Spreadbury v. Bitterroot Public Library et al

Filing 57

RESPONSE to Motion re 51 MOTION for Partial Summary Judgment DEF LEE ENTERPRISES INC'S BRIEF IN OPPOSITION TO PL'S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST LEE ENTERPRISES filed by Lee Enterprises Incorporated. (Attachments: # 1 Exhibit FOUNDATIONAL AFFIDAVIT OF JEFFREY B. SMITH, # 2 Exhibit A - Affidavit of Stacey Mueller, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O) (Smith, Jeffrey)

Jeffrey B. Smith

GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street . P. O. Box 7909
Missoula, MT 59807-7909
Telephone [phone]
Telefax G06\ 523-2595
j [e-mail]
Attorneys for Defendant, Lee Enterprises, Inc.

IN T}IE UNITED STATES DISTRICT COURT
FORTHE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV-1 I -064-M-DWM

MICHAEL E. SPREADBURY,

Plaintifl

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

DEFENDANT LEE ENTERPRISES,
INC.'S BRIEF IN OPPOSITION TO
PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY ruDGMENT AGAINST LEE
ENTERPRISES, INC,

Defendants.

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

files its Brief in Opposition to Plaintiff s Motion for Partial Summary Judgment
Against Lee Enterprises, Inc. (Dkt. 51).

INTRODUCTION
Plaintiff, Michael E. Spreadbury ("Spreadbury"), has moved for partial

t0127 t2

summary judgment against Lee Enterprises. However, Spreadbury fails to submit

any substantive evidence in support of his motion; failing to set forth a statement

of undisputed facts pursuant to Local Rule 56. I, and, instead, contending the
alleged admission in the City and Library Defendants' Answer entitles him to

relief. Spreadbury's contentions are incorrect. Accordingly, Spreadbury's Motion
for Partial Summary Judgment against Lee Enterprises should be denied.

BACKGROUND
Spreadbury's current dispute with the Defendants stems from an altercation

with Ms. Nansu Roddy at the Bitterroot Public Library ("Library"), in May or June
of 2009, when Ms. Roddy refused to submit a letter Spreadbury requested to be
placed on the reserye shelf in the Library. See Def. Lee Enterprises' Statement

Genuine Issues ("SGI")

'lTfl I

-3 (June

2I

, 201 I ). As a result, Spreadbury had

numerous interactions with Library Staff, and eventually was banned from the

Library. (SGI fl 4.) Subsequently, Spreadbury returned to the Library

and was

charged with criminal trespass (SGI tlfl 5-6.) The Ravalli Republic, a newspaper

owned by Lee Enterprises, published articles stemming from the criminal trespass
charges brought against Spreadbury. (SGI fl

7.) The articles were republished by

the Missoulian, a paper owned by Lee Enterprises. (SGI fl

8.) However, none of

the articles contained personal opinions from the reporters, but, instead, were based

purely on official Ravalli County Court documents. (SGI fl 9.)

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Similarly to Spreadbury's ban from the Library, around the same time period,
Spreadbury was essentially banned from the offices ofthe Ravalli Republic after

being verbally abusive to Ravalli Republic staff. (SGI !l 10.)
The Ravalli Republic and the Missoulian continued to report on the
proceedings in Spreadbury's criminal trespass case. (SGI flfl I

l-14.) While

the

criminal trespass proceedings continued, Spreadbury was also charged with felony
intimidation stemming from an encounter between Spreadbury and Ms. Roddy
outside the Library. (SCI lTfl

l5-16.) Ms. Roddy sought and obtained an Order of

Protection against Spreadbury. (SGI fl 15.) Like the criminal trespass charges,
both the Ravalli Republrc and the Missoulian published articles regarding the

felony intimidation charges brought against Spreadbury, but none of these articles
contained personal opinions from the repofts. Instead, the articles were based on

official Ravalli County Court documents. (SGI
On February 18, 2010,

a

tTfl

9, I 6- I 7.)

jury in the City Court for the City of Hamilton found

Spreadbury guilty of criminal trespass, (SGI fl I 8.) Both the Ravalli Republic and
the Missoulian published articles regarding the conviction.

(SGI']lf 19-20.)

Spreadbury appealed the decision, and eventually the City of Hamilton
dropped the criminal trespass charges, after the Montana Supreme Court upheld

Ms. Roddy's Order of Protection, restraining Spreadbury from entering into the

Library for five years. (SGI fl 20.) The Ravalli Republic and the Missoulian

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published articles regarding the City dropping the criminal trespass charges against

Spreadbury. (SGI

f 20.) Spreadbury

intimidation charges. (SGI

'l]

eventually pled guilty to the felony

21.)

Spreadbury's most recent motion requests partial summary judgment against
Lee Enterprises. However, Spreadbury has failed to show an entitlement to

judgment as a matter of law.

ARGLIMENT
Spreadbury alleges he is entitled to partial summary judgment against Lee
Enterprises because Lee Enterprises allegedly published articles regarding

Spreadbury's peaceful assembly on public property, which is protected by the First
Amendment of the U.S. Constitution, and violated Spreadbury's right to due
process by depriving him of the right to enter the Ravalli Republic offices. (Dkt.
5I

:2.) Spreadbury further alleges the publication of these articles damaged him by

assisting in depriving his library privileges and interfering in his election.

However, Spreadbury has failed to meet his burden for the relief sought.
Spreadbury fails to recognize the articles published by Lee Enterprises'
newspapers were based on the charges brought against Spreadbury and did not

contain any form of opinions. Accordingly, the articles are privileged and Lee
Enterprises cannot be liable for Spreadbury's alleged damages. Therefore,
Spreadbury is not entitled to summary judgment and his motion should be denied.

l0

t2 712

I.

Spreadbury Is Not Entitled to Judgment As a Matter of Law.
Federal Rule

ofCivil

Procedure 56 soverns the standard for awardine

summaryJudgment.
Under Rule 56(c), summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.
Celotex Corp. v. Catrett,477 U.S.3l7,322 ( 1986) (internal quotations omitted).
The moving party bears the burden of showing an absence of material issues

of

fact and entitlement to judgment as a matter of law. Celotex Corp., 477 U.S. at

323. Courts must view the evidence in the light most favorable to the non-moving
party when ruling on a motion for summary judgment and must deny the motion
when there are genuine issues of material fact. Nolan v. Heald College, 55
r 148,

1

I

F.3d

154 (9th Cir. 2009).

A.

Spreadbury's $ 1983 Claims Against Lee Enterprises Fail As
a Matter of Law.

In his motion for partial summary judgment, Spreadbury states he has alleged
constitutional deprivations in color of law in his Complaint, Amended Complaint,
and Second Amended Complaint.

(Dkt.52:2.) However, this Court

has yet to

determine whether or not Spreadbury is able to file a second amended complaint,
and Defendants have filed briefs in opposition to Spreadbury's Leave to File a

t0t27t2

Second Amended

Complaint.' Further, Lee Enterprises has yet to answer any of

Spreadbury's Complaints; instead, filing a Motion to Dismiss and Brief in Support,
since Spreadbury's Amended Complaint fails to state a claim upon which relief
can be granted. (Dk:t.

7.) In particular, Spreadbury's Amended Complaint fails to

allege Lee Enterprises violated any of Spreadbury's constitutional rights, and fails

to allege Lee Enterprises acted under color of state law. (Dkt. 7:7-8.)
However, even if his $ 1983 claims include Lee Enterprises, Spreadbury is
not entitled to summary judgment because it is undisputed Lee Enterprises did not
act under the color of state law and/or have an agreement with the government to

conspire against Spreadbury.
In order to recover under $ 1983 for conduct by the defendant, a
plaintiff must show that the conduct allegedly causing the
deprivation ofa federal right be fairly attributable to the State. The
state-action element in $ 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.

il

though only if, there is such a close
[s]tate action may be found
nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that of the State itself.
Caviness v. Horizon Community Learning Ctr., lnc.,590 F.3d 806, 812 (9th Cir.

2009) (intemal quotations and citations omitted).

'

Note: per the Court's Docket Report, Docket No. 2l , filed on May 4,
20 t I , describes the item filed as a "MOTION for Leave to File Second Amended
Complaint." However, when looking at Docket No. 21, it is actually entitled "2nd
Amended Complaint."

l0t27t2

To put it another way, it is undisputed there was no agreement and/or plan
between Lee Enterprises and the government. "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's motion for partial
summary judgment does not include any undisputed fact to support his claim.

Rather, Spreadbury simply provides conclusory statements in support of his
conspiracy theory.
For example, Spreadbury asserts Lee Enterprises conspired with the Hamilton
Police Department by banning him from the Ravalli Republic offices. (Amend.
Compl. flfl 38-39 (Apr. 19, 2011) (Dkt. 1-l); Dkt. 51:3-4). However, Spreadbury
offers no support for these allegations, and Lee Enterprises acted within their rights
in banning Spreadbury from the premises. The Ravalli Republic office is located
at 232 Main Street, Hamilton, Montana. Spreadbury is not allowed to enter the

premises because he was abusiv e to Ravalli Republic staff . (SGI fl 10.) Following

the abusive behavior, the Ravalli Republic notifred Spreadbury, along with the

Hamilton Police Department. (SGI tf 10.) Contrary to Spreadbury's assertions,
this is not evidence ofa conspiracy and/or agreement.
Spreadbury also asserts Lee Enterprises conspired to interfere in his election
and assisted in depriving his library privileges. (Dkt. 51:3.) However, like his

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other claims, Spreadbury offers no proofto establish his contentions.

Similarly, Spreadbury's claim that Lee Enterprises conspired against him by
publishing various newspaper articles is made without any supporting evidence.
First, as noted above, Lee Enterprises has yet to answer Spreadbury's Amended
Complaint, and denies Spreadbury's contention that Lee Enterprises published
articles in the manner described by Spreadbury. As described in greater detail
herein, articles published.by Lee Enterprises were based on official Ravalli County
Court documents. They did not contain opinions and, accordingly, are privileged.
Spreadbury essentially claims Lee Enterprises' act of publishing articles about

Spreadbury's charge of criminal trespass and subsequent conviction amount to a
conspiracy against him because the trespass charges were later dropped by the

City, and Lee Enterprises should have known "peaceful assembly" on public
properly is a protected property right. (Dkt. 51.) However, Spreadbury's
description ofthe charges brought against him is inaccurate. He offers no evidence

of a conspiracy or otherwise agreement to conspire against him, and he offers no
evidence to show the articles published by Lee Enterprises' newspapers were false

or otherwise not privileged.
Spreadbury has offered no evidence that there was an agreement to conspire
against him, and Lee Enterprises affirmatively provides there was no such

conspiracy and/or agreement. (Foundational Aff. Jeffrey B. Smith

t0127t2

("Aff. Smith"),

Ex. A: Aff. Stacey Mueller fl 7 (June 20,2011 1)
even

("Aff. Mueller").) Accordingly,

if Spreadbury's $ 1983 claim is properly plead against Lee Enterprises, it fails

as a matter

of law and his motion for partial summary judgment should be denied.

l.

Spreadbury Has Not Established an Underlying
Constitutional Violation for His $ 1983 Claim.

Even assuming Spreadbury has sufficiently plead his $ 1983 claim against
Lee Enterprises, and that Lee Enterprises acted under color of state law,

Spreadbury's $ 1983 claim still fails since he has not established an underlying

violationofhisConstitutionalrights. SeeMenottiv.CityofSeattle,409F.3dlll3,

ll47

(gth Cir. 2005).
Spreadbury alleges his First Amendment rights were violated for being

prosecuted for trespassing on public property, and alleges his due process rights
under the Fifth and Fourteenth Amendments were violated for not being allowed to
enter the Ravalli Republic offices.

a.

First Amendment

Contrary to Spreadbury's contentions, all speech is not protected at the

Library simply becawe it is a public library. The First Amendment protects
freedom ofspeech. See U. S. Const. amend.

I

"That said, [e]ven protected speech

is not equally permissible in all places and at all times." Snyder v. Phelps,

_U.S._, l3l S. Ct. 1207, 1218 (2011) (internal quotation and citation
omitted). ". . . [T]he First Amendment does not guarantee the right to

t0l27t2

communicate one's views . . . in any manner that may be desired." Hoye v. City

of

Oakland,642 F. Supp. 2d 1029,1044 (N.D. CaL.2009) (intemal quotation and
citation omitted). As articulated by the Third Circuit:

It is clear to us that a public library, albeit the quintessential locus
for the exercise ofthe right to receive information and ideas, is
sufficiently dissimilar to a public park, sidewalk or street that it
cannot reasonably be deemed to constitute a traditional public
forum. Obviously, a library patron cannot be permitted to engage
in most traditional First Amendment activities in the library, such
as giving speeches or engaging in any other conduct that would
disrupt the quiet and peaceful library environment.
Kreimer v. Bureau of Police

for

Town of Morristown,,958 F.2d 1242, 1256 (3rd

Cir. 1992). Accordingly, libraries are considered limited public forums, and "[a]s
such, the Library is obligated only to permit the public to exercise rights that are
consistent with the nature of the Library and consistent with the govemment's

intent in designating the Library as a public forum." Neinast v. Bd. of Trustees

of

Columbus Metro. Lib.,346 F.3d 585, 591 (6th Cir. 2003) (intemal quotation and

citation omitted).
violation, a plaintiff
must provide evidence showing that by his actions [the defendant]
deterred or chilled [the plaintiffs] political speech and such
deterrence was a substantial or motivating factor in [the
defendant'sl conduct.

In order to demonstrate

a First Amendment

Dunn v. Hyra, 676 F. Supp. 2d 1172, I 192 (W.D. Wash. 2009) (internal quotations
and citations omitted).
Spreadbury has not shown he was engaged in constitutionally protected

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l0

conduct. Although Spreadbury claims he was prosecuted for "peaceful assembly"
on public property, the fact is that he was charged with criminal trespass due to
harassing Library staffand overall disrupting the Library after being told to not

return. However, even if his activity is considered protected, he has failed to
establish the criminal trespass charges and Lee Enterprises' act of publishing the
subsequent articles was motivated by a desire to interfere with his First

Amendment right, and not by any permissible reason. See Dunn,676 F. Supp. 2d

at 1992.

b.

Fifth and Fourteenth Amendments

Similarly, Spreadbury has failed to establish an underlying constitutional
violation of his due process rights under the Fifth and/or Fourteenth Amendments.
First, Spreadbury's claim involving the Fifth Amendment fails because the

Fifth Amendment only applies to the federal govemment, not state actors.
N Group LLC v. Hawai'i County Liquor Commn.,68l F. Supp. 2d 1209,1228 (D.
Haw. 2009); Lee v. City of L.A.,250 F.3d 668,687 (9th Cir. 2001).
Even though the Fourteenth Amendment applies to state actors, Spreadbury
has failed to establish a due process violation with regard to Lee Enterprises'

actions. The Due Process Clause of the Fourteenth Amendment protects
individuals against govemmental deprivations of life, liberty, and property without
due process of law. See U.S. Const. amend. XIV.

t012712

ll

Spreadbury claims his due process rights were violated for not being allowed

into the Ravalli Republic offices. However, the Ravalli Republic, as a private
business, has the right to ban Spreadbury from their offices. "In their private

affairs, in the conduct oftheir private businesses, it is clear that the people
themselves have the liberty to select their own associates and the person with

whom they

will

do business, unimpaired by the Fourteenth Amendment." Browder

v. Gayle,, 142 F. Supp. 707 ,715 (M.D. Ala. 1 956). Spreadbury was banned from
the Ravalli Republic after being verbally abusive to

staff. (SGI fl 10.) The Ravalli

Republic was within their rights of banning Spreadbury from their private offices,
and Spreadbury's due process claim fails as a matter of

law. Moreover, any harm

or injury to reputation does not result in deprivation of a liberty or property. Paul
v. Davis, 424 U.S. 693,

7ll-712 (1976). Therefore, any claimed violation of due

process due to the published articles also fails as a matter of law.

Accordingly, even assuming Spreadbury has properly set forth his $ 1983
claims to include Lee Enterprises, and has shown Lee Enterprises acted under color

of state law, his motion should still be denied since he has failed to establish an
underlying constitutional violation,

B.

Lee Enterprises Did Not Interfere With Spreadbury's
Prospective Economic Advantage.

Count 8 of Spreadbury's Amended Complaint alleges Lee Enterprises

intentionally interfered with Spreadbury's prospective business advantage.

t0t27 t2

12

However, Spreadbury's brief in support of his motion does not even mention this

claim. Nevertheless, even if it had, Spreadbury's claim fails

as a matter

of law.

To establish a case of intentional interference with prospective
business advantage, a plaintiff must show acts which: (l) were
intentional and willful; (2) were calculated to cause damage to the
plaintiff s business; (3) were done with unlawful purpose of
causing damages or loss, without right or justifiable cause on the
part ofthe actor; and (4) resulted in actual damages or loss.
Sebenav. Am. Automobile Assn.,280 Mont.305,309,930 P.2d 51,53 (1996). In 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

interfoper' in disrupting a business relationship." Maloney v. Home & Inv. Ctr.,

[nc.,2000 MT 34, 142,298 Mont. 213, 994P.2d I124 (citation omitted).
Under this theory, a person involved in an economic relationship
with another, or who is pursuing reasonable and legitimate
prospects ofentering such a relationship, is protected from a third
person's wrongful conduct which is intended to disrupt the
relationship.
Maloney, fl 42 (intemal quotations and citation omitted).

Although in his Amended Complaint Spreadbury alleges Lee Enterprises and
the rest of the Defendants "committed intentional and

willful

acts calculated to

cause damage to Spreadbury's reputation, and prospective economic advantage,"

he fails to provide any support for this claim. (Dkt. I - I at $ 124.) The only factual

allegations against Lee Enterprises are that newspapers it owns published news
articles reporting the charges and allegations brought against Spreadbury in a court

l0t27t2

of law. There are no factual allegations regarding Spreadbury's economic
relationship or prospective relationship which were allegedly disrupted by Lee
Enterprises' alleged conduct. There are no allegations Lee Enterprises took any
action without right or justification. Rather, Spreadbury's claim is mere
speculation and, as such, his claim for intentional interference with prospective
business advantage fails as a matter of law and his motion for summary judgment

should be dismissed.

C.

Lee Enterprises Was Not Negligent and/or Negligent Per Se.

Spreadbury's claim ofnegligence and/or negligence against Lee Enterprises

fails as a matter of law.
"Negligence is the failure to use the degree ofcare that an ordinarily prudent
person would have used under the same circumstances." Peterson v. Eichhorn,,

2008 MT 250,1[23,344 Mont.540, 189 P.3d 615.

To maintain an action in negligence, the plaintiff must prove four
essential elements: (l) the defendant owed the plaintiff a legal
duty, (2) the defendant breached that duty, (3) the breach was the
actual and proximate cause ofan injury to the plaintiff, and (4)
damages resulted.
Peterson,, !f

23. "The question of whether

a duty exists is one

of law. Absent a

duty, breach ofduty cannot be established and a negligence action cannot be

maintained." Sikorski v. Johnson,2006 MT 228,n 13,333 Mont. 434, 143 P.3d
161. "Since negligence actions ordinarily involve questions of fact, they are

ltJl27l2

t4

generally not susceptible to summary judgment." Fisher v. Swift Transp. Co.,
2008

MT

105,

fl

12,

342Mont.335, 181 P.3d 601.

Similarly, in order to establish negligence per se, plaintiff must prove that:
) 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
regulate members of defendant's class.

(

1

Prindel v. Ravalli County,2006 MT 62,n27,331 Mont. 338, 133 P.3d 165.
Spreadbury's Amended Complaint and Motion for Partial Summary
Judgment do not establish Lee Enterprises owed him a duty. The law is clear,

"[a]bsent a duty, breach ofduty cannot be established and a negligence action
cannot be maintained." Sikorski,

fl 13. Since

Spreadbury has not set forth a duty

that Lee Enterprises allegedly owed to him, his claim of negligence fails and his

motion for partial summary judgment should be dismissed. Even assuming Lee
Enterprises owed a duty to Spreadbury, summary judgment is not appropriate since
Spreadbury has failed to establish that Lee Enterprises breached its duty and,

consequently, caused damages.

Similarly, Spreadbury's claim of negligence per se fails as a matter of law
because Spreadbury has not established Lee Enterprises violated a particular

statute. See

Prindel,l

27.

Since Spreadbury fails to establish Lee Enterprises owed him a duty and/or

t0t27 t2

l5

that Lee Enterprises violated a particular statute, his claim of negligence and
negligence per se fail as a matter of law, and his motion for partial summary

judgment should be denied.

D.

Spreadbury's Defamation and Defamation Per Se Allegations Fail
As a Matter of Law.

Spreadbury is not entitled to summary judgment because the articles

published by the Ravalli Republic were privileged. Spreadbury claims he is
entitled to partial summary judgment against Lee Enterprises due to the published
articles stemming from the charges of criminal trespass brought against him.

(Dkt. 5l:5.) Essentially Spreadbury believes he was defamed by Lee Enterprises
publishing articles about the criminal trespass charges because they were
subsequently dropped by the

City. However,

Spreadbury fails to recognize the

articles were true, simply reporting that criminal trespass charges were brought
against Spreadbury and that he later was convicted of those charges. The fact the
charges were later dropped does not change the facts which were published.

Spreadbury fails to show these publications were not true and how they defamed

him. Moreover, Spreadbury fails to recognize

these articles were privileged.

Traditionally, the term "libel" refers to defamatory statements made in

writing. Restatement (Second) of Torts $ 568 (WL cunent through Apr.

201

l).

Montana Code Arurotated $ 27-1-802 (2009) (emphasis added) defines Libel:

Libel is a false and unprivileged publication by writing, printing,

t0t21t2

l6

picture, effigy, or other fixed representation that exposes any
person to hatred, contempt, ridicule, or obloquy or causes a person
to be shunned or avoided or that has a tendency to injure a person
in the person's occupation.
However, certain communications are privileged. Montana Code Annotated $ 27-

l-804 (2009) establishes what types ofpublications are privileged.

A privileged publication is one made:
(l) in the proper discharge ofan official duty;
(2) in any legislative orjudicial proceeding or in any other
official proceeding authorized by law;
(3) in a communication without malice to a person interested
therein by one who is also interested or by one who stands in such
relation to the person interested as to afford a reasonable ground
for supposing the motive for the communication innocent or who is
requested by the person interested to give the information;
(4) by a fair and true report without malice of a judicial,
legislative, or other public official proceeding or of anything said
in the course thereof.
Section 27-l-804(4), "makes a fair and true report without malice of a

judicial proceeding a privileged publication." Cox v. Lee Enters., Inc.,222Mont.
527, 530, 7 23 P.2d 238, 239-24Q

( I 986).

ln Cox, the Montana Supreme Court held

pursuant to $ 27- I -804(4):
a qualified privilege is available as a defense for a newspaper
publisher in a defamation case when the alleged defamation

consists of facts taken from preliminary judicial pleadings which
have been filed in court but which have not been iudiciallv acted
upon.

Cox,723 P.2d at240.
The Court noted the definitions

l0t27t2

of"judicial proceedings" include:

t7

Any proceeding wherein judicial action is invoked and taken; [a]ny
proceeding to obtain such remedy as the law allows; [a]ny step
taken in a court ofjustice in the prosecution or defense ofan
action.

Cox , 723 P.2d at 240 (intemal quotations and citation omitted). The Court also
noted a modem trend ofjurisdictions applying a qualified privilege to reports

of

judicial pleadings which have not yet been the subject ofjudicial action.
Certainly, the administration ofjustice is of utmost importance to
the citizenry. While we are aware that pleadings are one-sided and
may contain, by design, highly defamatory statements, we believe
the information found in such pleadings is of sufficient value as to
warrant the encouragement of its publication.

Cox,723P.2dat240(citing Newell v. FieldEnters., Inc.,4l5 N.E.2d 434,444(lll.
App. 1980) (intemal quotations omitted).
In accordance with $ 27-l-804(4), and the above- cited case law, Spreadbury
is not entitled to summary judgment because the articles published by the Ravalli
Republ ic were privileged.

Stacey Mueller is the publisher of the Missoulian, a newspaper owned by Lee

Enterprises. (Aff. Mueller fl 1.) As part of her employment, she currently oversees
both the Missoulian newspaper and the Ravalli Republic newspaper. (Aff. Mueller
'lf

2.) Ms. Mueller

has personally reviewed the articles published by the

Ravalli

Republic which are the subject of Spreadbury's Amended Complaint. These
articles do not contain opinions from the reporters. Instead, the articles are based

purely on the charges brought against Spreadbury, reporting facts according to

t0t21t2

l8

official Ravalli County documents. (Aff. Mueller tf 3.) Pursuant to $ 27-1-804(4),
these articles are privileged and Spreadbury's allegations against Lee Enterprises

fail as a matter of law.

E.

Spreadbury's Claim of IIED and NIED Fail As a Matter of Law.

Spreadbury is not entitled to summary judgment regarding his intentional

infliction of emotional distress ("IIED") claim because he has failed to establish he
suffered from severe emotional distress.
Montana law allows IIED to be pled as a separate cause of action. See Sacco
v. Hi gh C ountry Indep. Pr es s, Inc., 27

| Mont.

209, 23 5, 896 P.2d 41

l,

427 (199 5).

However, the plaintiff has the burden of coming forth with material and substantial
evidence to support his/her claim. See McConkey v. Flathead Elec. Coop.,2005

MT 334, lT 54, 330 Mont. 48, 125 P.3d I 1 21 . In tum, 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,896P.2d

at427 (citingDoohanv. Big Fork Sch. Dist. No. 38,247 Mont. 125, 142,805P.2d
1354, 1365 ( 1991), overruled on other grounds by Sacco).

If the evidence

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

fail.

See

McConkey,l54.
As articulated by the Montana Supreme Court in Sacco,

[A]n independent cause ofaction for intentional infliction of
emotional distress

l0tz'I t2

will

arise under circumstances where serious or

t9

severe emotional distress to the plaintiff was the reasonably
foreseeable consequence ofthe defendant's intentional act or

omission.

Sacco,896 P.2d at 428.
However,

"[i]t

is only where it is extreme that the liability [for emotional

distress] arises." May v. EM Landmark Real Est. of Bozeman,2000 MT 299,

n 54, 302 Mont. 326, 1 5 P.3d I 1 79. "Complete emotional tranquility is seldom
attainable in this world, and some degree of transient and trivial emotional distress
is a part of the price of living among people." Maloney,fl63.

"Emotional distress is serious or severe only if the distress inflicted is so
severe that no reasonable [person] could be expected to endure

it."

Ray v. Wash.

Natl. Ins. Co.,190 F.R.D. 658, 663 (D. Mont. 1999) (citingSacco,896P.2dat
426) (quotations omitted)).

[T]he requirement that the emotional distress suffered be serious or
severe, as we have already defined those terms, alleviates any
concem over a floodgate of claims, particularly fraudulent claims.
Also, the requirement that a claim of intentional infliction of
emotional distress will arise only under circumstances where
plaintiff s serious or severe emotional distress was the reasonably
foreseeable consequence of the defendant's intentional act or
omission alleviates the concem that defendants will be exposed to
unlimited liability.
Sacco,,896P.2dat 428 (emphasis in original).
Spreadbury's claim for IIED fails as a matter of law, because he has not
established he suffered from severe emotional distress. His Amended Complaint

t0127t2

z0

and motion for partial summary judgment simply contain conclusory statements

with no support.
Likewise, Spreadbury's claim for negligent infliction of emotional distress

("NIED") fails

as a matter

of law.

A cause of action for negligent infliction of emotional distress will
arise under circumstances where serious or severe emotional
distress to the plaintiff was the reasonably foreseeable consequence
ofthe defendant's negligent act or omission.

Sacco, 896 P.2d at 425.

lt logically follows

that to correctly state a claim for

negligent infliction of emotional distress, plaintiff must show defendant was
negligent, and the negligence caused the alleged emotional distress. See Wages

v.

lst Natl.Ins. Co. of Am.,2003 MT 309,1[23,318 Mont. 232,79 P.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 of duty, there is no negligence).

As noted above, Spreadbury has not established a case for negligence, since
he fails to show Lee Enterprises owed him a legal duty and, even if he had, there

would be material issues of fact regarding whether Lee Enterprises breached its

duty. Regardless, Spreadbury fails to establish he suffered emotional distress to
support his claim.

Accordingly, Spreadbury's claim for both IIED and NIED fail as a matter of
law and his motion for partial summary judgment should be dismissed.

t0l2712

2l

F.

Spreadbury Is Not Entitled to Injunctive Relief.

Spreadbury's claim for injunctive relief is without merit. "A ruling on a

motion for preliminary injunction is subject to the discretion of the district court."
Am. Music Co. v. Higbee, 1998 MT 1 50, 1l I I , 289 Mont. 278, 961 P.2d 109.
Spreadbury's Amended Complaint essentially requests the Court order Lee
Enterprises stop publishing news articles about Spreadbury. (Dkt.

1-l atl2l4.)

However, Spreadbury has not stated factual allegations sufficient to entitle him

relief against Lee Enterprises and he fails to even mention the injunctive relief in
his motion for partial summary judgment. Since it does not appear that the

applicant [Spreadbury] is entitled to the relief demanded, an injunction is not

proper. See Mont. Code Ann. S 27-19-201 (2009).
Furthermore, it appears Spreadbury is requesting the Court restrain Lee
Enterprises from publishing something it already published. "An injunction

will

not issue to restrain an act already committed." Mustang Holdings, LLC v. Zaveta,
2006 MT 234,n 15,333 Mont. 471, 143 P.3d 456 (quotation and internal citation

omitted). "lnjunction is not an appropriate remedy to procure relief for past
injuries, it is to afford preventive relief only." Mustang, fl 15 (internal quotation
and citation omitted).

Within Count 23 of Spreadbury's Amended Complaint is a request for civil
arrest of Lee Enterprises' employee and reporter, Perry Backus, per Montana Code

t012712

22

Annotated

S 27

-16-102(2). This portion of Count 23 specifrcally should be

dismissed because 5 27 -16-102(2) gives Spreadbury no authority to

civilly arrest

anyone. Clearly, Spreadbury is not entitled to the injunctive relief requested, and
his motion should be denied.

G.

Spreadbury Is Not Entitled to Punitive Damages.

Like his claim for injunctive relief, Spreadbury's claim for punitive damages
fails as a matter of law. "[N]o plaintiff is ever entitled to exemplary damages as a
matter of right, regardless of the situation or the sufficiency of the facts."

Maulding v. Hardman, 257 Mont.

18,,

26-27, 847 P.2d 292, 298 ( 1 993) (intemal

quotation and citation omitted) (finding an award of punitive damages was
improper since there was no evidence to support plaintiff s claim). "Section2T-l-

22l,MCA, govems the award of punitive damages. It provides that reasonable
punitive damages may be awarded in a non-contract action when a defendant has
been found guilty of actual fraud or actual

malice." Trfad Ent., Inc.

v. Anderson,

2001 MT 227,n53,306 Mont. 499,36 P.3d 363.

"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.,
(2009).

t0t27l2

'lf

54; Mont. Code Ann.

S

27-1-221(5)

Count 26 - Punitive Damages, of Spreadbury's Amended Complaint, alleges
Lee Enterprises acted with actual malice.

Actual malice exists if a defendant has knowledge of facts or
intentionally disregards facts that create a high probability ofinjury
to the plaintiffand he: l) deliberately proceeds to act in conscious
or intentional disregard of the high probability of injury; or 2)
deliberately proceeds to act with indifference to the high
probability of injury.
Trifad

Ent,\

53.

Spreadbury does not provide any evidence to support his claim for punitive
damages in his Amended Complaint nor in his motion for partial summary

judgment. Spreadbury alleges Lee Enterprises acted with actual malice, yet fails to
provide any evidence, let alone clear and convincing evidence, to support his
claim.

Moreover, Spreadbury's claim for punitive damages against Lee Enterprises
fails if his other Counts are dismissed. See Maulding, 847 P.2d at 298.
Spreadbury's claim for punitive damages cannot stand alone. Therefore, since the
Counts brought against Lee Enterprises fail as a matter of law, it follows that

Spreadbury's requested relief of punitive damages fail as well.

CONCLUSION
Spreadbury is not entitled to summary judgment. Even

if

he has sufficiently

pled his case, Spreadbury has not shown Lee Enterprises acted under color of state
law to support his $ 1983 claims, nor has he established an underlying violation

t0t21t2

of

24

his constitutional rights. He has failed to establish a prospective economic
advantage which Lee Enterprises allegedly interfered. He has not established Lee
Enterprises owed him a legal duty, nor a statutory duty, for his negligence and

negligence per se claims. Nor has he established Lee Enterprises breached its duty,
assuming it owed a duty to Spreadbury. His claim for defamation and defamation

per se fail as a matter of law because the published articles were privileged;

reporting facts based on court documents. His claims for IIED and NIED fail
because he has not established he suffered severe emotional distress. Likewise,

Spreadbury's claims for injunctive relief and punitive damages fail since he has no

authority for the requested injunctive relief, and he has not established any cause of
action against Lee Enterprises to support his claim for punitive damages. Clearly,
Spreadbury's motion for partial summary judgment should be denied.

DATED this 2l st dav of June. 201 I .

lsl

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

t012712

25

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7. l(dX2XE), I

ceniff that this Defendant Lee Enterprises,

Inc.'s Brief In Opposition to Plaintiff's Motion For Partial Summary Judgment
Against Lee Enterprises,lnc., 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 5647 words long, excluding Caption,

Certificate of Service and Certificate of Compliance.

lsl

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

t012712

26

CERTIFICATE OF SERVICE

I hereby certi! that on the 2 I st day of June, 2011 , a copy of the foregoing
document was served on the following persons by the following means:

L3
2

CM/ECF
Hand Delivery

Mail
Overnight Delivery Service
Fax

E-Mail

l.

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 ones@boonekarlberg. com
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.

1012712

27