Spreadbury v. Bitterroot Public Library et al, No. 9:2011cv00064 - Document 96 (D. Mont. 2011)

Court Description: Reply to Objection to Findings and Recommendations re 75 FINDINGS AND RECOMMENDATIONS re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises filed by Lee Enterprises Incorporated, 51 MOTION for Partial Summary Judgment filed by Michael E.FINDINGS AND RECOMMENDATIONS re 5 MOTION to Dismiss Defendant Lee Enterprises, Inc.'s Motion to Dismiss All Counts Against Lee Enterprises filed by Lee Enterprises Incorporated, 51 MOTION for Partial Summary Judgment filed by Michael E. DEF LEE ENTERPRISES' RESPONSE TO PL'S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS OF US MAGISTRATE JUDGE RE LEE ENTERPRISES' MOTION TO DISMISS filed by Lee Enterprises Incorporated. (Smith, Jeffrey) (Entered: 08/17/2011)
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Spreadbury v. Bitterroot Public Library et al Doc. 96 Jeffrey B. Smith GARLINGTON, LOHN & ROBINSON, PLLP 350 Ryman Street . P. O. Box 7909 Missoula. MT 59807-7909 Telephone (406) 523 -2500 Telefax (406\ 523-2595 j bsmith@garlington. com Attomeys for Defendant, Lee Enterprises, Inc. IN TIIE I.]NITED STATES DISTRICT COT]RT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION Cause No. CV- I 1 -064-M-DWM MICHAEL E. SPREADBURY, 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 JUDGE RE LEE ENTERPRISES'MOTION TO DISMISS 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 Objections to Court Findings; In Re: Defendant Lee Enterprises, Inc. (Dkt. 87.) INTRODUCTION On July 28,2011, the U.S. Magistrate Judge entered Findings and 104105 | Dockets.Justia.com Recommendations (Dkt. 75) regarding Lee Enterprises' Federal Rule of Civil Procedure l2(bX6) motion to dismiss Plaintifl Michael Spreadbury's ("Spreadbury") Amended Complaint (Dkt 1-l) for failure to state a claim upon which relief can be granted, and Findings and Recommendations regarding Spreadbury's Motion for Partial Summary Judgment against Lee Enterprises. The U.S. Magistrate recommended Lee Enterprises' Motion to Dismiss be granted in part, and denied in all other respects. Specifically, the Court recommended dismissal of Spreadbury's defamation claim with respect to the arlicles published by Lee Enterprises, dismissal of Spreadbury's defamation per se claim, dismissal of Spreadbury's 42 U.S.C. $ 1983 claim, and dismissal of Spreadbury's claim of negligence per se. (Dkt. 75.) The U.S. Magistrate also recommended Spreadbury's Motion for Partial Summary Judgment be denied. Spreadbury objected to the Court's Findings and Recommendations. (Dkt. 87.) However, Spreadbury's objections are without merit and it would be an abuse of discretion for the Court to reject or modif, the U.S. Magistrate Judge's recommendations. ARGUMENT I. The U.S. Magistrate's Findings and Recommendations Regarding Lee Enterprises' Motion to Dismiss. 'oA cause of action may be dismissed under Rule I 2(bX6) either when asserts a legal theory that is not cognizable as a matter of law, or l04l05 t it if it fails to allege sufficient facts to support an otherwise cognizable legal claim." (Dkt. 75:5.) Since Spreadbury's Complaint failed to set forth sufficient facts to support his claims of: defamation (as to the articles published by Lee Enterprises), defamation per se, 42 U.S.C. {i 1983., and negligence per se, the U.S. Magistrate correctly recommended dismissing these claims. A. The U.S. Magistrate Correctly Recommended Dismissal of Spreadbury's Defamation Claim. As It Pertains to the Articles Published By Lee Enterprises. and Spreadbury's Claim of Defamation Per Se. As articulated in the U.S. Magistrate's Findings and Recommendations, Spreadbury's claim of defamation regarding the article published by the Ravalli Republic and Spreadbury's claim of defamation per se should be dismissed because the articles were privileged. Section 27-1-804(4) "makes a fair and true report without malice of a judicial proceeding a privileged publication." Cox v. Lee Enters., Inc.,222Mont. 527, 529 7 23 P.2d 238, 239 -240 ( I 986). Spreadbury' s Amended Complaint basically claims Lee Enterprises defamed Spreadbury by publishing articles about or pertaining to the criminal trespass charges brought against him, which were subsequently dropped by the City. (Dkt. l-l at ll'lf 181-189.) However, Spreadbury's allegations establish that these matters occurred in the judicial proceedings. Therefore, Lee Enterprises' reports ofthejudicial proceedings were privileged and Spreadbury's claim of defamation (as it pertains to the articles | 041051 published by Lee Enterprises) and Spreadbury's claim of defamation per se should be dismissed. Likewise, Spreadbury's Complaint fails to set forth sufficient facts to show Lee Enterprises published the articles with malice. The U.S. Magistrate conectly pointed out Spreadbury's allegations of malice were purely conclusory and, accordingly, should be dismissed. Spreadbury's objections to the U.S. Magistrate's recommendation are without merit. Spreadbury argues he was on public property when charged with trespass and Lee Enterprises should have known he could not be charged with criminal trespass on peaceful assembly. (Dkt. 87:7-8.) However, Spreadbury fails to recognize Lee Enterprises simply published articles based on the judicial proceedings brought against him. As such, the articles are privileged and Spreadbury's claim of defamation as to the articles published by Lee Enterprises and his claim of defamation per se should be dismissed. B. The U.S. Magistrate Conectly Recommended Dismissal of Spreadbury's 42 U.S.C. Q 1983 Claims Against Lee Entemrises. Spreadbury's 42 U.S.C. $ 1983 claims against Lee Enterprises should be dismissed because Spreadbury's Complaint fails to set forth sufficient facts to establish Lee Enterprises conspired and/or acted jointly with the govemment to deprive him ofany rights. In order to recover under $ 1983 for conduct by the defendant, a l04t05l plaintiff must show that the conduct allegedly causing the deprivation ofa 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. il though only if, there is such a close [s]tate action may be found nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that ofthe State itself. Caviness v. Horizon Community Learning Ctr., lnc.,590 F.3d 806, 812 (9th Cir. 2010) (intemal quotations and citations omitted). The Ninth Circuit Court of Appeals recognizes four tests to determine whether private action qualifies as state action: "(1) public function; (2) joint action; (3) govemmental compulsion or coercion; and (4) govemmental nexus." Kirtley v. Rainey, 326 F .3d I 088, 1092 (9th Cir. 2003) (intemal quotations and citations omitted). Spreadbury argues Lee Enterprises acted in concert with, or conspired with other Defendants to deprive him of his constitutional rights. However, his Complaint fails to set forth sufficient factual allegations to support his claim. Specifically, Spreadbury fails to show Lee Enterprises had any sort ofagreement and/or plan with the govemment. Spreadbury objects to the U.S. Magistrate's recommendations, arguing Lee Enterprises came to an agreement with Defendant City of Hamilton to ask Spreadbury to not enter Lee Enterprises' store front. (Dkt. 87:8.) However, as correctly pointed out by the U.S. Magistrate, "[a] private party's conduct in t 04 r05l summoning police to address an individual perceived as threatening does not anse to the level ofjoint action or a conspiracy." Dkt. 75: 16. (citing Dietrich v. John Ascuaga's Nugget,548 F.3d 892, 899-900 (9th Cir. 2008)). Spreadbury also asserts the events surrounding his ban from Lee Enterprises' store front "speak to civil conspiracy." Dkt. 87:6. However, like his claim ofjoint action, his Complaint fails to set forth sufficient factual allegations for a conspiracy claim and, accordingly, should be dismissed. Similarly, Spreadbury's claim that Lee Enterprises conspired against him by publishing various newspaper articles is made without any support. As described in greater detail herein, ar"ticles published by Lee Enterprises were based on official Ravalli County Court documents. They, accordingly, are privileged. Spreadbury essentially claims Lee Enterprises' act of publishing articles about Spreadbury's charge of criminal trespass and subsequent conviction amount to a conspiracy against him because the trespass charges were later dropped by the City, and Lee Enterprises should have known "peaceful assembly" on public property is a protected property right. Spreadbury's description ofthe charges brought against him is inaccurate. Plus, Spreadbury offers no factual support ofa conspiracy or otherwise agreement to deprive him of his rights, and he offers no support that the articles published by Lee Enterprises' newspapers were false or otherwise not privileged. t 04l05l Finally, Spreadbury argues Lee Enterprises conspired to interfere in his election and assisted in depriving his library privileges. However, like his other claims, Spreadbury offers no supporting factual allegations, and the U.S. Magistrate correctly noted that "[b]are allegations ofjoint action are insufficient to overcome a motion to dismiss." Dkt. 75: 1 6. Since Spreadbury has offered no factual support for his allegations that Lee Enterprises actedjointly and/or conspired with the other Defendants to deprive him of his rights, the U.S. Magistrate correctly recommended dismissing Spreadbury's $ 1983 claims. C. The U.S. Magistrate Correctly Recommended Dismissal Spreadbury's Claim of Negligence Per Se. of Spreadbury's Complaint fails to set forth any factual support for his claim of negligence per se. In order to establish negligence per se, a plaintiff must prove that: l) defendant violated the particular statute; (2) the statute was enacted to protect a specific class ofpersons; (3) the plaintiff is a member of that class; (4) the plaintiff s injury is of the sort the statute was enacted to prevent; and (5) the statute was intended to resulate members of defendant's class. Prindel v. Ravalli County,2006 MT 62,127,331 Mont. 338, 133 P.3d 165 (intemal quotation and citation omitted). In his objection to the U.S. Magistrate's recommendations, Spreadbury again I04105 | fails to support his claim of negligence per se with any factual allegations. Most significantly, Spreadbury has yet to cite a particular statute allegedly violated by Lee Enterprises in support of his claim for negligence per se. Since Spreadbury's Complaint fails to assert any facts in support of any of the elements of negligence per se, the U.S. Magistrate correctly recommended dismissal of Spreadbury's claim of negligence per se. II. Spreadbury's Motion for Partial Summary Judsment Asainst Lee Enterprises. Federal Rule of Civil Procedure 56 govems the standard for awarding summary judgment. Under Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett,477 U.5.317,322 (1986) (internal quotations omitted). The moving parly bears the burden of showing an absence of material issues of fact and entitlement to judgment as a matter of law. Celotex Corp., 477 U.S. at 323. Since Spreadbury, the moving party, failed to establish an absence of material issues of fact and an entitlement to judgment as a matter of law, the U.S. Magistrate correctly recommended Spreadbury's Motion for Summary Judgment be denied. It does not appear that Spreadbury has filed objections to the U.S. t04 t 05l Magistrate's recommendation of dismissing his Motion for Partial Summary Judgment against Lee Enterprises, as his objections regarding Lee Enterprises (Dkt. 87) do not address the U.S. Magistrate's recommendations in this regard. However, any objections would be without merit and the U.S. Magistrate correctly concluded Spreadbury is not entitled to such relief. First, as articulated above, Spreadbury cannot be entitled to summary judgment on his claims of defamation (as to the articles published by Lee Enterprises), defamation per se,, 42 U.S.C. $ 1983, and negligence per se because these claims fail to state a claim upon which relief can be granted. Further, Spreadbury is not entitled to summary judgment as to his remaining claims since he has not identified any facts to support his motion for summary judgment and failed to establish an absence of genuine issues of material fact to these claims. As such, the U.S. Magistrate's Recommendations are conect and should be affirmed. CONCLUSION The U.S. Magistrate's Findings and Recommendations regarding Lee Enterprises' Motion to Dismiss and Spreadbury's Motion for Summary Judgment are correct and should be affirmed. Like Spreadbury's Complaint, his objections to the U.S. Magistrate's Recommendations regarding Lee Enterprises' Motion to Dismiss fail to set forth sufficient factual allegations and, therefore, should be l04t 051 rejected by the Court. Likewise, although Spreadbury's objections did not address the U.S. Magistrate's Recommendations regarding Spreadbury's Motion for Partial Summary Judgment against Lee Enterprises, any objection would be without merit since Spreadbury failed to set forth any facts to support his Motion for Partial Summary Judgment and failed to establish an absence of genuine issue of fact. The U.S. Magistrate's Recommendations are correct and should be affirmed. DATED this 17th day of August, 201 1. lsl Jeffrey B. Smith Attomeys for Defendant, Lee Enterprises, Inc. l0 | 04 t05l CERTIFICATE OF COMPLIANCE Pursuant to L.R. 7. 1(d)(2XE), I certiSr that this De.fendant Lee Enterprises, Inc.'s Response to Plaintiff's Objections to Findings and Recommendations of tJ.S. Magistrate Judge Re Lee Enterprises' Motion to Dismiss is printed with proportionately spaced Times New Roman text typeface of 14 points; is doublespaced; and the word count, calculated by Microsoft Office Word 2007,is 1874 words long, excluding Caption, Certificate of Service, and Certificate of Compliance. lsl Jeffrey B. Smith Attornevs for Defendant. Lee Entemrises. Inc. II t04l05l CERTIFICATE OF SERVICE I hereby certift that on the 17th day of August ,2Q11, a copy of the foregoing document was served on the following persons by the following means: 1.3 2 CM/ECF Hand Delivery Mail Ovemight Delivery Service Fax E-Mail l. 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 npjones@boonekarlberg. com tleonard@boonekarlberg. com Attomeys for Defendants Bitterroot Public Library, City of Hamilton, and Boone Karlbere P.C. lsl Jeffrey B. Smith Attomevs for Defendant. Lee Enterprises. Inc. t2 t04l05l