Spreadbury v. Bitterroot Public Library et al
FINDINGS AND RECOMMENDATIONS re 50 MOTION for Partial Summary Judgment filed by Michael E. Spreadbury, 11 MOTION to Dismiss filed by Boone Karlberg P.C.. Objections to F&R due by 8/8/2011 Signed by Jeremiah C. Lynch on 7/21/2011. (TCL, ) Modified on 7/25/2011 to reflect copy mailed to Spreadbury this date (APP, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MICHAEL E. SPREADBURY,
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC.,
BOONE KARLBERG, P.C.,
DR. ROBERT BROPHY, TRISTA SMITH,
NANSU RODDY, JERRY STEELE,
STEVE SNAVELY, STEVEN BRUNER-MURPHY,
RYAN OSTER, KENNETH S. BELL, and JENNIFER LINT,
Before the Court are the following motions: (1) Defendant Boone Karlberg,
P.C.’s Fed. R. Civ. P. 12(b)(6) motion to dismiss Plaintiff Michael Spreadbury’s
complaint for failure to state a claim upon which relief can be granted; and (2)
Plaintiff Spreadbury’s Fed. R. Civ. P. 56 motion for summary judgment upon the
claims he advances against Boone Karlberg. For the reasons stated, the Court
recommends that Boone Karlberg’s motion be granted, and Spreadbury’s motion
The subject of this action stems from Spreadbury’s use of the Bitterroot
Public Library in Hamilton, Montana.1 Specifically, in May or June, 2009,
Spreadbury presented a document to the library staff that he wanted to be
maintained in the library. Defendant Nansu Roddy, the library’s assistant director,
refused Spreadbury’s request.
Unsatisfied with Roddy’s response, Spreadbury sought the assistance of the
library’s director. On June 11, 2009, after Spreadbury had continued interactions
with library staff, the director banned Spreadbury from access to the library.
Subsequently, Defendant Bob Brophy, the Chairman of the library board, issued a
letter dated February 23, 2010, terminating Spreadbury’s library privileges.
Not to be deterred, Spreadbury returned to the library on August 20, 2009.
Defendant Steve Snavely, a sergeant with the Hamilton Police Department,
engaged Spreadbury and informed him he was trespassing on library premises.
Ultimately, Defendant Kenneth Bell, the Hamilton City Attorney, signed and filed
a sworn criminal complaint charging Spreadbury with criminal trespass.
Spreadbury was found guilty of the charge after a jury trial.
The Court notes Spreadbury filed a motion seeking leave to file a second
amended complaint. The present recommendation pertains only to claims in
Spreadbury’s amended complaint. The Court will address the propriety of
granting him leave to amend by separate order.
Later in 2009, Spreadbury confronted Roddy outside the library which led
to Roddy obtaining an order of protection against Spreadbury from the Hamilton
City Court. The order was affirmed on appeal to the state district court and
ultimately to the Montana Supreme Court.
Based on Spreadbury’s encounter with Roddy, he was also charged with
felony intimidation. Spreadbury entered a plea of no contest and was convicted of
the offense. At some point after Spreadbury was convicted on the intimidation
charge, the prosecutors dismissed the earlier criminal trespass charge.
In 2010, Spreadbury filed civil lawsuits against Roddy and Bell in the
Montana Twenty-First Judicial District Court, Ravalli County suing each of them
for emotional distress damages. After both actions were dismissed Spreadbury
appealed to the Montana Supreme Court.
Boone Karlberg is a private law firm that represented Roddy and Bell in the
referenced civil actions. Spreadbury alleges that during the course of those
proceedings Boone Karlberg filed pleadings and briefs — both in district court
and the Montana Supreme Court — that contained false information. Specifically,
he alleges Boone Karlberg reported that Spreadbury had been trespassing at the
library even though Boone Karlberg knew the trespassing charge had been
dismissed. Spreadbury also alleges William L. Crowley, an attorney at Boone
Karlberg, falsely stated in pleadings that Spreadbury had threatened Bell.
Spreadbury advances 26 claims for relief against the various Defendants.
His pleading sets forth claims under 42 U.S.C. § 1983 for violations of his rights
under the United States Constitution. He also pleads claims under Montana law
for negligence, abuse of process, defamation, misrepresentation, malicious
prosecution, tortious interference with prospective economic advantage, and
negligent and intentional infliction of emotional distress. Spreadbury requests
injunctive relief, and an award of compensatory and punitive damages.
A. Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits a party to move for
dismissal where the allegations of a pleading “fail to state a claim upon which
relief can be granted.” A cause of action may be dismissed under Rule 12(b)(6)
either when it asserts a legal theory that is not cognizable as a matter of law, or if
it fails to allege sufficient facts to support an otherwise cognizable legal claim.
SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780,
783 (9th Cir. 1996). In addressing a Rule 12(b)(6) challenge, the court accepts all
factual allegations in the complaint as true (Hospital Bldg. Co. v. Trustees of the
Rex Hospital, 425 U.S. 738, 740 (1976)), and construes the pleading in the light
most favorable to the nonmoving party. Tanner v. Heise, 879 F.2d 572, 576 (9th
Cir. 1989). But, even a liberal interpretation of a civil rights complaint may not
supply essential elements of a claim that the plaintiff failed to plead initially. Ivey
v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Also, the court is not
required to accept legal conclusions cast in the form of factual allegations if those
conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal,
, 129 S. Ct. 1937, 1949
A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.
Id. Plausibility does not equate with “probability,” and it requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id. Factual allegations
“that are ‘merely consistent with’ a defendant’s liability” do not cross the line
between possibility and plausibility. Id. A plaintiff must set forth “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The court’s review on a motion filed under Rule 12(b)(6) is generally
limited to the matters set forth in the complaint. Lee v. City of Los Angeles, 250
F.3d 668, 688 (9th Cir. 2001) (citation omitted). If “matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
Rule 12(b)(6), however, permits the court to consider certain limited
materials beyond the face of the complaint without converting the motion into one
for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
The court may review “matters properly subject to judicial notice.” Williston
Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and
Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090,
1096 (9th Cir. 2008) (quoting Outdoor Media Group, Inc. v. City of Beaumont, 506
F.3d 895, 899-900 (9th Cir. 2007)). Specifically, under Rule 12(b)(6) — in
conjunction with Fed. R. Evid. 201 — the court may take judicial notice of court
records and proceedings in a prior state court action. Intri-Plex Technologies, Inc.
v. The Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
B. Pro Se Pleadings
Because Spreadbury is proceeding pro se the Court must construe his
pleadings liberally, and the pleadings, “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). See also Neitzke v. Williams,
490 U.S. 319, 330 n.9 (1989).
Although the Court has authority to dismiss a defective pleading,
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
C. Application of Montana Law
Spreadbury has properly invoked the federal question jurisdiction of this
Court under 28 U.S.C. § 1331 by advancing a claim under 42 U.S.C. § 1983.
Thus, jurisdiction over Spreadbury’s claims that are based on Montana law is
founded upon the Court’s supplemental jurisdiction under 28 U.S.C. § 1367(a).
“[A] federal court exercising supplemental jurisdiction over state law claims is
bound to apply the law of the forum state to the same extent as if it were
exercising its diversity jurisdiction.” Bass v. First Pacific Networks, Inc., 219
F.3d 1052, 1055 n.2 (9th Cir. 2000).
A. Boone Karlberg’s Motion to Dismiss
The substance of all of Spreadbury’s claims pled against Boone Karlberg
are entirely premised upon his contention that Boone Karlberg made defamatory
statements against him. The only factual allegations in Spreadbury’s pleading
expressly implicating any acts or omissions committed by Boone Karlberg allege
that it made false statements against Spreadbury in the state district court and the
Montana Supreme Court during the course of the civil legal proceedings involving
Spreadbury, Roddy, and Bell.
In support of its motion to dismiss, Boone Karlberg attached copies of
pleadings and documents filed in Spreadbury’s following state court actions:
Spreadbury v. Nansu Roddy, Cause No. DV-10-224, filed in the Montana
Twenty-First Judicial District Court, Ravalli County; and
Spreadbury v. Kenneth Bell, Cause No. DV-10-223, filed in the Montana
Twenty-First Judicial District Court, Ravalli County.
Spreadbury does not oppose Boone Karlberg’s submission of the state court
documents, nor does he challenge their authenticity. Accordingly, the Court will
take judicial notice of those documents.2 The documents reflect and confirm that
Boone Karlberg represented Roddy and Bell in those actions. Dkt. # 12-2 at 1011; Dkt. # 12-3 at 8, 10.
Spreadbury’s claims of defamation are governed by statutory law in
Montana which states that defamation occurs through either libel or slander.
Mont. Code Ann. § 27-1-801. Libel and slander each involve an “unprivileged
publication” or statement made about a person which causes harm to that person.
Mont. Code Ann. §§ 27-1-802 and 803.
Certain publications or statements, however, are privileged and, therefore,
do not constitute defamation. Montana law provides that a “privileged
publication” includes one made in any “judicial proceeding.” Mont. Code Ann. §
27-1-804(2). Under section 27-1-804(2), “[i]t has long been held that statements
made in a judicial proceeding are absolutely immune and a cause of action for
defamation cannot be predicated thereon.” Montana Bank of Circle, N.A., 769
P.2d 1208, 1213 (1989) (citing Bollinger v. Jarrett, 406 P.2d 834, 837 (1965)).
Federal Rule of Evidence 201 permits the Court to take judicial notice of
the judicial record of another court. Specifically, a court may take judicial notice
of other state or federal court proceedings. Duckett v. Godinez, 67 F.3d 734, 741
(9th Cir. 1995), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
1988). See also Burbank-Glendale-Pasadena Airport Authority v. City of
Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (allowing judicial notice of
pleadings in other cases).
All of Spreadbury’s allegations of defamation against Boone Karlberg are
based on statements made by that firm’s attorneys in pleadings or documents filed
in the courts of the State of Montana. Because the alleged statements were made
in judicial proceedings they are — as a matter of law — privileged under section
27-1-804(2) and cannot form the basis for a cause of action for defamation.
Spreadbury argues Boone Karlberg’s statements in the state court
documents were malicious and, therefore, not privileged by operation of Mont.
Code Ann. § 27-1-804(4). Spreadbury’s reliance on section 27-1-804(4) is
misplaced because the statute is not applicable to the statements that Spreadbury
alleges Boone Karlberg made in the judicial proceedings. Section 804(4)
establishes that a privileged publication is one made “by a fair and true report
without malice of a judicial, legislative, or other public official proceeding or
anything said in the course thereof.” Mont. Code Ann. § 27-1-804(4) (emphasis
added). Section 27-1-804(4) thus provides immunity for a person who makes a
report of a judicial proceeding if the report is without malice, but the statute does
not apply to statements made in a judicial proceeding. In contrast, section 27-1804(2) provides immunity for a person who makes a statement in a judicial
proceeding without regard to whether the statement was or was not made with
malice. Spreadbury’s allegations establish that Boone Karlberg’s challenged
publications are statements made in judicial proceedings, not malicious reports of
judicial proceedings unprotected by section 27-1-804(4). Thus, Boone Karlberg is
immune under Mont. Code Ann. § 27-1-804(2), and Spreadbury’s defamation
claim against Boone Karlberg (Count 16) should be dismissed.
Spreadbury further requests injunctive relief in Count 22 based on Boone
Karlberg’s alleged defamatory conduct. Specifically, he seeks an injunction
barring it from making further defamatory statements “through the courts[.]” Dkt.
# 10 at 26. Because Boone Karlberg’s statements in judicial proceedings are
privileged and do not subject it to liability for defamation, Spreadbury is not
entitled to the injunctive relief he requests. Count 22 should be dismissed.
Constitutional Rights - 42 U.S.C. § 1983
Spreadbury advances vague allegations against Boone Karlberg for
violations of his constitutional rights under 42 U.S.C. § 1983. Section 1983 states,
in part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
42 U.S.C. § 1983. Section 1983 is the vehicle through which a plaintiff can
present claims under federal law against a state official or employee if the plaintiff
can establish that the official or employee was acting under color of state law and
deprived the plaintiff of a federal right. Kirtley v. Rainey, 326 F.3d 1088, 1092
(9th Cir. 2003).
Section 1983, however, does not generally apply to the conduct of private
parties. Kirtley, 326 F.3d at 1092. “The state-action element in § 1983 ‘excludes
from its reach merely private conduct, no matter how discriminatory or
wrongful.’” Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806,
812 (9th Cir. 2010) (quoting American Manufacturers Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999)).
Spreadbury’s allegations acknowledge that Boone Karlberg is a private law
firm incorporated under the laws of Montana — not a state governmental entity.
In limited circumstances, however, a private party’s conduct may constitute state
action for purposes of imposing liability on a private party under section 1983.
The Ninth Circuit Court of Appeals has recognized the following four tests used to
identify private action that qualifies as state action: “(1) public function; (2) joint
action; (3) governmental compulsion or coercion; and (4) governmental nexus.”
Kirtley, 326 F.3d at 1092 (quotation omitted). The fundamental consideration in
each test is whether the private conduct is fairly attributable to the state. Id.
In response to Boone Karlberg’s motion to dismiss, Spreadbury argues
Boone Karlberg’s conduct qualifies as state action under each of the four tests.
The Court disagrees.
Under the public function test, a private actor’s conduct qualifies as state
action where the private actor is endowed with state powers or functions that are
traditionally and exclusively governmental in nature. Kirtley, 326 F.3d at 1092.
Here, Spreadbury sues Boone Karlberg for its role as a private law firm
engaged in the representation of Roddy and Bell in civil litigation prosecuted by
Spreadbury. As a matter of law, Boone Karlberg’s conduct in that capacity did not
constitute the exercise of a state power, and did not serve a state function that is
traditionally and exclusively governmental in nature. An attorney — even though
hired by a governmental employee or entity and paid by government funds —
serves only traditional private attorney functions and is not a state actor. Miranda
v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (citing Polk County v.
Dodson, 454 U.S. 312 (1981)).
A private individual may also “be liable under § 1983 if she conspired or
entered joint action with a state actor.” Crowe v. County of San Diego, 608 F.3d
406, 440 (9th Cir. 2010) (quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.
2002)). A joint action may exist where a state becomes interdependent with a
private actor, and accepts the benefits of the private actor’s conduct. Kirtley, 326
F.3d at 1093.
Spreadbury alleges Boone Karlberg was involved in a conspiracy. He
contends it conspired with other individuals to defame him and deprive him of his
To state a viable claim of a conspiracy to violate a plaintiff’s constitutional
rights under 42 U.S.C. § 1983, “the plaintiff must [allege] specific facts to support
the existence of the claimed conspiracy.” Burns v. County of King, 883 F.2d 819,
821 (9th Cir. 1989) (citation omitted). The allegations “must ‘demonstrate the
existence of an agreement or meeting of the minds’ to violate constitutional
rights.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quoting
Mendocino Environmental Center v. Mendocino County, 192 F.3d 1282, 1301 (9th
Cir. 1999)). Although it is not necessary that each participant in the conspiracy
know the details of the conspiracy, a plaintiff must allege that each participant “at
least share[s] the common objective of the conspiracy” — the objective to engage
in unconstitutional conduct. Id., 608 F.3d at 440 (quoting United Steelworkers of
America v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (en banc)).
Spreadbury’s allegations are insufficient to satisfy the standards for stating a
viable conspiracy claim. Spreadbury does not plead any specific supporting
factual matters which make it plausible to believe that a conspiracy existed.
Rather, Spreadbury’s allegations simply allege Boone Karlberg “acted in concert”
with others, had a “common objective” to defame and violate constitutional rights,
and engaged in “joint action” with the state officials. Spreadbury does not plead
any factual matters which support these conclusory assertions. Instead,
Spreadbury’s allegations are nothing more than labels, conclusions, and the
formulaic recitation of the elements of a conspiracy.
Conclusory allegations of a conspiracy are not sufficient to support a claim
for state action and a violation of constitutional rights under section 1983.
Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989).
Specifically, private attorneys — such as Boone Karlberg — are not state actors,
and conclusory allegations of an attorney’s involvement in a conspiracy seeking to
establish state action are insufficient. Simmons v. Sacramento County Superior
Court, 318 F.3d 1156, 1161 (9th Cir. 2003). An attorney’s role in representing a
client in civil litigation and “[i]nvoking state legal procedures does not constitute
‘joint action’ or ‘conspiracy’ with state officials sufficient to satisfy section 1983's
state action requirement.” Schucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir.
1988). Therefore, Spreadbury’s conclusory allegations against Boone Karlberg
are insufficient as a matter of law.
Government Compulsion or Coercion
The compulsion or coercion test considers whether the state has coercively
influenced or significantly encouraged private conduct. Kirtley, 326 F.3d at 1094.
Spreadbury’s allegations against Boone Karlberg make clear that he bases
his claims against the firm solely upon its conduct in representing Roddy and Bell
in the civil actions filed by Spreadbury. Spreadbury’s allegations only reference
statements made by Boone Karlberg’s attorneys in pleadings filed in these civil
actions, and do not set forth any facts plausibly suggesting any compulsion or
coercion by any state actor. Thus, Spreadbury’s allegations are insufficient as a
matter of law.
A private party’s conduct may be deemed state action if “there is such a
close nexus between the State and the challenged action that the seemingly private
behavior may be fairly treated as that of the State itself.” Kirtley, 326 F.3d at 1095
(quoting Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 531
U.S. 288, 295 (2001)).
Here, Spreadbury’s allegations do not identify any factual support for a
nexus theory. Boone Karlberg’s role as opposing counsel representing individual
state actors sued by Spreadbury does not make it a state actor. See Miranda v.
Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003). Spreadbury’s
allegations also do not suggest it is plausible that Boone Karlberg had any
connection or involvement with the conduct of Roddy or Bell underlying
Spreadbury’s claims in the state civil actions.
For the reasons stated, the Court is compelled to conclude that Spreadbury’s
allegations establish Boone Karlberg is a private law firm, and not a state actor.
Spreadbury’s allegations fail to plead facts which would make it plausible that
Boone Karlberg’s conduct alleged in this action qualifies as state action under any
of the four tests discussed above. Consequently, Spreadbury’s claims against
Boone Karlberg under 42 U.S.C. § 1983 should be dismissed.
Spreadbury advances a claim of common law negligence against Boone
Karlberg. A claim of negligence, however, depends upon a violation of a legal
duty that the defendant owed to the plaintiff. Peterson v. Eichhorn, 189 P.3d 615,
621 (Mont. 2008). The existence of a legal duty is a question of law for the
court’s determination. Jackson v. State of Montana, 956 P.2d 35, 42 (Mont.
1998). Absent a legal duty, no cause of action for negligence can exist. Nautilus
Insurance Company v. First National Insurance, Inc., 837 P.2d 409, 411 (Mont.
Spreadbury’s allegations of negligence are based entirely upon Boone
Karlberg’s purported defamatory statements made against Spreadbury during the
course of the prior state court actions. Because Boone Karlberg’s statements or
publications in judicial proceedings are privileged, there exists no legal duty that
bars Boone Karlberg from making the referenced statements. Because Boone
Karlberg is immune from liability for defamation, the alleged defamatory
statements cannot serve as a predicate basis for a claim of negligence. Absent a
legal duty, Speadbury’s claim of negligence fails.
Tortious Interference with Prospective Economic
Spreadbury alleges all Defendants “committed intentional and willful acts
calculated to cause damage to Spreadbury’s reputation, and prospective economic
advantage.” Dkt. # 10 at 17. He alleges Defendants’ actions were for the
“purpose of causing damage or loss [...] without right or justifiable cause[.]” Id.
Spreadbury’s allegations track the elements of a cause of action for
intentional interference with prospective economic advantage which require that a
defendant’s acts: “(1) are intentional and willful; (2) are calculated to cause
damage to the plaintiff's business; (3) are done with the unlawful purpose of
causing damage or loss, without right or justifiable cause on the part of the actor;
and (4) result in actual damages or loss.” Maloney v. Home and Investment
Center, Inc., 994 P.2d 1124, 1132 (Mont. 2000).
Spreadbury’s allegations are conclusory, and are nothing more than a
formulaic recitation of the elements of a cause of action for interference.
Spreadbury does not plead any specific facts regarding any business or economic
advantage he had that was damaged by Boone Karlberg’s conduct in representing
Roddy and Bell, and his allegations do not include any facts suggesting it is
plausible that Boone Karlberg engaged in conduct calculated to damage
Spreadbury’s business. Again, Spreadbury’s allegations establish only that Boone
Karlberg represented Roddy and Bell in civil actions commenced by Spreadbury.
Also, because Spreadbury’s defamation and conspiracy allegations are
insufficient, they cannot form the predicate basis for his tortious interference
claim. Spreadbury’s deficient allegations fail to state a claim for relief and the
cause of action should be dismissed.
Negligent and Intentional Infliction of Emotional Distress
Spreadbury alleges all Defendants are liable for both negligent or
intentional infliction of emotional distress because they unlawfully conspired to
charge him with a crime, and publish defamatory statements against him.
The Montana Supreme Court has recognized independent causes of action
for negligent or intentional infliction of emotional distress. The claims may be
viable “under circumstances where serious or severe emotional distress to the
plaintiff was the reasonably foreseeable consequence of the defendant's negligent
or intentional act or omission.” Sacco v. High Country Independent Press, Inc.,
896 P.2d 411, 426, 428-29 (Mont. 1995) (emphasis added).
Spreadbury’s allegations are deficient under Sacco for two reasons. First,
his allegations establish that Boone Karlberg was not involved in filing criminal
charges against Spreadbury. Second, Spreadbury has failed to allege Boone
Karlberg committed a negligent or intentional act or omission. As discussed
above, Spreadbury’s allegations are insufficient to allege that Boone Karlberg
engaged in a conspiracy, or that it committed any negligent or intentional act as
required under Sacco. Consequently, Spreadbury’s allegations fail to state a claim
for relief under either negligent or intentional infliction of emotional distress.
Spreadbury’s claims against Boone Karlberg in Counts 20 and 21 should be
The Court recommends dismissal of all of Spreadbury’s claims against
Boone Karlberg. Therefore, absent a viable theory of recovery resulting in an
award of actual damages against Boone Karlberg, Spreadbury is not entitled to
recover punitive damages, and that claim should be dismissed. Doll v. Major
Muffler Centers, Inc., 208 Mont. 401, 414, 687 P.2d 48, 55 (1984). See also
Peterson v. Eichhorn, 189 P.3d 615, 624 (Mont. 2008) (noting that punitive
damages are merely a component of recovery of an underlying theory of recovery).
B. Spreadbury’s Motion for Summary Judgment
Spreadbury moves for summary judgment against Boone Karlberg on the
following claims for relief in his second amended complaint:3
(1) Count 8 (tortious interference with prospective economic advantage);
(2) Count 15 (negligence);
(3) Count 16 (defamation);
(4) Count 20 (intentional infliction of emotional distress);
(5) Count 21 (negligent infliction of emotional distress);
(6) Count 22 (injunctive relief); and
(7) Count 26 (punitive damages).
Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” As the plaintiff,
Spreadbury’s claims for relief identified as Counts 1 through 26 are the
same in both his amended complaint and his second amended complaint.
Spreadbury bears the burden of persuasion at trial, and on summary judgment he
bears the “initial burden of establishing the absence of a genuine issue of fact on
each issue material to [his] case.” C.A.R. Transportation Brokerage Co., Inc. v.
Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000).
[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying
those portions of “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
For the reasons discussed above, Spreadbury’s allegations fail to state any
claim for relief against Boone Karlberg. Consequently, his summary judgment
motion similarly fails to demonstrate he is entitled to judgment as a matter of law.
Additionally, Spreadbury has not identified sufficient facts in support of his
summary judgment motion demonstrating he is entitled to relief. Significantly, he
has not established the absence of genuine issues of material facts with respect to
all the elements of each claim for which he seeks summary judgment. Where a
movant has failed to meet the initial summary judgment burden, the motion should
be denied regardless of the nonmovant’s response. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
If a moving party fails to carry its initial burden of production, the
nonmoving party has no obligation to produce anything, even if the
nonmoving party would have the ultimate burden of persuasion at trial.
[Citations omitted.] In such a case, the nonmoving party may defeat the
motion for summary judgment without producing anything.
Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 110203 (9th Cir. 2000). Accordingly, Spreadbury’s motion for summary judgment
should be denied.
Based on the foregoing, IT IS RECOMMENDED that Spreadbury’s
summary judgment motion be denied, and Boone Karlberg’s motion to dismiss be
granted. Spreadbury’s claims against Boone Karlberg should be dismissed.
DATED this 21st day of July, 2011.
/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge
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