King v. Union Station Holdings, LLC et al

Filing 22

MEMORANDUM AND ORDER re: 9 MOTION to Dismiss :Count V of Plaintiff's Petition filed by Defendant IPC International Corporation, Defendant Union Station Holdings, LLC motion is GRANTED. Count V of the plaintiffs complaint is hereby dismissed with prejudice in its entirety.. Signed by District Judge Stephen N. Limbaugh, Jr on 10/30/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HAKIMA KING,
Plaintiff,
vs.
UNION STATION HOLDINGS, LLC and
IPC INTERNATIONAL CORP.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:12CV696SNLJ

MEMORANDUM AND ORDER
Plaintiff originally filed this multicount action in the St. Louis City Circuit Court arising
from an incident at Union Station in St. Louis City in which plaintiff and a companion were
allegedly observed involved in illegal drug activity on the premises. Defendants removed this
cause of action to federal court on April 19, 2012 on diversity grounds. This matter is before the
Court on the defendants’ motion to dismiss Count V (defamation) of the plaintiff’s complaint
[9], filed April 26, 2012. Responsive pleadings have all been filed and this matter is now ripe for
disposition.
The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of a
complaint so as to eliminate those actions “which are fatally flawed in their legal premises and
designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F.3d. 623, 627 (8th Cir. 2001) quoting Neitzke v. Williams,
490 U.S. 319, 326-27 (1989). A complaint must be dismissed for failure to state a claim upon
which relief can be granted if it does not plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)(abrogating the

prior “no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Courts
“do not require heightened fact pleading of specifics, but only enough facts to state a claim to
relief that is plausible on its face.” Id., 550 U.S. at 555. A complaint must set forth factual
allegations which are enough to “raise a right to relief above the speculative level.” Id., 550 U.S.
at 555. However, where a court can infer from those factual allegations no more than a “mere
possibility of misconduct,” the complaint must be dismissed. Cole v. Homier Distributing Co.,
Inc., 599 F.3d. 856, 861 (8th Cir. 2010)(citing Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937. 1950
(2009)).
In passing on a motion to dismiss, a court must view the allegations of the complaint in
the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974); Kottschade v.
City of Rochester, 319 F.3d. 1038, 1040 (8th Cir. 2003). While a complaint challenged by a
Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff must still provide the
grounds for relief, and neither “labels and conclusions” nor “a formulaic recitation of the
elements of a cause of action” will suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. at
555.(internal citations omitted). “Although the pleading standard is liberal, the plaintiff must
allege facts – not mere legal conclusions – that, if true, would support the existence of the
claimed torts.” Moses.com Securities v. Comprehensive Software Systems, Inc., 406 F.3d. 1052,
1062 (8th Cir. 2005) citing Schaller Tel. Co. v. Golden Sky Systems, 298 F.3d. 736, 740 (8th Cir.
2002). In viewing the complaint in the light most favorable to the plaintiff, the court should not
dismiss it merely because the court doubts that the plaintiff will be able to prove all of the
necessary allegations. Bennett v. Berg, 685 F.2d. 1053, 1058 (8th Cir. 1982). The primary issue
for a court to consider is not whether the plaintiff will ultimately prevail in the lawsuit, but
whether the complaint adequately states a claim; and therefore, the plaintiff is entitled to present

2

evidence in support of that claim. A complaint may not be dismissed based upon a district
court’s assessment that the plaintiff will fail to present evidentiary support for the complaint’s
allegations or will ultimately fail to prove one or more claims to the satisfaction of the factfinder.
Bell Atlantic Corp. v. Twombly, 550 U.S. at 556; Neitzke v. Williams, 490 U.S. at 327 (“What
Rule 12(b)(6) does not countenance are dismissals based upon a judge’s disbelief of a
complaint’s factual allegations.”) However, “[w]here the allegations show on the face of the
complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.”
Benton v. Merrill Lynch & Co., 524 F.3d. 866, 870 (8th Cir. 208). Further, courts “‘are not
bound to accept as true a legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal, U.S. -, 129 S.Ct. 1937. 1950 (2009)(quoting Twombly, 550 U.S. at 555). When considering a
motion to dismiss, a court can “begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. at
1950. Legal conclusions must be supported by factual allegations to survive a motion to dismiss.
Ashcroft v. Iqbal, 129 S.Ct. at 1950. With this plausibility standard in mind, this Court turns to
an examination of the plaintiff’s complaint.
In Count V of the plaintiff’s complaint, she “incorporates by reference each and every
allegation” in the preceding paragraphs of her seven (7) count complaint. These allegations, as
relevant to the instant motion, include defendants “publicly accuse[d] her of utilizing illegal
drugs on the premises, without any factual basis whatsoever, on the basis only that she was
sitting and conferring with another African American person;” a security guard approached
plaintiff and her companion and asked them “are you guys over here rolling up marijuana?” and
that “false allegations were reported to Plaintiff’s employer.” Plaintiff’s Complaint [8- Exhibit
A], ¶¶1, 16, and 48. Defendants contend that these allegations are insufficient to meet federal

3

and Missouri standards for pleading defamation. Plaintiff simply references various assertions in
her complaint and states that they meet applicable pleading standards.
In Missouri, the elements of defamation are 1) publication, 2) of a defamatory statement,
3) that identifies the plaintiff, 4) is false, 5) is published with the requisite degree of fault, and 6)
damages the plaintiff’s reputation. Fisher v. Wal-Mart Stores, Inc., 619 F.3d. 811, 820 (8th Cir.
2010); State of Missouri ex.rel. BP Products North America, Inc. v. Ross, 163 S.W.3d. 922, 929
(Mo. 2005); The Fireworks Restoration Co., LLC v. Hosto, et. al., 371 S.W.3d. 83, 87 (Mo.App.
2012). Proof of actual harm to the plaintiff’s reputation is an absolute prerequisite in a
defamation action. Cockram v. Genesco, Inc., 680 F.3d. 1046, 1053-54 (8th Cir. 2012); Kenney
v. Wal-Mart Stores, Inc., 100 S.W.3d. 809, 817 (Mo. 2003); The Fireworks Restoration Co., at
87 (citing Kenney, supra.). “To demonstrate actual damages [in Missouri], plaintiffs must show
that defamatory statements caused a quantifiable professional or personal injury, such as
interference with job performance, psychological or emotional distress, or depression.” Cockram
v. Genesco, Inc., at 1054 quoting Arthaud v. Mut. Of Omaha Ins. Co., 170 F.3d. 860, 862 (8th
Cir. 1999). Whether language is defamatory and actionable is a question of law. Fisher v WalMart Stores, at 820; Scott v. BJC Behavioral Health, 2011 WL 2899141, *3 (E.D.Mo. July 20,
2011); Duran v. Andrew, 2010 WL 1936026, *6 (E.D.Mo. May 11, 2010). “In Missouri,
whether language is defamatory and actionable is a question of law to be determined by the court,
and the court must determine whether a statement claimed to be slanderous is reasonably capable
of defamatory meaning.” Fisher v. Wal-Mart Stores, at 820 quoting Rockwood Bank v. Gaia,
170 F.3d. 833, 841 (8th Cir. 1999). In order to make this determination, a court must decide
“whether the communication reasonably conveyed the meaning ascribed to it by plaintiff, and if

4

so, whether the meaning was defamatory in character.” Fisher v. Wal-Mart Stores, at 820
quoting Rockwood Bank, supra.
Under Missouri law, a plaintiff must set forth specifically in his/her complaint the words
and/or statements which are alleged to be defamatory. See, Nazeri v. Missouri Valley College,
860 S.W.2d. 303, 313 (Mo. 1993); The Missouri Church of Scientology v. Adams, 543 S.W.2d.
776, 777 (Mo. 1976)(a petition seeking recovery for libel must state in the petition the exact
words or statements alleged to be libelous); Shurn v. Monteleone, 769 S.W.2d. 188, 191
(Mo.App.1989)(in order to state a cause of action for libel or slander, plaintiff must allege the
specific words which are alleged to be defamatory); Angelina Casualty Co. v. PattonvilleBridgeton Terrace Fire Protection District, 706 S.W.2d. 483, 485 (Mo.App. 1986)(“In order to
state a claim for libel or slander the specific words claimed to be defamatory must be alleged in
the petition or complaint.”); see also, Thomas v. St. Louis Board of Education, 933 F.Supp. 817,
822 (E.D.Mo. 1996)(citing Shurn, supra.); Mitan v. Osborn, 2011 WL 4352550, *3 (W.D.Mo.
Sept. 16, 2011)(cites Nazeri, supra. and Missouri Church of Scientology, supra. in a libel action
in which the Court held that Missouri law required “a plaintiff complaining of defamation must
specifically set forth in the complaint the words which are alleged to be defamatory.”)
Missouri law prior to 1993 held that regardless of whether the cause of action was one for
libel or slander, the plaintiff had to allege in the petition the exact word or statements alleged to
be defamatory. However, in 1993, the Missouri Supreme Court in Nazeri, supra. made a
distinction as to the degree of specificity required based upon whether the action was one for
libel or slander. The Court found that the rule of requiring the plaintiff to cite the exact words in
the petition; i.e., the plaintiff must make the allegations in haec verba, “is strictly applicable only
to libel and not to slander.” Nazeri, at 313 citing Lorenz v. Towntalk Publishing Co., 261

5

S.W.2d. 952, 953 (Mo. 1953). The Court reasoned that due to the various methods of publishing
a libelous statement (writing, printing, broadcast, or electronic communication) it “is not
unreasonable to expect a verbatim reproduction of the offending statement to assist the court in
determining whether it is capable of defamatory meaning.” Id., at 313.
However, the Court determined that because slander “consists by definition of mere
fleeting speech,” all that was required in the petition “is that there ‘be certainty as to what is
charged’ as the slander.” Id., at 313 quoting Lorenz, at 954.
In the instant case, plaintiff’s Count V fails to meet Missouri’s pleading standard under
either libel or slander. In Count V, plaintiff simply incorporates by reference her prior
allegations. She then asserts that the “aforementioned allegations were false and malicious and
subjected Plaintiff to public humiliation and damage to reputation.” Plaintiff’s Complaint [8],
¶47. She further alleges:
In addition, the accusation was reported to Plaintiff’s employer,
the St. Louis Metropolitan Police Department, who then ordered
her to account for the incident.
Plaintiff’s Complaint [8], ¶48.
Firstly, nowhere in her complaint, does plaintiff identify the manner in which “the
accusation” was “reported” to her employer. Count V is completely devoid of any indication as
to whether “the accusation” was communicated in writing via a letter, report, or even an e-mail
or whether it was communicated orally via the telephone or in person. Secondly, nowhere in
Count V is it remotely indicated who communicated “the accusation” and/or when this
communication took place.
Finally, there is no specificity whatsoever as to “the accusation” that was allegedly
communicated. In her complaint, plaintiff appears to make at least two (2) assertions of

6

allegedly defamatory statements: 1) she was asked by security personnel “Are you guys over here
rolling up marijuana?” and 2) she and her attorney were accused of violating St. Louis Union
Station’s “loitering policy.” Plaintiff’s Complaint [8], ¶¶16 and 24. Which of these accusations
was “reported” to plaintiff’s employer?
Whether or not plaintiff’s Count V is a libel or slander cause of action, Count V still fails
to meet the specificity requirements for pleading either. She fails to specifically set forth the
words and/or statements alleged to be defamatory; and fails to provide the specificity necessary
to provide the “certainty as to what is charged.”
Furthermore, Count V fails to meet federal pleading standards. Although federal courts
require only notice pleading, a plaintiff must still plead the substantive requirements of state law.
Although detailed factual allegations are not necessary, a complaint that contains “labels and
conclusions,” and a “formulaic recitation of the elements of a cause of action” is not sufficient.
See, Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S.Ct. at 1949. Here, Count V does
nothing more than merely recite a reference to her generalized “aforementioned allegations” and
boilerplate language and legal conclusions that these “aforementioned allegations” were “false
and malicious.” Again, she further fails to provide any factual support as to the manner in which
these “aforementioned allegations” were “reported” to her employer. Plaintiff has failed to state
a claim upon which relief can be granted because she has failed to plead “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Defendant further contends that Count V fails to allege any facts showing damage to her
reputation. In Count V, plaintiff asserts that “[T]he implications of these accusations, however
false, could ultimately endanger Plaintiff’s employment, future promotions/assignments and
therefore lead to future financial damage.” Plaintiff’s Complaint [8], ¶48. She then goes on to

7

provide a list of her alleged injuries including but not limited to: pain of mind and body, shock,
emotional distress, physical manifestations of emotional distress, embarrassment, loss of selfesteem, humiliation, loss of enjoyment of life, damage to reputation. Plaintiff’s Complaint [8],
¶49.
“Proof of actual reputational harm is an absolute prerequisite in a defamation action.”
Cockram v. Genesco, at 1053-54; Kenney v. Wal-Mart Stores, at 817; The Fireworks Restoration
Co., at 87; Scott v. BJC Behavioral Health, 2011 WL 2899141, at *3 (quoting Kenney, supra.).
“To demonstrate actual damages [in Missouri], plaintiffs must show that defamatory statements
caused a quantifiable professional or personal injury, such as interference with job performance,
psychological or emotional distress, or depression.” Cockram, at 1054 quoting Arthaud, at 862;
Kenney, at 816.
Defendant contends that the “damages” alleged by plaintiff are nothing more than
conclusory statements without any factual support. She alleges, without any factual support, that
her reputation and future pecuniary interests have been damaged by the defendant’s
“aforementioned allegations.” The Court concurs, and finds moreover, that plaintiff’s damages
are speculative and nothing more than conjecture; she simply asserts that due to the
“aforementioned allegations,” she may suffer at some future point in time a negative
consequence with regard to her employment. She makes only conclusory statements that these
“accusations” were “false and malicious,” and provides formulaic claims that she has suffered
“damage to her reputation,” that she has suffered “embarrassment,” and that she has suffered all
manner of emotional distress.
Plaintiff failed to address in any manner whatsoever the defendant’s contention that
Count V fails to allege the necessary prerequisite of “actual reputational harm.” Given the

8

insufficiency of Count V to allege damage for defamation, and the plaintiff’s failure to offer any
counterargument, the Court finds that Count V fails to state a cause of action upon which relief
can be granted.
Finally, defendant contends that Count V should be dismissed because plaintiff failed to
sufficiently plead malice to overcome the applicable “qualified privilege” defense. Under
Missouri law, there are three (3) general types of defenses to a defamation action, one being
“qualified privilege.” See, Henry v. Haliburton, 690 S.W.2d. 775, 779 (Mo. 1985); Rucker v. KMart Corp., 734 S.W.2d. 533, 535 (Mo.App. 1987). A communication is entitled to qualified
privilege protection if it is made in good-faith upon a subject matter which the declarant has an
interest or in reference to which he has a duty, to a person having a corresponding interest or
duty, even though it contains matter which absent such privilege would be actionable as
defamatory. Rice v. Hodapp, 919 S.W.2d. 240, 244 (Mo. 1996). Whether a qualified privilege
exists is a matter of law to be decided by the trial court. Rice, at 244.
Once a court has determined that qualified privilege exists, the plaintiff bears the burden
of establishing express or actual malice to overcome the privilege. Decker v. O’Reilly
Automotive, Inc., 31 S.W.3d. 6, 16 (Mo.App. 2000); Rucker, at 535; see also, Hardge-Harris v.
Pleban, 741 F.Supp. 764, 773 (E.D.Mo. 1990).
Although the parties do not appear to dispute that the “accusations” (whatever they may
be) were made by security personnel to law enforcement officials regarding allegedly criminal
behavior, and therefore, qualified privilege exists; the parties do dispute whether plaintiff has
sufficiently plead “actual malice.”
Given that Count V clearly fails to set forth a proper claim for defamation (whether libel
or slander), and fails to plead in any manner “actual reputational harm,” the Court finds no need

9

to further examine in detail whether plaintiff has adequately plead “actual malice.” Suffice it to
say that plaintiff’s argument that she has sufficiently plead “actual malice” in Count V because
she states that the “aforementioned allegations” were “false and malicious” is again a formulaic
recitation of the boilerplate elements of a defamation action. Furthermore, her contention that
she had shown such malice by alleging that she was accused of using illegal drugs because she is
African-American and was talking to another African-American is again a legal conclusion
factually unsupported.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss Count V [9], filed April
26, 2012 be and is GRANTED. Count V of the plaintiff’s complaint is hereby dismissed with
prejudice in its entirety.
Dated this 30th day of October, 2012.

UNITED STATES DISTRICT JUDGE

10