Spreadbury v. Bitterroot Public Library et al

Filing 306

RESPONSE to Motion re 304 MOTION to Dismiss Def Lee Enterprises Inc's Response to Plaintiff's Second Motion for Voluntary Dismissal 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) 523-250A
Telefax [phone]
[e-mail]
j bsmith@garlington. com

Attorneys for Defendant, Lee Enterprises, Inc.

IN THE I.INITED STATES DISTRICT COURT
FOR TFM DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL E. SPREADBURY.

Cause No.

CV-l I-064-M-DWM

Plaintiff.
V.

ITTERROOT P{'BLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES, INC., and BOONE
KARLBERG P.C.,
B

DEFENDANT LEE ENTERPRISES,
INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR
VOLI-INTARY DISMISSAL

Defendants.

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

& Robinson,

PLLP, respectfully files this Response to

Plaintiff, Michael Spreadbury's Second Motion for Voluntary Dismissal (Dkt.
304). Lee does not object to dismissal, on the condition dismissal is with
prejudice. Lee objects to a dismissal without prejudice.
DEFENDANT LEE ENTERPRISES, INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR VOLUNTARY
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DISMISSAL

I

Again, while Plaintiff represents his motion is unopposed, he did not ask
Lee's counsel prior to filing the motion whether Lee would oppose
7

.l(c)()

(failure to comply with Local Rule

7. I

it.

See L.R.

(c)( 1), requiring a party to contact

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

motion).
Lee would be unfairly prejudiced by a dismissal without prejudice. The

matter may only be dismissed on terms the Court considers proper. See Fed. R.

Civ. P. aI@)(2).
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
deprive the defendant of a limitations defense.

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

a Rule

whether an unconditional dismissal

will

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

cause the non-movant to suffer plain legal

prejudice."' In re FEMA Trailer Formaldahyde Prods. Liab. Litig.,628 F.3d at
163 (internal 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 Formaldahyde Prods. Liab. Litig.,628F.3d at
163 (internal citation omitted). The district court may do so with whatever terms
necessary to offset the prejudice. See Bridgeport Music, Inc. v. (Jniversal-McA
DEFENDANT LEE ENTERPRISES, INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR VOLUNTARY
I

201 8s6

DISMISSAL

2

Music Publg., lnc.,583 F.3d 948, 954 (6th Cir. 2009).

As explained in Lee's Response to Spreadbury's first Motion for Voluntary
Dismissal (Dkt. 292), fully incorporated herein, the only conditions of dismissal

which would cure the prejudice to Lee would be dismissal of Spreadbury's claims
against Lee with prejudice.
Lee, therefore, objects to voluntary dismissal without prejudice, but does not
oppose dismissal that is expressly with prejudice.

DATED this 3lst day of May, 2012.

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

DEFENDANT LEE ENTERPRISES, INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR VOLLTNTARY DISMISSAL
l20l 8s6

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(dX2)(E), I

certiff that this Defendant Lee Enterprises,

Inc.'s Response to Plaintiff's Second Motionfor 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 Offlrce Word 2007,is
379 words long, excluding Caption, Certificate of Service and Certificate

of

Compliance.

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

DEFENDANT LEE ENTERPRISES, INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR VOLUNTARY DISMISSAL
l20l 856

CERTIFICATE OF SERVICE
I hereby certiff that on May 3I ,2012, a copy of the foregoing document was
served on the following persons by the following means:

Hand Deliverv

1

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

1.

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
tleonar d@b o onekarl ber g. c om
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.

DEFENDANT LEE ENTERPRISES, INC.'S RESPONSE TO PLAINTIFF'S
SECOND MOTION FOR VOLI.INTARY DISMISSAL
I

201 856