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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: Marjorie M. Lewis, Mo. Bar NO. 42569 email: R. Caleb Colbert, Mo. Bar No. 62806 email: 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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Defendant kevin crane's motion to dismiss  
Defendant kevin crane's motion to dismiss