Spreadbury v. Bitterroot Public Library et al

Filing 97

Reply to Objection to Findings and Recommendations re 79 FINDINGS AND RECOMMENDATIONS re 70 MOTION for Preliminary Injunction filed by Michael E. Spreadbury.FINDINGS AND RECOMMENDATIONS re 70 MOTION for Preliminary Injunction filed by Michael E. Spreadbury. DEF LEE'S RESPONSE TO PL'S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS OF US MAGISTRATE JUDGE RE PL'S REQUEST FOR INJUNCTIVE RELIEF 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 THE TINITED STATES DISTRICT COURT
FOR TFIE DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL E. SPREADBURY,

Cause No. CV-1

l-064-M-DWM

Plaintiff,

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

DEFENDANT LEE ENTERPRISES,
INC.'S RESPONSE TO PLAINTIFF'S
OBJECTIONS TO FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JIJ'DGE RE
PLAINTIFF'S REQUEST FOR
INJLINCTIVE RELIEF

Defendants.

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

files its Response to Plaintiff s Objection to Court Findings; In Re: Preliminary
Injunctive Relief (Dkt. 9l.)

INTRODUCTION
On August 3,2011, the U.S. Magistrate Judge entered Findings and

104 | 851

Recommendations (Dkt. 79) regarding Plaintiff, Michael Spreadbury's

("Spreadbury") Request for Preliminary Injunctive Relief.
The U.S. Magistrate recommended Spreadbury's motion for a preliminary

injunction be denied. With regard to Lee Enterprises, the U.S. Magistrate pointed
out that the Court has already recommended dismissal of the majority

of

Spreadbury's claims, and his remaining claims as to the "comments" allegedly
published by Lee Enterprises could also be dismissed under the Communications
Decency

Act. Ultimately, the U.S. Magistrate recommended Spreadbury's request

for a preliminary injunction be denied, since Spreadbury has not identified serious
questions as to the merits of his claim, has not demonstrated the balance
hardships tips in his favor, and has not shown he

of

will suffer irreparable harm.

(Dkt.79.)
Spreadbury objected to the Court's Findings and Recommendations. (Dkt.

91.) However, Spreadbury's objections

are without merit and it would be an abuse

of discretion for the Court to reject or modifo the U.S. Magistrate Judge's
recommendations.

ARGUMENT

I.

The U.S. Maeistrate's Findings and Recommendations Should Be Affirmed.

The U.S. Magistrate correctly recommended Spreadbury's request for

preliminary injunction should be denied, because Spreadbury has failed to satisfu

t04t85

t

the requirements for a preliminary injunction.

"A party seeking a preliminary injunction must demonstrate (l) that it

is

likely to succeed on the merits, (2)that it is likely to suffer irreparable harm in the
absence ofpreliminary relief, (3) that the balance ofequities tips in its favor, and

(4) that an injunction is in the public interest." Earth Is. Inst. v. Carlton,626F.3d

462,469 (9th Cir. 2010) (citing Winter v. Nat. Resources Def. Council, lnc.,555
U.S. 7

(2008). "A preliminary injunction

is an 'extraordinary and drastic

remedy'; it is never awarded as of right." Gilman v. Schwarzenegger, 638 F.3d
1

l0l,

I 105 (9th Cir.2011) (intemal quotation and citation omitted).

A.

Spreadbury Is Not Likely to Succeed On the Merits.

Spreadbury is not likely to succeed on the merits of his claims against Lee

Enterprises; evidenced by the U.S. Magistrate already recommending dismissal

of

the majority of Spreadbury's claims, since the arlicles published by the Ravalli
Republic were privileged pursuant to Montana Code Annotated $ 27-1-804(4).
(See

Dkt. 75.)
Further, as articulated in Lee Enterprises' Response Brief in Opposition to

Spreadbury's First Request Injunctive Relief, Lee Enterprises cannot be liable for
Spreadbury's remaining allegations because the comments made on the Ravalli

Republic's website were made by thirty party, on-line readers, not the Ravallr

Republic. (See Dkt. 84.)

104 r 851

"Section 230 of the CDA [Communications Decency Act] immunizes
providers of interactive computer serices against liability arising from content
created by third parties." Fair Hous. Council of San Fernando Valley v.
Roommates.Com,

LLC,52l F.3d ll57,l162 (9th Cir.2008)

(en banc).

Specifically, $ 230(c) provides: "[n]o provider or user ofan interactive computer
service shall be treated as the publisher or speaker of any information provided by
another information content provider." 47 U.S.C. $ 230(c) (1998). "The CDA is
intended to facilitate the use and development of the Intemet by providing certain
services an immunity from civil liability arising from content provided by others."

F.T.C. v. Accusearch [nc.,570 F.3d I187, 1195 (1Oth Cir. 2009). "Absent $ 230, a
person who published or distributed speech over the Internet could be held liable

for defamation even if he or she was not the author of the defamatory text, and,
indeed, at least with regard to publishers, even if unaware of the statement." Batzel
v, smith,333 F.3d 1018, 1026-1027 (9th Cir.2003).

Lee Enterprises should be considered an "interactive computer service" as to
the claims that Lee Enterprises published defamatory comments about Spreadbury

on the Ravalli Republic website. As such, they cannot be liable for comments
made by third parties onthe Ravalli Republic website. Consequently, Spreadbury
is not likely to succeed on the merits of his remaining claims against Lee
Enterprises.

r04t85l

Further, even if the Ravalli Republic is considered an "information content

provider" under the CDA, it is still immune from liability regarding the comments
because they were made by third parties and the Ravalli Republic did not create or

develop the comments. See Carafano v. Metrosplash.com.Inc.,339 F.3d I I 19

(9th Cir. 2003) (even

ifa party is considered

$ 230(c) precludes treatment of a publisher

an information content provider,

if the information was provided by

another information content provider).

In his objections Spreadbury again fails to establish the likelihood ofsuccess
on the merits of his claim, continuing to ignore that the articles published by Lee
Enterprises were privileged and that Lee Enterprises cannot be liable for the
comments made by third parties on its website.

Accordingly, Spreadbury has not shown a likelihood of success on the merits
of his claims against Lee Enterprises and the U.S. Magistrate correctly
recommended Spreadbury's request for preliminary injunctive relief be denied.

B.

Spreadbury Is Not Likely to Suffer Ineparable Harm.

Similarly, the U.S. Magistrate correctly recommended denial of Spreadbury's
request for preliminary injunctive relief, because Spreadbury has not shown a

likelihood of suffering irreparable harm.
"Issuing a preliminary injunction based only on a possibility of irreparable
harm is inconsistent with our characterization of iniunctive relief as an

I04185 |

extraordinary remedy that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief." Winter,555 U.S. at 22 (citing Mazurek

v.

Armstrong,520 U.S. 968,972, (1997) (per curiam); see also Winter,555 U.S. at
22

("lA) preliminary injunction will not be issued simply to prevent

the possibility

of some remote future injury.") (intemal quotation and citation omitted).
Spreadbury seeks an injunctive

relief "to

stop defamation ofcharacter from

Defendant Lee Enterprises Inc, . . ." (Dkt. 70:2.) However, Spreadbury's request

for preliminary reliefand his objections do not provide any claim of irreparable
harm which will occur if the preliminary injunction is not granted.
The U.S. Magistrate's recommendations should be upheld.

C.

The Balance of Equities Does Not Tip in Spreadbury's Favor.
and an Injunction Is Not in the Public's Interest.

Finally, Spreadbury has not demonstrated the balance of hardships tips in his

favor, As such, the U.S. Magistrate correctly recommended dismissal of
Spreadbury's request for preliminary injunctive relief.

"In issuing an injunction, the court must balance the equities between the
parties and give due regard to the public interest." High Sierra Hikers Ass'n

Moore,56l F. Supp. 2d

v.

lI07,l I l2 (N.D. Cal. 2008) (internal quotation and

citation omitted). "In each case, courts 'must balance the competing claims of

injury and must consider the effect on each party of the granting or withholding of
the requested relief,' paying particular attention to the public consequences." U.

|

041851

S.

v. Ariz.,703 F. Supp. 2d980, 1007

(D. Ariz.2010), affd,641F.3d 339 (9th Cir.

2011) (internal quotation and citation omitted). "In exercising their sound
discretion, courts ofequity should pay particular regard for the public
consequences in employing the extraordinary remedy of

injunction." Winter,

555

U.S. at 24 (quoting Weinberger v. Romero-Barcelo,456 U.S. 305, 312 (1982)

(intemal quotation omitted)); Thalheimer v, City of San Diego,706 F. Supp. 2d
106s, 1086 (S.D. Cal. 20t0), affd,64s F.3d 1109 (9th Cft.20r 1). "[T]he less
certain the district court is of the likelihood of success on the merits, the more

plaintiffs must convince the district court that the public interest and balance of
hardships tip in their favor." Nat. Resources Def. Council, Inc. v. Winter,645 F.
Supp. 2d 841,847 (C.D. Cal. 2007) (intemal quotation and citation omitted).

In balancing the equities, Spreadbury has failed to demonstrate the scale tips
in his favor. On the contrary, the scale should tip heavily in favor of Lee
Enterprises, not Spreadbury, since granting the injunction would prevent Lee
Enterprises from publishing privileged information and would be in direct

contradiction to the purpose of $ 230 of the CDA.

CONCLUSION
The U.S. Magistrate's Findings and Recommendations regarding

Spreadbury's request for a preliminary injr,mction are correct and should be

affirmed. Spreadbury is not likely to succeed on his defamation claim because the

r

04l85l

articles published by Lee Enterprises were privileged and the comments were made
by third parties. Spreadbury has also not shown a likelihood ofsuffering
irreparable harm in the absence ofpreliminary relief, and the balance ofequities

tips in favor of Lee Enterprises, not Spreadbury.

DATED this 17th day of August, 201

1.

lsl

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

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(d)(2XE), I certifu that this Defendant Lee Enterprises,

Inc.'s Response to Plaintiff's Objections to Findings and Recommendations of U.S.
Magistrate Judge Re Plaintiff's Request for Injunctive Relief is printed with

proportionately spaced Times New Roman text typeface of l4 points; is doublespaced; and the word count, calculated by Microsoft Office Word 2007, is 1435

words long, excluding Caption, Certificate of Service, and Certificate

of

Compliance.

lsl

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

104185 |

CERTIFICATE OF SERVICE

I hereby certifu that on the 17th day ofAugust,20ll,acopy ofthe foregoing
document was seryed on the following persons by the following means:
CM/ECF
]J
Hand Delivery

2

Mail
Ovemight Delivery Service
Fax
E-Mail

1.

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
[e-mail]
tleonard@boonekarlberg. com
Attomeys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlbere P.C.

lsl

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

104 | 851