United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District
before the court is defendants' Motion to Dismiss (Doc.
lawsuit (which was removed to this Court on March 17, 2016)
contains seven counts of defamation and two counts of
negligence based on two articles published in The Pitch
newspaper. Plaintiff Philipp Vitti (hereinafter
“Vitti”) alleges that the defendants Steven
Vockrodt (hereinafter “Vockrodt”), Scott Wilson
(hereinafter “Wilson”), KC Communications, LLC
(hereinafter “KC Communications”), and SouthComm,
Inc., published two defamatory articles in The Pitch (both in
print and online) written by Vockrodt (a reporter for The
first article, “Lawsuit says the man who wanted to save
Gusto Lounge took the money and ran” appeared in The
Pitch on March 5, 2014 and is still available online. The
second article, “On tap at Gusto Lounge: more
lawsuits” appeared in The Pitch and online on March 12,
2014, and is still available online. The first article
discusses a federal lawsuit (504 Tavern LLC et al. v.
Vitti et al., Case No. 14-cv-0114-FJG) which was filed
against Vitti. The article indicates that the lawsuit
suggests that Gusto (the bar ran by Vitti), was troubled. The
article notes allegations that that Vitti stole money and
went to Florida to try and open up a nightclub there with
second article notes that, besides the federal action, Vitti
had also filed a lawsuit against the Saxtons (owners of
Gusto) in state court. The article again asserts that the
parties had alleged in their competing suits illegal
activities such as drug use and theft.
publication of these articles, the federal suit was stayed
pending the state court action, and has since been dismissed.
The parallel state court action proceeded to bench trial
before Judge McKenzie in Division 13 of the Jackson County
Circuit Court, and on December 7, 2015, Judge McKenzie issued
a 34 page “Findings of Fact, Conclusions of Law, and
Judgment” in favor of Vitti and against the Saxtons and
their businesses, in the amount of $8, 052, 363.31. Plaintiff
Vitti asserts that since the publication of the relevant
articles, the Pitch and Vockrodt did not report on the state
court's judgment, nor did they write any retraction of
the original articles.
now alleges that because of the two articles published by The
Pitch, he suffered and continues to suffer from a damaged
reputation, is and continues to be exposed to hatred,
contempt, ridicule, and continues to be deprived of public
confidence and social association. Vitti claims his personal
and professional reputation has been damaged and his earning
ability is permanently impaired.
defendants' motion to dismiss, they assert that
plaintiff's defamation claims fail to plead one or more
elements under Missouri law. They also argue that
defendants' statements are privileged. Additionally,
defendants assert that the negligence claims should be
dismissed because plaintiff cannot establish that defendants
owed him any duty, and are merely an attempt to circumvent
the protections provided defendants in defamation claims.
evaluating a motion to dismiss, the court must accept
plaintiff's factual allegations as true, construing them
in the light most favorable to that plaintiff.
Patterson Oil Co. v. VeriFone, Inc., No.
2:15-CV-4089, 2015 U.S. Dist. LEXIS 141635, at *9 (W.D. Mo.
Oct. 19, 2015) (citing Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008)).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in Twombly, 550 U.S. 544, the pleading
standard Rule 8 announces does not require “detailed
factual allegations, ” but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.
Id. at 555 (citing Papasan v. Allain, 478
U.S. 265, 286 (1986)). A pleading that offers “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do.” 550
U.S. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of "further
factual enhancement.” 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
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009).
I through VII of the plaintiff's complaint assert claims
for defamation. “Under Missouri law, a claim for
defamation will survive a motion to dismiss if the
communication alleged in the petition, together with matters
of inducement and innuendo alleged in the petition, is
capable of a defamatory meaning.” Klein v.
Victor, 903 F.Supp. 1327, 1329 (E.D. Mo. 1995).
“Allegedly defamatory words must be read in connection
with the whole publication, rather than in isolation.”
Id. at 1329. In order to state a defamation case in
Missouri, the plaintiff must plead six elements: “(1)
publication, (2) of a defamatory statement, (3) that
identifies the plaintiff, (4) that is false, (5) that is
published with the requisite degree of fault, and (6) damages
the plaintiff's reputation.” Nigro v. St.
Joseph Med. Ctr., 371 S.W.3d 808, 811 (Mo.Ct.App. 2012)
(quoted by Reinerio v. The Bank of N.Y. Mellon, 2015
U.S. Dist. LEXIS 173090 (W.D. Mo. Dec. 30, 2015)). Truth is
an absolute defense to an alleged defamatory statement.
Id. at 818.
The test to be administered in evaluating the defense of
truth is whether the challenged statement is substantially
true. It is not necessary that the precise facts disclosed be
literally true. Slight inaccuracies are immaterial if the
allegedly defamatory charge is true in substance. A person is
not bound to exact accuracy in his statements about another,
if the statements are essentially true. A substantially true
statement contains the same "sting" as the truth,
which means that the plaintiff's damage would have been
the same irrespective of whether the defendant stated the
truth or the substantial truth.
Id. at 818.
defamatory statement “tends so to harm the reputation
of another as to lower him in the estimation of the community
or to defer third persons from associating or dealing with
him.” Topper v. Midwest Div., Inc., 306 S.W.3d
117, 123 (Mo.Ct.App. 2010). “Whether a statement is
capable of having a defamatory meaning is a question of law
for the trial court. Words are to be taken in the sense which
is most obvious and natural according to the ideas they are
calculated to convey to those to whom they are
addressed.” Id. at 123. If someone is merely
expressing an opinion, and the reasonable fact-finder can
deduce that the person is giving their opinion that is
generally protected by the Constitution and is not considered
defamatory. Id. at 123. “Whether a statement
is fact or opinion is a question of law, and an appellate
court makes this determination based on the totality of the
circumstances surrounding a given statement.”
plaintiff is seeking punitive damages, evidence of actual
malice is required for recovery. Englezos v. Newspress
& Gazette Co., 980 S.W.2d 25, 27 (Mo.Ct.App. 1998).
Id. at 27. “In order to recover punitive
damages, or overcome a qualified privilege, a private
plaintiff was required to prove that the statements were made
with knowledge that they were false or with reckless
disregard for whether they were true or false at the time
when defendant had serious doubts as to whether they were
true.” Id. at 27. This is a subjective test
because “the test not being whether a reasonably
prudent person would have had serious doubts as to the truth
of the publication, but whether the defendant in fact
entertained such doubts.” Id. at 27. Many
plaintiffs choose to prove that there was reckless disregard
as to the statements being false because actual knowledge is
hard to prove. Id. at 27. Failure to investigate
does not in itself mean that there was bad faith by the
defendant. Id. at 27.
[T]he mere fact the reporter has failed to speak to the
person the publication concerns before publishing the story
does not support an award of punitive damages. It is only
where there is, in addition, other evidence indicating actual
malice that facts such as failure to investigate, or reliance
on a questionable source are relevant to that determination;
they may tend to show that a publisher did not care whether
an article was truthful or ...