Spreadbury v. Bitterroot Public Library et al

Filing 35

REPLY to Response to Motion re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises DEFENDANT LEE ENTERPRISES INC'S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Jeffrey B. Smith

GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street . P. O. Box 7909
Missoula. MT 59807-7909
Telephone [phone]
Telefax [phone]
j bsm ith@garlington. com
Attomeys for Defendant, Lee Enterprises, Inc.

IN THE UNITED STATES DISTRICT COURT
FORTHE DISTRICT OF MONTANA
MISSOIJ'LA DIVISION
Cause No. CV-1 I -064-M-DWM

MICFIAEL E. SPREADBI.IRY,

Plaintifl
DEFENDANT LEE ENTERPRISES,
INC.'S REPLY BzuEF IN SUPPORT
OF MOTION TO DISMISS
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON, LEE
ENTERPRISES,INC., and BOONE
KARLBERG P.C.,
Defendants.

COMES NOW Co-Defendant, Lee Enterprises, Inc. ("Lee Enterprises"),
through its counsel, Garlington, Lohn & Robinson, PLLP, and hereby respectfully

files its reply brief in support of its Motion to Dismiss.

I.

INTRODUCTION

In his response brief, Plaintiff Michael Spreadbury ("Spreadbury") argues
Lee Enterprises' Motion to Dismiss and Brief in Support should be set aside.

However, like Plaintiff s Amended Complaint, Spreadbury fails to set forth

sufficient facts to establish a claim against Lee Enterprises upon which relief can
be granted. Rather, he continues to make conclusory allegations with no factual

basis. As such, Plaintiff s allegations should not be taken as truth. Moreover, even

if taken

as true,

all Counts against Lee Enterprises in Plaintifls Amended

Complaint should be dismissed for failing to state a claim upon which relief can be
granted.

Further, Lee Enterprises notes that Plaintiff has subsequently filed a Motion

for Leave to File a Second Amended Complaint (Dkt.
has not been granted by the Court, portions

2I

ofPlaintiffs

). Since Plaintiff s motion
response

briefwhich

discuss allegations of his Second Amended Complaint are not applicable to Lee

Enterprises' Motion to Dismiss Plaintiff s Amended Complaint.i

II.
A district court

ARGUMENT

has the authority to dismiss a claim for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a

motion to dismiss, "the Federal Rules do not require courts to credit a complaint's
conclusory statements without reference to its factual context." Ashcroft v. Iqbal,

_

u.s.

1

_,129

s. ct. 1937, t954 (2009).

Co-Defendants City of Hamilton and Bitterroot Public Library have filed
a Brief in Opposition to Plaintiff s Motion for Leave to File Second Amended
Complaint (Dkt. 24) and Lee Enterprises has joined in the Brief (Dkt. 34)

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A.

42 U.S.C. {i 1983

Any $ 1983 claims alleged against Lee Enterprises should be dismissed. In
its opening brief, Lee Enterprises argued Plaintiff s claims under 42 U.S.C. $ 1983
should be dismissed since no Counts in Plaintiff s Amended Complaint alleged
Lee Enterprises violated any of Spreadbury's constitutional rights and,

alternatively, because Spreadbury fails to allege Lee Enterprises acted under color

of state law. (Dkt. 7 at6-8.) In Plaintiff s Response Brief, Spreadbury recognizes
Lee Enterprises must have acted under "color of law" for a $ 1983 claim to apply.
See Dkt. 23

atZ.

However, Plaintiff has not alleged facts sufficient to show Lee Enterprises
acted under the color of

law. "To prove a conspiracy between private parties

and

the govemment under $ 1983, an agreement or'meeting of the minds' to violate

constitutional rights must be shown." See Fonda v. Gray,707 F.2d 435, 438 (9th

Cir. 1983) (citation omitted). Spreadbury fails to show Lee Enterprises had any
sort of an agreement and/or plan with the govemment.

Further, Plaintiff does not dispute Lee Enterprises' argument that they cannot
be included in any $ 1983 claims since no Counts in Plaintiff s Amended

Complaint allege Lee Enterprises violated any of Spreadbury's constitutional

rights. Instead, Plaintiffnow argues he has ". . . allegefd] several constitutional
deprivations in [his] complaint, . . . " Dkt. 23

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at2. However, this

does not negate

the fact that Plaintiff

s

Amended Complaint does not include such Counts against

Lee Enterprises. Accordingly, any $ 1983 claims against Lee Enterprises in

Plaintiff s Amended Complaint should be dismissed for failure to state a claim
upon which relief can be granted.

B.

Count 8 - Intentional Interference with Prospective Business
Advantage

Count 8 of Spreadbury's Amended Complaint should be dismissed. ln a
cause of action for intentional interference with prospective economic advantage

"the focus of the legal inquiry is on the intentional acts of the 'malicious

interloper' in disrupting a business relationship." Maloney v. Home & Inv. Ctr.,
Inc. , 2000

MT 34, n 42, 298 Mont.

2I

3, 994 P .2d I 124 (citation omitted).

Spreadbury fails to allege any facts regarding economic relationships or

prospective relationships which were disrupted by Lee Enterprises' alleged

conduct. Further, he fails to allege Lee Enterprises took any action without right or

justification. In fact, Spreadbury's Brief completely fails to respond to Lee
Enterprises' arguments regarding the claim of intentional interference with
prospective business advantage. Since Spreadbury's Amended Complaint does not
provide sufficient information to raise the issue of intentional interference with
prospective business advantage, Count 8 should be dismissed.

C.

Count 18 - Negligence/Negligence Per Se

Count l8 of Spreadbury's Amended Complaint fails to state a claim upon

998008

which relief can be granted. "The question of whether a duty exists is one of law.
Absent a duty, breach of duty cannot be established and a negligence action cannot
be maintained." Sikorski v. Johnson,2006

MT 228,n 8,333 Mont. 434, 143 P.3d

161. Spreadbury's Amended Complaints fails to allege Lee Enterprises breached

a

duty owed to Spreadbury. Spreadbury's Response Brief alleges Lee Enterprises
"had [a] duty to Plaintiff to not violate, or participate with unlawful actions of City

of Hamilton." Dkt.23 at 3-4, However, this is simply a legal conclusion, and like
the rest of his Response Brief and Amended Complaint, Spreadbury fails to allege

sufficient factual allegations to support his claim for negligence.
Moreover, Spreadbury's claim of negligence per se should be dismissed since
he fails to cite to a particular statute allegedly violated by Lee Enterprises. In order

to establish negligence per se, plaintiffmust prove that:

(1) defendant violated the particular statute; (2) the statute was
enacted to protect a specific class ofpersons; (3) the plaintiffis a
member of that class; (4) the plaintiff s injury is of the sort the
statute was enacted to prevent; and (5) the statute was intended to
resulate members of defendant's class.
Prindel v. Ravalli County,2006 MT 62,n27,331 Mont. 338, 133 P.3d 165. Lee
Enterprises' initial brief pointed out that Spreadbury's Amended Complaint fails to
allege sufhcient facts to support his claim for negligence per se, because
Spreadbury did not allege Lee Enterprises violated a statute. Dkt. 7 at 10-12.

Spreadbury's brief fails to respond to Lee Enterprises on this point. As such,

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Spreadbury's negligence per se claim should be dismissed.

D.

Count 19 - Defamation/De mation Per Se

Similarly, Count 19 of Spreadbury's Amended Complaint should be
dismissed since it fails to support his claim for defamation or defamation per se.
Lee Enterprises' initial brief provided Count 19 should be dismissed because
any publications made by Lee Enterprises were privileged pursuant to Montana
Code Annotated $ 27-l-804(4). Dkt. 7 at 12-17.
Spreadbury does not dispute the articles published by Lee Enterprises (based
on the judicial proceedings of criminal trespass charges against Spreadbury) were

privileged. Instead, Spreadbury claims "[t]here is no privilege for Defendant Lee
Enterprises articles when the court proceeding violated a clearly established right

of the Plaintiff under 42 USC$ 1983 [sic]." Dkt. 23

at7. However, Spreadbury

makes this assertion without citing to any authority. As a result, Spreadbury has

failed to assert sufficient facts to support his claim for defamation and/or
defamation per se, and Count 19 should be dismissed.

E.

Count 20 - Intentional Infliction of Emotional Distress

Spreadbury's Amended Complaint fails to set forth sufficient facts to
establish a claim for intentional infliction of emotional distress

f'IIED").

The trial

court must determine "whether a plaintiff has introduced sufficient evidence to
support a prima facie case for intentional infliction of emotional distress." Sacco

998008

v.

High Country Indep.

Pres s, Inc.., 27

| Mont.

209,

_,

896 P.2d at

4l l,

427

. If

the evidence presented by the plaintiff is insufficient as a matter of law, his claim

must

fail.

See McConkey,fl 54.

Lee Enterprises' initial brief argued Count 20 of Spreadbury's Amended

Complaint should be dismissed since it fails to show he suffered from severe
emotional distress. Dkt. 7 at I 7-21

.

Instead of responding to Lee Enterprises brief,

Spreadbury argues "Defendant Lee Enterprises avers incorrectly that physical or

psychological evidence of harm must be produced to inact [sic]

ED." Dkt.23

(citing Johnson v. Supersave Markets, Inc., 2l I Mont. 465, 686 P.2d 209

(1

at 6

984).

However, Spreadbury misinterprets the Court's holding inJohnson (which dealt

with emotional distress damages rather than an independent cause of action) and
fails to recognize the opinion was overruled by Jacobsen v. Allstate Insurance Co,
2009 MT 248, 351 Mont. 464, 215 P.2d 649 (finding a plaintiff did not need to
meet the threshold requirement of showing serious or severe emotional distress to

recover emotional distress damages, but upholding the threshold requirement

of

showing serious or severe emotional distress as set forth in Sacco for independent
causes of action for emotional distress). Regardless, Lee Enterprises has not

claimed Spreadbury must allege physical damages to support his claim for
emotional distress. Instead, Spreadbury's claim for llED should be dismissed
because his Amended Complaint simply recites the elements for an IIED claim,

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and fails to allege sufficient facts to support he suffered emotional distress,

whether physical or otherwise.

F.

Count

2l - Negligent Intentional Infliction of Emotional Distress

Similarly, Count 21 of Plaintiff s Amended Complaint should be dismissed.
First, as expressed above,, Spreadbury's Amended Complaint fails to allege Lee
Enterprises owed him a duty. Therefore, his claim for negligent infliction

emotional distress fails. See Wages
tT

23, 3 l8 Mont. 232, 79

P

v.

Ist Natl. Ins. Co. of Am.,2003

of

MT 309,

.3d 1095 (noting duty and foreseeability are inextricably

linked in a negligent infliction of emotional distress claim); Sacco, 896 P.2d at
422-423 (in the absence of foreseeability, there is no duty; in the absence ofduty,
there is no negligence).

Furthermore, Spreadbury fails to allege sufficient facts showing he suffered

from emotional distress. Like his claim for IIED, he simply recites the legal
elements of a claim for negligent infliction of emotional distress without any

factual support. Accordingly, Count

2l of Spreadbury's Amended Complaint

should be dismissed.

G.

Count 23 - Injunctive Relief

Spreadbury fails to provide sufficient information to support his claim for

Injunctive Relief and for Civil Arrest as requested in Count 23 of his Amended

Complaint. An injunction is only proper if the applicant is entitled to the relief

demanded.

,See

Mont. Code Ann. S 27-19-201 (2009). Spreadbury is not entitled

to injunctive relief because his Amended Complaint fails to support any of his
claims against Lee Enterprises with the proper factual allegations. Therefore,
pursuant to $ 27 -19-201 , an injunction is not proper.

Moreover, Spreadbury is not entitled to an injunctive relief for alleged
wrongs committed in the past. "lnjunction is not an appropriate remedy to procure

relief for past injuries, it is to afford preventive relief only." Mustang Holdings,
LLC v. Zaveta, 2006 MT 234, 1l | 5, 333 Mont. 47 1, 1 43 P.3d 456 (internal citation

omitted). Spreadbury's response brief fails to respond to Lee Enterprises'
arguments in this regard. Instead, Spreadbury focuses on his request for civil arrest

ofLee Enterprises' employee and reporter, Perry Backus. Spreadbury argues
Montana Code Annotated $ 27-16-102(2) "entitles Plaintiff to request the arrest

of

Perry Backus due to calculated, malicious acts which disabled Plaintiff['s] ability
to

work." DkL23at 5. However, nothing in $ 27-16-102(2), gives Spreadbury

the

authority to civilly arrest anyone. Accordingly, Count 23 of Spreadbury's
Amended Complaint should be dismissed.

H.

Count 26 - Punitive Damages

Finally, Plaintiff s claim for punitive damages should be dismissed for failing
to provide sufficient information for such a claim. First, Spreadbury's claim for

punitive damages should be dismissed if the rest of his Counts are dismissed.

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"[N]o plaintiff is ever entitled to exemplary

damages as a matter of right,

regardless of the situation or the sufhciency of the facts." Maulding v. Hardman,

257 Mont. 18,26-27,847 P.2d292,298 (1993) (internal quotations and citations

omitted) (finding an award of punitive damages was improper since there was no
evidence to support plaintiff s claim).

Further, even assuming the rest of his Counts are not dismissed, Spreadbury
fails to allege sufficient facts for a claim of punitive damages.

"All

elements

of

punitive damages must be supported by clear and convincing evidence. Clear and
convincing evidence means evidence in which there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence." Trifad
Ent,, Inc. v. Anderson,2001 MT 227,n54,306 Mont. 499,36 P.3d 363; Mont.
Code Ann. 927-l-221(5) (2009). Spreadbury alleges Lee Enterprises acted with
actual malice. However, like the rest of his Amended Complaint, he fails to

provide any evidence to support his allegations. Count 26 of Spreadbury's
Amended Complaint fails to provide any evidence, let alone clear and convincing
evidence, to support his claim for punitive damages. It should be dismissed

accordingly.

M.
Pursuant to Federal Rule

CONCLUSION

ofCivil Procedure l2(bX6),

the various counts

against Lee Enterprises contained in Spreadbury's Amended Complaint (Counts 8,

l0
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18-21 , 23 and 26) should be dismissed. The allegations should not be taken as

truth for purposes of this motion, since they are simply legal conclusions with no
factual basis. Even if taken as truth, the Counts against Lee Enterprises should be
dismissed because they fail to state a claim upon which reliefcan be granted.

DATED this 17th dav of Mav. 2011.

lsl

Jeffrey B. Smith
Attomeys for Defendant, Lee Enterprises, Inc.

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7. 1(dX2XE), I certifr that this Defendant Lee Enterprises,

Inc.'s Reply Brief in Support of Motion to Dismiss 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

21

75 words long,

excluding Caption, Certificate of Service and Certificate of Compliance.

lsl

Jeffrey B, Smith
Attornevs for Defendant. Lee Enternrises. Inc.

ll
998008

CERTIFICATE OF SERVICE
I hereby certifi that on May 17,2011, a copy of the foregoing document was
served on the following persons by the following means:

l-3
2

CM/ECF
Hand Delivery

Mail
Overnight Delivery Service
Fax

E-Mail

1.

Clerk, U.S. District Court

2

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

3.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowley@boonekarlberg. com
npj [e-mail]
tleonard@boonekarlberg. com
Attomeys for Defendants Bitterroot Public Library, City of Hamilton,, and
Boone Karlbers P.C.

lsl

Jeffrey B. Smith
Attomeys for Defendant, Lee Enterprises, Inc.

t2