United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTICT COURT JUDGE
matter is before the Court on Defendants’ Motion to
Dismiss Plaintiff’s Case (ECF No. 6). The matter is
fully briefed and ready for disposition.
about June 20, 2016, Defendant Skepticon published a blog
post on its website, entitled “Keeping Skepticon Safe:
Richard Carrier to Be Banned.” The author of the post
was Lauren Lane. Plaintiff alleges that this blog post is
false and defamatory. The post speaks of Plaintiff’s
alleged misbehavior. “While he was a featured speaker
for many years, we stopped inviting him to speak partly
because of his repeated boundary-pushing behavior, including
towards someone involved in Skepticon.” (ECF No. 1-1).
Plaintiff further alleges that on September 1, 2016,
Defendants’ previous attorney, Harmeet Shillon, made
defamatory statements that are attributable to the
Defendants. (ECF No. 1-2). Plaintiff specifically objects to
allegations of sexual harassment that were discussed in the
letter, which states:
To the extent the Post accuses Dr. Carrier of sexual
harassment “’towards someone involved in
Skepticon, ’ this is true, and will be proven in court
if necessary. Ms. Lane will testify about the many occasions
on which [Plaintiff] made unwanted sexual advances toward
her, including but not limited to touching her knees and
hugging her without permission; leering at her asking her
inappropriate questions; and making harassing and
sexually-charged comments about and towards her.
(ECF No. 1 ¶ 28; ECF No. 1-2).
September 20, 2016, Plaintiff filed suit in Ohio against
seven defendants, including Defendant Lane and Defendant
Skepticon. In that case Defendants moved to dismiss on
December 1, 2016, for lack of personal jurisdiction. (ECF No.
6-2). On November 14, 2018, the Southern District of Ohio
granted the motion and dismissed the action. (ECF No. 6-3).
Defendants argue that Plaintiff’s claim must be
dismissed because it is time-barred under the Missouri
statute of limitations.
Civ. P. 12(b)(6) provides for a motion to dismiss based on
the “failure to state a claim upon which relief can be
granted.” When considering a 12(b)(6) motion, all
factual allegations in the complaint, and reasonable
inferences arising therefrom, must be construed in favor of
the nonmoving party. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 164 (1993); see Knapp v. Hanson, 183
F.3d 786, 788 (8th Cir. 1999). To survive a motion to dismiss
a complaint must show that “‘the pleader is
entitled to relief, ’ in order to ‘give the
defendant[s] fair notice of what the… claim is and the
grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); See
also Erickson v. Pardus, 551 U.S. 89, 93 (2007).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly,
550 U.S. at 556). Further, in regard to a Rule 12(b)(6)
Motion, the Supreme Court holds:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations,
[citations omitted] a plaintiff's obligation to provide
the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss,
courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”). Factual
allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller,
Federal Practice and Procedure ' 1216, pp. 235-236 (3d
Twombly, 550 U.S. at 555. See also Gregory v.
Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir.
2009)(en banc)(“[A] plaintiff ‘must assert facts
that affirmatively and plausibly suggest that the pleader has
the right he claims…, rather than facts that are
merely consistent with such a right.’”)(quoting
Stalley v. Catholic Health Initiative, 509 F.3d 517,
521 (8th Cir. 2007)).
Defendants argue that Plaintiff’s claim is time-barred.
A party may utilize a 12(b)(6) motion to challenge a
complaint on statue of limitations grounds where the
complaint itself establishes that the claim is time-barred.
See, Illig v. Union Elec. Co., 652 F.3d 971, 976
(8th Cir. 2011). The statute of limitations in Missouri for
defamation is two years. Mo. Ann. Stat. § 516.140. In
Missouri, the statute of limitations for defamation begins to
run “not when the defamatory statement was made, but
when damages were ascertained.” Thurston v.
Ballinger, 884 S.W.2d 22, 26 (Mo.Ct.App. 1994).
“Damages are ascertained when the fact of damages
appears, not when the extent or the amount of damage is
determined.” Thurston, 884 S.W.2d at 26
(citing Newton v. B.P.S. Guard Servs., Inc., 833
S.W.2d 14, 16 (Mo.Ct.App. 1992); Title Ins. Co. of
Minnesota v. Construction Escrow Serv., Inc., 675 S.W.2d
881 (Mo.Ct.App. 1984)).
Missouri Court of Appeals has expressed that the fact of
damages appears, and the statute of limitations begins to run
when the Plaintiff has learned of the defamatory statement
and has “begun to suffer the loss of business”.
Thurston, 884 S.W.2d at 26. Defendants allege that
Plaintiff’s claims are time-barred because the alleged
defamation occurred in June of 2016; that on July 26, 2016,
Plaintiff sent a cease and desist letter to the Defendants on
July 26, 2016, in which he claimed that he would sue for
damages. (ECF No. 6, at 5; citing ECF No. 1-8). On September
20, 2016, Plaintiff filed a complaint in the United States
District Court for the Southern District of Ohio where he
alleged that Defendant’s statement caused reputational
and economic damages to the Plaintiff. (ECF No. 1-1).
Plaintiff’s cease and desist letter indicates that the
Plaintiff had knowledge on or before July 2016 of the
defamation, and his lawsuit indicates that on or before
September 20, 2016, Plaintiff believed that he had begun to
suffer the loss of business. ...