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Bigfoot on Strip, LLC v. Winchester

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

August 30, 2019

BIGFOOT ON THE STRIP, LLC, Plaintiff,
v.
RANDY WINCHESTER and EMILY WINCHESTER, Defendants.

          ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          BETH PHILLIPS, CHIEF JUDGE

         Plaintiff 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. Pending is Defendants' Motion for Summary Judgment, (Doc. 149), which is GRANTED.

         I. BACKGROUND

         The Court will set forth material facts that are uncontroverted or, where controverted, in the light most favorable to Plaintiff. 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 (1) only an inconsequential component of a fact has been controverted, (2) when an obvious typographical error is the sole basis for the disagreement, or (3) an objection is based on a party repeating a fact that was established elsewhere in another statement without re-establishing that fact.

         This suit has its genesis in a mediocre customer review. Plaintiff is an entertainment venue in Branson, Missouri. Patrons pay fees to play miniature golf, play arcade games, and participate in other interactive experiences. Darrell Henley and Emma Hamilton are two of Plaintiff's three managing members.

         In late Fall of 2017, Plaintiff started offering a “tour” that has been referred to as a “scenic farm tour, ” but Henley testified that it did not have a specific name. (Doc. 150-3, p. 55 (Henley Dep., p. 54).)[1] This tour lasted eighty to ninety minutes. The trucks used to carry guests on the tour were referred to as “safari trucks.” Plaintiff was working on eventually unveiling a “Bigfoot Discovery Expedition Tour” bearing that name. The Bigfoot Discovery Expedition Tour was not available until June 2018 (after the time relevant to this suit), but promotional material about it existed at the time relevant to this suit, including on Plaintiff's website. The promotional material did not indicate that the “Bigfoot Discovery Expedition Tour” was different from the unnamed tour that was offered starting in the Fall of 2017. (Doc. 150-3, pp. 55-58 (Henley Dep., 54-57); Doc. 150-8, p. 103 (Hamilton Dep., p. 102).) Once it opened, the Bigfoot Discovery Expedition Tour traveled the same route as the unnamed tour and cost the same price.

         Henley is a member of the Heartland Highland Cattle Association, (“HHCA”), an educational association that promotes and educates the public about Highland cattle. HHCA's members are, generally, farmers that farm and raise Highland cattle. HHCA was scheduled to have a meeting or convention in Branson in March 2018. In advance, in December 2017, Gloria Asmussen of the HHCA contacted Henley about hosting members of the HHCA for the “safari” that Plaintiff was offering at the time and to find out what price would be charged. Henley responded by stating that if everyone went as a group he could agree to charge $10 a person if everyone agreed to tip the driver an additional couple of dollars, and if this was acceptable he would put Asmussen in touch with Hamilton. Asmussen responded to confirm the $10/person charge and to determine an appropriate tip because HHCA intended to cover it. Henley responded via email, with a copy to Hamilton, saying that $10/person and a tip of $2/person would be agreeable.

         In January 2018, Asmussen emailed Hamilton to discuss how to promote the tour to HHCA's members. Asmussen indicated that she was “going to promote it as ‘Bigfoot Safari Discovery Tour.['] You will be driven through Bigfoo[t] farms, a working Scottish Highland Cattle Farm. Experience authentic unspoiled Ozarks wilderness.” (Doc. 150-4, p. 3.) Hamilton approved this description. Later, when asked who the checks should be made out to, Hamilton said that they should be written to “Bigfoot on the Strip.”

         Defendant Randy Winchester[2] paid HHCA forty dollars for four tickets for himself, his wife, his daughter Emily, and Emily's fiancé. The tip for the drivers was paid by HHCA, and there is no evidence that Defendants knew the amount of the tip. Altogether, seventy-three HHCA members went on the tour. Before departing, Hamilton met with the HHCA members “to tell them what they were going to be doing that day, and how it was different from what the Bigfoot Discovery Expedition was.” (Doc. 150-8, p. 133 (Hamilton Dep., p. 132).) Those differences consisted of: (1) a different time of day for the tour than normal, (2) three trucks (instead of the typical one truck) would take tour members, and (3) the tour would spend more time at the cattle area than the normal ten minutes. (Doc. 150-8, pp. 126-29, 131 (Hamilton Dep., pp. 125-28, 130).) However, Hamilton did not go on the tour with HHCA and has no personal knowledge as to what happened on the tour. She testified that one of the drivers told her “they spent longer than normal with the cattle” but even that driver does not remember how long was spent with the cows. (Doc. 150-8, pp. 128-30 (Hamilton Dep., pp. 127-29).) Regardless, these were the only differences that Hamilton related (and that apparently existed), (Doc. 150-8, p. 133 (Hamilton Dep., p. 132)); the tour traveled the same route as the regularly-offered tour and the drivers related Bigfoot legends to the HHCA members.

         On March 4, 2018 - after the tour - Randy, Emily, or both drafted and posted the following review on Plaintiff's page on the internet review site TripAdvisor.com:

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.

(Doc. 65-1.) 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 was the same as the number in the HHCA listing). The number is for a phone used by Emily for personal matters as well as for matters relating to Dancing Cow Farms.

         Henley called the number and reached Emily. During the conversation, Emily referred to Randy as her father but refused to give Henley a number he could use to contact Randy directly. Henley asked Emily to have Randy call him. Approximately half an hour later, Henley found Randy's email address on the website LinkedIn and sent him the following email:

Randy, I'd like to talk to you soon. You visited one of my farms while attending the Heartland Highland Cattle annual meeting in Branson. I'd like the opportunity to clear up any confusion and ask that you revise your very harmful Trip Advisor review where you reference $10 price.

         The email concluded with Henley's cellphone number.

         Two days later, Henley called the same number he called previously, but Emily did not answer the phone. Later that day, Henley looked for a phone number for Randy on the internet; he found a number (which happened to be Randy's home phone number) and called at 8:23 in the evening. Whether Randy answered the phone is not addressed by the parties. Three days after that, Henley called Emily at the same number he had used to reach her previously; once again, she did not answer the phone.

         Approximately two hours after his last call to Emily, Henley sent an email to Emily addressed to her and Randy, with a copy to Asmussen. The email complains that the TripAdvisor review is libelous because Plaintiff “do[es] not have $10 tickets. That was something special that you received via the [HHCA]. You did not buy a $10 ticket directly from us, nor do we sell $10 tickets.” (Doc. 150-20, p. 1.) The email also reacts to what appear to be prior statements from Emily or Randy during a phone conversation opining that Plaintiff does not operate a “real” cattle farm, explaining that Plaintiff “offer[s] a themed experience centered around a fictional character.” (Doc. 150-20, p. 1.) The email also states that Plaintiff will be filing suit and, because Emily said something to Henley indicating that she wrote the review, Plaintiff “may have to name” her as a defendant. (Doc. 150-20, p. 1.)

         At some point after receiving the email (but before the lawsuit commenced), Randy amended the TripAdvisor review. Apparently, amending a TripAdvisor review does not remove the original review; it either incorporates the original review or adds to it. The new information added by Randy states as follows:

Since posting the above review, a person identifying himself as an owner of Bigfoot on the Strip has called my daughter on her cellphone repeatedly, has contacted my daughter by email, has tried to call my home phone at 8:30 p.m. on a Saturday, has attempted to contact me by email, and has contacted the person who coordinated our tour, to complain about my original review. The “owner” has also advised my daughter by email that he and his partners would likely be suing both of us.
I have significant reservations regarding any business run by someone who seems to think it is an acceptable business practice to contact family members and associates of a reviewer because they seem to be unhappy with a review. Consequently, I am changing my three-star review to one star.

(Doc. 65-2.)

         Plaintiff filed this lawsuit in state court on April 13, 2018. Approximately one month later, Randy initiated a personal campaign to raise funds to defend the lawsuit on the website FundedJustice.com. As part of the campaign, Randy posted a description of the tour and the events that occurred subsequently; most of his comments are similar to what has been recounted above. As relevant to the issues before the Court, this post contains the following additional statements:

In violation of Trip Advisor policy, on March 8, 2018 my daughter Emily received a call from someone saying they were the owner of Bigfoot on the Strip and that they need[ed] to talk with me regarding the review.
On March 13th my daughter spoke with the owner and informed him that she had nothing to do with the review and that he was violating Trip Advisor policy trying to contact me.
On May 3 our attorney sent a notice that we would offer to settle the matter to avoid costly litigation. There was no response.
This suit is based upon unfounded accusations and meant merely to punish me for stating an opinion and some facts on ...

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