Fratzke et al v. Montana Fish, Wildlife, and Parks et al

Filing 84

ORDER granting 71 Motion for Summary Judgment. Defendant Miller is DISMISSED from this case. This case is CLOSED. Signed by Chief Judge Dana L. Christensen on 10/17/2016. (DLE)

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

ROSS FRATZKE and DEBORA
FRATZKE,

CV 14–274–M–DLC

Plaintiffs,

ORDER

vs.
BRYON MILLER; and DOES 1-25.
Defendants.
Before the Court is the motion for summary judgment filed by Defendant
Bryon Miller (“Miller”). For the reasons explained below, the Court grants the
motion.
BACKGROUND
This case arises from the prosecution of Plaintiffs Ross and Debora Fratzke
(“the Fratzkes”) in the Montana Twentieth Judicial District Court on charges of
theft by insurance fraud, in violation of Montana Code Annotated § 45-6-301(6),
and unlawful possession, shipping, or transportation of game animals, in violation
of § 87-3-111. Following the State of Montana’s case at trial, the two fish and
wildlife charges were dismissed for lack of probable cause. The jury was unable

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to reach a verdict on the insurance fraud charge. Ultimately, all of the charges
against the Fratzkes were dismissed.
Subsequently, they brought this federal suit against multiple Defendants for
their roles in the prosecutions. The Fratzkes’ claims include defamation, state law
malicious prosecution, malicious prosecution as a violation of 42 U.S.C. § 1983,
abuse of process, intentional infliction of emotional distress, and deprivation of
their right to privacy under the Montana Constitution. All Defendants have been
dismissed from the case with the exception of Miller.
Miller worked for the Fratzkes at Flat Iron Outfitting and Les Schwab from
2006 to 2009. He was terminated from Flat Iron Outfitting in December 2009, and
then supplied information to the Sanders County Sheriff’s Department that the
Fratzkes allegedly committed insurance fraud and game violations. The Fratzkes
four claims against Miller—defamation, state law malicious prosecution, abuse of
process, and intentional infliction of emotional distress—all stem from Miller’s
acts in providing alleged false information to the Sanders County Sheriff’s
Department.
LEGAL STANDARD
A party is entitled to summary judgment if it can demonstrate that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment
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as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248. In ruling on a motion for summary judgment, a court
must view the evidence “in the light most favorable to the opposing party.” Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970)). “[T]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Id. at 1863 (quoting
Anderson, 477 U.S. at 255).
ANALYSIS
A federal court sitting in diversity applies the substantive law of the forum
state to state law claims. Mason & Dixon Intermodal, Inc. v. Lapmaster Intern.
LLC, 632 F.3d 1056, 1060 (9th Cir. 2011). Thus, the Court analyzes Miller’s
motion for summary judgment on the Fratzkes’ state law claims pursuant to
Montana law.
I.

Defamation
In Montana, a plaintiff must bring a claim for defamation within two years.
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Mont. Code Ann. § 27-2-204(3). The Fratzkes concede that they failed to bring
this claim within the two year statute of limitations. (Doc. 75 at 2.) Therefore,
Miller is entitled to summary judgment dismissing the Fratzkes’ defamation claim.
II.

Malicious Prosecution
In order to present a cognizable claim of state law malicious prosecution,

the plaintiff bears the burden of proving that “(1) a judicial proceeding was
commenced against the plaintiff; (2) the defendant was responsible for instigating,
prosecuting, or continuing a judicial proceeding; (3) there was a lack of probable
cause for the defendant’s acts; (4) the defendant was actuated by malice; (5) the
judicial proceeding terminated favorably for the plaintiff; and (6) the plaintiff
suffered damage.” Spoja v. White, 317 P.3d 153, 156 (Mont. 2014) (citations and
internal quotation marks omitted). “Malicious prosecution claims are not favored
by the law and the burden on the plaintiff is heavy.” White v. State ex rel. Mont.
State Fund, 305 P.3d 795, 803 (Mont. 2013) (citations omitted). “When a
defendant acts upon a statutory duty and provides information to the proper
authorities, who then file criminal charges, that defendant is not liable for
‘instigating’ criminal proceedings.” White, 305 P.3d at 804 (citing Vehrs v.
Piquette, 684 P.2d 476, 478 (Mont. 1984) (“providing information to authorities
without more” does not satisfy the instigation element in a malicious prosecution
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claim)). If a plaintiff fails to offer proof of any one of the elements of malicious
prosecution, the action fails, and summary judgment in favor of the defendant is
proper.
Here, there is no dispute that a judicial proceeding was commenced against
the Fratzkes. As to the second element, Miller argues it is undisputed that once he
provided information to the Sanders County Sheriff Department, he was not the
person or entity responsible for bringing the criminal charges against the Fratzkes.
Sanders County assigned the case for prosecution to the Assistant Attorney
General Barbara Harris (“Harris”), and Harris was the person who investigated the
allegations and made the independent prosecutorial decision to pursue criminal
charges against the Fratzkes. Thus, from Miller’s perspective, there is no dispute
that he was not the person responsible for instigating the judicial action. The
Fratzkes disagree with Miller, and contend that he is responsible for instigating the
criminal prosecutions against the Fratzkes because he was motivated by malice
when he reported the alleged false information to the Sanders County Sheriff
Department after being fired. (Doc. 75 at 6; 74 at 4.) The Fratzkes concede that
“it was the prosecutor that decided to prosecute th[e] case.” (Doc. 75 at 6.)
Nonetheless, the Fratzkes claim that because the prosecution relied on Miller’s
alleged false reports, he is liable for malicious prosecution.
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Both parties cite to White v. State ex rel. Mont. State Fund and Miller v.
Watkins, 653 P.2d 126 (Mont. 1982), in support of their positions. The Court
agrees with the Fratzkes that Miller was under no statutory obligation to report the
alleged false information, as the defendants were in White. The Court finds that
the facts in Miller are more applicable to the facts here. In Miller, the Montana
Supreme Court found that the appellant did instigate the judicial proceedings
because he was the sole person responsible for bringing the information to the
authorities. 653 P.2d at 130. The Montana Supreme Court focused on the fact
that the appellant admitted during trial that he went to the county and informed
him about the false crime because he “expected that [the Plaintiff] would be
charged with theft.” Id.
Here, there is no indication from the record that Miller’s true intention was
to initiate a criminal prosecution against the Fratzkes for insurance fraud. Further,
the record shows that he was not the only person who provided law enforcement
and the prosecutor with information regarding the Fratzkes alleged insurance fraud
and game violations. Thus, the Fratzkes’ assertion that “without Defendant
Miller’s reporting to Deputy Spring a case would never have been initiated” is
untrue. (Doc. 75 at 7.) While Miller’s information was the first indication of
possible insurance fraud and game violations to Sanders County officials, the
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record makes clear that Sanders County Sheriff Martin Spring interviewed
numerous individuals about the alleged conduct before proceeding with potential
charges against the Fratzkes. (Doc. 76-2.)
Specifically, Miller presents evidence proving Sheriff Spring spoke with
Steve Krumm of Muley Bluz, a speciality shop for horse tack and rodeo gear,
about two items Ross Fratzke had purchased. Mr. Krumm corroborated that
pictures of the alleged stolen items Ross Fratzke submitted to the insurance
company were in fact the items Mr. Krumm sold to Ross Fratzke. (Doc. 76-2 at
21–22.) The pictures taken by Sheriff Spring indicated that Ross Fratzke still
possessed those specific items. Martin also spoke with the Utah Safe Outlet, who
corroborated that a 32 inch Vizio HD LCH TV was stolen from their booth at a
trade show in Salt Lake City. (Docs. 76-1 at 2; 76-2 at 10, 16–18.) The Fratzkes
had this exact television in their possession when the Sanders County authorities
initiated a search warrant on their home. (Doc. 76-2 at 20.) Therefore, based on
the record, there is no genuine dispute that Miller was not the sole provider of
information supporting the criminal prosecution against the Fratzkes.
Consequently, the Fratzkes are unable to prove the instigation element of their
malicious prosecution claim.
Neither party addresses the probable cause element, but the issue of
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probable cause is also without factual dispute. “[P]robable cause is determined
under an objective standard on the basis of the facts known to the party initiating
the legal action” and “[a] finding of probable cause to instigate civil litigation or a
criminal prosecution is based on the totality of the circumstances.” Plouffe v.
Montana Dep’t of Pub. Health & Human Servs., 45 P.3d 10, 15 (Mont. 2002). In
reviewing the record, the Court concludes that there was sufficient probable cause
for Harris to initiate charges against the Fratzkes. Harris stated under oath that
“based on information and belief, that investigative information developed and
provided to her . . . demonstrate[d] probable cause to believe that [the Fratzkes]
committed the offenses charged.” (Doc. 4-2 at 1–2). Miller was not the only
source of information within the investigative report, and Harris made her decision
to prosecute based only on the investigative file and applicable law. Further, no
evidence suggests that Miller specifically gave information to Sanders County
officials in an attempt to cause the prosecution against the Fratzkes. Thus, there is
no dispute that there was sufficient probable cause to prosecute the Fratzkes, and
this element of malicious prosecution is also not established.
Next, under the fourth element of malice, the record does support a factual
dispute as to whether Miller was motivated by malice when he informed the
Sanders County officials about the Fratzkes. It is possible a reasonable jury could
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determine that Miller was actuated by malice, since he was terminated from the
Fratzkes’ Flat Iron Outfitting business just before he supplied information to
Sanders County officials.
The Fratzkes must also establish that the judicial proceeding terminated in
their favor, which is not entirely certain here. The Ninth Circuit has not ruled on
the issue of whether a hung jury constitutes a favorable termination for the
plaintiff. However, other courts, including the Second Circuit, have ruled that
when the proceeding ends in a hung jury, the plaintiff’s guilt is still left open and
the end result is not considered a per se “favorable outcome” for the plaintiff. See,
e.g., Singleton v. Cty. of New York, 632 F.2d 185, 195 (2d Cir. 1980) (when a hung
jury results in an “adjournment in contemplation of dismissal” it does not
constitute termination in favor of the plaintiff, since such a dismissal “leaves open
the question of the accused’s guilt”); Haefner v. Lancaster Cty., 520 F. Supp. 131,
133 (E.D. Pa. 1981), aff’d sub nom., Haefner v. Cty. of Lancaster, Pa, 709 F.2d
1492 (3d Cir. 1983) (“An indecisive disposition, such as a hung jury, will not
suffice” because there is no “proof that the prior state criminal prosecution ended
in a manner inconsistent with guilt.”). Under Montana law, the general view of a
hung jury mistrial has been that it is essentially a nullity and that the subsequent
retrial determines a defendant’s guilt or innocence. State v. Herron, 169 Mont.
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193, 197, 545 P.2d 678, 681 (1976) (the United States Constitution and Montana
Constitution do “not prohibit retrial for the same offense if the first trial results in
a hung jury”). Therefore, because the state proceeding ended in an hung jury, it is
unlikely under Montana law that the Fratzkes can prove the end result terminated
in their favor.
Regardless of how Montana law would determine the issue of a hung jury in
regards to the Fratzkes innocence, the Fratzkes have not met their heavy burden to
prove the majority of the remaining elements of their malicious prosecution claim
against Miller. Therefore, Miller is entitled to summary judgment on Count II.
III.

Abuse of Process
To prevail on an abuse of process claim, a plaintiff must show (1) an

ulterior purpose, (2) a willful act in the use of the process not proper in the regular
conduct of the proceeding. Brault v. Smith, 679 P.2d 236, 240 (Mont. 1984). The
plaintiff must show that there was an attempt to use a legal process to “coerce the
[plaintiff] to do some collateral thing which he could not be legally and regularly
compelled to do.” Brault, 679 P.2d at 240.
The record in this matter is devoid of any facts establishing that Miller
utilized any legal process against the Fratzkes beyond its intended purpose.
Informing authorities of alleged fraudulent conduct does not constitute abuse of
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process. Therefore, Miller is entitled to summary judgment on this claim.
IV.

Intentional Infliction of Emotional Distress (“IIED”)
Under Montana law, “an independent cause of action 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 v. High
Country Indep. Press, Inc., 896 P.2d 411, 428 (Mont. 1995). “[D]amages for
emotional distress are compensatory and, therefore, the focus should be on the
reasonable foreseeability that plaintiff’s serious or severe emotional distress was
the consequence of the defendant’s act or omission.” Id. “The distress must be
reasonable and justified under the circumstances, and there is no liability where
the plaintiff has suffered exaggerated and unreasonable emotional distress, unless
it results from a peculiar susceptibility to such distress of which the [defendant]
had knowledge.” Id. at 426 (citations omitted). “It is for the court to determine
whether on the evidence severe [serious] emotional distress can be found; it is for
the jury to determine whether, on the evidence, it has in fact existed.” Feller v.
First Interstate Bancsystem, Inc., 299 P.3d 338, 346 (Mont. 2013) (citations
omitted). The Montana Supreme Court has declined “to hold that a criminal trial,
standing alone, causes emotional distress ‘so severe that no reasonable person
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could be expected to endure it.’” White, 305 P.3d at 806 (citing Sacco, 896 P.2d at
423).
The Fratzkes’ IIED claim fails because Ross Fratzke’s alleged PTSD is not
attributable to Miller and is not reasonable and foreseeable under the
circumstances. Ross Fratzke claims that he suffers from PTSD as a result of the
criminal prosecution, and provides a report from his treatment provider, Philip H.
Bornstein, Ph.D., to that effect. Dr. Bornstein’s report concludes that his current
PTSD is “clearly related to the Sheriff’s Department raid, his legal entanglements,
seizures, and life-flight experiences.” (Doc. 74-2 at 11.) The Montana Supreme
Court has found that “where this is a physical manifestation of bodily harm
resulting from emotional distress, such as PTSD, this bodily harm is sufficient
evidence that the emotional distress suffered by the plaintiff is genuine and
severe.” Henricksen v. State, 84 P.3d 38, 55 (Mont. 2004). Therefore, Ross
Fratzke argues that Dr. Bornstein’s report satisfies the prima facie showing of
severe emotional distress.
Miller contends that Ross Fratzke has not put forth sufficient evidence to
prove his IIED claim, because Dr. Bornstein’s report does not establish that the

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PTSD was caused by Miller.1 (Doc. 76 at 6.) The Court agrees. Expert medical
testimony must exhibit a reasonable degree of medical certainty. Estate of Willson
v. Addison, 258 P.3d 410, 415 (Mont. 2011). Here, the Fratzkes have failed to
produce evidence that would create a genuine issue of material fact regarding
causation; that is, that Miller caused Ross Fratzke’s PTSD. Dr. Bornstein’s report
does not attribute Ross Fratzke’s psychological problems to Miller. According to
Dr. Bornstein, it was the subsequent investigation by law enforcement and
prosecution that caused Ross Fratzke’s problems. Therefore, the Fratzkes have
failed to meet their evidentiary burden on summary judgment regarding their IIED
claim.
Furthermore, as this Court has already found in this case, it is a stretch to
conclude that Ross Fratzke’s PTSD was caused by the actions of the Defendants in
this case—the Fratzkes own and operate a hunting lodge and outfitting service,
and it is highly foreseeable that, from time to time, they would interface with
Montana Fish, Wildlife & Parks personnel and perhaps even be investigated or
audited in some fashion. (Doc. 60 at 22.) More importantly, it was the Fratzkes

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Miller also argues that Dr. Bornstein’s report is inadmissible because it is not supported
by an affidavit. The Court need not evaluate that contention here because it finds, even assuming
the report is admissible, that the Fratzkes have failed to carry their burden to overcome summary
judgment on their IIED claim.

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own insurance claim that contributed to the investigation. Any reasonable person
in the Fratzkes position, who submits an insurance claim for over $20,000 of
missing items related to their outfitting business, would expect the insurance claim
to be thoroughly investigated. In any event, the Fratzkes cannot prove that Ross
Fratzke’s PTSD was caused by Miller, who did not make the decisions to either
investigate or prosecute in this case.
Based on the foregoing, the Court grants Miller’s motion for summary
judgment on Counts I, II, IV, and VI of the Fratzkes’ First Amended Complaint.
Accordingly, IT IS ORDERED that Miller’s motion for summary judgment
(Doc. 71) is GRANTED. Defendant Miller is DISMISSED from this case.
IT IS FURTHER ORDERED that this case is CLOSED.
DATED this 17th day of October, 2016.

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