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Bigfoot on Strip, LLC v. Winchester

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

August 2, 2018

BIGFOOT ON THE STRIP, LLC, Plaintiff,
v.
RANDY WINCHESTER; EMILY WINCHESTER; and DANCING COW FARMS Defendants.

          ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND (2) DENYING PLAINTIFF'S MOTION FOR JURISDICTIONAL DISCOVERY

          BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Bigfoot on the Strip, LLC filed suit against Randy Winchester, (“Randy”), Emily Winchester, (“Emily”), and Dancing Cow Farms, asserting claims for libel and other torts based on posts Defendants allegedly made on the internet. Dancing Cow Farms contends that it should be dismissed because it has not been properly served, and both Dancing Cow Farms and Emily assert that they are not subject to personal jurisdiction.[1] Plaintiff opposes dismissal, and also asks for leave to conduct jurisdictional discovery. As discussed below, the Motion to Dismiss, (Doc.7), is GRANTED in part and DENIED in part, and Dancing Cow Farms is dismissed. Plaintiff's motion for leave to conduct jurisdictional discovery, (Doc. 17), is DENIED.

         I. BACKGROUND

         According to the Petition filed in state court (which the Court hereafter refers to as the Complaint), Plaintiff conducts an event or tour called the Bigfoot Discovery Expedition Tour/Bigfoot Safari Tour, (“the Tour”) in Branson, Missouri. (Doc. 1-1, ¶ 7.) Randy and Emily visited the Tour in early 2018. (Doc. 1-1, ¶ 6.) Sometime thereafter, Defendants allegedly posted reviews of the Tour on TripAdvisor. (Doc. 1-1, ¶¶ 6-7.)

         TripAdvisor is a website with travel information about various attractions and tourist destinations. The website consists of separate pages for each attraction listed, and members of the public can obtain reviews for an attraction by looking at its individual TripAdvisor page. The ability to post reviews on TripAdvisor is also open to the public. Plaintiff's claims are based on their allegation that the reviews Defendants posted on Plaintiff's TripAdvisor page contain false and defamatory information. (Doc. 1-1, ¶¶ 7-9.) The details of these allegations need not be set forth at this time.[2]

         Counts I and II assert claims for libel and negligence, respectively. Count III is a request for punitive damages, Count IV asserts a claim for tortious interference with business expectancy, and Count V seeks injunctive relief. Dancing Cow Farms seeks dismissal because (1) it is not a legal entity capable of being sued, and therefore has not been properly served, and (2) it is not subject to personal jurisdiction. Emily also contends that she is not subject to personal jurisdiction in Missouri. Plaintiff opposes the motion, and also seeks an opportunity to conduct discovery on these issues. As discussed below, the Court concludes that (1) there is no need to permit Plaintiff to conduct discovery, (2) Dancing Cow Farms should be dismissed, and (3) Emily should not be dismissed.

         II. DISCUSSION

         A. Dancing Cow Farms

         Defendants contend that Dancing Cow Farms is a sole proprietorship that is owned and operated by Randy, so it is not a legal entity capable of being sued and the purported service of process on Dancing Cow Farms is ineffective. The Court concludes that Dancing Cow Farms lacks the capacity to be sued, making it unnecessary to address the issue of service.

         The ability to sue a sole proprietorship in its own name is determined by Rule 17(b)(3), which states that the ability to sue parties other than individuals and corporations is determined by the state where the court is located.[3] Under Missouri law, sole proprietorships have no independent existence. “[A] sole proprietorship has a single owner and is characterized by the complete identity of the business entity with the individual doing business.” Morgan Wightman Supply Co. v. Smith, 764 S.W.2d 485, 492 (Mo.Ct.App. 1989) (quotation omitted); see also Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 621 (Mo. 1977) (en banc). Therefore, Dancing Cow Farms has no independent existence separate and apart from Randy, so it is not an entity capable of being sued in its own name. Plaintiff can sue Randy, but it cannot sue “Dancing Cow Farms” because it is not an independent entity.

         Plaintiff does not dispute these legal propositions; instead, it seeks an opportunity to conduct discovery to determine if Dancing Cow Farms is really a corporation. However, Plaintiff does not explain what discovery it wishes to conduct on this issue. More importantly, discovery is not necessary because the issue is resolved by examining the Kansas or Missouri Secretary of State's records. Defendants attached exhibits demonstrating that Dancing Cow Farms is not a registered business entity in either Kansas or Missouri. (Doc. 21-1; Doc. 21-2.) The Court has independently examined the Kansas and Missouri websites and takes judicial notice of the fact that, per the Kansas and Missouri Secretary of State's websites, Dancing Cow Farms is not a legal entity in either state.[4] That being the case, there is no need to permit discovery on this issue.

         Dancing Cow Farms is a sole proprietorship; it is not a corporation or other entity possessing independent existence. Therefore, it cannot be sued in its own name, and it must be dismissed.

         B. Emily Winchester

         Emily argues that she is not subject to personal jurisdiction in Missouri. “When personal jurisdiction is challenged by a defendant, the plaintiff bears the burden to show that jurisdiction exists” and must “make a prima facie showing of personal jurisdiction over the challenging defendant.” Fastpath, Inc. v. Arbela Tech. Corp., 760 F.3d 816, 820 (8th Cir. 2014). “While the plaintiff[ ] bear[s] the ultimate burden of proof, jurisdiction need not be proved by a preponderance of the evidence until trial or until the court holds an evidentiary hearing.” Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003). As discussed below, the Court ...


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