CASE 0:17-cv-03058-SRN-FLN Document 30 Filed 04/13/18 Page 1 of 10

UNITED STATES DISTRICT COURT

Brock Fredin, Civil No. 17-3058 (SRN/FLN)

Plaintiff,
REPORT AND
RECOMMENDATION AND
ORDER
v.

Lindsey Middlecamp,

Defendant.
______________________________________________________________

Brock Fredin, pro se, for Plaintiff.

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
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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.

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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

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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 Plaintiff has sufficiently alleged that Defendant initiated the HRO proceeding for

an illegitimate and collateral purpose. See ECF No. 21 at 10.

To prevail on an abuse of process claim, Plaintiff must prove: “(a) the existence of an ulterior

purpose, and (b) the act of using the process to accomplish a result not within the scope of the

proceeding in which it was issued, whether such result might otherwise be lawfully obtained or not.”

Hoppe v. Klapperich, 28 N.W.2d 780, 786 (Minn. 1947).“[T]he gist of an action for abuse of process

is the misuse or misapplication of the process, after it has once been issued, for an end other than

that which it was designed to accomplish.” Id. Minnesota law permits a person who is the victim of

harassment to a seek a restraining order from a district court. Minn. Stat. § 609.748, subd. 2 (2017).

Harassment is defined as “repeated incidents of intrusive or unwanted acts, words, or gestures that

have a substantial adverse effect or are intended to have a substantial adverse effect on the safety,

security, or privacy of another. . ..” Id. at subd. 1(a).

Plaintiff’s Amended Complaint alleges that Defendant obtained the HRO for the ulterior

purpose of suppressing Plaintiff’s First Amendment right to criticize a public official, and used the

HRO process to maintain her privacy by preventing the divulgence of her personal information and

professional identity. ECF No. 5 ¶ 26, 28, 29. As stated above, for Plaintiff to prevail on his claim

of abuse of process, he must allege the use of the process to accomplish a result not within the scope

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of the proceeding. See Hoppe, 28 N.W.2d at 786. Here, Plaintiff alleges that Defendant used the

HRO proceeding for the purpose of maintaining her privacy; a purpose specifically within the scope

of the proceedings. See Minn. Stat. § 609.748, subd. 1(a); see also Johnson v. Arlotta, No. A11-630,

2011 WL 6141651 at *3 (Minn. Ct. App. Dec. 12, 2011) (finding that former boyfriend’s blog posts

and emails was harassment for purposes of granting an HRO under Minn. Stat. § 609.748). Because

privacy is a legitimate purpose to initiate an HRO proceeding under Minn. Stat. § 609.748,

Plaintiff’s Amended Complaint fails to set forth sufficient facts to establish that Defendant sought

to achieve a purpose outside the scope of the HRO proceedings. Therefore, Plaintiff’s motion to

dismiss Count II should be granted.

B. Motion to Dismiss Count III of Plaintiff’s Amended Complaint

Defendant also asks the Court to dismiss Count III of Plaintiff’s Amended Complaint,

intentional infliction of emotional distress (“IIED”). See ECF No. 13. Defendant argues that

Plaintiff’s claim of IIED is deficient for two reasons: (1) it fails to establish that Defendant’s

behavior was extreme and outrageous, and (2) it fails to plead sufficient facts supporting the severity

of Plaintiff’s emotional distress. See ECF No. 14 at 8–11.

To sustain a claim for IIED, Plaintiff must allege: (1) the conduct was extreme and

outrageous; (2) the conduct was intentional or reckless; (3) it caused emotional distress; and (4) the

distress was severe. See Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003) (citing

Hubbard v. United Press International, Inc. 330 N.W.2d 428 at 438-39 (Minn. 1983)). Minnesota

law approaches IIED cautiously, keeping it “sharply limited to cases involving particularly

egregious facts,” and requiring a “high threshold standard of proof” to submit the claim to the jury.

Id. at 864 (citing Hubbard, 330 N.W.2d at 439).

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Minnesota courts have found that conduct is extreme and outrageous when it is “so atrocious

that it passes the boundaries of decency and is utterly intolerable to the civilized community.”

Hubbard, 330 N.W.2d at 439 (citation omitted). Limiting claims “to cases involving particularly

egregious facts.” Id. And refusing to extend to “insults, indignities, threats, annoyances, petty

oppressions, or other trivialities.” See Restatement (Second) of Torts § 46 cmt. d (1965).

Here, Plaintiff alleges that Defendant falsely accused him of rape, broadcasted her false rape

accusation to thousands of Twitter users, subsequently refused to take down the accusation, and has

allowed it to remain publically available on her twitter account. See ECF No. 5. Further, that

Defendant found Plaintiff’s online dating profile and posted it on her twitter account to warn

women, falsely insinuating that Plaintiff was a threat to them. Id. at ¶23.

Construing Plaintiff’s Complaint liberally, and affording Plaintiff all reasonable inferences

in his favor, the Court finds that Defendant’s wide-spread promulgation of a false rape allegation

is extreme and outrageous and not “tolerable to the civilized community.” See Hubbard, 330 N.W.2d

at 439. This is not the case of simple insults or indignities, but is so atrocious it that passes the

boundaries of decency. See id. While Minnesota courts have not specifically addressed the issue of

whether a false rape accusation broadcast to thousands of online users is extreme and outrageous

conduct, this Court’s conclusion is buttressed by similar findings from other federal district courts.

See, e.g., Mangan v. Rumo, 226 F. Supp.2d 250, 254 (D. Me. 2002) (holding that for purposes of

IIED, “[i]ntentionally false allegations of rape could amount to outrageous behavior intolerable in

a civilized society”); Iglesias v. O’Neal, No. 16–6291 (RBK/AMD), 2017 WL 1170835 at *3

(D.N.J. March 29, 2017) (stating: “it is certain that a false accusation of rape is intolerable in a

civilized community”).

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Next, Defendant claims that Plaintiff has failed to adequately plead the severity of his

purported mental distress. See ECF No. 14 at 9–11.“The law intervenes only where the distress

inflicted is so severe that no reasonable man could not be expected to endure it.” Langeslag, 664

N.W.2d at 868 (citing Hubbard, 330 N.W.2d at 439). Plaintiff in his Amended Complaint alleges

that he “suffered, and continues to suffer severe and extreme emotional distress.” ECF No. 5 ¶ 43.

Plaintiff also alleges that he suffered immense harm, was permanently stigmatized, was subjected

to public ridicule, and lost his job and financial opportunities as a result of Plaintiff’s statements.

Id. at ¶22.

Allegations contained in a complaint will not be found to be insufficient for purposes of a

motion to dismiss because the Court is doubtful that Plaintiff will be able to prove all the factual

allegations contained therein. See Twombly, 500 U.S at 555. In a motion to dismiss, “[t]he issue is

not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence

to support the claim.” See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A well-pleaded complaint

will survive a motion to dismiss even if it appears “that a recovery is very remote and unlikely.” Id.

Reading the complaint as a whole, and in a light most favorable to Plaintiff, we find that

Plaintiff has adequately pled that he suffered severe distress as a result of Plaintiff’s statements.

Plaintiff has not merely relied on conclusory statements, but has alleged specific facts to support his

claim. As such, Defendant’s motion to dismiss Count III should be denied.

C. Motion to Strike Portions of Plaintiff’s Amended Complaint

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Lastly, Defendant asks the Court to strike her home address, educational background, and

place of employment from Plaintiff’s Amended Complaint, as they are immaterial to Plaintiff’s

claims, and are included for no other purpose than to distribute Defendant’s private information to

the public. See ECF No. 14 at 12. Plaintiff, in response, argues that to prevail on his claims of

defamation and abuse of process he must connect Defendant to the Twitter handle

@CardsAgstHrsmt, and must include her home address to make a prima facie showing of diversity

jurisdiction. See ECF No. 21 at 15–16.

District courts have “liberal discretion” in deciding to strike any redundant, immaterial,

impertinent, and scandalous matters from the record. Stanbury Law Firm v. Internal Revenue Serv.,

221 F.3d 1059, 1063 (8th Cir. 2000); see also Fed. R. Civ. P. 12(f). Despite the district court’s

liberal discretion, however, striking a pleading is an extreme measure to be viewed with disfavor

and granted infrequently. Stanbury Law Firm, 221 F.3d at 1063 (quoting Lunsford v. United States,

570 F.2d 221, 229 (8th Cir. 1977) (citing 5 Wright & Miller, Federal Practice and Procedure: Civil

§ 1380 at 783 (1969))).

Here, Defendant’s home address, place of employment, and educational background, bear

no logical connection to Plaintiff’s claims, and must be stricken from the record pursuant to Rule

12(f). Plaintiff is permitted to identify Defendant as an attorney employed with the City of

Minneapolis, and for purposes of establishing diversity jurisdiction, Plaintiff may identify the state

in which Defendant resides. See 28 U.S.C. § 1332(a).

As to Defendant’s motion to strike portions of Plaintiff’s Amended Complaint as

inflammatory, Defendant’s motion is denied.

IV. RECOMMENDATION

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Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS

HEREBY RECOMMENDED that Defendant’s motion to dismiss (ECF No. 11) be GRANTED

in part, and DENIED in part as follows:

1. Defendant’s motion to dismiss Count II of Plaintiff’s Amended Complaint be

granted.

2. Defendant’s motion to dismiss Count III of Plaintiff’s Amended Complaint be

denied.

V. ORDER

Based upon the foregoing, and all of the files, records and proceedings herein, IT IS

HEREBY ORDERED that Defendant’s motion to strike portions of Plaintiff’s Amended Complaint

(See ECF No. 11) is GRANTED in part, and DENIED in part as follows:

1. Defendant’s home address, educational background, and employment as an Assistant

Minneapolis City Attorney shall be stricken from Plaintiff’s Amended Complaint.

2. Plaintiff is permitted to identify Defendant as a resident of the State of Minnesota,

and employed as an attorney with the City of Minneapolis.

3. Defendant’s motion to strike is denied in all other respect.

DATED: April 13, 2018 s/Franklin L. Noel

Pursuant to the Local Rules, any party may object to this Report and Recommendation by filing
with the Clerk of Court and serving on all parties, on or before April 27, 2018, written
objections that specifically identify the portions of the proposed findings or recommendations to
which objection is being made, and a brief in support thereof. A party may respond to the
objecting party’s brief within fourteen (14) days after service thereof. All briefs filed under the

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rules shall be limited to 3,500 words. A judge shall make a de novo determination of those
portions to which objection is made.

This Report and Recommendation does not constitute an order or judgment of the District Court,
and it is, therefore, not appealable to the Circuit Court of Appeals.

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