Spreadbury v. Bitterroot Public Library et al

Filing 292

RESPONSE to Motion re 290 MOTION Def Lee Enterprises Inc's Response in Opposition to Pl's Motion for Voluntary Dismissal filed by Lee Enterprises Incorporated. (Attachments: # 1 Exhibit 5-22-2012 Email from Michael Spreadbury) (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]
[e-mail]
j bsmith@garlington. com
Attorneys for Defendant, Lee Enterprises, Inc.

IN TI{E LTNITED STATES DISTRICT COURT
FOR TFIE 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
ENTERPRISES, INC., and BOONE
KARLBERG P.C..

DEFENDANT LEE ENTERPRISES,
INC.'S RESPONSE IN OPPOSITION
TO PLAINTIFF'S MOTION FOR
VOLUNTARY DISMISSAL

Defendants.

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

& Robinson,

PLLP, respectfully files this Response in

Opposition to Plaintiff, Michael Spreadbury's Motion for Voluntary Dismissal

(Dkt. 290). Plaintiff

s

Motion should be denied

as the parties have not agreed on

Spreadbury's proposed "settlement,'o attached to his Motion, and dismissal under
such terms would be prejudicial to Lee.

While Plaintiff represents his motion is unopposed, he did not ask Lee's
counsel prior to filing the motion whether Lee would oppose

email. Failure to comply with Local Rule

7. I (c)( I

it.

See attached

), requirin g a party to contact

opposing counsel prior to filing a motion, may result in summary denial of the

motion. L.R. 7.I(c)(a).
The rules do not allow Spreadbury to have the matter dismissed simply by

filing

a

Notice, once the opposing party has served either an answer or a motion for

summary judgment. Fed. R. Civ. P.4l

(a)(1)(A)(i).' The matter may only be

dismissed on terms the Court considers proper pursuant to Federal Rule Civil
Procedure al@)(2). "In other words, the voluntary dismissal cannot take effect

until a court order has been entered and the terms and conditions imposed by the
court are complied

with." Lqu v. Glendora Unified Sch. Dist., 792 F .2d 929, 930

(9th Cir. 1986).
Lee would be prejudiced

if Plaintiff s Motion were granted.

The purpose of authorizing the court to place conditions on a
voluntary dismissal is to prevent unfair prejudice to the other side in
the case. Typical examples of such prejudice occur when a party
proposes to dismiss the case at alate stage of pretrial proceedings,
or seeks to avoid imminent adverse ruling, or may on refiling

I

Spreadbury incorrectly references Federal Rules of Civil Procedure 23(e)
and23.l(c), which apply to class actions.

deprive the defendant of a limitations defense.

In re FEMA Trailer Formaldahyde Prods. Liab. Litig.,628 F.3d 157,162 (5th Cir.
2010). 'oWhen a court is faced with

a Rule

whether an unconditional dismissal

will

prejudice.'

"

al@)(z) motion, it should 'first ask

cause the non-movant to suffer plain legal

In re FEMA Trailer Formaldahyde Prods. Liab. Litig.,628 F.3d at

163 (citation omitted).

"If

such prejudice would ensue, the court may either refuse

to dismiss the case or may 'craft conditions that will cure the prejudice.'

"

In re

FEMA Trailer Formaldqhyde Prods. Liab. Litig.,628 F.3d at 163 (citation
omitted). The District Court may do so with whatever terms necessary to offset the
prejudice.

See

Bridgeport Music, Inc. v. Universal-McA Music Pub., lnc,,583

F.3d 948, 954 (6th Cir. 2009).
Lee has expended significant effort and resources defending this action and
expects to prevail. Plaintiff has widely publicized his allegations of wrongdoing

by Lee and its employees. There are three remaining counts against Lee currently
set for

jury trial in September 2012,

and a

Motion for Summary Judgment is

currently under consideration by the Court. Voluntary dismissal without prejudice
at this late stage of the litigation and with no

limiting conditions would

be

prejudicial to Lee.

Plaintiff s "Terms of Settlement Agreement" are unacceptable to Lee. The
only conditions of dismissal which would cure the prejudice to Lee would be

dismissal of Spreadbury's claims against Lee with prejudice and on the merits,

without imposing any conditions or requirements on Lee that would allow
Spreadbury to represent that he prevailed in, or settled his claims.
Lee, therefore, objects to voluntary dismissal unless such dismissal is

unconditional as to Lee, and is expressly with prejudice on the merits.

DATED this 25th_day of May,2012.

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

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

Inc.'s Response In Opposition to Plaintiff's Motion For Voluntary Dismissal 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 598 words long, excluding Caption, Certificate of Service and Certificate

of

Compliance.

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

4
I 199866

CERTIFICATE OF SERVICE
I hereby certiff that on the 25th day of May,2012, a copy of the foregoing
document was served on the following persons by the following means:
Hand Delivery

Mail
Overnight Delivery Service
Fax (include fax number in address)
E-Mail (include email in address)

l.

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

2.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
Tracey Neighbor Johnson
bcrowley@boonekarlberg. com
npj ones@boonekarlberg. com
tleonard@boonekarlberg. com
tnj ohnson@boonekarlberg. com
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlberg P.C.

Attorneys for Plaintiffs

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

l 199866