Rosenthal v. County of Madison

October 23 2007

05-252

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 277

REID LANCE ROSENTHAL,

Plaintiff and Appellant,

v.

COUNTY OF MADISON, STATE OF

MONTANA, ROBERTA ZENKER,

f/k/a ROBERT ZENKER, Individually

and as former County Attorney for the

County of Madison, et al.,

Defendants and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. ADV 2004-362

Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C.,

Missoula, Montana

For Appellees:

Mike McGrath, Attorney General; Paul D. Johnson,

Assistant Attorney General, Helena, Montana

Richard Larson, Harlen, Chronister, Parish & Larson, P.C.,

Helena, Montana (for Madison County)

Submitted on Briefs: February 7, 2007

Decided: October 23, 2007

Filed:

__________________________________________

Clerk

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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Plaintiff Reid Rosenthal (Rosenthal) appeals the District Court’s entry of summary

judgment in favor of the Defendants Madison County (County), the State of Montana

(State), and Madison County Attorney Zenker (Zenker). Rosenthal also appeals the

denial of his M. R. Civ. P. 56(f) motion requesting further discovery filed after the

Defendants filed their summary judgment motion, as well as the District Court’s denial of

his request to add a claim for attorney’s fees under the private attorney general doctrine.

We affirm.

¶2 Rosenthal filed a malicious prosecution claim and later amended it to include

claims for intentional and negligent emotional distress, alleging that he suffered injuries

to his reputation and business as a result of a misdemeanor complaint filed but later

dismissed by Zenker. The District Court granted summary judgment in favor of all

defendants after determining that Zenker’s conduct was within the scope of the County

Attorney’s statutory authority and, therefore, was entitled to absolute prosecutorial

immunity, barring an action against all defendants. Rosenthal argues Zenker’s conduct is

not entitled to absolute immunity, but rather is entitled at best to only qualified immunity,

because Zenker acted outside the quasi-judicial function by accusing Rosenthal of a

violation of the Montana Streambed Preservation Act, advising the Madison County

Sheriff about investigating Rosenthal, and compiling a file of reports about Rosenthal’s

alleged harassment to send to the Attorney General’s office.

ISSUES

¶3 Rosenthal raises four issues on appeal:

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¶4 (1) Did the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common

law doctrine of prosecutorial immunity;

¶5 (2) Did the District Court correctly conclude that Defendants were entitled to

summary judgment as a matter of law;

¶6 (3) Did the District Court correctly deny Rosenthal’s M. R. Civ. P. 56(f) motion

for additional discovery to allow investigation into Zenker’s role as an investigator and

legal advisor before ruling on summary judgment; and

¶7 (4) Did the District Court err in denying Rosenthal’s request to add a claim for

attorney’s fees under the private attorney general doctrine.

FACTUAL AND PROCEDURAL BACKGROUND

¶8 On December 6, 2001, the Ruby Valley Soil Conservation District (RVSCD) sent

County Attorney Zenker reports of a potential violation of the Montana Streambed

Preservation Act, §§ 75-7-101-125, MCA, by Reid Rosenthal (“310 violation”). Along

with the reports was a letter from the RVSCD chairman requesting prosecution of these

violations and a copy of the letter from Fish, Wildlife and Parks biologist Richard

Oswald to RVSCD indicating that Rosenthal’s log and utility line project along

Wisconsin Creek was a 310 violation. On January 3, 2002, Zenker received a letter from

the RVSCD Board of Supervisors requesting prosecution of Rosenthal and stating that

Don McIntyre, attorney for the Department of Natural Resources and Conservation,

advised that Rosenthal’s project was a 310 violation.

¶9 These reports and letters indicated that Rosenthal, as manager of the Three Creeks

Ranch, LLC, had begun a bridge project by placing a log across Wisconsin Creek. A

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utility line ran under the log. Neighboring property owners who had seen the log grew

concerned that it was an unauthorized project contributing to environmental degradation

of the Creek. Six people reported it to the RVSCD. Prior to filing a complaint Zenker

wrote to Rosenthal, informing him of the potential violation and offering him an

opportunity to acquire the requisite permit or remove the log and utility line. Through a

number of correspondences, Rosenthal responded that his project was legal, that he had

the requisite permit, and that he would not remove the project.

¶10 On January 24, 2002, Zenker filed a misdemeanor complaint charging Rosenthal

with a 310 violation. On June 7, 2002, the District Court granted Rosenthal’s request to

allow an expert to testify on his behalf. The State retained its own expert. Upon learning

that the State’s expert was not confident there was a 310 violation beyond a reasonable

doubt, Zenker moved to dismiss the complaint against Rosenthal on July 8, 2002.

¶11 On July 21, 2003, Mr. Curtis Kruer sent a letter to the Madison County Sheriff

asking that Rosenthal be investigated and punished for threatening behavior towards

Stephanie Kruer. Sheriff David Schenck notified Zenker of these complaints, seeking

Zenker’s input, and Zenker responded by suggesting a more thorough investigation.

Zenker then contacted the Attorney General’s Office regarding its possible prosecution of

Rosenthal because Zenker perceived a potential conflict of interest between the parties.

The victim in the case, a local public defender, had worked with Zenker in the past,

creating a potential conflict. Additionally, Zenker believed Rosenthal held a grudge

against the Madison County Attorney’s Office because of the 310 case, and further

involvement by Zenker would only inflame that grudge.

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¶12 The Attorney General assigned the case to Barbara Harris, who charged Rosenthal

with stalking and, in the alternative, trespass to property. According to Harris, a copy of

the investigative file sent to her by Zenker was in turn copied and sent to Rosenthal on

November 10, 2003, and April 9, 2004. Eventually, a trial was held and Rosenthal was

found not guilty.

¶13 On May 14, 2004, Rosenthal filed his original malicious prosecution complaint

against the Defendants herein. The court set October 15 as the deadline for amended

pleadings. On October 22, Rosenthal requested leave to amend the pleadings, which

Defendants opposed. On January 3, 2005, the District Court granted Rosenthal’s motion

to amend all counts but Count VI, which was a request for attorney’s fees under the

private attorney general doctrine.

¶14 On December 8, 2004, seven months after filing the complaint, Rosenthal’s

attorney sent a letter to Defendants’ attorneys asking to arrange depositions for 19 people.

On December 21, Paul Johnson, Attorney for the State and Zenker, responded to the

request with deposition dates. On December 28, Rosenthal filed a notice of service of the

first set of discovery requests sent to Defendant Zenker.

¶15 On January 14, 2005, Defendants filed a motion for summary judgment based on

absolute immunity. They filed a brief and the supporting affidavits of Zenker and Harris

five days later.

¶16 On January 25, 2005, Rosenthal filed his amended complaint and jury trial

demand. The amended complaint set forth no additional facts, but added causes of action

for intentional and negligent infliction of emotional distress, based on “Defendants’

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intentional acts” without specifying those acts. The Defendants filed a motion for

protective order the next day, a renewed motion for summary judgment on January 31,

and an answer to the first amended complaint on February 4.

¶17 Between February 4 and 11, Rosenthal filed notices of depositions and subpoenas

duces tecum for nine individuals. On February 11, Zenker filed an emergency motion to

quash and the court granted it that day, forbidding the parties from conducting

depositions before determination of summary judgment. On February 15, Rosenthal filed

his “refusal” of summary judgment and a request for more time for discovery. On

February 16, Rosenthal’s attorney filed an affidavit in opposition to the motion for

summary judgment, asserting personal knowledge of the facts at issue. Rosenthal’s own

affidavit was not filed until March 3.

¶18 On March 14, Defendants filed a response to Rosenthal’s request for more time to

conduct discovery, treating it as a M. R. Civ. P. 56(f). Defendants argued that Rosenthal

failed to present a sufficient affidavit to meet the movant’s burden under M. R. Civ. P.

56(f). Additionally, Defendants argued that further discovery would undermine the

purpose of prosecutorial immunity.

¶19 On March 25, the District Court granted Zenker and the State’s motion for

summary judgment and dismissed the case with prejudice, later clarifying that the

summary judgment was granted in favor of Madison County as well. After finding that

summary judgment was appropriate, the District Court declined to address the additional

motions of the parties because they were moot. On April 4, Rosenthal filed a timely

notice of appeal.

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¶20 In April, May and June, Rosenthal’s attorney conducted depositions of Zenker,

Harris, David Schenck, the Madison County Sheriff, and Evan Andren, the Madison

County Undersheriff, in a separate unrelated matter involving a property dispute. During

the deposition of Zenker, Rosenthal’s attorney tried to ask Zenker questions regarding the

malicious prosecution case. Zenker objected. In addition, during the deposition of

Andren, Harris, and Schenck, Rosenthal asked questions relating to the malicious

prosecution case. These questions were answered without objection.

¶21 Based upon what he learned in the depositions, Rosenthal filed a M. R. Civ. P.

60(b)(2) motion for relief, asserting newly discovered evidence that defeated Zenker’s

claim of absolute prosecutorial immunity, followed a week later by another motion for

leave to file a second amended complaint. However, the District Court lacked

jurisdiction to rule thereon in light of Rosenthal’s previously filed notice of appeal.

Consequently, Rosenthal sought from this Court a stay of the summary judgment appeal

in order for the District Court to regain limited jurisdiction to rule on his M. R. Civ. P.

60(b)(2) discovery motion. We granted his motion for remand. The District Court then

ordered the parties to brief the M. R. Civ. P. 60(b)(2) motion. After some procedural

confusion involving another appeal and remand, the District Court denied Rosenthal’s

motion for relief under M. R. Civ. P. 60(b)(2) on March 30, 2006, on the basis that the

newly discovered evidence was not material to the allegations in the first amended

complaint and did not mandate a different result on the summary judgment motion. This

appeal follows.

STANDARD OF REVIEW

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¶22 We review orders of summary judgment de novo. Bradley v. Crow Tribe of

Indians, 2005 MT 309, ¶¶ 12-15, 329 Mont. 448, ¶¶ 12-15, 124 P.3d 1143, ¶¶ 12-15. The

purpose of summary judgment is to eliminate the burden and expense of unnecessary

trials. Hughes v. Pullman, 2001 MT 216, ¶ 20, 306 Mont. 420, ¶ 20, 36 P.3d 339, ¶ 20.

However, “all reasonable inferences which may be drawn from the offered proof must be

drawn in favor of the party opposing summary judgment.” Cape v. Crossroads

Correctional Center, 2004 MT 265, ¶ 12, 323 Mont. 140, ¶12, 99 P.3d 171, ¶ 12. Where

the movant has met its burden of showing that no genuine issues of material fact exist,

the opposing party bears the burden of establishing an issue of material fact. The

opposing party’s facts must be material and of a substantial nature, and not fanciful,

frivolous, or conjectural. Fleming v. Fleming Farms, Inc., 221 Mont. 237, 241, 717 P.2d

1103, 1105-06 (1986).

¶23 The district court has discretion to decide whether to continue a motion for

summary judgment pursuant to M. R. Civ. P. 56(f), on the basis that the party opposing

the motion needs further discovery. This court reviews the denial of a M. R. Civ. P. 56(f)

motion for an abuse of discretion. Stanley v. Holms, 1999 MT 41, ¶ 19, 293 Mont. 343,

¶ 19, 975 P.2d 1242, ¶ 19. Similarly, “[a] district court’s grant or denial of attorney fees

is a discretionary ruling which we review for abuse of discretion.” Harding v. Savoy,

2004 MT 280, ¶ 68, 323 Mont. 261, ¶ 68, 100 P.3d 976, ¶ 68.

DISCUSSION

Did the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common law

doctrine of prosecutorial immunity?

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¶24 Rosenthal first asserts that the enactment of the Montana Tort Claims Act,

§ 2-9-305, MCA, abrogated the common law doctrine of absolute prosecutorial

immunity. He contends that § 1-2-103, MCA, supports this interpretation because it

allows for a broad reading of a statute when it is at odds with the common law.

¶25 This argument is without merit. In 1976, we said: “It is an established general

principle that any statutory waiver of a state’s immunity from suit is to be strictly

construed.” Storch v. Board of Dir. of East. Mont. Reg. Five M.H.C., 169 Mont. 176,

179, 545 P.2d 644, 646-47 (1976). That same year, this court held that unless a statute

specifically refers to prosecutorial immunity, we cannot imply the abolishment of the

well-founded common law doctrine. State, etc. v. Dist. Ct., 8th Judicial Dist., 172 Mont.

88, 92, 560 P.2d 1328, 1330 (1976). Although Article II, Section 18, of the 1972

Montana Constitution abolished the concept of “sovereign immunity,” we have stated

that neither the Constitution nor the Montana Tort Claims Act abolished prosecutorial

immunity. State, etc., 172 Mont. at 92, 560 P.2d at 1330. In fact, we have extended the

doctrine of prosecutorial immunity to include county and state governments employing

the prosecutors who find themselves named defendants in tort actions. Ronek v. Gallatin

County, 227 Mont. 514, 517-19, 740 P.2d 1115, 1117 (1987); Koppen v. Board of

Medical Examiners, 233 Mont. 214, 220, 759 P.2d 173, 176 (1988).

¶26 In the alternative, Rosenthal maintains that Zenker is not entitled to statutory

immunity because his conduct constituted oppression, fraud, and/or malice, and as such,

did not arise out of the course and scope of his employment. See § 2-9-305(6)(a), MCA.

However, as we explain below, we conclude that Zenker’s actions were undertaken

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within the authority vested in Zenker as a prosecutor, and were not outside of the course

and scope of Zenker’s employment.

Did the District Court correctly conclude that Defendants were entitled to summary

judgment as a matter of law?

¶27 “The doctrine of immunity evolved to protect not only judges, but also certain

participants in the judicial process whose functions are closely associated with those of

judicial officers.” Steel v. McGregor, 1998 MT 85, ¶ 25, 288 Mont. 238, ¶ 25, 956 P.2d

1364, ¶ 25. Prosecutors are entitled to absolute immunity as “quasi-judicial officers”

when their judgments and conduct are functionally comparable to those implemented by

judges. Steel, ¶ 25, citing Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 2913

(1978). In Steel, ¶ 26, we stated:

Like judicial immunity, quasi-judicial immunity benefits the public—not

the person being sued—by ensuring that quasi-judicial officers exercise

their functions unfettered by fear of legal consequences; also like judicial

immunity, quasi-judicial immunity extends only to acts within the scope of

the actor’s jurisdiction and with the authorization of law. . . . To be

protected by quasi-judicial immunity, the person asserting the immunity

must have acted in a quasi-judicial capacity. [Internal citations omitted.]

¶28 Rosenthal alleges that Zenker’s conduct fell outside the scope of the quasi-judicial

capacity (1) when Zenker filed a complaint against Rosenthal for a 310 violation; (2)

when Zenker discussed with Undersheriff Evan Andren the investigation of a stalking

complaint against Rosenthal; and (3) when Zenker compiled and sent the investigative

file on the stalking and trespassing to the Attorney General’s Office. We address these

allegations in turn.

A. Zenker’s filing a misdemeanor complaint and later dismissing the same

complaint.

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¶29 Filing and maintaining criminal charges are among the many duties of a

prosecutor and when a prosecutor acts within the scope of these duties, that prosecutor is

absolutely immune from civil liability, regardless of negligence or lack of probable cause.

State, etc., 172 Mont. at 92, 560 P.2d at 1330; Ronek, 227 Mont. at 518-519, 740 P.2d at

1118. It is clear from the record that Zenker acted within the prosecutorial authority

when Zenker filed a complaint against Rosenthal for the 310 violation. Zenker also acted

within the quasi-judicial function, and according to prosecutorial ethics, when Zenker

later dismissed the complaint upon learning of another expert’s opinion. This is precisely

the type of conduct that the prosecutorial immunity doctrine was designed to protect. As

noted by the U.S. Supreme Court:

To allow this would open the way for unlimited harassment and

embarrassment of the most conscientious officials by those who would

profit thereby. . . . There would always be a question of possible civil

action in case the prosecutor saw fit to move dismissal of the case. . . . The

apprehension of such consequences would tend toward great uneasiness

and toward weakening the fearless and impartial policy which should

characterize the administration of this office. The work of the prosecutor

would thus be impeded and we would have moved away from the desired

objective of stricter and fairer law enforcement. [citation omitted].

Imbler v. Pachtman, 424 U.S. 409, 423-24, 96 S. Ct. 984, 992 (1976).

¶30 As the U.S. Supreme Court has held, the prosecutorial immunity doctrine requires

a functional analysis of whether the prosecutor’s conduct was quasi-judicial rather than

an emotional analysis of whether the prosecutor had malice. Imbler, 424 U.S. at 429-30,

96 S. Ct. at 994. Therefore, even if Zenker had arguably improper motives that

influenced the decision to file the complaint, the decision to file the complaint was within

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Zenker’s authorized discretion and such motives cannot deprive a prosecutor of absolute

immunity. Zenker properly exercised discretion, both in filing the complaint and in

subsequently dismissing it when faced with the State’s expert’s equivocation.

Accordingly, we conclude that Zenker is entitled to absolute immunity for this conduct.

B. The stalking complaint and prosecution

¶31 Rosenthal argues that Zenker improperly participated in the investigation and gave

legal advice to the Undersheriff who had been assigned to the stalking case. The State

and Zenker contend that all of the conduct of which Rosenthal complains centers around

the initiation and prosecution of criminal charges, for which absolute immunity attaches.

¶32 After several complaints by the Kruers, Sheriff Schenck forwarded the complaints

to Zenker for a determination on how to proceed. After reading the chronology, Zenker

wrote a letter to Schenck on April 1, 2003, in which Zenker advised Schenck to go ahead

with a thorough investigation. Zenker asked the Sheriff to

[p]lease assign an officer to conduct a further investigation and provide me

with a report.

Among the things you deem necessary, please ask the officer to

recover all evidence referred to in the chronology (Copies of all letters,

emails, telephone answering machine tapes, etc.). Also the officer should

please ask the Kruers to provide a written statement regarding whether, and

to what degree they suffered substantial emotional distress.

Finally, I recommend that the investigating officer offer the suspect

the opportunity to make a statement. Specifically, the officer should ask for

clarification of the purpose of his continued attempts to communicate with

the Kruers despite their repeated attempts that he not do so.

¶33 After the investigator compiled the complaints and performed his investigation, he

forwarded the information to Zenker at the Madison County Attorney’s Office. Zenker in

turn sent the file to the Attorney General’s Office for further handling, asking them to

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review the file and prosecute any charges that the Attorney General deemed viable.

Zenker properly handed the case off to the Attorney General precisely because Zenker

concluded that further participation in the case could be perceived as a conflict. While

Zenker may have encouraged the Attorney General to prosecute the case, the ultimate

decision to file a complaint was made by the Attorney General and not Zenker. Under

these circumstances, we conclude that Zenker was entitled, at the very least, to qualified

immunity for those actions.

C. Qualified immunity still protects Zenker

¶34 Where allegedly injurious conduct arguably falls outside of the quasi-judicial

functions, the prosecutor’s conduct is entitled to qualified immunity rather than absolute

immunity. “The doctrine of qualified immunity operates to shield government officials

performing discretionary functions from liability for civil damages when their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Losleben v. Oppedahl, 2004 MT 5, ¶ 13, 319

Mont. 269, ¶ 13, 83 P.3d 1271, ¶ 13. We use a two-part test for determining whether the

qualified immunity shield applies. Sacco v. High Country Press, 271 Mont. 209, 896

P.2d 411, 415 (1995). First, we consider in a light most favorable to the party asserting

injury, whether the official’s conduct violated a clearly established constitutional right.

Losleben, ¶ 14, citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001).

If not, qualified immunity bars the suit and the case should be dismissed. Losleben, ¶ 14.

If so, we determine whether a reasonable person or official would have known that his

conduct violated that right. Losleben, ¶ 14.

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¶35 Rosenthal does not allege, nor does the record reveal, the violation of any

constitutional right by virtue of the Defendants’ actions. This being so, under Losleben,

qualified immunity bars the suit (assuming for the sake of Rosenthal’s argument that

absolute immunity does not). Moreover, as the District Court pointed out in its Decision

and Order, Zenker’s performance of those prosecutorial duties with respect to both the

310 violation and the stalking complaint was guided by the existence of sufficient

probable cause. Among other things, Zenker was presented with (1) the RVSCD

chairman’s letter requesting prosecution of Rosenthal based on specific complaints of six

individuals who lived along Wisconsin Creek; (2) a letter from Richard Oswald, a

biologist with the Montana Department of Fish, Wildlife and Parks, indicating that

Rosenthal was in violation of the 310 law; (3) several investigation reports, including

photos, prepared by members of the State inspection team indicating that the log and

power line crossing were in violation of the 310 law; and (4) the January 3, 2002, letter

from the RVSCD Board of Supervisors requesting that Madison County prosecute

Rosenthal. As to the stalking matter, the case was brought following several complaints

and at the instigation of Curtis Kruer, a citizen who perceived that his wife was being

threatened by Rosenthal. Zenker did not instigate this case, nor did Zenker prosecute it.

¶36 In sum, we conclude the District Court did not err in determining that under the

facts presented, Zenker was entitled to immunity—be it absolute or qualified—for his

actions undertaken in connection with the prosecutions of Rosenthal.

Did the District Court abuse its discretion when it denied Rosenthal’s Rule 56(f)

Motion?

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¶37 Next, Rosenthal argues the District Court erred in denying his M. R. Civ. P. 56(f)

motion for additional discovery. As we have stated many times, the district courts have

inherent discretionary power to control discovery. Environmental Contractors, LLC v.

Moon, 1999 MT 178, ¶ 19, 295 Mont. 268, ¶ 19, 983 P.2d 390, ¶ 19. “This discretionary

power extends to deciding whether to deny or to continue a motion for summary

judgment pursuant to Rule 56(f), M. R. Civ. P., on the basis that the party opposing the

motion needs further discovery.” Stanley, ¶ 19. M. R. Civ. P. 56(f) states:

Should it appear from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts essential to justify

the party’s opposition, the court may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or depositions

to be taken or discovery to be had or may make such other order as is just.

¶38 A district court does not abuse its discretion in denying a M. R. Civ. P. 56(f)

motion where the party opposing a motion for summary judgment does not establish how

the proposed discovery could preclude summary judgment. J.L. v. Kienenberger, 257

Mont. 113, 120, 848 P.2d 472, 477 (1993, rev’d in part on other grounds); Howell v.

Glacier General Assur. Co., 240 Mont. 383, 386, 785 P.2d 1019, 1020 (1989, rev’d in

part on other grounds).

¶39 Rosenthal claims that additional discovery would allow him to demonstrate

Zenker’s animus toward him. He argues that he should not be required to specify with

precision what information he believes he will secure from discovery because he is

unsure what he will learn from facts in the possession of others. He asserts that his

affidavit sets forth sufficient evidence to support his claim that Zenker acted with

oppression and malice. We disagree. Rosenthal’s affidavit fails to meet the requirements

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of M. R. Civ. P. 56(e) and 56(f) because his statements are speculative and based on

belief rather than personal knowledge. Throughout his affidavit, Rosenthal accuses

Zenker of threatening remarks yet is unable to substantiate these accusations or provide

affidavits of additional witnesses.

¶40 Moreover, the affidavit of Rosenthal’s attorney is wholly inadequate because he

lacks personal knowledge of the threats and is merely restating his client’s version of the

story. As we said in Hiebert v. Cascade County, 2002 MT 233, ¶ 30, 311 Mont. 471,

¶ 30, 56 P.3d 848, ¶ 30, “[w]e have previously held that ‘an attorney’s affidavit is

admissible only to prove facts that are within his personal knowledge and as to which he

is competent to testify; an affidavit stating what the attorney believes or intends to prove

at trial will be disregarded.’ ”

¶41 Rosenthal argues that he has not been afforded any opportunity to perform

discovery and that the District Court’s denial of his M. R. Civ. P. 56(f) request denied

him that opportunity. This argument misconstrues the facts. Rosenthal had every

opportunity between May 14, 2004, when he filed his malicious prosecution claim, and

January 14, 2005, when Defendants filed their summary judgment motion, to request

discovery from the Defendants. However, Rosenthal made no attempts at discovery until

December 8, 2004, when he sent a letter to Defendants’ attorneys asking them to calendar

depositions with 19 people, and December 28, when he filed a notice of service of the

first set of discovery requests to Defendant Zenker. On the other hand, the record is clear

that the Defendants complied with discovery rules and Rosenthal’s demands for

discovery.

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¶42 A court need not force a party to undergo more discovery when “[t]he only reason

to believe that additional, relevant evidence would materialize . . . is the [plaintiff’s]

apparent hope of finding a proverbial ‘smoking gun.’ ” Davis v. G.N. Mortg. Corp., 396

F.3d 869, 885 (7th Cir. 2005). Rosenthal has failed to establish what evidence he aimed

to secure or how that evidence would preclude summary judgment on the basis of

absolute immunity. Moreover, even if we were to speculate with Rosenthal that new

evidence would establish that Zenker’s conduct was entitled to qualified immunity rather

than absolute immunity, he does not show how he will pierce the qualified immunity

shield protecting Zenker.

¶43 Although the District Court did not reach the merits of the M. R. Civ. P. 56(f)

motion on the basis that it was moot after granting summary judgment, “[w]e will uphold

a district court’s decision if correct, regardless of the reasons given below for the result.”

State v. Rensvold, 2006 MT 146, ¶ 34, 332 Mont. 392, ¶ 34, 139 P.3d 154, ¶ 34. We

conclude the District Court did not abuse its discretion when it denied Rosenthal’s M. R.

Civ. P. 56(f) motion.

Did the District Court abuse its discretion when it denied Rosenthal’s claim for

attorney’s fees under the private attorney general doctrine?

¶44 Rosenthal argues that the allegations in his complaint were sufficient to satisfy the

“private attorney general” fee shifting requirement. The State of Montana rebuts that the

court correctly denied Rosenthal’s request to add this new count to his amended

complaint on the basis of futility, because on the face of the pleadings this case does not

qualify for fee shifting.

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¶45 We agree. Moreover, in light of our conclusion here that summary judgment was

appropriate, we need not address the propriety of an amendment to support Zenker’s

claim for attorney’s fees.

CONCLUSION

¶46 We conclude that summary judgment on the basis of absolute prosecutorial

immunity was appropriate. The moving parties met their burden by showing that they

were entitled to judgment as a matter of law. The burden then shifted to Rosenthal to

show that there was a genuine issue of material fact precluding summary judgment.

Construing the facts in favor of Rosenthal, we conclude that Rosenthal has not met his

burden because one cannot do so by merely speculating that malicious conduct may be

revealed by further discovery. We further conclude that the District Court did not err in

refusing to allow Rosenthal to state a claim for attorney’s fees under the private attorney

general doctrine.

¶47 Therefore, we affirm.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ BRIAN MORRIS

/S/ JIM RICE

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