Fredin v. Clysdale

Brock Fredin, Plaintiff, v. Elizabeth A. Clysdale, David E. McCabe, Grace Elizabeth Miller,Catherine Marie Schaefer, and Lindsey Middlecamp, Defendants.

Civil No. 18-cv-0510 (SRN/HB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

December 20, 2018

REPORT AND RECOMMENDATION

HILDY BOWBEER, United States Magistrate Judge

This matter is before the Court on Defendant Referee Elizabeth Clysdale's Motion to Dismiss [Doc. No. 38]; Defendants Grace Elizabeth Miller, Catherine Marie Schaefer, and Lindsey Middlecamp's Motion to Dismiss [Doc. No. 44]; Defendant Sergeant David E. McCabe's Motion to Dismiss [Doc. No. 49]; and Plaintiff Brock Fredin's Motion for Leave to File a Second Amended Complaint [Doc. No. 80]. The motions to dismiss were referred to the undersigned for the issuance of a report and recommendation ("R&R"). The Court will also address the motion for leave to file a second amended complaint in this R&R, rather than a separate order, in the interests of practicality, expediency, and judicial economy.

In light of the specific facts and circumstances of this case, the most sensible route is to address Fredin's motion for leave to file a second amended complaint before addressing Defendants' motions to dismiss.¹

I. Fredin's Motion for Leave to File Second Amended Complaint

A. Background

Fredin filed his initial complaint in this matter on February 22, 2018. [Doc. No. 1.] On February 27, 2018, Fredin filed a Motion for Leave to File Amended Complaint for Permanent Injunction and Other Equitable Relief [Doc. No. 4], and he filed an Amended Complaint on March 2, 2018 [Doc. No. 8]. The Court granted Fredin's motion to amend pursuant to Federal Rule of Civil Procedure 15(a)(1), which permits a party to amend a pleading once as a matter of course. (Order at 2-3, Apr. 10, 2018 [Doc. No. 33].) Accordingly, the Court deemed the Amended Complaint filed at Doc. No. 8 as the operative pleading. (Id.)

On March 28, 2018, Fredin filed a second motion to amend his complaint. [Doc. No. 14.] On April 10, 2018, the Court denied that motion pursuant to Rule 15(a)(2), for the following reasons: (1) Fredin did not meet and confer with the opposing party in a good-faith effort to resolve the issues raised by the motion, as required by D. Minn. LR 7.1(a); (2) Fredin did not contact this Court's courtroom deputy to schedule a hearing onthe motion, as required by D. Minn. LR 7.1(b); (3) Fredin did not provide "a version of the proposed amended pleading that shows — through redlining, underlining, strikeouts, or other similarly effective typographic methods — how the proposed amended pleading differs from the operative pleading," as required by D. Minn. LR 15.1(b); and (4) the proposed pleading violated Federal Rule of Civil Procedure 8(a)(2), which requires a complaint to set forth "a short and plain statement of the claim[s]" entitling Fredin to relief. (Order at 3, Apr. 10, 2018 [Doc. No. 33].)

Fredin filed a third motion to amend on May 16, 2018. [Doc. No. 67.] The Court denied that motion without prejudice because Fredin failed to remedy any of the deficiencies underlying the denial of his earlier motion to amend. (Order at 2, May 17, 2018 [Doc. No. 70].) Significantly, Fredin also did not file a copy of the proposed amended complaint, without redlining, as required by D. Minn. LR 15.1(b).

Fredin filed the motion to amend presently before the Court on June 15, 2018. He seeks to amend the complaint to add new "significant factual developments" that have occurred since he filed the first complaint in this matter, particularly with respect to three contempt hearings initiated by Miller and Schaefer in state court. (Pl.'s Mot. Leave File Second Am. Compl. ("SAC") at 2 [Doc. No. 80].) The proposed SAC, at fifty-three pages long and asserting eight claims for relief, is also significantly more concise than the Amended Complaint, which is 100 pages long, plus 59 pages of exhibits, and asserting 17 claims for relief.

Despite the Court's prior admonitions, Fredin did not file a proper redlined version of the proposed SAC with his motion to amend. He submitted a redlined version of acomplaint, but that filing differed materially from the proposed SAC he submitted. (Compare Proposed SAC [Doc. No. 80-1] with Redlined Proposed SAC [Doc. No. 80-2].) At some point Fredin recognized his error, and he filed a corrected redlined version on June 29, 2018 [Doc. No. 84]. That was too late, however, to allow Defendants to meaningfully review the redlined version before their opposition memoranda were due.

Miller, Schaefer, Middlecamp, and Referee Clysdale oppose the motion to amend on the ground of futility and because Fredin failed to comply with D. Minn. LR 15.1's requirement to provide a redlined version of the proposed SAC. Sergeant McCabe opposes the motion on the basis of futility and because Fredin failed to meet and confer before filing the motion, as required by D. Minn. LR 7.1(a).

B. Discussion

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, "a party may amend its pleading only with the opposing party's written consent or the court's leave," and "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "[T]here is no absolute right to amend," however, and a court may deny leave to amend "based upon a finding of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in previous amendments, undue prejudice to the non-moving party, or futility." Baptist Health v. Smith, 477 F.3d 540, 544 (8th Cir. 2007) (citation omitted).

To the extent Defendants argue the amendments are futile, the Court will defer that analysis and address those arguments below in the context of the motions to dismiss. With respect to Defendants' argument that Fredin failed to meet and confer with Sergeant McCabe and did not timely submit a redlined version of the proposed SAC, the Courtwill forgive these deficiencies on this one occasion. Fredin at least attempted to confer with Sergeant McCabe's counsel the day before he filed the motion, though Sergeant McCabe's attorney was, understandably, not able to engage in a meaningful meet-and-confer on such short notice. (Hanson Second Aff. Ex. A [Doc. No. 86-1].) As to the incorrect redlined proposed SAC, Fredin filed a corrected version when he became aware of the error, and it appears from Defendants' filings that they were able to identify the substantive amendments on their own and, although inconvenienced, were not harmed by the error. Consequently, the Court recommends that Fredin be granted leave to amend and, in the interest of expediency and for Fredin's convenience,² further recommends that the Clerk's Office be directed to file and docket the proposed SAC currently located in the record at Doc. No. 80-1 as the "Second Amended Complaint."

II. Defendants' Motions to Dismiss

The Court will consider Defendants' motions to dismiss as applied to the SAC. See Cedar Rapids Lodge & Suites, LLC v. Seibert, No. 14-cvV-04839 (SRN/KMM), 2018 WL 747408, at *7 (D. Minn. Feb. 7, 2018) (applying motions to dismiss to second amended complaint after granting leave to amend).

A. Allegations in the Second Amended Complaint

Fredin contends generally that Defendants Miller, Schaefer, Middlecamp, and Referee Clysdale engaged in an unlawful conspiracy and committed numerous tortiousacts against him in a social media smear campaign. (SAC ¶ 1.) He asserts that Sergeant McCabe committed unconstitutional and other unlawful actions in executing a search warrant at his home. (SAC ¶ 2.)

1. The Parties

Referee Clysdale is a Ramsey County District Court referee who presided over three civil harassment restraining order ("HRO") proceedings against Fredin: Miller v. Fredin, Case No. 62-HR-cv-16-46; Schaefer v. Fredin, Case No. 62-HR-cv-16-411; and Middlecamp v. Fredin, Case No. 62-HR-cv-17-233. (SAC ¶¶ 8-11.) Fredin sues Referee Clysdale only in her individual capacity. (SAC ¶ 8.)

Middlecamp was formerly employed as an assistant city attorney for Minneapolis. (SAC ¶ 9.) She is currently a Special Assistant United States Attorney with the United States Attorney's Office in the District of Minnesota. (SAC ¶ 9.) Middlecamp obtained an HRO against Fredin in the Middlecamp HRO state court proceeding. Fredin alleges that Middlecamp has a Twitter account @CardsAgstHrsmt that she used to defame and disparage him. (SAC ¶ 9.) Fredin sues Middlecamp in her official and individual capacities. (SAC ¶ 9.)

Miller previously dated Fredin. (SAC ¶ 1.) Miller obtained an HRO against Fredin in the Miller HRO state court proceeding. She is being sued in her individual capacity. (SAC ¶ 10.)

Schaefer is currently a Ph.D. student at Penn State. (SAC ¶ 16.) She obtained an HRO against Fredin in the Schaefer HRO state court proceeding. She is also sued in her individual capacity. (SAC ¶ 11.)

Sergeant McCabe is a detective with the Saint Paul Police Department. (SAC ¶ 12.) He obtained and executed a search warrant at Fredin's residence, which Fredin contends was manufactured and falsified to gather evidence on Middlecamp's behalf in her state court case against Fredin. (SAC ¶ 12.) Fredin sues Sergeant McCabe in his individual and official capacities. (SAC ¶ 12.)

2. The Alleged Conspiracy Between Referee Clysdale, Miller, Schaefer, and Middlecamp

Fredin alleges that Referee Clysdale has a personal relationship with Miller, Schaefer, and Middlecamp, and wrongly issued HROs against him in the three state court proceedings. (SAC ¶ 13.) Fredin alleges that these four Defendants conspired to obtain information for the purpose of publicly disparaging and defaming him on Twitter and other social media, forcing him to expend large amounts of money to defend himself, and generating a basis for criminal charges. (SAC ¶ 14.) The alleged object of the conspiracy was to interfere with the judicial process. (SAC ¶ 98.)

Fredin and Miller began dating in July 2015. (SAC ¶ 20.) After they broke up January 2016, Fredin was "...