United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. Molloy, District Judge.
Sara Kinney filed this lawsuit against Defendant John
Porterfield based on an alleged sexual assault in Whitefish,
Montana in July 2017. (Compl., Doc. 1 at ¶¶ 6-17.)
She raises claims of battery, false imprisonment, assault,
negligent and intentional infliction of emotional distress,
negligence, and punitive damages. (Id. at
¶¶ 18-47.) Porterfield counterclaims, alleging
defamation and intentional infliction of emotional distress.
(Doc. 4 at 8-12.) Kinney seeks judgment on the pleadings, or
alternatively summary judgment, on the counterclaims. (Doc.
16.) The motion is granted in part and denied in part.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). Adjudication of a Rule 12(c) motion is
limited to the pleadings, however, and if "matters
outside the pleadings are presented to and not excluded by
the court," the motion must be converted into a Rule 56
motion for summary judgment. See Fed. R. Civ. P.
12(d). Because the Court's decision turns, in part, on
documents attached to the parties' briefs on the motion,
(see Doc. 20-1; Doc. 21 at 13-17), conversion is
appropriate. See Grove v. Mead Sch. Dist. No. 354,
753 F.2d 1528, 1533 (9th Cir. 1985) (finding adequate notice
of conversion where the parties "submit[ted] matters
outside the pleadings to the judge and invite[d]
consideration of them"). Following conversion, 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 as a matter of law."
argues that Porterfield's defamation claim fails because
it was filed outside the applicable two-year statute of
limitations. See Mont. Code Ann. § 27-2-204(3).
Porterfield does not dispute the applicable time limitation,
but argues that the filing of Kinney's complaint on July
12, 2019, tolled the deadline. See Mont. Code Ann.
§ 27-2-408. Alternatively, Porterfield argues that even
if his claim related to Kinney's July and August 2017
statements is untimely, his claim is also based on a letter
sent to his ex-wife in June 2019.
July and August 2017 Statements
alleges that "[o]n or around July/August 2017, Kinney
falsely reported to the Whitefish Police Department that the
sexual acts the parties engaged in on July 15 - July 16, 2017
were non-consensual, and that [he] had committed the crimes
of sexual assault and rape." (Doc. 4 at 9.) He concedes
that he was aware of her statements by August 9, 2017, at the
latest. (Doc. 20 at ¶ 5.) Thus, for a claim based on
those statements to be timely, it would have had to have been
filed by August 9, 2019. See § 27-2-204(3).
Because Porterfield's counterclaim was filed August 13,
2019, (Doc. 4), his only safe harbor is if his counterclaim
relates back to the filing of Kinney's complaint. It does
Montana "[a] counterclaim ... for affirmative relief,
other than a defensive claim where the defendant attempts to
offset the amount a plaintiff can recover, such as by
recoupment, contribution, or indemnity, must comply with the
applicable statute of limitations." State ex rel.
Egeland v. City Council of Cut Bank, Mont., 803 P.2d
609, 613 (Mont. 1990); see also Johnson v. Dist.
VII, 204 P.3d 714, 719 (Mont. 2009). Because
Porterfield's defamation claim is one for affirmative
relief, see Appelbaum v. Ceres Land Co., 546 F.Supp.
17, 21 (D. Minn. 1981) ("Even though [the] affirmative
claim is based on similar transactions and occurrences as
[the underlying claims], it is indeed an independent claim
that would have been time-barred had [it been] filed [as] a
separate action."), it must meet the two-year limitation
for defamation, see § 27-2-204(3). To the
extent it is based on Kinney's pre-August 13, 2017
conduct, it fails to do so.
June 2019 Letter
further alleges that "Kinney has falsely reported her
allegations of sexual assault and rape against Porterfield to
others, including causing a letter raising such allegations
to be delivered to the address of Porterfield's ex-wife
on or around June 21, 2019." (Doc. 4 at 9, 10.) While
Kinney does not challenge this aspect of the defamation claim
as untimely, she argues that the claim fails as a matter of
law because the letter was not "published." Because
a libel action seeks to protect a person's reputation,
"the defamation must have been communicated to someone
other than the person defamed." Lewis v.
Reader's Digest Ass 'n, Inc., 512 P.2d 702, 705
(Mont. 1973). This is known as "publication."
has not directly addressed publication through private
mailing. Jurisdictions that have, however, have delineated
between those that send a letter "with the expectation
or intention that it will be read by another person as a
matter of course" versus those wherein the sender
"is not reasonably chargeable with knowledge that a
third person might intercept and read the libelous matter
before it reached the person allegedly defamed."
Barnes v. Clayton House Motel, 435 S.W.2d 616, 617
(Tex. App. 1968) (internal quotation marks omitted); see
also Farris v. Tvedten, 623 S.W.2d 205, 207 (Ark. 1981);
Weidman v. Ketcham, 15 N.E.2d 426, 428 (N.Y. App.
1938). Thus, the dispositive question is whether Kinney
reasonably could have known that Porterfield's ex-wife,
or another third party, would open and read the letter. While
Porterfield indicates that he has not lived at the 160
Reservoir Road address since 2012, (Doc. 20-1 at ¶ 5),
that address was one of two associated with Porterfield in
2019 on the Montana Secretary of State website, (Doc. 21 at
13). But it is unclear from the present record whether that
listing included any other individuals or whether
Kinney's attorneys knew it was possible someone else
resided at the house. It is not enough that the letter was
addressed solely to Porterfield. Because "the heart of
any determination regarding defamatory libel [falls] directly
within the province of the jury," Lee v.
Traxler, 384 P.3d 82, 86 (Mont. 2016), the question of
publication is one for the jury.
Intentional Infliction ...