Spreadbury v. Bitterroot Public Library et al

Filing 47

ORDER denying 36 Motion to Appoint Counsel ; denying 38 Motion to Remand; denying 42 Motion to Stay Discovery; granting 15 Motion for Leave to Proceed in forma pauperis; denying 16 Motion to Appoint Counsel Signed by Jeremiah C. Lynch on 5/25/2011. (TCL, ) Modified on 5/26/2011 to reflect copy mailed to Spreadbury this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
MICHAEL E. SPREADBURY,

CV 11-64-M-DWM-JCL

Plaintiff,
vs.
ORDER
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC., and
BOONE KARLBERG, P.C.,
Defendants.
_____________________________________________
Plaintiff Michael E. Spreadbury has filed various motions in this action.
The Court will address several of those motions in this Order.
I.

Motion to Proceed In Forma Pauperis
Spreadbury filed a Motion to Proceed In Forma Pauperis. Spreadbury

submitted a statement of his financial condition as required by 28 U.S.C. §
1915(a). Because it appears Spreadbury lacks sufficient funds to prosecute this
action IT IS HEREBY ORDERED that his Motion to Proceed In Forma Pauperis
is GRANTED.

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II.

Motion for Appointment of Counsel
Spreadbury moves for appointment of counsel to represent him in this

action. In support of his motion Spreadbury states he is disabled, that he has been
unable to secure gainful employment, and he has not been able to find legal
counsel to represent him in this action. He contends his legal claims have merit,
and that he is entitled to legal assistance as a matter of right.1
A plaintiff does not have a right to the appointment of counsel in a civil
action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Although the Court
has discretionary authority to appoint counsel to represent an indigent litigant
under 28 U.S.C. § 1915(e)(1) (see Palmer, 560 F.3d at 970), such appointment can
occur only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991). Palmer, 560 F.3d at 970.
A finding of exceptional circumstances requires an evaluation of both ‘the
likelihood of success on the merits and the ability of the [litigant] to
articulate his claims pro se in light of the complexity of the legal issues
involved.’ Neither of these factors is dispositive and both must be viewed
together before reaching a decision.

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Spreadbury cites to Fed. R. Civ. P. 44(a) in support of his motion for
appointment of counsel. Rule 44(a), however, establishes what constitutes
evidence of a domestic or foreign official record, and it does not provide any right
to the appointment of counsel.
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Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citations
omitted)). See also Palmer, 560 F.3d at 970.
At this early stage of this lawsuit there is no basis in the record on which the
Court could conclude that Spreadbury has presented exceptional circumstances
warranting appointment of counsel. Although Spreadbury asserts he is disabled,
he has not established that he will be unable to sufficiently articulate his claims.
He also has not demonstrated the requisite likelihood of success on the merits of
his claims.
Accordingly, IT IS HEREBY ORDERED that Spreadbury’s Motion for
Appointment of Counsel is DENIED.
III.

Motion to Appoint Lead Defense Counsel
Jeff Smith, an attorney with the firm of Garlington, Lohn & Robinson, is

counsel for Defendant Lee Enterprises, Inc. in this matter. All other Defendants
named in this action are represented by Natasha Prinzing Jones, Thomas Leonard,
and William Crowley, all of whom are attorneys at the firm of Boone Karlberg,
P.C.
Spreadbury moves for an order consolidating Defendants’ legal
representation, and appointing Jeff Smith to serve as lead counsel for all
Defendants named in this action. Spreadbury asserts the appointment is warranted
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due to the nature of his claims advanced in this action, and based on his perception
that it would be inequitable for Defendants to be represented by multiple
attorneys. Spreadbury also relies on rules applicable to the appointment of
counsel for parties in class action lawsuits. See Fed. R. Civ. P. 23(g).
Spreadbury’s motion wholly lacks merit. This matter is not a class action
lawsuit, and is not governed by Rule 23. There exists no legal authority, and no
basis in the record for the Court to designate and appoint a single attorney to serve
as counsel for all Defendants in this action. Parties to an action are at liberty to
retain counsel of their choice. THEREFORE, IT IS ORDERED that Spreadbury’s
Motion to Appoint Lead Defense Counsel is DENIED.
IV.

Motion to Remand Pendent State Claims
On April 19, 2011, Defendants Bitterroot Public Library and City of

Hamilton removed this action to this Court from the Montana Twenty-First
Judicial District Court, Ravalli County. Defendants’ Notice of Removal was filed
pursuant to 28 U.S.C. § 1441(a), and they assert this Court has federal question
jurisdiction over this action as provided by 28 U.S.C. § 1331 based on the federal
claims Spreadbury advances in this case.
In addition to his claims pled under federal law, Spreadbury advances
numerous claims against Defendants that are cognizable under Montana law.
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With respect to those claims, federal law grants this Court “supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
Under the circumstances of this case, the Court finds that all of
Spreadbury’s state law claims advanced in this case are sufficiently related to his
federal claims so as to “form part of the same case or controversy” within the
contemplation of 28 U.S.C. § 1367(a). Therefore, the Court has supplemental
jurisdiction over all of Spreadbury’s state law claims.
Spreadbury moves, pursuant to 28 U.S.C. § 1441(c), for an order remanding
his claims for intentional and negligent infliction of emotional distress that are
pled under Montana law. Spreadbury presumably intends to leave all of his other
remaining state law claims for resolution by this Court. For the reasons discussed,
Spreadbury’s motion for remand is denied.
The Court has discretionary authority to decline to exercise supplemental
jurisdiction over the state law claims under the conditions set forth in 28 U.S.C. §
1367(c), or to remand those claims as provided under 28 U.S.C. § 1441(c). A
district court may decline to exercise supplemental jurisdiction for the following
reasons:
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(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c)(1) - (4). Further, consistent with Section 1367(c)(2), the
court also “may remand all matters in which State law predominates.” 28 U.S.C. §
1441(c).
A court’s retention of supplemental jurisdiction is discretionary, and the
court may decline to exercise jurisdiction over state law claims “[d]epending on a
host of factors including the circumstances of the particular case, the nature of the
state law claims, the character of the governing state law, and the relationship
between the state and federal claims.” City of Chicago v. International College of
Surgeons, 522 U.S. 156, 173 (1997).
Spreadbury has not identified any valid reason justifying a remand of his
emotional distress claims. Instead, he incorrectly asserts the Court does not have
jurisdiction over his emotional distress claims contrary to 28 U.S.C. § 1367(a) as
discussed above. He has otherwise failed to identify any circumstances under 28

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U.S.C. § 1367(c) which would prompt the Court to decline to exercise jurisdiction
over his emotional distress claims, and he has failed to establish grounds for
remand under 28 U.S.C. § 1441(c). Therefore, under the circumstances of this
case, the Court does not deem it appropriate to decline to exercise supplemental
jurisdiction over Spreadbury’s emotional distress claims, or to remand those
claims. THEREFORE, IT IS HEREBY ORDERED that Spreadbury’s Motion to
Remand Pendant State Claims is DENIED.
V.

Motion to Stay Discovery Pending Court Action
On May 13, 2011, Spreadbury filed a motion requesting partial summary

judgment against Defendants with respect to some of the claims set forth in his
Second Amended Complaint. Spreadbury’s motion also challenges the qualified
immunity which some of the Defendants assert, or may assert in defense of
Spreadbury’s claims.
On May 19, 2011, Spreadbury moved to stay discovery in this matter
pending the Court’s resolution of his motion for partial summary judgment and the
related issues of qualified immunity. He contends he is entitled to a stay of
discovery under Harlow v. Fitzgerald, 457 U.S. 800 (1982).
A defendant’s eligibility for qualified immunity, if granted, affords the
defendant “immunity from suit rather than a mere defense to liability[.]” Mitchell
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v. Forsyth, 472 U.S. 511, 526 (1985). Consequently, if a defendant is eligible for
qualified immunity, then the defendant should not be subjected to the costs of trial,
or burdens of discovery. “Until this threshold immunity question is resolved,
discovery should not be allowed[,]” so as to avoid the excessive disruption which
unnecessary litigation could cause to a government official’s duties. Harlow, 457
U.S. at 818. Thus, under Harlow a stay of discovery is for the benefit of a
defendant who may be entitled to qualified immunity, not for the benefit of a
plaintiff attempting to defeat qualified immunity.
Based on the foregoing, Spreadbury has failed to establish any good cause
for a stay of discovery pending resolution of his motion for partial summary
judgment. THEREFORE, IT IS ORDERED Spreadbury’s motion to stay
discovery is DENIED.
DATED this 25th day of May, 2011.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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