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Bigfoot on the Strip, LLC v. Winchester

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

August 30, 2019




         Plaintiff initiated this suit in state court, and in its Amended Complaint alleges that Defendants published false and defamatory statements on two websites and in an interview with a newspaper reporter. It asserts claims for libel, negligence, and tortious interference with business expectancy. Defendant Emily Winchester asserted a counterclaim for abuse of process. Pending is Plaintiff's Motion for Summary Judgment on the counterclaim, (Doc. 141), which is GRANTED.

         I. BACKGROUND

         The Court will set forth material facts that are uncontroverted or, where controverted, in the light most favorable to Defendant. The Court will not set forth immaterial facts. Citations to the Record will not be provided for facts agreed to by the parties. Citations also will not be supplied where only an inconsequential component of a fact has been controverted, or where the “objection” really constitutes argument about the legal significance of the fact.

         Plaintiff operates a Bigfoot-themed tourist attraction in Branson, Missouri, and one of the attractions available to customers is a tour. One of Plaintiff's managing members, Darrell Henley, is also a member of the Heartland Highland Cattle Association, (“HHCA”), an educational association that promotes and educates the public about Highland cattle. The HHCA held its annual meeting in Branson in March 2018, and in connection with that meeting Plaintiff provided an opportunity for HHCA members to go on a tour (during which the HHCA members would have an opportunity to see Plaintiff's cows). Defendants Randy and Emily Winchester - who operate a farm in Wellsville, Kansas and are also members of the HHCA - went on the tour. Thereafter, one or both of them posted the following review on Plaintiff's page on the internet review site

We did the Bigfoot Safari tour as part of a large group. The $10 price tag is about right for what we got. Basically a tour through some pretty rugged country on some pretty narrow roads. They promote the fact they have the largest herd of Highland cows in the Midwest. You spend about 5-10 minutes feeding them range cubes at the beginning of the tour, and see maybe 10 of the cows. Then its off into the hills you go with a guide telling some pretty fanciful tales along the way. All in all a decent experience but had we paid more than the $10 I would have been disappointed.

         On a scale of one to five, the review rated the experience a three. The review indicates that it was made by “randy w.”

         Henley investigated to determine who left the review, primarily by reviewing HHCA's membership list for a person with the name of Randy and a last name that began with the letter “W;” in this way, Henley found the HHCA listing for “Randy or Emily Winchester” of “Dancing Cow Farms” in Wellsville, Kansas. A phone number and a website were included in the listing.

         Henley went to the Dancing Cow Farms website and found a phone number (which is the same as the number in the HHCA listing). Thereafter, Henley exchanged an unknown and disputed number of communications with Randy and Emily via telephone and email.[1] The content of the oral communications is a matter of dispute; Henley testified that Emily said she wrote the review with Randy and posted it. (Doc. 142-14, pp. 4-5 (Henley Dep., pp. 155-56).)[2] In her testimony, Emily denied making these statements and stated that she told Henley that Randy wrote the review. (Doc. 160-2, pp. 12-13 (Emily's Dep., pp. 38, 42-43).) Obviously, this is a factual dispute that the Court cannot resolve, so for purposes of this motion the Court accepts that Emily did not make such a statement. Regardless, on March 13, 2018, Henley sent Emily and Randy an email (at an email address that incorporates Emily's name) stating in part: “Emily, you made inferences during our conversation that suggest you might have been the one to actually write and publish the libelous review. Thus, we may have to name you both in a suit initially until the court determines who is responsible. That's a legal question and attorneys will answer it.” (Doc. 142-8, p. 6.)

         Plaintiff filed suit against Randy and Emily in state court in April 2018. (Doc. 1-1, pp. 1-11.)[3] The original Petition contained five counts, but only Counts I, II, and IV asserted claims for relief. Those claims, respectively, were: libel, negligence, and tortious interference with business expectancy. These three counts sought actual damages. Count II sought punitive damages, and Count V sought injunctive relief to (1) preclude Defendants from “publishing any statements about Plaintiff” and (2) require “Defendants to remove from Plaintiff's page on the TripAdvisor's website any profile or statements about Plaintiff.” (Doc. 1-1, p. 9.) Emily filed her Answer in August 2018, and her Answer included a counterclaim for abuse of process. (Doc. 40.) In her counterclaim, Emily alleges that Plaintiff named her as a defendant “without probable cause to believe [that she] published the subject review, and with full knowledge that [Randy] published” it. (Doc. 40, ¶ 64.) The counterclaim further alleges that Henley “threatened legal action against Emily Winchester, with full knowledge she did not write the review at issue, for the purpose of persuading Randy Winchester to remove the review, for fear of not only a lawsuit against him, but also against his daughter.” (Doc. 40, ¶ 49.) Plaintiff later filed an Amended Complaint to include allegations about additional publications made by Defendants, (Doc. 65), and Emily reasserted her counterclaim in her Answer to the Amended Complaint. (Doc. 68, ¶ 28.)

         Plaintiff seeks summary judgment on several grounds, all of which are opposed by Defendant. For the reasons stated below, the Court concludes that Plaintiff is entitled to summary judgment on Emily's counterclaim because there are no facts that would permit a jury to conclude that Plaintiff acted with an improper purpose. This conclusion makes it unnecessary to address Plaintiff's other arguments.


         A. Summary Judgment Standard

         A moving party is entitled to summary judgment on a claim only upon a showing that “there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” See generally Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). However, not all undisputed facts will justify summary judgment; as Rule 56(a) suggests, only undisputed material facts can do so. “[T]he materiality determination rests on the substantive law, [and] it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the ...

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