Spreadbury v. Bitterroot Public Library et al

Filing 7

Brief/Memorandum in Support re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises Defendant Lee Enterprises' Brief in Support of Motion to Dismiss All Counts Against Lee Enterprises filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Jeffrey B. Smith

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL E. SPREADBURY,
Plaintiff,

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

Cause No. CV-1 I -064-M-DWM

DEFENDANT, LEE ENTERPRISES,
INC.'S BRIEF IN SUPPORT OF
MOTION TO DISMISS ALL
COI.INTS AGAINST LEE
ENTERPRISES, INC.

Defendants.

Defendant, Lee Enterprises, Inc. ("Lee Enterprises"), through its counsel,

respectfully submits this Brief in Support of its Motion to Dismiss All Counts
Against Lee Enterprises contained in Plaintiff s Amended Complaint: Counts 8,
18-21 , 23 and 26

989861

(Dkt.

1- I ).

I.

INTRODUCTION

This matter arises out of Plaintiff, Michael E. Spreadbury's ("Spreadbury")
altercations with residents of Ravalli County. As alleged in his Amended

Complaint, on or about May/June 2009, Spreadbury requested correspondence be
admitted into the public library reserve at the Bitterroot Public Library ("Library").
See Amend. Compl.

fJ3l (Apr. 5,2011) (Dkt. 1-1). Library staff refused to accept

Spreadbury's submission. An altercation ensued which led the Library to revoke
Spreadbury's Library privileges and ban him from the premises. See Dkt.
fltT

l-l

at

32-36. However, Spreadbury did not comply. After again being wamed not to

return to the Library, Spreadbury was seen trespassing on Library property on or
about August 20,2009. See Dkt.

l-l

atfl 46. As

a result, Spreadbury was charged

with criminal trespassing. Ravalli Republic,t the local newspaper in Hamilton,
Montana, published a story based on the charges brought against Spreadbury. See

Dkt. 1-1 atn 49. The article was posted on Ravalli Repablic's website and
independent citizens posted comments regarding the article. See Dkt.

1-l

at flfl 50-

52. During this time, Spreadbury was running for Mayor of Hamilton, Montana'
See

Dkt.

l-l

atf176.

On or about August 16, 2010, the criminal trespass charges against

'
989861

Ravalli Republic is owned by Defendant Lee Enterprises, Inc.

Spreadbury were dismissed. See Dkt.

l-l

at !f 66. Ravalli Republic published

articles stemming from the criminal trespass charges. See Dkt. 1-1 at'tl 68.
Spreadbury has subsequently brought multiple suits against parties in Ravalli

County which allegedly conspired against him.
The current matter is brought against the Library, City of Hamilton, Lee
Enterprises, and the law firm of Boone Karlberg P.C. Regarding Lee Enterprises,
Spreadbury alleges: Count 8 - Tortious Interference With a Prospective Economic

Advantage; Count 18 - Negligence,Alegligence Per Se; Count

l9 - Defamationi

Defamation Per Se; Count 20 - Intentional Infliction of Emotional Distress; Count
21 - Negligent Infliction of Emotional Distress; Count 23 - Injunctive Relief; and

Count 26 - Punitive Damases.,See Dkt. 1-1.

II.

ARGLA4ENT

The various allegations and Counts against Lee Enterprises fail to state a

claim under Montana law. Accordingly, pursuant to Federal Rule of Civil
Procedure 12(bX6), all allegations and Counts against Lee Enterprises in
Spreadbury's Amended Complaint should be dismissed.

A.

Spreadbury's Amended Complaint Fails to Set Forth Sufficient Facts Which
Would Entitle Him to Relief.

A district court

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

upon which reliefcan be granted. Fed. R. Civ. P. l2(b)(6); Shandell v. Rubin, 103

98986t

F.3d 140 (table), 1996 WL 713471(9th

cir. 1996). when

considering a motion to

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

l2g

S.

U.S.

-

Ct. 1937, 1954 (2009). A complaint should be dismissed for failure to

-, a claim if the plaintiff cannot prove a set of facts which would entitle him to
state
relief . Conley v. Gibson,355 U.S. 41,45-46 (1957).

B.

While the Court May Take the Factual Allegations of a Plaintiff s
Complaint As True for Pumoses of a Motion to Dismiss. the Same
Presumption Does Not Apply to Spreadbury's Legal Conclusions.
The allegations and Counts against Lee Enterprises in Spreadbury's Amended

Complaint should not be taken as true for purposes of this motion because they are

simply legal conclusions with no factual basis.
Generally, in deciding a motion to dismiss, "[t]he Court must accept all
allegations of material fact as true, . . . , and construe the pleading in the light most
favorable to the nonmoving party." Knievel v. ESPN, lnc.,223 F. Supp. 2d 1173,
1177 (D. Mont. 2002). However, the same standard is not applicable to legal

conclusions. "While legal conclusions can provide the complaint's framework,
they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1940.
"Threadbare recitals ofthe elements ofa cause ofaction, supported by mere
conclusory statements, do not suffice." Iqbal,129 S. Ct. at 1949.
As articulated by the U.S. Supreme Court:
989E61

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face. A claim has facial plausibility when
the plaintiffpleadsfactual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility
and plausibility of entitlement to relief.

Iqbal, 129 S. Ct. at 1949 (intemal citations and quotations omitted, emphasis
added).

ln lqbal, the U.S. Supreme Courl held the complaint failed to state a claim for
purposeful and unlawful discrimination. Iqbal,129 S. Ct. at 1954. Crucial to this
determination was the Court's finding that numerous allegations in the complaint
were not entitled to an assumption of truth, because they were not supported by

proper factual allegations. Iqbal,129 S. Ct. at 195L For example:
Respondent pleads that petitioners knew of, condoned, and
willfully and maliciously agreed to subject [him] to harsh
conditions of confinement as a matter of policy, solely on account
of [his] religion, rcce, and/or national origin and for no legitimate
penological

interest.

*

{.

,*

[and] Ashcroft was the principal architect of this invidious policy,
and that Mueller was instrumental in adopting and executing it.

Iqbal,129

S. Ct. at 1951 (intemal quotations citations

omitted). The Court

determined these allegations were merely conclusory and not entitled to be

989861

assumed true, because they "amount to nothing more than a formulaic recitation

of

the elements of a constitutional discrimination claim." Iqbal, 129 S. Ct. at 1951

(intemal quotation and citation omitted).

Similarly, in the present case, Spreadbury's allegations against Lee
Enterprises simply amount to legal conclusions unsupported by factual allegations.
See

lqbal,l29

S. Ct. at 1950.

Count 8 - Tortious Interference With a Prospective Economic Advantage;

count I 8 - NegligenceA.,legligence Per Se; count

19 - Defamation/Defamation Per

Se; Count 20 - Intentional Infliction of Emotional Distress; Count 2 I - Negligent

Infliction of Emotional Distress; Count 23 - Injunctive Relief; and Count 26 Punitive Damages, are all simply legal conclusions with no factual support.

Like in lqbal, these allegations amount to nothing more than a recitation of
the elements for each Count. As such, they should not be assumed true and, in the
absence ofplausible factual allegations, should be dismissed.

C.

Even If Spreadbury's Factual Allegations Are Taken As True. His
Amended Complaint Fails to State a Claim Against Lee Entemrises
Upon Which Relief Can Be Granted.

As articulated above, the allegations and Counts in Spreadbury's Amended
Complaint should not be taken as truth because they are merely legal conclusions.
However, even if taken as truth, the allegations and Counts against Lee Enterprises

in Spreadbury's Amended Complaint should still be dismissed for failing to state a
989861

claim upon which relief can be granted.

1.

42 U.S.C. q 1983

First, although not specifically plead as a Count against Lee Enterprises,
Spreadbury alleges the Defendants conspired to deprive him ofhis Constitutional

Rights under 42 U.S.C. $ 1983. See Dkt. 1-1 at fl$ 25-29. While it is unclear

which Defendants allegedly violated Spreadbury's constitutional rights, Lee
Enterprises cannot be included in this allegation since no Counts in Spreadbury's

Amended Complaint allege Lee Enterprises violated any of Spreadbury's
constitutional rights.
Further, Spreadbury's Amended Complaint fails to allege Lee Enterprises
acted under the color of state law.

In order to recover under $ 1983 for conduct by the defendant,
a plaintiff must show that the conduct allegedly causing the
deprivation of a 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.

[s]tate action may be found if, though only if, there is such a
close 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). To put it another way,

989861

Spreadbury fails to show Lee Enterprises had any sort of an agreement and,/or plan

with the govemment. "To prove

a conspiracy between private parties and the

government 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).
Therefore, even if his factual allegations are taken as truth, the claim against
Lee Enterprises alleging a violation of Spreadbury's constitutional rights under 42

U.S.C. $ 1983 should be dismissed since his Amended Complaint fails to state a

claim upon which reliefcan be granted.

2.

Count 8 - Intentional Interference With Prospective Business
Advantage

Spreadbury's Amended Complaint does not provide sufficient information to
raise the issue ofintentional interference with prospective business advantage.

To establish a case ofintentional 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.
Sebena y. Am. Automobile Assn.,280 Mont. 305, 309, 930 P.2d

5

l,

53 ( 1996). In a

cause of action for intentional interference with prospective economic advantage

".

. . the focus on the legal inquiry is on the intentional acts of the malicious

interloper in disrupting a business relationship." Maloney v. Home & Inv. Ctr.,
989861

lnc.,2000 MT 34, n42,298 Mont. 213, 994P.2d 1124.
Under this theory a person involved in an economic relationship
with another, or who is pursuing reasonable and legitimate
prospects of entering 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).
In Hughes v. Lynch, 2007

MT

177

, 338 Mont. 214, I 64 P.3 d

91

3, the

Montana Supreme Court determined Hughes failed to establish a tortious
interference claim because, among other reasons, Hughes' allegations that Lynch's
actions were done with the unlawful purpose of causing damages were supported

by nothing but speculation.

Like in Hughes, Count Eight of Spreadbury's Amended Complaint, is not
supported by anything but speculation. The Tort oflntentional Interference with
Prospective Business Advantage protects a plaintiff in an economic relationship

with another or a legitimate prospect of such a relationship from a third party's
conduct intended to disrupt the relationship. See Maloney,[42. Although
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 the factual allegations to

support this claim. See Dkt.

l-1

at

fl 124. The only factual allegations against Lee

Enterprises are that newspapers it owns published news articles reporting the
989861

charges and allegations brought against Spreadbury in a court of

law. There

are no

factual allegations regarding Spreadbury's economic relationship or prospective
relationship which were disrupted by Lee Enterprises' alleged conduct. There are
no allegations Lee Enterprises took any action without right orjustification.
Rather, Count 8 is mere speculation, and, like in Hughes, Spreadbury's Amended

Complaint provides insufficient information to establish a cause of action for
intentional interference with prospective business advantage. As such, Count

8

should be dismissed.

3.

Count 18 - NegligenceAJegligence Per Se

Spreadbury's Amended Complaint does not suppofi a case for negligence or
negligence per se.

"Negligence is the failure to use the degree of care that an ordinarily prudent
person would have used under the same circumstances." Peterson v. Eichhorn,
2008 MT 250,123,344 Mont. 540, 189 P.3d 615.

To maintain an action in negligence, the plaintiff must prove four
essential elements: ( 1) 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,tf 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
989861

l0

161.

Similarly, there are certain elements which must be met in order to find a
defendant negligent per se.

In order to establish negligence per se, plaintiffmust prove that:

(l)

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 ofthe sort
the statute was enacted to prevent; and (5) the statute was
intended to regulate members of defendant's class.

Prindel v. Ravalli County,2006 MT 62,331 Mont. 338, 133 P.3d 165.
Count 18 of Spreadbury's Amended Complaint alleges Lee Enterprises was
negligent and/or negligent per se. However, Spreadbury does not set forth any
factual allegations regarding a duty Lee Enterprises owed to him. The law is clear,

"[a]bsent a duty, breach of duty cannot be established and a negligence action
cannot be maintained." Sikorski, fl 13. Since Spreadbury's claim of negligence
against Lee Enterprises is not supporled by the proper factual allegations, it should
be dismissed.

Similarly, Spreadbury's Amended Complaint fails to state a claim upon
which reliefcan be granted for his claim that Lee Enterprises was negligent per se.
As noted above, to establish negligence per se, Spreadbury must first prove Lee
Enterprises violated a particular statute. See Prindel, fl 27. However, Spreadbury
does not cite to a statute which Lee Enterprises allegedly violated. Therefore,
989861

1l

Spreadbury's claim of negligence per se against Lee Enterprises should be
dismissed.
Since Spreadbury's Amended Complaint fails to set forth a claim

of

negligence, and/or negligence per se, upon which relief can be granted, Count 18
should be dismissed.

4.

Count 19 - Defamation/Defamation Per Se

Spreadbury's Amended Complaint does not provide sufficient information to
suppoft a case for defamation or defamation per se against Lee Enterprises.

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

writing. Restatement (Second) of Torts $ 568 (1979). Montana Code Annotated

$

27-l-802 (2009) (emphasis added) defines Libel:
Libel is a false and unprivileged publication by writing, printing,
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 inj ure a person
in the person's occupation.
However, certain communications are privileged. Montana Code Annotated $ 271-804 (2009) establishes what types of Publications are privileged.

A privileged publication is one made:
( 1) in the proper discharge of an 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
98986t

t2

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.
Spreadbury's claims of defamation and defamation per se against Lee
Enterprises, contained in Count 19 of his Amended Complaint, should be
dismissed because Lee Enterprises' publications regarding Spreadbury were

privileged, as they were based on facts taken from judicial pleadings. InCoxv.
Lee Enterprises, the Montana Supreme Court held pursuant to Montana Code

Annotated $ 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 v. Lee Enters., [nc.,222 Mont. 527,530,723 P.2d238,240 (1986).

Dale Cox was an attorney practicing in Glendive, Montana. He represented
Laura Thomas in a civil suit stemming from an auto accident. The case was settled
and, since Thomas was a minor, the settlement proceeds were placed in a legal

guardianship, appointed by the Court because Thomas had no living parents.
Later, as an adult, Thomas brought suit against Cox for an unnecessary extension

of the guardianship. Cox, 723 P.2d at239. The Billings Gazette published an

989861

IJ

article regarding Thomas' Complaint, simply paraphrasing and quoting Thomas'
allegations against Cox. Thomas' case against Cox was eventually dismissed and,
subsequently, Cox brought suit against the newspaper in federal court, alleging

defamation. The federal court certified the following question to the Montana
Supreme Court:
Under the law of the State of Montana, is the defense of privilege
available to 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
judicially acted upon.

Cox,723 P.2d at239.
The Supreme Court answered in the affirmative. In making this determining,
the Court relied on $ 27- I -804(4), "which makes a fair and true report without

malice of

a

judicial proceeding a privileged publication." Cox,723 P.2d at 239'

240. The Court noted the definitions of "judicial proceedings" included:
Any proceeding whereinjudicial 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 modern trend ofjurisdictions applying a qualified privilege to reports

judicial pleadings which have not yet been the

subj ect

of

ofjudicial action.

Certainly, the administration ofjustice is of utmost importance to
the citizenry. While we are aware that pleadings are one-sided and
989861

t4

may contain, by design, highly deflamatory statements, we believe
the information found in such pleadings is of sufficient value as to
warrant the encouragement of its publication.

Cox,723 P.2d at 240 (citing Newell v. Field Enters., Inc., 415 N.E.2d 434

(Ill.

App. 1980) (internal quotations omitted).
Similarly, inLence v. Hagadone Co.,258 Mont. 433, 853 P.2d 1230 (1993),
overruled on other grounds by Sacco v. High Country Indep. Press, Inc., 27 |

Mont. 209, 896 P.2d 411 (1995), the Montana Supreme Court upheld the district
court's entry of summary judgment in favor of the defendants, because the article
published was privileged pursuant to $ 27-1-804(a).

Attorney John Lence sued the Daily Inter Lafte newspaper for publishing
articles which detailed judicial proceedings which were filed against him. First, in
1998, the newspaper published an article regarding a complaint filed against Lence

by a former client to the Commission on Practice. Later, in 1989, the newspaper
published two articles surrounding charges brought against Lence for allegedly

violating city building codes. The first article published discussed the charges
brought against Lence, and the second article published discussed that Lence
pleaded innocent to the charges. Lence brought suit, alleging the newspaper
defamed him. Lence,853 P.2d at 1232-1234. However, the district court entered
summary judgment in favor of the defendants since the newspaper afticles were

privileged; reporting on facts taken from ajudicial proceeding. On Appeal, the
l5

Montana Supreme Court agreed, finding the preliminary Commission on Practice
investigation and Lence's alleged violations of Kalispell building codes in city
court were part ofjudicial proceedings and, thus, the published article reporting on

thefactsfromtheproceedingswereprivilegedpursuantto$27-l-804(4). Lence'
853 P.2d at 1236-1237.
Spreadbury alleges Lee Enterprises defamed him by reporting on his criminal
trespass charges. See

Dkt. 1-1 at fl 182. However, Spreadbury does notprovide

the Court with any language Lee Enterprises published which allegedly defamed

him. Rather, the Amended Complaint simply recites the legal elements of
defamation. As detailed in section II. B. of this Brief, Spreadbury's allegations
should not be taken as fact since they are merely legal conclusions'
Furthermore, even iftaken as fact, Spreadbury fails to state a claim upon

which relief can be granted because Lee Enterprises publications were privileged
pursuant to $ 27-l-804(4). Spreadbury's Amended Complaint shows these articles

were based on the judicial proceedings of criminal trespass charges. As such, they
are privileged and Lee Enterprises cannot be liable for defamation and/or

defamation per se.
Spreadbury claims Lee Enterprises first published an article entitled "Mayoral
Candidate charged with Trespass." See Dkt.

l-1

at

fl 49.

Later,, Spreadbury alleges

subsequent articles were published regarding the criminal trespass charges. See
l6

Dkt. 1-l atfln 64-73. Consequently, even if taken

as truth, Spreadbury's Amended

Complaint fails to state a claim upon which relief can be granted, because it fails to
show how Lee Enterprises' articles were not privileged.

Further, even though charges for criminal trespassing were later dropped, this
does not preclude the Ravalli Republic or other newspapers from reporting facts

from a preliminary proceeding. Nor does it preclude the Ravalli Republic from
publishing subsequent articles based onjudicial proceedings involving Spreadbury.
In this regard, Spreadbury alleges Lee Enterprises published stories "pertaining" to
the criminal trespass charges after the charges were dropped. See Dkt. I - I at

flfl 68-69. However, even if taken as truth, these allegations are insufficient to
show the publications were not privileged.

Accordingly, the articles published by Ravalli Republic which contained facts
of the judicial proceedings do not support Count 19 - Defamation/Defamation Per
Se and those claims should be dismissed.

5.

Count 20 - Intentional Infliction of Emotional Distress

Spreadbury's Amended Complaint does not support a case for intentional

infliction of emotional distress against Lee Enterprises.
Montana law allows intentional infliction of emotional distress to be plead as
a separate cause

of action. See Sacco,896 P.2d at 427. However, the Plaintiff has

the burden of coming forth with material and substantial evidence to support his
9E9861

t7

claim. See McConkey v. Flathead Elec. Coop.,2005 MT 334,n 54,330 Mont. 48,
125 P.3d I 121

.

In turn, the trial court must determine "whether a plaintiff has

introduced sufficient evidence to support a prima facie case for intentional
infl iction of emotional distress." Sacco, 896 P.2d at 427 (citing Doohan v.

B

ig

Fork Sch. Dist. No. 38,247 Mont. 125, 138, 805 P.2d 1354,1365 (1991)). If the
evidence presented by the plaintiff is insufficient as a matter of law, his claim must

fail.

See

McConkey,l 54.

As articulated by the Montana Supreme Court in Sacco,

[A]n independent cause ofaction for intentional infliction of
emotional distress will arise under circumstances where serious or
severe emotional distress to the plaintiff was the reasonably
foreseeable consequence of the defendant's intentional act or
omission.
Sacco, 896 P.2d at 428.

However,

"[i]t is only where it is extreme

distress] arises." May v.

I

EM Landmark

54,302 Mont. 326, I 5 P.3d

1

I

that the liability [for emotional

Real Est. of Bozeman, 2000 MT 299,

79. "Complete emotional tranquility is seldom

attainable in this world, and some degree of transient and trivial emotional distress
is part of the price of living among people." Maloney,Jl 63.

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

it." Rayv. Wash.

Natl. Ins. Co., 190 F.R.D. 658, 663 (D. Mont. 1999) (citing Sacco,896 P.2d at
989E61

l8

426) (quotations omitted)).

[T]he requirement that the emotional distress suffered be serious or
severe, as we have already defined those terms, alleviates any
concern 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,896 P.2d at 428 (emphasis in original).
In Renville v. Fredericlrson,2004MT 324,324 Mont. 86, 101 P.3d 773, the
Montana Supreme Court upheld the district court's order granting summary

judgment in favor of the defendant regarding Renville's claim for emotional
distress, since plaintiff failed to show her alleged emotional distress was so severe

that no reasonable person would be expected to endure
case,

it.

In the above-referenced

Renville's son was killed in an automobile accident. The vehicle was driven

by Frederickson. Renville brought suit against Frederickson, seeking damages for
emotional distress and loss of consortium. Renville,

Jf

2. However,

the Court

granted summary judgment in favor of Frederickson since Renville's alleged

emotional distress did not arise to the level of compensability.

While we sympathize with Renville for her loss, our review of her
testimony does not lead us to conclude that her emotional distress
is so severe that it rises to the level of a compensable claim. There
was no indication of any physical manifestation of grief; no
counseling has been sought or recommended; Renville chose not to
98986r

l9

take anti-depressants; her use of Valium has not dramatically
increased; she does not have continuous nights of sleeplessness or
days without appetite; and she maintains close relationships with
family members and friends.

Renville,n 15.
Count 20 of Spreadbury's Amended Complaint, Intentional Infliction

of

Emotional Distress, should be dismissed because Spreadbury fails to show he
suffered from severe emotional distress. Rather, like Spreadbury's other
allegations, he simply recites the elements of a claim for intentional infliction

of

emotional distress. For example, in paragraph 80 of his Amended Complaint,
Spreadbury alleges "[a]s a direct and proximate result ofDefendant's acts alleged

herein, Spreadbury was caused to incur severe and grievous mental and emotional

suffering, fright, anguish, shock, nervousness, and anxiety." Dkt. l-1 at fl 80.
However, Spreadbury does not allege any specific facts regarding the alleged
emotional distress.

Dismissing Spreadbury's claim of emotional distress is necessary to uphold
the purpose of the Montana Supreme Court's strict standard regarding a claim for

emotional distress. "[T]he requirement that the emotional distress suffered be
serious or severe, as we have already defined those terms, alleviates any concern
over a floodgate of claims, particularly fraudulent claims." Sacco, 896 P.2d at 428
(emphasis in original).

20

Spreadbury has not met his burden ofpresenting material and substantial
evidence to support his claim for emotional distress. See McConkey, fl 54 (if the
evidence presented by plaintiff is insufficient as a matter of law, his claim must

fail). Accordingly, Count 20 of Spreadbury's Amended Complaint should

be

dismissed.

6.

Count 21 - Negligent Intentional Infliction of Emotional Distress

Similar to the claim of Intentional Infliction of Emotional Distress,
Spreadbury's Amended Complaint fails to state a claim upon which relief can be
granted for Negligent Infliction of Emotional Distress.

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
of the defendant's negligent act or omission.

Sacco,896 P.2d at

425

.

It 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
Ist

v.

Natl.Ins. Co. of Am.,2003 MT 309,n23,318 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 in Section IL 3. of this Brief, Spreadbury's Amended Complaint

989861

)1

does not provide sufficient information to establish a case for negligence, since

it

fails to set forth any factual allegations regarding a duty Lee Enterprises allegedly
owed to Spreadbury.

Furthermore, as detailed in Section II. 5., Spreadbury fails to allege facts
showing he suffered emotional distress. ln May, the Court granted summary

judgment in favor of ERA regarding Mays' negligent intentional infliction of
emotional distress claims, since the Mays failed to show they suffered emotional

distress. The Mays entered into an agreement with ERA to sell their gas station in
Bozeman, Montana. ERA found a buyer and sold the property. However, the
terms of the agreement established the Mays were still responsible for the toxic

liability and the

gas tank

removal. The Mays brought suit alleging various claims

against ERA based on the allegation that ERA told the Mays they would not be

responsible for the toxic liability and the gas tank removal. May,ffii 5-16. With
regard to their claim for emotional distress, the Mays alleged they suffered

emotional distress from the extra work and added stress as a result ofthe toxic

liability and the

gas tank

removal. However, they admitted it was not stressful

enough to seek medical treatment. As a result, the Court granted summary

judgment in favor of ERA, and the Montana Supreme Court affirmed. May,fl57.

Like in May, Spreadbury fails to support his claim of emotional distress.
Paragraph 80 of Spreadbury's Amended Complaint alleges "[a]s a direct and
989861

22

proximate result ofDefendant's acts alleged herein, Spreadbury was caused to
incur severe and grievous mental and emotional suffering, fright, anguish, shock,
nervousness, and anxiety." Dkt.

l-1 atfl 80' Spreadbury

does not allege any

specific facts supporting the alleged emotional distress. Instead, like his other
claims, Spreadbury's Amended Complaint simply recites the legal elements of a

claim of emotional distress without any factual support.
Accordingly, Count

2l of Spreadbury's Amended Complaint should

be

dismissed.

7.

Count 23 - Injunctive Relief

Spreadbury's Amended Complaint does not provide sufficient information to
support his claim for Injunctive Relief as requested in Count 23.

"A ruling on a motion for preliminary injunction is subject to the discretion of
the district court." Am. Music Co. v. Higbee,l998

MT 150,289 Mont' 278,

961

P.2d 109.
Spreadbury's Amended Complaint essentially requests the Court order Lee
Enterprises stop publishing news articles about Spreadbury. See Dkt.

l-l

atn214'

However, Spreadbury has not stated factual allegations sufficient to entitle him
reliefagainst Lee Enterprises. Since it does not appear that the applicant
[Spreadbury] is entitled to the relief demanded, an injunction is not proper. See

Mont. Code Ann. $ 27-19-201 (2009).
98986t

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

B4,n

15,333 Mont. 471,143 P.3d 456 (internal citation omitted).

"lnjunction is not an appropriate remedy to procure relief for past injuries, it is to
afford preventive relief only." Mustang,fl15.

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

Annotated 927-16-102(2). This portion ofCount 23 specifically should be
dismissed because Montana Code Annotated $ 27-16-102(2) gives Spreadbury no

authority to civilly anest anyone.

8.

Count 26 - Punitive Damages

Spreadbury's Amended Complaint does not provide sufficient information to
support his claim for Punitive Damages as requested in Count 26.

"[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.2d292,298 (1993) (intemal quotations and citations

omitted) (finding an award of punitive damages was improper since there was no
evidence to support plaintiff s claim). "Section2T-l-221, MCA, governs the
award of punitive damages. It provides that reasonable punitive damages may be
989861

24

awarded in a non-contract action when a defendant has been found guilty of actual

fraud or actual malice." Trifad Ent., Inc. v. Anderson,200l MT 227,

'lT

53, 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 ofthe conclusions
drawn flom the evidence." Trifad Ent., fl 54; Mont. Code Ann.

I

27

-l-221(5)

(2009).
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 of injury
to the plaintiff and he I ) 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,fl53.

Spreadbury does not provide any evidence to support his claim for punitive

damages. Spreadbury alleges Lee Enterprises acted with actual malice. However,

like the rest of his Amended Complaint, Spreadbury fails to allege specific
allegations to support his claim. Count 26 of Spreadbury's Amended Complaint
fails to provide any evidence, let alone clear and convincing evidence, to support

989861

z)

his claim for punitive damages.

Moreover, Spreadbury's claim for punitive damages against Lee Enterprises
fails if his other Counts are dismissed. See Maulding,847 P.2dat298.
Spreadbury's claim for punitive damages cannot stand alone. Therefore, since the
Counts brought against Lee Enterprises fail to state a claim upon which reliefcan
be granted, it follows that Spreadbury's requested relief of punitive damages

should be dismissed as well.

III.

CONCLUSION

The various Counts against Lee Enterprises contained in Spreadbury's
Amended Complaint (Counts 8, l8-21 , 23 and 26) should be dismissed pursuant to

Rule l2(b)(6). First, the allegations in Spreadbury's Amended Complaint should
not be taken as truth for purposes of this motion, since the allegations are simply
legal conclusions with no factual basis. However, even if taken as truth,
Spreadbury's Amended Complaint should be dismissed with regard to the Counts
alleged against Lee Enterprises because they fail to state a claim upon which relief
can be granted.

DATED this 28th day of April, 201 l.

ls/

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

26

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

certiff

that Defendant, Lee Enterprises,

Inc.'s Brief In Support of Motion to Dismiss All Counts Against Lee Enterprises,
.Izlc., 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 5710 words long, excluding Caption,

Certificate of Service, and

Certifi cate of Compliance.

lsl

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

989861

27

CERTIFICATE OF SERVICE
I hereby certi$ that on April 28,201l, a copy of the foregoing document was
served on the following persons by the following means:
1-

3

2

CM/ECF
Hand Delivery

Mail
Overnight Delivery Service
Fax
E-Mail

l.

Clerk, U.S. District Court

2

Michael E. Spreadbury
700 South Fourth Street
Hamilton, MT 59840
Pro Se Plaintiff

3.

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

lsl

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

989861

28