Spreadbury v. Bitterroot Public Library et al

Filing 66

RESPONSE to Motion re 62 MOTION to Strike DEFENDANT LEE ENTERPRISES INC'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE 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]
[e-mail]
Attorneys for Defendant, Lee Enterprises, Inc.

IN TFIE LINITED STATES DISTRICT COURT
FOR T}IE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV-1 1 -064-M-DWM

MICHAEL E. SPREADBTIRY,

DEFENDANT

Plaintiff,

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

LEE ENTERPRISES, INC.'S
BRIEF IN OPPOSITION
TO PLAINTIFF'S MOTION TO
STRIKE

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 to Strike (Dkt. 62).

INTRODUCTION
Plaintiff, Michael Spreadbury ("Spreadbury"), moved to strike portions of
Lee Enterprises' Response Brief in Opposition to Spreadbury's Motion for Partial

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Summary Judgment (Dkt. 57) and corresponding Statement of Genuine Issues

(Dkt. 58). Spreadbury claims "information regarding speaking to a librarian
November 4,2009" should be stricken as free speech and imelevant evidence,

(Dkt, 62 at I .) However, Spreadbury fails to cite to any legal authority in support
of his motion, and the Federal Rules of Civil Procedures do not allow a motion to
strike matters outside of the pleadings. Furthermore, the information Spreadbury
wishes to strike is relevant to Spreadbury's current claims, and Spreadbury has

failed to show the information is prejudicial. Accordingly, Spreadbury's Motion to
Strike should be denied.

ARGUMENT
"Under Federal Rule of Civil Procedure l2(f), a court 'may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter."' Mag Instrument, Inc. v. JS Prods., lnc.,595 F. Supp. 2d

I102, 1106 (C.D. Cal. 2008); Fed. R. Civ. P. l2(f). "'[T]he tunction of a 12(f)
motion to strike is to avoid the expenditure of time and money that must arise from

litigating spurious issues by dispensing with those issues prior to trial."' Mag
Instrument,5g5 F. Supp. 2d at I106 (citingSidney-Vinsteinv. A.H. Robins Co.,
697 F.2d 880, 885 (9th Cir.1983)). "Whether to grant a motion to strike is within

the sound discretion of the district court." Mag Instrument,595 F. Supp. 2d at
I 1 06 (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th

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Cir. 1993),

overruled on other grounds by U.S. v. Beary,2007 WL 2712217, (N.D. Cal. Sept.
1

4, 2007) (unpublished)).

f'ln determining whether to grant a motion to strike, a district court views the
pleadings in a light most favorable to the non-moving party, and 'resolves any
doubt as to the . . . sufficiency ofa defense in defendant's favor."' Mag

Instrument,5g5 F. Supp. 2dat1106(citingState of CaL Dep't of Toxic Substances
Control v. Alco Pac., Inc.,2I7 F. Supp. 2d 1028, I033 (C.D. Cal.2002) (citing In
re 2TheMart.com Sec. Litig., | 14 F. Supp. 2d955,965 (C.D. Cal. 2000); ll/ailua
Assocs. v. Aetna Cas. & Sur. Co., 183 F.R.D. 550, 553-554 (D, Haw. 1998)'

"'Motions to strike are generally regarded with disfavor because of the limited
importance ofpleading in federal practice, and because they are often used as a
defaying tactic

."'

Mag Instrument,595 F. Supp. 2d at 1 106 (citing Neilson

v.

Union Bank of Cal., N.A.,290 F. Supp. 2d 1101,ll52 (C.D. Cal. 2003)) (citations
omitted).

"Both because striking

a

portion of

a

pleading is a drastic remedy, and

because it often is sought by the movant simply as a dilatory tactic, motions under

Rule l2(f) are viewed with disfavor and are infrequently granted." F.D.I.C.

v.

Niblo,821 F. Supp. 441,449 (N.D. Tex. 1993).

I.

Spreadbury's Motion to Strike Should Be Dismissed.
Since Federal Rule of Civil Procedure

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l2(0 only allows the Court to strike

matters from pleadings, Spreadbury's motion to strike portions of Lee Enterprises,
Response Brief in Opposition to Spreadbury's Motion for partial Summary

Judgment (Dkt. 57) and Statement of Genuine Issues

(Dk. 58) should

be denied.

Further, the matters Spreadbury wishes to strike are relevant to Spreadbury,s
current claims, and Spreadbury has failed to show he is prejudiced.

A.

Spreadbury Moved to Strike Matters Outside the Pleadings.

Spreadbury's motion should be denied because he seeks to strike

information outside the pleadings. "Rule l2(f) permits the court, on motion of
either party, to strike "from any pleading any insufficient defense or redundant,

immaterial, impertinent or scandalous matter." Int'l Longshoremen's Ass'n,
Clerlrs Loc. 1624,

AFL-AOv.

Va.

Int'l

S.S.

Terminals, lnc.,904 F. Supp. 500, 504

(E.D. Va. 1995) (citing Fed. R. Civ. P. 12(f)) (emphasis in original). Pleadings
include a complaint, an answer, and answers to counterclaim. See Fed. R. Civ. P.
7(a\.
Courts have consistently determined Rule 12(f) only permits the Court to
strike information from pleadings. See also Newsome v. Webster,843 F. Supp.
1460, 1464 (S.D. Ga. 1 994) (motion to strike not appropriate to challenge

affidavits); Welchv. Bd. of Directors of Wildwood Golf Club, 146 F.R.D.
I

l3l,

138-

39 (W.D. Pa. 1993) (same holding as Newsome); Int'l Longshoremen's Ass'n,904

F. Supp. at 504 ("The filing of a motion to strike, therefore, is not a proper way to

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challenge the Employer Defendants'responsive fiting."); Bd. of Educ. of Evanston
Township High Sch. Dist. No. 202 v. Admiral Heating

F.R.D. 300, 304 (N.D.

Ill.

&

Ventilation, Inc.,94

1982) (memoranda are not pleadings, thus, motion to

strike footnote was improper); Resolution Trust Corp. v. Blasdell,l54 F.R.D. 675,
683

(D. Ariz. 1993) (Rule 12(f) cannot

be used to strike a response to a motion to

dismiss).

Simply put, "the federal rules of civil procedure do not provide for a motion
to strike documents or portions of documents other than pleadings." U.S. v. Crisp,
190 F.R.D. 546, 551 (E.D. Cal. 1999); see also Lowery v. Hoffman, 188 F.R.D.

651

(M.D. Ala. 1999) ("procedural rule providing for motions to strike material

from pleadings does not provide for striking ofnon-pleadings"). More analogous
to our circumstances, in Petaway v. City of Natt Haven Police Department, 541 F.
Supp. 2d 504 (D. Conn. 2008), the Court determined neither defendant's motion

for summary judgment nor their memorandum in support was a pleading that could
be subject to plaintiff s motion to strike.

Spreadbury's motion seeks to strike matters outside of the pleadings.
Spreadbury moves the Court to strike matters from Lee Enterprises' Response

Brief in Opposition to Spreadbury's Motion for Partial Summary Judgment
(Dkt. 57), and from Lee Enterprises'corresponding Statement ofGenuine Issues
(Dkt. 58). Obviously, these are not pleadings as defined in Federal Rule of Civil

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Procedure 7(a). Accordingly, Spreadbury's Motion to Strike should be denied.

B.

The Matters Spreadbury Wishes to Strike From Lee Enterprises,
Brief and Statement of Genuine Issues Are Relevant.

Even

if

Spreadbury was seeking to strike matters from a pleading, which he

is not, his motion should still be denied, because the matters he wishes to strike are

relevant to his current claims against Lee Enterprises.

A party may move the Court to strike "an insufficient defense or any
redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f

"'Immaterial' matter is that which

.

has no essential or important relationship to the

claim for relief or the defenses being plead. "'Impertinent' matter consists of
statements that do not pertain, and are not necessary, to the issues in question."

Cairns v. Franklin Mint Co.,24 F. Supp. 2d 1013, 1037 (C.D. Cal. 1998) (intemal

citation omitted).
Spreadbury moves this Court to strike information regarding speaking with a

librarian on November 4,2009, contending it is free speech and not relevant to his
current claims. (Dkt. 62 at

L)

However, Spreadbury fails to cite any legal

authority in support of his motion and fails to show how the interaction with the
librarian on November 4,2009, is not relevant in his current claim.
The conversation with the librarian, Nansu Roddy, on November 4, 2009, is

relevant because it shows why the City dropped its charges of criminal trespass
against Spreadbury, and that the articles published by Lee Enterprises were

privileged and not defamatory.
Spreadbury's current dispute with the Defendants stems from an altercation

with Ms. 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 reserve shelf in the

Library. SeeDef. Lee Enterprises'

State.

Genuine Issues Opposition Pl.'s Mot. P.S.J.'!1fl 1-3 (June 21,2011) (Dkt. 58). As a
result, Spreadbury had numerous interactions with Library Staff, and eventually
was banned from the Library. @kt. 58 at fl

4.)

Subsequently, Spreadbury returned

to the Library and was charged with criminal trespass (Dkt. 58 at till 5-6.) The

Ravalli Republic, a newspaper owned by Lee Enterprises, published articles
stemming from the criminal trespass charges brought against Spreadbury. (Dkt. 58

atl7.)

The articles were republished by the Missoulian, a paper owned by Lee

Enterprises. (Dkt. 58 at u 8.) However, none ofthe articles contained personal
opinions from the reporters, but, instead, were based purely on official Ravalli
County Court documents. (Dkt. 58 at fl 9.)

While the criminal trespass proceedings continued, Spreadbury was also
charged with felony intimidation stemming from an encounter with Ms' Roddy
outside the Library on November 4,2009. (Dkt. 58 at flu

l5-16.) Ms. Roddy

sought and obtained an Order of Protection against Spreadbury. @kt. 58 at

fl 15')

Like the criminal trespass charges, both the Ravalli Republic and the Missoulian

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published articles regarding the felony intimidation charges brought against
Spreadbury, but none ofthese articles contained personal opinions from the

reports. Instead, the articles were based on official Ravalli County Court
documents. (Dkt. 58 at flJf 9, 16-17.)
On February I 8, 201 0, a jury in the City Court for the City of Hamilton found
Spreadbury guilty of criminal trespass. (Dkt. 58 at fl I 8.) Both the Ravalli

Republic and the Missoulian published articles regarding the conviction. (Dkt. 58
at

tlfl l9-20.) 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. (Dkt. 58 at fl 20.) The Ravalli Republic and the

Missoulian published articles regarding the City dropping the criminal trespass
charges against Spreadbury. (Dkt. 58 at !l

20.) Spreadbury eventually pled guilty

to the felony intimidation charges. (Dkt. 58 atl12l.)
The encounter between Spreadbury and Librarian Roddy on November 4,
2009, which lead to the felony intimidation charges and subsequent conviction,
appears to be the "information regarding speaking to a librarian on November 4,

2009" which Spreadbury seeks to have stricken. However, this information is

highly relevant and Spreadbury's motion should be denied.
Essentially, Spreadbury's Amended Complaint alleges he was defamed by

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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 ofthose charges.
The fact the charges were later dropped does not change the facts which were

published. Moreover, Spreadbury fails to recognize these articles were privileged.
Montana Code Annotated $ 27-l-804(4), "makes a fair and true report without
malice of

a

judicial proceeding a privileged publication." Cox v. Lee Enters., Inc.,

222 Mont. 527, 529, 7 23

P

.2d

23

8, 239 -240

(I9

86).

"Information regarding speaking to a librarian (Ms. Roddy) on November 4,
2009" is highly relevant because it shows why the City dropped the criminal
trespass charges against Spreadbury. Spreadbury's Amended Complaint infers Lee

Enterprises published false information about his criminal trespass charges because

they were subsequently dropped by the Cify. However, this is not true. The
charges were dropped after the Montana Supreme Court upheld Ms. Roddy's

Order of Protection, restraining Spreadbury from entering into the Library for five

years. Facts showing why the charges were dropped are relevant to show the
articles published by Lee Enterprises were true and privileged. The information is
relevant and Spreadbury's Motion to Compel should be denied.

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C.

Spreadbury Is Not Prejudiced By Matters He Wishes to Strike.

Finally, Spreadbury has not shown any prejudice from the matters he wishes
to strike. "Rule 12(f) of the Federal Rules of Civil Procedure permits allegations
that are redundant, immaterial, impertinent or scandalous to be stricken.
Generally, however, unless the matters are prejudicial as well, a motion under

will not be granted." Magnavox

Ill.

l2(f)

Co. v. APF Elecs., lnc.,496 F. Supp. 29, 35 (N.D.

1980) (citing Charles A. Wright, Arthur R. Miller 5, Federal Practice and

Procedures $ 1382, 809-819 (3d ed., Matthew Bender 1969).
Spreadbury's Motion to Strike requests the Court strike "information
regarding speaking to a librarian November 4,2009" in Lee Enterprises' Brief in
Opposition to Spreadbury's Motion for Partial Summary Judgment and
corresponding Statement of Genuine Issues as protected free speech and irrelevant.
(,See

Dkt. 62 at 1.) However, Spreadbury fails to state why and/or how this

information is prejudicial to his current claim. Moreover, Spreadbury does not
claim the information contained in Lee Enterprises' briefing is untrue. Rather, he
claims it is irrelevant. However, as shown above, the infotmation is highly
relevant because it shows why the City subsequently dropped the criminal trespass
charges. This also shows articles published by Lee Enterprises were privileged and
Spreadbury's claims of defamation fail as a matter of law.
Therefore, even assuming Spreadbury's Motion to Strike covers relevant

l0
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matters outside of the pleadings, his motion should still be denied since he has not
shown the information he seeks to be stricken is preiudicial.

CONCLUSION
Spreadbury's Motion to Strike the information regarding speaking to the

librarian on November 4, 2009, from Lee Enterprises' Brief in Opposition to
Spreadbury's Motion for Partial Summary Judgment and corresponding Statement

ofGenuine Issues should be denied. Spreadbury has not cited any legal authority
for his Motion to Strike, and the Federal Rules of Civil Procedure only allow the
Court to strike matters from pleadings. Since Spreadbury seeks to strike

information outside of the pleadings, his motion should be denied. Further, even if
Spreadbury's motion had sought to strike matters from a pleading, his motion
should still be denied because information regarding Spreadbury speaking to the

librarian on November 4,2009, is highly relevant to Spreadbury's current claims,
and Spreadbury has not shown any prejudice from the information.

DATED this l3th day of July, 201 I .

lsl

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

lt
|

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CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(d)(2XE), I certi8, that Defendant LEE ENTERPzuSES,
INC.'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE is
printed with proportionately spaced Times New Roman text typeface of l4 points;
is double-spaced; and the word count, calculated by Microsoft Office Word 2007,
is 2295 words long, excluding Caption, Certificate of Service, and Certificate of
Comoliance.

ls/

Jeffrey B. Smith
Attornevs for Defendant. Lee Enterorises. Inc.

t2
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CERTIFICATE OF SERVICE

I hereby certif that on the l3th day of July, 20ll , a copy ofthe foregoing
document was seryed on the following persons by the following means:

]J
2

CM/ECF
Hand Delivery

Mail
Ovemight Delivery Service
Fax
E-Mail

L

Clerk, U.S. District Court

2.

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

3.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
[e-mail]
npj ones@boonekarlberg. com
tl eonard@boonekarlberg. com
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlberg, P.C.

lsl

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

13
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