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Vitti v. Vockrodt

United States District Court, W.D. Missouri, Western Division

August 24, 2016

STEVEN VOCKRODT, et al., Defendants.


          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the court is defendants' Motion to Dismiss (Doc. No. 7).

         I. Background

         This 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 Pitch).

         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 that money.

         The 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.

         After 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.

         Vitti 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.

         In 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.

         II. Standard

         When 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 its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009).

         III. Discussion

         A. Defamation

         Counts 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.”[1] 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.

         A 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.” Id.

         Where 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 ...

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