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Fredin v. Middlecamp

United States District Court, D. Minnesota

April 13, 2018

Brock Fredin, Plaintiff,
v.
Lindsey Middlecamp, Defendant.

          Brock Fredin, pro se, for Plaintiff.

          Matthew Schaap, for Defendant.

          REPORT AND RECOMMENDATION AND ORDER

          FRANKLIN L. NOEL United States Magistrate Judge

         THIS MATTER came before the undersigned United States Magistrate Judge on Defendant Lindsey Middlecamp's motion to dismiss and to strike (ECF No. 11). This matter was referred to the undersigned for Report and Recommendation pursuant 28 U.S.C. § 636 and Local Rule 72.1. See Order, ECF No. 19. For the reasons set forth below, the undersigned recommends that Defendant's motion to dismiss be GRANTED in part, and DENIED in part. The Court also GRANTS in part, and DENIES in part, the Defendant's motion to strike portions of Plaintiff's Amended Complaint.

         I. FINDINGS OF FACT

         Plaintiff Brock Fredin alleges that between January and April of 2017, Defendant Lindsey Middlecamp posted more than fourty tweets containing patently false and defamatory statements concerning Plaintiff on her Twitter account @CardsAgsHrsmt. ECF No. 5 ¶ 1, 19. Specifically, Plaintiff alleges that on February 22, 2017, Defendant re-posted content from an unnamed woman accusing Plaintiff of raping her seven years ago. Id. ¶ 20. In addition to sharing the unnamed woman's story, Plaintiff alleges that Defendant commented: “The power of sharing. Within hours of the stalking post going up, a rape survivor comes forward. He remains free. (Shared w/ her permission).” Id. ¶ 20. According to Plaintiff, Defendant also authored tweets labeling Plaintiff as a danger to women, stating that Plaintiff had victimized women in the past, and identifying Plaintiff as a stalker. Id. ¶ 23. As a result, Plaintiff alleges he suffered immense harm, was permanently stigmatized, was subjected to public ridicule, lost his job, and lost financial opportunities. Id. ¶ 22. Plaintiff also alleges he has suffered severe and ongoing mental anguish due to Defendant's statements. Id.

         After contacting a journalist who had written an article about Defendant, Plaintiff learned of Defendant's true identity. Id. ¶ 24. On April 4, 2017, Plaintiff published a post on his personal Facebook account identifying Defendant as the owner and operator of the Twitter handle @CardsAgstHrsmt. Id. On April 14, 2017, Defendant sought a Harassment Restraining Order (“HRO”) against Plaintiff in Ramsey County, District Court. Id. ¶ 25. The Court granted Defendant's HRO, and found that there was reasonable ground to believe that Plaintiff followed, pursued, or stalked Defendant, and frightened Defendant with threatening behavior. ECF No. 13, Ex. 1 at 2. Specifically, the Court found that Plaintiff registered the domain name lindseymiddlecamp.com where he identified Defendant's employer, accused Defendant of criminal conduct, and contacted attorney's adverse to her in active litigation. Id. at. 2-3. Plaintiff alleges that Defendant sought the HRO to maintain her anonymity in operating the @CardsAgstHrsmt Twitter account. ECF No. 5 at ¶¶ 28-29.

         Plaintiff brings one count of defamation per se, one count of abuse of process, and one count of intentional infliction of emotional distress. Id. at ¶¶ 30-40.

         II. STANDARD OF LAW

         To avoid dismissal under Rule 12(b)(6), a complaint must allege facts sufficient to state a claim as a matter of law and may not merely state legal conclusions. See Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). A plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must contain enough facts to state a claim for relief that is “plausible on its face, ” and a claim has facial plausibility only when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is not akin to a “probability requirement, ” but it calls for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. Finally, “when determining whether a complaint states a claim for relief that is plausible on its face, a district court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor.” Blankenship v. USA Truck, Inc. 601 F.3d 852, 853 (8th Cir. 2010).

         In a motion to dismiss, courts generally do not consider matters outside the pleading. See Fed. R. Civ. P. 12(d). Courts may, however, consider material that is part of the public record, or necessarily embraced by the pleadings. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007); Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). Considering material outside the pleading does not automatically convert a 12(b)(6) motion into a summary judgment motion. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999).

         III. CONCLUSION OF LAW

         A. Motion to Dismiss Count II of Plaintiff's Amended Complaint

         Defendant asks the Court to dismiss Count II of the Amended Complaint, abuse of process, because Plaintiff has not pled sufficient facts to state a plausible claim for relief. See ECF No. 14 at 6. Defendant specifically argues that Plaintiff has not pled facts to support the second element of an abuse of process claim: the use of the process to accomplish a result not within the scope of the proceeding in which it was issued. Id. at 7. Plaintiff responds that Defendant's motion should be denied because ...


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