United States District Court, D. Minnesota
Fredin, pro se, for Plaintiff.
Matthew Schaap, for Defendant.
REPORT AND RECOMMENDATION AND ORDER
FRANKLIN L. NOEL United States Magistrate Judge
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.
FINDINGS OF FACT
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.
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
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.
STANDARD OF LAW
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).
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).
CONCLUSION OF LAW
Motion to Dismiss Count II of Plaintiff's Amended
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 ...