                                                                                           October 11 2011


                                            DA 10-0480

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2011 MT 252N



PAMELA JO POLEJEWSKI
and MICHAEL LEE HANSON,

              Plaintiffs and Appellants,

         v.

LINDA METZGER,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. DDV 08-171
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Pamela Jo Polejewski and Michael L. Hanson, self-represented, Libby,
                        Montana

                For Appellee:

                        Robert F. James and Jordan Y. Crosby, Ugrin, Alexander, Zadick &
                        Higgins, P.C., Great Falls, Montana


                                                    Submitted on Briefs: September 22, 2011
                                                               Decided: October 11, 2011




Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1       Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2       Pamela Jo Polejewski (Polejewski) and Michael Lee Hanson (Hanson) appeal

from several orders of the Eighth Judicial District Court, Cascade County. We affirm.

¶3       This case is but the latest round in the nearly 12 year battle, both in Montana and

federal courts, surrounding Polejewski’s and Hanson’s ownership and treatment of

animals.      This round began when Polejewski and Hanson filed suit against Linda

Metzger 1 (Metzger) for defamation. Polejewski and Hanson alleged Metzger defamed

them by calling them “hoarders,” a “public nuisance,” and by calling Polejewski a “sticky

wicket” and stating that Polejewski filed for bankruptcy. Metzger denies defaming both

Polejewski and Hanson.

¶4       During the course of the litigation, the District Court made several rulings that

Polejewski and Hanson now appeal: (1) denying their motions to compel discovery, (2)

denying their motions to amend their complaint, (3) granting summary judgment to

Metzger, and (4) granting Metzger’s motion for sanctions. We address each in turn.



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    Polejewski and Hanson named several others as defendants as well. Those defendants settled.
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                             Motions to Compel Discovery

¶5     We review a district court’s ruling on discovery matters for an abuse of discretion.

Hawkins v. Harney, 2003 MT 58, ¶ 32, 314 Mont. 384, 66 P.3d 305.

¶6     Polejewski and Hanson filed a number of motions to compel. However, with

these motions they did not identify which discovery items were improperly answered by

Metzger. Polejewski and Hanson were given several chances to provide this information.

They did not. One week after the hearing, Polejewski faxed the District Court Metzger’s

responses to Plaintiffs’ Third Discovery Request. After reviewing the faxed information,

the District Court denied the motions. It found the information Polejewski and Hanson

provided showed that Metzger’s objections were appropriate, as the requests violated the

Rules of Civil Procedure and the District Court’s scheduling order, and that Metzger did,

in fact, answer numerous requests.

¶7     This issue is one of judicial discretion. After reviewing the record, we conclude

there clearly was not an abuse of discretion.

                                     Motions to Amend

¶8     We review the grant or denial of a motion to amend for an abuse of discretion.

Lindey’s Inc. v. Professional Consultants, Inc., 244 Mont. 238, 242, 797 P.2d 920, 923

(1990).

¶9     Polejewski and Hanson filed several motions for leave to amend their complaint.

Metzger did not object to the first motion in July 2009. However, no proposed amended

complaint was submitted with the motion. Four other motions to amend were filed on
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April 20 and 27, and May 3 and 11, 2010, months after the deadline for amending the

pleadings and the close of discovery. Again, no proposed amended complaints were

submitted with the motions.

¶10    The District Court denied their motions, noting that none of the motions were

accompanied by a proposed amended complaint and the last four motions were untimely.

It also noted the April 20 motion was “a shopping list of various possible claims for

relief” without reference to any “dates and allegations of facts and how they are tied to

Metzger.”

¶11    While allowing amendments is favored, M. R. Civ. P. 15 does not require

amendments to be allowed in all instances. Lindey’s, 244 Mont. at 242, 797 P.2d at 923.

Denial of a motion to amend is justified for reasons such as “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party . . . futility of the

amendment, etc.” Lindey’s, 244 Mont. at 242, 797 P.2d at 923.

¶12    This issue is one of judicial discretion. After reviewing the record, we conclude

there clearly was not an abuse of discretion.

                                  Summary Judgment

¶13    We review the grant or denial of summary judgment de novo, using the same

M. R. Civ. P. 56 criteria as the district court. Goettel v. Estate of Ballard, 2010 MT 140,

¶ 10, 356 Mont. 527, 234 P.3d 99.



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¶14    Metzger sought summary judgment on the following grounds: (1) the statute of

limitations barred the action, (2) the statements were not defamatory, (3) the statements

were true, (4) Polejewski is a public figure, and (5) Hanson admitted that Metzger did not

make defamatory statements about him.

¶15    The District Court granted Metzger’s motion, finding the statute of limitations

barred the defamation action, but also that the statements regarding public nuisance and

bankruptcy were true, and that the statements “hoarder” and “sticky wicket” were not

defamatory and were opinions.      The District Court also found that Polejewski and

Hanson were “at least semi-public figures” and failed to plead or show the requisite

malice.

¶16    Defamation is either libel or slander. Section 27-1-801, MCA. “Libel is a false

and unprivileged publication by writing, printing, picture, effigy, or other fixed

representation that exposes any person to hatred, contempt, ridicule, or obloquy or causes

a person to be shunned or avoided or that has a tendency to injure a person in the person’s

occupation.” Section 27-1-802, MCA. Slander is a false and unprivileged publication

other than libel that:

       (1) charges any person with crime or with having been indicted, convicted,
       or punished for crime;
       (2) imputes in a person the present existence of an infectious, contagious,
       or loathsome disease;
       (3) tends directly to injure a person in respect to the person’s office,
       profession, trade, or business, either by imputing to the person general
       disqualification in those respects that the office or other occupation
       peculiarly requires or by imputing something with reference to the person’s


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       office, profession, trade, or business that has a natural tendency to lessen its
       profit;
       (4) imputes to a person impotence or want of chastity; or
       (5) by natural consequence causes actual damage.

Section 27-1-803, MCA.

¶17    To be actionable, defamatory words must be more than unpleasant, annoying,

irksome, or hurtful; they “ ‘must be of such nature that the court can presume as a matter

of law that they will tend to disgrace and degrade [the plaintiff] or cause him to be

shunned and avoided.’ ” McConkey v. Flathead Electric Cooperative, 2005 MT 334,

¶ 45, 330 Mont. 48, 125 P.3d 1121 (quoting Wainman v. Bowler, 176 Mont. 91, 96, 576

P.2d 268, 271 (1978)). The district court determines, as a matter of law, whether the

allegedly defamatory statement, even if it is false, is capable of bearing defamatory

meaning. McConkey, ¶ 44. Statements of opinion generally do not carry defamatory

meaning. McConkey, ¶ 49.

¶18    The statute of limitations on a defamation action is 2 years. Section 27-2-204,

MCA. Truth is a complete defense to a defamation action. Citizens First National Bank

v. Moe Motor Co., 248 Mont. 495, 501, 813 P.2d 400, 404 (1991).

¶19    This issue is legal and is controlled by settled Montana law. After reviewing the

record, we conclude there were no genuine issues of material fact and the District Court

correctly interpreted the law. As a matter of law, Polejewski’s and Hanson’s claims were

barred by the statute of limitations, and the statements were either true or did not bear a

defamatory meaning.


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                                       Sanctions

¶20   We review the imposition of sanctions for discovery abuses for an abuse of

discretion. Peterman v. Herbalife International, Inc., 2010 MT 142, ¶ 14, 356 Mont.

542, 234 P.3d 898. We also review the sanctions imposed to “determine if they are

roughly proportionate to the gravity of the abuse and the inconvenience visited upon

other parties and the district court.” Peterman, ¶ 23. This Court has a low tolerance for

discovery abuses. Peterman, ¶ 17.

¶21   Metzger sought dismissal of the suit as a sanction against Polejewski and Hanson

for their failure to comply with court orders and the Rules of Civil Procedure, and for

abusive behavior during the discovery process. The District Court did not dismiss the

case, but awarded monetary sanctions in the amount of $9,828.18. The District Court

found Polejewski and Hanson repeatedly violated of the Rules of Civil Procedure and the

orders of the District Court, including continuing to file numerous documents in direct

violation of its May 11, 2010, order that no more documents be filed until all pending

motions were addressed, and filing voluminous and irrelevant documents.

¶22   Polejewski and Hanson were also sanctioned for their “delays and inappropriate

behavior.”   Hanson failed to attend a scheduled deposition.      When Polejewski was

deposed, she and Hanson exhibited the following behavior: telling Metzger’s attorney to

“blow it out his ass,” calling Metzger’s attorneys “disgusting” and “sick,” saying

Metzger’s attorneys are “probably going to chase down our witnesses and kill them or

whatever,” calling Metzger a “thing,” and accusing the attorneys of buying off judges.
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¶23     In reviewing whether a discovery sanction is an abuse of discretion, we look to (1)

whether the consequences imposed by the sanctions relate to the extent and nature of the

discovery abuse, (2) the extent of prejudice to the opposing party as a result of the

discovery abuse, and (3) whether the district court warned the abusing party of the

consequences. Xu v. McLaughlin Research Institute, 2005 MT 209, ¶ 26, 328 Mont. 232,

119 P.3d 100.

¶24     This issue is one of judicial discretion. After reviewing the record, we conclude

there clearly was not an abuse of discretion.        Polejewski and Hanson abused both

Metzger and her attorneys during their depositions and the discovery process. Polejewski

and Hanson also abused the legal system during the course of this case, and showed little

respect for the proceedings which they initiated. Even though Polejewski and Hanson are

self-represented litigants, they must still adhere to procedural rules, Xu, ¶ 23, and basic

rules of civility. Abuse of the kind exhibited in this case will not be tolerated. Peterman,

¶ 17.

                                        Conclusion

¶25     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Based upon the foregoing, we affirm on all issues.


                                                 /S/ MICHAEL E WHEAT




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We Concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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