses in opposition are not persuasive.

In accordance with the Court's gate-keeping function, Lee respectfully
requests the Court grant its Motions in Limine.

DATED this 7th dav of Mav. 2012.

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

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CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(d)(2)(E), I

certiff that this Defendant Lee Enterprises,

Inc.'s Reply Brief In Support of Motions In Limine is printed with proportionately
spaced Times New Roman text typeface

of l4 points; is double-spaced;

and the

word count, calculated by Microsoft Office Word 2007, is 1819 words long,
excluding Caption, Certificate of Service and Certificate of Compliance.

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

l0
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CERTIFICATE OF SERVICE
I hereby certi$ that on the 7th day of May,20l2, a copy of the foregoing
document was served on the following persons by the following means:

_2_
I

CMIECF
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
bcrowley @boonekarlberg. com
npj one s @boonekarlberg. com
tle onar d@b o on ekarl berg. c o m
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlbere P.C.

lsl

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

ll
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