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Fredin v. Clysdale

United States District Court, D. Minnesota

December 20, 2018

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



         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 on the 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 a complaint, 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 Court will 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 tortious acts 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, No. 62-HR-cv-16-46; Schaefer v. Fredin, No. 62-HR-cv-16-411; and Middlecamp v. Fredin, 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 “heartbroken” and sent several communications to Miller attempting to resume their relationship. (SAC ¶ 15.) Schaefer, a friend of Miller's, allegedly urged Miller to pursue an HRO against Fredin, and Miller did so in January 2016. (SAC ¶¶ 15, 16, 22.) In applying for the HRO, Miller explained that she “tried to break off her relationship with [Fredin]. I told him we could date casually, but he began to tell me I couldn't see other men, and on one of our dates he was rude and asked me vulgar questions.” (SAC ¶ 22.) Referee Clysdale issued the HRO. (SAC ¶ 22.) Fredin alleges that Middlecamp used her friendship with Referee Clysdale to facilitate the issuance of the HRO. (SAC ¶ 84.)

         Fredin and Schaefer had actually met online two years earlier, in March 2014, through a dating website. (SAC ¶¶ 16, 18.) Fredin and Schaefer had scheduled a blind date, but “Plaintiff stood Shaefer up” without notice. (SAC ¶ 16.) As a result, Fredin alleges, Schaefer filed false police reports claiming Fredin harassed her via phone calls and text messages; a police investigation later revealed those phone calls and text messages were from telemarketers and from Schaefer's own phone. (SAC ¶¶ 16, 93.) Fredin alleges that Schaefer has contacted numerous women connected to him “in an effort to destroy his personal and professional reputation with lies.” (SAC ¶ 16.) Schaefer also allegedly “created two revenge pornography catfish dating profiles” in other women's names to entice Fredin. (SAC ¶ 16.)

         Fredin alleges that Middlecamp is a close friend of Miller and Schaefer. (SAC ¶ 17.) She allegedly uses an “anonymous @CardsAgstHrsmt Twitter account to shame, ridicule, and terrorize men, ” including Fredin. (SAC ¶ 17.) Between 2014 and 2016, Middlecamp and Schaefer allegedly “attempted to anonymously catfish Plaintiff with fake dating profiles on OkCupid and other dating websites.” (SAC ¶ 19.)

         On February 2016, Miller filed a police report asserting that Fredin had violated the HRO because his dating profile sent her a push notification after she viewed it. (SAC ¶ 23.) Miller was granted a two-year HRO in March 2016, and Fredin appealed. (SAC ¶¶ 25, 27.) In May 2016, Miller threatened Fredin with contempt proceedings over some Facebook posts. (SAC ¶ 28.) Fredin alleges that Miller repeatedly contacted him to incite him to violate the HRO. (SAC ¶ 85.) In September 2016, Miller asked for a contempt hearing based on the Facebook posts, and Referee Clysdale granted the request. (SAC ¶ 33.)

         In May and June 2016, Fredin alleges, Schaefer created false dating profiles and advertisements for sex on adult websites in Fredin's name and using Fredin's private email address, which caused Fredin to receive hundreds of unwanted emails. (SAC ¶¶ 29, 87, 103.C.) Fredin sent a message to Schaefer via Facebook[3] asking her to remove the advertisements. (SAC ¶ 30.) Schaefer then filed for an HRO, claiming she had received unwanted phone calls and messages. (SAC ¶ 31.) Fredin alleges that was a misrepresentation. (SAC ¶ 31.) Fredin later received several anonymous text messages from someone he believes was associated with Schaefer, threatening “we are watching you.” (SAC ¶¶ 32, 36.) Schaefer obtained a “bogus HRO” against Fredin in July 2016 and threatened to “take down” Fredin. (SAC ¶ 89.) On November 17, 2016, Referee Clysdale granted Schaefer a final two-year HRO. (SAC ¶ 34.) That same day, Fredin filed a police report describing the sexual advertisements allegedly placed by Schaefer for the purpose of soliciting Fredin and obtaining a fraudulent HRO. (SAC ¶ 35.)

         In January 2017, Middlecamp tweeted a comment about a forthcoming opinion by the Minnesota Court of Appeals in Miller v. Fredin, No. A16-0613, 2017 WL 280974, at *1 (Minn.Ct.App. Jan. 23, 2017), specifically, that the opinion “destroyed” Fredin. (SAC ¶ 37.) The opinion had not yet been released to the public. (SAC ¶ 37.) The tweet also included photographs of Fredin and was “liked” by hundreds of people. (SAC ¶ 37.) The tweet was later deleted. (SAC ¶ 109.A.) The day after the opinion was filed, Middlecamp tweeted: “Women of MN: this is Brock Fredin, aka Dan/Will. He has at least two restraining orders against him. Please RT to help keep women safe.” (SAC ¶¶ 39, 126.) Middlecamp also allegedly shared Fredin's work location and photographs from Fredin's dating profiles. (SAC ¶ 40.) Fredin received many threats via Facebook and Twitter. (SAC ¶ 40.)

         Between the end of January and April 2017, Middlecamp allegedly attacked Fredin on Twitter more than fifty times. (SAC ¶ 41.) Sergeant McCabe reopened an investigation in the Miller v. Fredin case as a result. (SAC ¶ 43.) In February 2017, an article about Fredin was published in City Pages, in which, Fredin alleges, Schaefer admitted she had colluded with Miller in obtaining HROs against Fredin, and Miller and Schaefer admitted that Miller had coached Schaefer in obtaining her HRO. (SAC ¶¶ 45, 124.)

         Schaefer requested a contempt hearing in April 2017 after learning of a Facebook post and police report by Fredin concerning sexual advertisements. (SAC ¶ 44.) About the same time, Middlecamp requested an HRO on the basis that she felt threatened by a Facebook post by Fredin. (SAC ¶ 46.) Fredin denies ever meeting, speaking to, or interacting with Middlecamp. (SAC ¶ 46.)

         On April 28, 2017, Sergeant McCabe executed a search warrant at Fredin's home. (SAC ¶ 48.) Sergeant McCabe also served Fredin with Middlecamp's HRO request and Schaefer's motion for contempt at that time. (SAC ¶ 49.) During the execution of the warrant, Sergeant McCabe and other officers seized Fredin's computers, phones, and storage devices. (SAC ¶ 50.) Fredin asserts the evidence was seized for use in the two civil HRO proceedings. (SAC ¶ 50.) On May 2, 2017, Fredin was charged with criminal gross misdemeanor stalking and an HRO violation in the Miller v. Fredin case. (SAC ¶ 51.)

         On May 31, 2017, Fredin discovered a false dating profile on a “seedy adult website, ” allegedly created by Schaefer, that contained Fredin's name, email address, photographs, and other private information. (SAC ¶ 103.D.) Fredin discovered a similar profile on another website the following day. (SAC ¶ 103.E.)

         On September 21, 2017, Referee Clysdale presided over a hearing in the Middlecamp HRO proceeding. (SAC ¶ 57.) Referee Clysdale issued an order on October 2, 2017, precluding Fredin from making any statement about Middlecamp. (SAC ¶ 59.)

         Meanwhile, on August 7, 2018, Sergeant McCabe returned the items he had seized from Fredin's residence. (SAC ¶ 56.) Fredin alleges that many devices had data or user accounts deleted. (SAC ¶ 56.)

         In December 2017, Schaefer and Middlecamp filed for contempt hearings in their respective cases, and Referee Clysdale issued orders to show cause. (SAC ¶¶ 61, 62.) Referee Clysdale held a contempt hearing in Middlecamp on January 4, 2018. (SAC ¶ 65.) During the hearing, Middlecamp pressed Fredin for his address, and Fredin accused her of asking for his address for the purpose of raiding his house again. (SAC ¶ 65.) After the hearing concluded, Referee Clysdale directed her bailiff to arrest Fredin based on Middlecamp's statement that she had overheard Fredin make threats against her during a conversation he had with his family after the hearing. (SAC ¶¶ 58, 66, 166.)

         In late January 2018, Fredin was charged for violating the HRO in Middlecamp. (SAC ΒΆ 68.) Fredin believes the charge was brought to conceal Referee ...

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