Hofland v. Bangor Daily News

• Court: Superior Court of Maine
• Decided: January 11, 2012
• Docket: PENcv-11-107
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION DOCKET NO CV-11-107 , , - I'· RANDALL B. HOFLAND,

Plaintiff, v. ORDER BANGOR DAILY NEWS, et al.,

Defendant.

Randall Hofland, pro se, has filed a twenty-five count complaint against the

Bangor Daily News, various employees, and unknown persons, all represented by

Bernard Kubetz, Esq. The defendants promptly filed a motion to dismiss pursuant to

M.R.Civ. P. 12(b)(6), which the Court addresses in this Order.

After jury trial in Waldo County, Plaintiff was found guilty of thirty-nine

criminal counts related to his armed kidnapping and hostage taking of fifth grade

students at the Stockton Springs Elementary School. He was sentenced to thirty-five

years imprisonment on March 14, 2011. The Bangor Daily News published a variety of

articles concerning the case, both before and after trial. While awaiting trial as well as

after conviction, Mr. Hofland filed a variety of civil law suits in federal and state courts

against several defendants. All have been dismissed with prejudice.

The present complaint contains allegations that can be classified in certain

categories. In Count 1., plaintiff complains that the defendant newspaper refused to

publish a letter he wrote to the editor. In Counts 2-6, the plaintiff asserts that the

defendants "knowingly, willfully, and maliciously", libeled the plaintiff in a series of

articles concerning events prior to, during, and after the kidnapping. Plaintiff

apparently asserts that certain local law enforcement agencies acted inappropriately

toward him and these actions "incited" his kidnapping of children. He emphasizes repeatedly in these counts that the defendants failed to fact check and use information

he provided to the writers, but never describes any false statements published by any

defendant. In counts 7-9, he repeats the allegations pertaining to libel, but describes

them as being a violation of his state and federal constitutional rights. In count 10, he

alleges that the defendants "knowingly, willfully, and maliciously created animus ...

causing false convictions. Plaintiff alleges that the defendants were engaged in a

conspiracy to engage in wire fraud, mail fraud and obstruction of justice in counts 11-

14, while here-alleges libel and fraud in the remaining counts, in which he requests the

Court to issue a Declaratory Judgment.

ANALYSIS

In deciding a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), the Court must

accept the allegations in the complaint to be true, and examine the acts in a light most

favorable to the plaintiff in order to determine whether those facts could entitle the

plaintiff to relief according to a legal theory. Sargent v. Buckly, 1997 ME 59,

A.2d 1272, 1 275. The Court, however does not have to accept the truth of legal

conclusions merely because they are described in the form of factual allegations. W.

Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (citing Hiland Dairy, Inc. v. Kroger

Co., 402 F.2d 968 (8th Cir. 1968), cert. denied, 395 U.S. 961 (1969). With this standard in

mind, the Court will address the sufficiency of plaintiff's complaint. 1

I. LIBEL CLAIMS

Modern notice pleading requires that a complaint provide fair notice of a claim

and a generalized statement of the facts may fulfill this function. E.N. Nason, Inc. v.

Land-Ho Dev. Corp., 403 A.2d 1173, 1177 (Me. 1979). When a Maine Rule of Civil

1 The defendants argue in their brief that this action is barred by the two-year statute of Procedure is identical to its federal counterpart, a Maine court should value

constructions and comments on the federal rule as aids in construing the parallel Maine

rule. Bean v. Cummings, 2008 ME 18, <[ 11, 939 A.2d 676. In a recent ruling that concerned

the sufficiency of a complaint in the context of a federal12(b)(6) challenge, the Supreme

Court commented on the sufficiency requirements of notice pleading. Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (2009). It held that to survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Id. The Court elaborated, stating that the tenant that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions and "threadbare recitals of the elements of a cause of action supported by

mere conclusory statements, do not suffice." Id. "Only a complaint that states a

plausible claim for relief survives a motion to dismiss." Id.

Applying these standards to the counts of the Hofland complaint that allege

libel, including the counts in which declaratory judgment is sought as well as the counts

phrased as constitutional violations, the plaintiff's complaint is insufficient. Nowhere

does he even hint at the content of any false statements published by any of the

defendants, even though he would uniquely be able to make such a factual assertion.

Instead, he constantly uses conclusory words such a "willfully", "maliciously", and

"libelous" and focuses on the defendants' failure to publish the plaintiff's version of the

events that were described in certain articles. To prove slander, the plaintiff must prove

that defamatory statements were false, Schoffv. York County, 2000 ME 205, <[ 9 n.3, and

this Court is not aware of any doctrine assigning liability for failure to properly

investigate or check facts - in the absence of a factual assertion of false statement.

Because of the paucity of relevant facts in plaintiff's complaint the Court cannot find that it states a plausible claim for relief and, Counts 2 -10, 15-20, and 25 are dismissed

for failure to state a claim upon which relief can be granted. 2

II. RICO CLAIMS

Plaintiff also alleges that the defendants are part of one or more enterprises

engaging in mail and wire fraud and obstruction of justice, constituting racketeering.

The Racketeering and Corrupt Organizations Act, 18 U.S.C.A. § 1961, provides a private

right of action for treble damages to any person injured in his or her business or

property by reason of the conduct of a qualifying enterprise's affairs through a pattern

of acts indictable as wire or mail fraud. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639,

647 (2008). State courts have concurrent jurisdiction to hear such claims. Tafflin et al. v.

Levitt et al., 493 U.S. 455, 467 (1990). To prove such a claim, one must demonstrate the

existence of a scheme to defraud, knowing participation in the scheme, and the use of

the mail or communication by wire in interstate commerce, to further the scheme.

DeFazio v. Wallis, 500 F. Supp. 2d 197, 203-4 (E.D.N.Y. 2007).

Not only must one plead a RICO violation with the degree of factual specificity

required by Iqbal, but federal courts have interpreted Fed. R. Civ. P. 9(b) 3 as requiring a

plaintiff to specify the time, place, and content of the alleged false representation, and

describe with particularity any allegedly fraudulent transaction, and how the particular

mailing furthered the fraudulent scheme. Weiszmann v. Kirkland & Ellis, 732 F. Supp.

1540, 1546 (D. Colo. 1990), (citing Zerman v. Ball, 735 F. Supp. 15, 22 (2d Cir. 1984)).

Additionally, in alleging a RICO violation, the plaintiff must identify specifically each

person who is alleged to be liable and collectivizing defendants will not suffice. Id.

2 Count I expresses no arguable cause of action and its theme, the defendants' failure to publish his letter to the editor, is also expressed in Count 13, addressed by the Court as a substantive count. 3 M.R. Civ. P. 9(b) is nearly identical. Applying these standards to Counts 11-14, and 21-25, counts that arguably

express a RICO claim, the Court concludes that the plaintiff has failed to assert facts

sufficient to make out a RICO claim. Not only does he fail to specifically identify the

participants, he fails to specify the time, place, and content of any alleged false

representations, and he fails to describe any particular fraudulent transaction. As in the

other counts, the plaintiff uses only conclusory generalities to express these claims,

using words such as "willfully and maliciously transmitted ... fraudulent information

widely published via the U.S. Mail and via wires." The plaintiff emphasizes the

defendants' failure to print what he wanted printed, points out that the BDN uses mail

and the internet, and combines the two propositions to structure inadequate RICO

allegations.

Based on the foregoing, the Plaintiff's complaint is DISMISSED.

The clerk is directed to incorporate this Order into the docket by reference.

Dated: January 11, 2012 RANDALL B HOFLAND #116217 - PLAINTIFF SUPERIOR COURT 807 CUSHING RD PENOBSCOT, ss. WARREN ME 04864 Docket No BANSC-CV-2011-00107

VS BANGOR PUBLISHING COMPANY - DEFENDANT DOCKET RECORD 491 MAIN ST BANGOR ME 04401 Attorney for: BANGOR PUBLISHING COMPANY BERNARD KUBETZ - RETAINED 07/13/2011 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210

BANGOR DAILY NEWS - DEFENDANT

Attorney for: BANGOR DAILY NEWS BERNARD KUBETZ - RETAINED 07/13/2011 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210

WALTER GRIFFEN - DEFENDANT

Attorney for: WALTER GRIFFEN BERNARD KUBETZ - RETAINED 07/13/2011 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210

SUSAN YOUNG - DEFENDANT

Attorney for: SUSAN YOUNG BERNARD KUBETZ - RETAINED 07/13/2011 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210

TOM GROENING - DEFENDANT

Attorney for: TOM GROENING BERNARD KUBETZ - RETAINED 07/13/2011 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210

OTHER NAMED UNKNOWN STAFF OF BANGOR DAILY NEW - DEFENDANT

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