IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION RYAN FERGUSON, Plaintiff, v. JOHN SHORT, KEVIN CRANE, et al. Defendants.
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Case No. 2:14-cv-04062-NKL
DEFENDANT KEVIN CRANE’S MOTION TO DISMISS COUNT VI AND COUNT VIII OF PLAINTIFF’S FIRST AMENDED COMPLAINT COMES NOW Defendant Kevin Crane (“Crane”), by and through the undersigned attorneys, and hereby moves to dismiss Counts VI and VIII of Plaintiff Ryan Ferguson’s (“Ferguson”) First Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 1.
Ferguson filed his First Amended Complaint on April 4, 2014. Ferguson names
Crane as a defendant as to only two counts – Counts VI and VIII. First Am. Compl., ¶¶ 263-274, 278-284 (ECF Doc. No. 35). Count VI purports to be a Monell claim and Count VIII purports to be a state law defamation claim. Ferguson did not include the Monell claim in the original Complaint. 2.
For purposes of his new Monell claim, Ferguson sues Crane in his “official capacity”
as the Boone County Prosecuting Attorney. Id. at ¶ 264. However, the real party in interest in an official capacity suit is the public entity, not the individual official. As such, official capacity claims follow the public entity, rather than the individual officeholder. Here, it is undisputed that Crane is the former Boone County Prosecuting Attorney. Id. at ¶ 19. Because Crane is no longer the Boone County Prosecuting Attorney, he is not subject to claims directed against him in his official capacity as Boone County Prosecuting Attorney. 1 Case 2:14-cv-04062-NKL Document 59 Filed 04/24/14 Page 1 of 5
The only other alleged basis for Ferguson’s request for $100 million in damages from
Crane arises out of a single paragraph, paragraph 210. Paragraph 210 alleges that Crane offered the following opinion in response to a reporter’s question about Ferguson: I obviously think he’s good for the offense, or I wouldn’t have prosecuted him. [Heitholt’s family] know how I feel. Id. at ¶ 210. 4.
Ferguson asks the Court to convert Crane’s opinion into a $100 million judgment.
The Court should decline Ferguson’s invitation. Instead, the Court should find that Ferguson’s defamation claim against Crane fails as a matter of law because it is a statement of opinion and is protected by the judicial proceeding privilege. Crane’s arguments are more fully discussed in Crane’s Suggestions in Support of his Motion to Dismiss (“Suggestions in Support”), which have been contemporaneously filed with this motion and which are incorporated herein by reference. 5.
First, only statements of fact can form the foundation of a defamation claim and
Crane’s statement is a protected statement of opinion. The statement begins with “I think” and ends with “I feel” – two hallmarks of an opinion. Missouri courts have previously held that statements that include such terms as “thought” and “felt” and such phrases as “it is my belief” and “I will attempt to prove” reflect the expression of an opinion and are not actionable. Crane’s statement fails to satisfy the verifiability requirement and therefore cannot be characterized as a statement of fact. 6.
Furthermore, Ferguson asks this Court to condemn Crane’s statement while engaging
in the very same conduct. Ferguson devotes 19 paragraphs of his First Amended Complaint to expressing his own opinion that Michael Boyd, a former Columbia Tribune employee, (“Boyd”) murdered Kent Heitholt. See First Am. Compl., ¶¶ 34-52. For example, Ferguson accuses Boyd of being the prime suspect, leaving personal items at the scene of the crime and knowing details which only “the killer” would know. Id. at ¶¶ 34, 35, 45. Similarly, Ferguson’s attorney told a Columbia 2 Case 2:14-cv-04062-NKL Document 59 Filed 04/24/14 Page 2 of 5
Daily Tribune reporter in 2011 that she believes the murder weapon, along with Heitholt’s DNA, could be found in Boyd’s vehicle. Brennan David, Co-worker Denies Role in Heitholt Murder, COLUM. DAILY TRIB., Feb. 16, 2011. It would be a curious rule of law that would protect Ferguson’s right to express his opinion as to Heitholt’s killer, but prohibit Crane, as the prosecutor, from expressing his own opinion on the same topic. 7.
In addition, Missouri law provides that statements made in connection with a judicial
proceeding are absolutely privileged. The judicial proceedings related to Heitholt’s murder began in 2004 and continue to this day. Crane, as the prosecutor, a witness and a party, is entitled to make statements in connection with such proceedings. Crane’s statement on November 12, 2013 was simply a reiteration of a) the belief he was required to hold as the prosecutor and b) identical to statements Crane previously made in these proceedings. For example, Crane testified in April 2012 in connection with Ferguson’s petition for writ of habeas corpus and stated that, “As prosecutor, I had good faith and still do believe they [Ferguson and Erickson] are both guilty.” When Crane expressed his opinion on November 12, 2013, Crane was speaking as a witness and prosecutor and solely for the purpose of defending his conduct in these judicial proceedings. As such, his statement is absolutely privileged. 8.
For these reasons, and for the reasons set forth in Crane’s Suggestions in Support, the
Court should dismiss with prejudice Counts VI and VIII of Ferguson’s First Amended Complaint. WHEREFORE, Kevin Crane respectfully requests the Court dismiss with prejudice Counts VI and VIII of Plaintiff Ryan Ferguson’s First Amended Complaint, and for such other and further relief as the Court deems just and proper.
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Respectfully submitted: By: /s/ B. Daniel Simon 9 B. Daniel Simon, Mo. Bar No. 20248 email: firstname.lastname@example.org Marjorie M. Lewis, Mo. Bar NO. 42569 email: email@example.com R. Caleb Colbert, Mo. Bar No. 62806 email: firstname.lastname@example.org BROWN, WILLBRAND, SIMON, POWELL & LEWIS, PC 601 E. Broadway, Suite 203 P.O. Box 1304 Columbia, MO 65205-1304 Phone: (573) 442-3181 Fax: (573) 874-3796 Attorneys for Defendant Kevin Crane
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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Kathleen T. Zellner and Douglas H. Johnson Samuel Henderson Attorneys for Plaintiff David S. Baker Attorney for Defendants City of Columbia, Stephen Monticelli and Randy Boehm Bradley Letterman Christopher P. Rackers Attorneys for Defendants John Short, Jeff Nichols, Jeff Westbrook, Bryan Liebhart, Latisha Stroer and Lloyd Simons Bruce Farmer Robert J. Buckley Attorneys for Defendant Randy Boehm Marshall V. Wilson Michael G. Berry Attorneys for Defendant William Haws Cynthia M. Juedemann Jonathan C. Pleban Michael B. Maguire Russell F. Watters Attorneys for Defendants Ben White and Boone County, Missouri There are no non-CM/ECF participants: /s/ B. Daniel Simon B. Daniel Simon
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