Pujols v. Pujols Family Foundation et al

Filing 45

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiff Wilfrido Pujols's Motion for Leave to File Surresponse to Defendants' Reply to Opposition Memorandum is GRANTED. The Clerk of Court shall detach and docket plaintiff� 39;s Surresponse, which was attached to the motion for leave. [Doc. 44] IT IS FURTHER ORDERED that plaintiff Wilfrido Pujols's Motion for Leave to File Reply to Defendants' Response to Opposition Memorandum is DENIED as moot. [Doc. 43] IT IS FURTHER ORDERED that defendants Jose Alberto Pujols, Deidre Pujols, and the Pujols Family Foundation's motion to dismiss is GRANTED. [Doc. 27] An appropriate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 9/28/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILFRIDO JUAN PUJOLS,
Plaintiff,
v.
PUJOLS FAMILY FOUNDATION, et al.,
Defendants.

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No. 4:16-CV-1644 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion to dismiss plaintiff’s complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is fully
briefed and ripe for review.1 For the following reasons, the Court grants defendants’ motion to
dismiss.
I. Background
Plaintiff Wilfrido Pujols is the cousin of defendant Jose Alberto Pujols, better known as
Albert Pujols, a former St. Louis Cardinals baseball player and current first baseman for the Los
Angeles Angels of Anaheim. Plaintiff, who is a former professional baseball player, brings claims
against defendants Jose Alberto Pujols (“Albert Pujols”); Albert Pujols’s wife, Deidre Pujols; and
the Pujols Family Foundation, a not-for-profit organization.

1

Also pending before the Court is plaintiff’s “Motion for Leave to File Reply to Defendants’
Response to Opposition Memorandum” and “Motion for Leave to File Surresponse to Defendants’
Reply to Opposition Memorandum.” Docs. 43 and 44. The Court will grant plaintiff leave to file
a surresponse and direct the Clerk of Court to docket plaintiff’s surresponse, which was attached to
his motion. (Doc. 44) The motion for leave to file a reply to defendants’ response is denied as moot.
(Doc. 43).

The allegations in the Amended Complaint (“Complaint”) arise, in part, from an email
exchange between Deidre Pujols, the President of the Pujols Family Foundation, and a third party,
Cheryl Cooper. Plaintiff alleges, among other things, that Deidre Pujols defamed him in an email
she sent to Ms. Cooper dated December 7, 2007. Ms. Cooper later copied the email from Deidre
Pujols and posted it on plaintiff’s Facebook wall on November 4, 2014. Plaintiff also alleges that
defendants Deidre and Albert Pujols made other defamatory statements about him to other third
parties, Kristen Peter and Todd Perry. Plaintiff further alleges that Albert Pujols made intimidating
phone calls to his house and to his father.
Plaintiff brings one state law claim against defendants Albert Pujols, Deidre Pujols, and the
Pujols Family Foundation for defamation (Count I), and one state law claim of intentional infliction
of emotional distress against defendant Albert Pujols (Count II). Plaintiff alleges in his Complaint
that he suffered injuries and damages as a result of defendants’ conduct and is seeking “no less than
7.5 million dollars” in damages.2 Doc. 22 at 22.
In the motion before the Court, defendants move, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, to dismiss the defamation claim on the following grounds: The statements
in the December 7, 2007 email from Deidre Pujols are not defamatory because they are protected
opinions; plaintiff has not suffered damages as a result of the email; defendants cannot be liable for
the republication of the email; and any defamation claim arising from the email is time barred. In
addition, defendants argue that plaintiff’s allegations with regard to alleged defamatory statements
made to Kristen Peter and Todd Peter are insufficient to state a claim. With regard to plaintiff’s

2

This Court has jurisdiction over the dispute pursuant to 18 U.S.C. § 1332, because the
parties are of diverse citizenship and the amount in controversy is alleged to exceed $75,000.00.
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claim for intentional infliction of emotional distress, Albert Pujols argues that the claim should be
dismissed because plaintiff fails to allege sufficiently outrageous conduct, that his conduct was
intended to cause extreme emotional distress to plaintiff, or that plaintiff suffered bodily harm as a
result.
II. Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need
not provide specific facts in support of its allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam), but “must include sufficient factual information to provide the ‘grounds’ on which the
claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008)(citing Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain
either direct or inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory.” Id. at 562 (quoted case omitted). This standard “simply
calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the
claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” Twombly, 550 U.S.

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at 556, and reviews the complaint to determine whether its allegations show that the pleader is
entitled to relief. Id; Fed. R. Civ. P. 8(a)(2). Materials attached to the complaint as exhibits may
be considered in construing the sufficiency of the complaint. Morton v. Becker, 793 F.2d 185, 187
(8th Cir. 1986).
In this case, plaintiff is proceeding without the assistance of counsel. Pro se pleadings are
to be liberally construed and are held to less stringent standards than those drafted by an attorney.
Smith v. St. Bernards Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). Nevertheless, pro se
pleadings must not be conclusory and must state sufficient facts which, when taken as true, support
the claims advanced. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The Court “will not supply
additional facts, nor will [it] construct a legal theory for plaintiff that assumes facts that have not
been pleaded.” Id. (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
III. Allegations in the Complaint
Plaintiff makes the following allegations in his Complaint:
Plaintiff is a former professional baseball player. He has worked as a professional hitting
instructor, and in 2016 he became a self-employed sports agent and formed Team Pujols Sports &
Entertainment LLC. Albert Pujols, a professional baseball player, is the Founder and Chairman of
the Pujols Family Foundation. Deidre Pujols, Albert’s wife, is the President of the Pujols Family
Foundation. The Pujols Family Foundation is a not-for-profit that was organized to benefit people
with Down syndrome, disabilities, or life-threatening illnesses, as well as children and families
living in poverty in the Dominican Republic.
On November 9, 2007, plaintiff was a passenger in a vehicle driven by his brother, Wilfredo
Pujols. Wilfredo Pujols was under the influence of drugs and alcohol, and while he was being

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pursued by law enforcement, Wilfredo Pujols’s vehicle struck Christopher Cooper, who died that
night due to blunt force trauma. Wilfredo Pujols was charged with multiple felonies, including
second degree murder. Plaintiff alleges in his Complaint that he attempted to stop his brother, and
he was not charged with any crime related to the incident.
On December 6, 2007, the mother of Christopher Cooper wrote an email to the Pujols Family
Foundation directed to Albert Pujols. She states in her email that her son “was murdered by your
cousins, Wilfredo and Wilfrido Pujols on November 8, 2007.”3 Doc. 22, Ex. A. Ms. Cooper wrote:
I will promise you, I will do everything in my power to see to it that Wilfredo Pujols
spends as many years as possible in a jail cell, denied the joy of raising his own
child. Your money and fame will not buy his freedom or absolve him of murder, the
murder of our most precious son, Christopher. We will always fight to see to it that
he suffers for as long as a murder conviction allows. For as long as I live, I will be
deprived of the love and company of my baby, and your cousin will pay, I swear it
on the life and death of my child.
Id.
A response was sent from the email address [e-mail], which was
electronically signed by Deidre Pujols and dated December 7, 2007 (the “2007 Email”). The 2007
Email states in full:
Let me start off by telling you how sorry I am about the loss of your son’s life. It is
with regret that I didn’t send you a letter that I had written in the days following the
tragedy. I can’t even pretend to know the measure of emotions that your family will
ever go through. It is most unfortunate that my husband has become connected to
this event because he is well known. We have never had a close relationship to these
young men. My husband and I have a close relationship with God and through His
Son, Jesus Christ, we have learned through Scripture what kind of character that we
want to be accountable to. Let me assure you that in no way would we support these
young men financially, legally or in any other means. It is an awfully bold

3

There is a discrepancy in the date. Plaintiff alleges in the body of the Complaint that
Christopher Cooper died on November 9, 2007. Doc. 22 at 5. Ms. Cooper states in her email that
her son died on November 8, 2007. Doc. 22, Ex. A.
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assumption to make that my husband or I would support something so heinous
without knowing anything about us. If you take a closer look at our website you will
see that we represent and are ambassadors to our faith, our families and others.
These two young men have ruined many lives. I pray that our court system will
serve them justly. I pray that God will continue to provide the strength that your
family needs.
Doc. 22, Exs. B and C.
Plaintiff alleges that he was not told about these emails. He maintains that the statements
in the 2007 Email are false in that the email was published “well after the Plaintiff was cleared of
any wrongdoing in connection to the death of [Ms. Cooper]’s son. On or around December 7, 2007,
it was common knowledge that the Plaintiff was not charged or held responsible in any way for the
death of [Ms. Cooper]’s son.” Doc. 22 at 7. Plaintiff further alleges that the statements made in the
2007 Email were made with actual malice and the intent to do harm to plaintiff “in order to protect
the image and interests of Defendants.” Id.
Plaintiff alleges in the Complaint that on November 4, 2014, Ms. Cooper disclosed the email
she received from the Pujols Family Foundation by posting it to plaintiff’s “wall” on his Facebook
page. He alleges that prior to November 2014, he had no knowledge of the 2007 Email.
Plaintiff further alleges in the Complaint that on July 19, 2016, during a conservation with
Kristen Peter, the daughter of Pujols Family Foundation’s CEO Todd Perry, “the Plaintiff learned
that Defendants Deidre and [ ] Albert[ ] Pujols, exclusively told Mrs. Peter that the Plaintiff had
‘felonies’ for ‘manslaughter;’ she also stated to the Plaintiff that the Defendants Deidre and Albert
Pujols ‘swear up and down that you (Plaintiff) did two years in jail.’” Doc. 22 at 10. Plaintiff
alleges that these statements were made in relation to the death of Ms. Cooper’s son, and defendants
made these statements to Mrs. Peter in order to deter her from associating with plaintiff. Plaintiff

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also alleges that “upon information and belief,” defendants “have slandered [plaintiff] on other
occasions to other persons, including to Todd Perry of the Pujols Family Foundation.” Id.
For his claim of intentional infliction of emotional distress against Albert Pujols, plaintiff
alleges that on July 25, 2016, at 2:28 p.m., Albert Pujols made a phone call to his house and made
numerous outrageous “mafia style” threats. Doc. 22 at 13. The Complaint alleges that in this
conversation, defendant Albert Pujols stated that if plaintiff decided to sue the defendants, “he would
make sure that the Plaintiff gets put away for many years.” Id. Plaintiff also alleges that defendant
Albert Pujols stated that if plaintiff sued, talked to the media, or Major League Baseball, that he
would “come after him.” Id. Plaintiff further alleges that defendant Albert Pujols called plaintiff’s
father to see if plaintiff was “cooperating,” and that someone claiming to be a private investigator
called his father asking about plaintiff’s whereabouts and “trying to intimidate” him. Id. at 14.
IV. Discussion
Jurisdiction in this case is based on diversity of citizenship, and the parties agree that
Missouri law applies. The Court, therefore, must apply Missouri law “as declared by the Supreme
Court of Missouri.” Council Tower Ass’n v. Axis Specialty Ins. Co., 630 F.3d 725, 728 (8th Cir.
2011). “If the Supreme Court of Missouri has not addressed an issue, we must predict how the court
would rule, and we follow decisions from the intermediate state courts when they are the best
evidence of Missouri law.” Eubank v. Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir.
2010).
A.

Defamation

In a defamation action under Missouri law, a plaintiff must establish: “1) publication, 2) of
a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the

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requisite degree of fault, and 6) damages the plaintiff’s reputation.” Missouri ex rel. BP Prods. N.
Am. Inc. v. Ross, 163 S.W.3d 922, 929 (Mo. 2005) (en banc) (quoting Overcast v. Billings Mut. Ins.
Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc)).4 “A statement is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of the community or to defer third persons
from associating or dealing with him.” Topper v. Midwest Div., Inc., 306 S.W.3d 117, 128 (Mo.
Ct. App. 2010) (quoting Deckard v. O’Reilly Auto., Inc., 31 S.W.3d 6, 19 (Mo. Ct. App. 2000)
overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003) (en
banc)). “Whether a statement is capable of having a defamatory meaning is a question of law for
the trial court. Words are to be taken in the sense which is most obvious and natural according to
the ideas they are calculated to convey to those to whom they are addressed.” Id. (citation omitted)
1.

Statements in the 2007 Email

Defendants move to dismiss plaintiff’s claim of defamation based on the 2007 Email on a
number of grounds, including that the statements contained in the email are not defamatory but
rather are protected opinion. Statements of opinions are privileged under the First Amendment’s
guarantee of freedom of speech and cannot be the basis of a state defamation claim. Gertz v. Robert
Welch, Inc., 418 U.S. 323, 347 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964).
Following Supreme Court law, Missouri has adopted “an absolute privilege for expressions of
opinion, broadly holding that any alleged defamatory statements that ‘can be characterized as
opinions,’ are ‘subject to the First Amendment absolute privilege.’” Smith v. Humane Soc’y of

4

“In a defamation claim where the plaintiff is not a public figure, the requisite degree of fault
is negligence.” Deckard v. O’Reilly Auto., Inc., 31 S.W.3d 6, 18 (Mo. Ct. App. 2000). For public
figures, the requisite degree of fault is actual malice. Nazeri v. Mo.Valley Coll., 860 S.W.2d 303,
309 (Mo. 1993) (en banc) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). The
parties here do not address whether plaintiff is a public figure or a non-public figure.
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United States, 519 S.W.3d 789, 799 (Mo. 2017) (en banc) (quoting Henry v. Halliburton, 690
S.W.2d 775, 787 (Mo. 1985) (en banc)). “[T]here can be no liability under state defamation law for
statements of opinion.” Id. (citing Gertz, 418 U.S. at 339-40). See also Henry, 690 S.W.2d at 787
(“If the alleged defamatory remarks can be characterized as opinions, they should be subject to the
First Amendment absolute privilege.”).
That said, “a statement labeled as an ‘opinion’ can be the basis of an actionable defamation
claim if the alleged ‘opinion’ statement implies an assertion of objective facts.” Smith, 519 S.W.3d
at 799 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990)). But this holding does not
swallow the exception. To be liable under Missouri defamation law, opinion statements must be
provable as false. Id. “[W]ords used as ‘rhetorical hyperbole,’ ‘lusty and imaginative expression[s]
of [ ] contempt,’ and ‘loose’ language cannot reasonably be interpreted as stating actual facts.”
Smith, 519 S.W.3d at 800 (quoting Milkovich, 497 U.S. at 16-17). According to Missouri’s
Supreme Court, “[t]he test to be applied to an ostensible ‘opinion’ is whether a reasonable factfinder
could conclude that the statement implies an assertion of objective fact.” Id. (quoting Nazeri v. Mo.
Valley Coll., 860 S.W.2d 303, 314 (Mo. 1993) (en banc). See also Overcast, 11 S.W.3d at 73.
Addressing the specific allegations in plaintiff’s Complaint, plaintiff does not allege that the
statements made in the 2007 Email were false on their face, but rather he claims the statements in
the email imply criminal conduct that he did not commit. In the 2007 Email Deidre Pujols wrote:
“Let me assure you that in no way would we support these young men financially, legally or in any
other means. It is an awfully bold assumption to make that my husband or I would support
something so heinous without knowing anything about us.” Doc. 22, Exs. B and C. Both sides
appear to agree that “these young men” referred to both plaintiff and his brother, Wilfredo. This is

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about all the parties can agree upon with regard to these two sentences in the email. Plaintiff argues
that by using the phrase “something so heinous,” Deidre Pujols is plainly referring to the crime of
the murder of Christopher Cooper, and the 2007 Email “imput[es]” that plaintiff committed a crime,
for which he was never charged or convicted. Doc. 38 at 7.
The phrase “something so heinous” does not contain a fact that is provable as false. It does
not explicitly state or even imply that plaintiff committed murder, as plaintiff contends it does.
Rather, it is plain that Deidre Pujols was indignant and outraged by the senseless death of
Christopher Cooper, who was struck and killed by a car driven by driver under the influence of
alcohol and drugs. It was this event that she described as “something so heinous.” Deidre Pujols
does not state that the conduct was criminal, and the fact that she used the word “heinous” does not
ascribe guilt to plaintiff for the murder of Christopher Cooper. The statement is an imprecise
description of the event. It is a “subjective assessment,” which is not provable as false. Smith, 519
S.W.3d at 801. And while the term “heinous” has a negative connotation, “a negative connotation
alone does not make it actionable.” Id. It is not reasonable to conclude that the statement
“something so heinous” implies the assertion of objective fact, as plaintiff contends, that plaintiff
murdered Christopher Cooper. The Court finds that this statement is an opinion subject to the First
Amendment absolute privilege. See id. See also Gertz, 418 U.S. at 347.
Plaintiff also takes umbrage to the statement: “These two young men have ruined many
lives.” Again, both sides appear to agree that “these two young men” referred to both plaintiff and
his brother, Wilfredo. Plaintiff contends that this statement implies he was culpable for the murder
of Christopher Cooper, which he was not, and therefore it is defamatory. The statement that plaintiff
and his brother “ruined many lives” is not an objective fact that can be provable as false. What

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constitutes ruining a life is subjective. In the Court’s view, Diedre Pujols’s use of the phrase
“ruined many lives” is similar to the use of the word “traitor” in a labor dispute, in that it was being
used in “a loose, figurative sense” and was “a lusty and imaginative expression of [ ] contempt.”
Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264,
284-85 (1974) (finding the terms “scab” and “traitor” were protected speech and not subject to
liability under state defamation laws). The statement that plaintiff and his brother had “ruined many
lives” was an expression of Deidre Pujols’s opinion, albeit a pejorative one, and therefore is not
actionable in defamation as a matter of law. See Smith, 519 S.W.3d at 802.
Plaintiff also alleges in his Complaint that the statement in the 2007 Email that “[m]y
husband and I have a close relationship with God and through His Son, Jesus Christ, we have
learned through Scripture what kind of character that we want to be accountable to” is defamatory.
Doc. 22, Exs. B and C. Plaintiff alleges that this statement “could easily be interpreted that the
Defendant Deidre Pujols was implying that the Plaintiff was ‘godless.’” Doc. 22 at 8. The Court
does not agree. The statement is clearly about Deidre and Albert Pujols’s own religious faith, not
that of the plaintiff. There is nothing even about plaintiff in this sentence, let alone something that
is provable as false. To hold that a positive statement about one’s religion is necessarily defamatory
because it must imply another person is not religious is not supported in case law, and would be
entirely contrary to the First Amendment’s guarantee of freedom of speech. Gertz, 418 U.S. at 347.
In sum, none of the statements in the 2007 Email are actionable as defamation because they
are subjective statements of opinion. The Court finds that no reasonable finder of fact could
conclude that the statements in the 2007 Email are assertions of objective facts. Smith, 519 S.W.3d
at 800. Because the Court finds as a matter of law that the 2007 Email does not contain defamatory

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statements, it need not address whether plaintiff’s claim based on the 2007 Email is barred by the
statute of limitation, whether defendants can be held liable for the republication of the 2007 Email,
or whether plaintiff has adequately pleaded damages stemming from the 2007 Email. Plaintiff’s
claim of defamation arising from the 2007 Email is dismissed for failure to state a claim.
2.

Statements to Kristen Peter

Plaintiff also alleges in his Complaint that on July 19, 2016, during a conversation with
Kristen Peter, “the Plaintiff learned that Defendants Deidre Pujols and Albert Pujols, exclusively
told Mrs. Peter that the Plaintiff had ‘felonies’ for ‘manslaughter,’” and that Kristen Peter also stated
“that Deidre Pujols and Albert Pujols ‘swear up and down that you (Plaintiff) did two years in jail.’”5
Doc. 22 at 10. Plaintiff further alleges that defendants Deidre Pujols and Albert Pujols made these
statements to Kristen Peter in order to deter her from associating with plaintiff.
Defendants move to dismiss the defamation claim based on alleged statements to Kristen
Peter arguing that the alleged statements are not pleaded with the requisite specificity. Defendants
contend that plaintiff has merely summarized the statements made to him by Kristen Peter, and that
he does not provide the context for the communications, such as when the statements were made,
or whether they were in writing or verbal. Defendants characterize plaintiff’s allegations as not

5

Plaintiff also alleges in the Complaint that “upon information and belief, the Defendants
Deidre Pujols and Albert Pujols have slandered him on other occasions to other persons, including
to Todd Perry of the Pujols Family Foundation.” Doc. 22 at 11. This allegation is certainly not
enough to state a claim of defamation as it does not contain the elements of defamation or sufficient
factual matter to state a claim for relief. Ashcroft v. Iqbal, 129 S. Ct. at 1949. There is no indication
as to what was said and therefore there is no way for the Court to review whether the statements rose
to the level of defamation. Topper, 306 S.W.3d at 128 (“Whether a statement is capable of having
a defamatory meaning is a question of law for the trial court.”).
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actual statements by Deidre Pujols or Albert Pujols, but rather a characterization of Kristen Peter’s
opinion about what Deidre Pujols and Albert Pujols allegedly believed.
The Court finds that plaintiff has pleaded with adequate specificity allegations with regard
to these defamatory statements. Contrary to defendants’ assertion, plaintiff did allege that the
statements by Deidre Pujols or Albert Pujols were verbal. The verb “told” commonly denotes that
the statements were verbal and, therefore, slander.6 As the Missouri Supreme Court has noted,
slander “consists by definition of mere fleeting speech.” Nazeri, 860 S.W.2d at 313. As such, “the
accuracy with which it is pleaded must depend upon the recollection of the original hearer,” who,
like here, “might not even be the plaintiff.” Id. Accordingly, it is “pointless to demand absolute
precision.” Id. “All that is required is that there ‘be certainty as to what is charged’ as the slander.”
Id. (quoting Lorenz v. Towntalk Publ’g Co., 261 S.W.2d 952, 953 (Mo. 1953)). See also Hester v.
Barnett, 723 S.W.2d 544, 557 (Mo. Ct. App. 1987) (finding complaint sufficiently pleaded allegedly
false utterances).
Like the allegations in Nazeri, in this case some of the allegedly slanderous statements are
pleaded in quotes, and others are pleaded without quotation marks. When addressing such a
complaint, the Missouri Supreme Court has instructed a court is to “assume that the phrases enclosed
in quotes are purported to be reproduced verbatim, or at least closely paraphrased. Conversely, we
assume that the unadorned statements are more loosely paraphrased.” Nazeri, 860 S.W.2d at 313.
The allegations in the Complaint clearly charge that defendants Deidre Pujols and Albert Pujols
made false statements to a third party, Kristen Peter, asserting that plaintiff had felonies for
manslaughter, and that he served two years in jail. The Court finds the statements as alleged are
6

In general, libel refers to defamatory statements that are written, whereas slander refers to
defamatory statements that are spoken. 50 Am. Jur. 2d Libel and Slander § 6. (2017).
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defamatory because they falsely impute that plaintiff committed a criminal offense. Wahl v.
Marschalk, 913 S.W.2d 432, 434 (Mo. Ct. App. 1996) (“A statement is actionable as slander if it
falsely imputes to plaintiff the commission of a criminal offense.”) (citing Matyska v. Stewart, 801
S.W.2d 697, 700 (Mo. Ct. App. 1991)); Hester, 723 S.W.2d at 556 (a “false imputation of crime”
is defamatory).
Defendants also argue that claims arising from the statements to Kristen Peter fail because
plaintiff pleads no specific, actual damages that arose from these alleged defamatory statements.
The Court has carefully review the Complaint, and agrees.
Historically, damages were presumed for defamation per se, that is, defamation that harmed
a person’s trade or profession. Nazeri, 860 S.W.2d at 311. The Missouri Supreme Court in Nazeri
v. Missouri Valley College discarded the distinction between defamation per se and defamation per
quod. 860 S.W.2d at 313 (“We hold that in defamation cases the old rules of per se and per quod
do not apply and plaintiff need only to plead and prove the unified defamation elements set out in
[Missouri’s Approved Jury Instructions] . . . .”). The court further explained that in all defamation
cases under Missouri law, plaintiffs are required to show actual damages. Id. See also Cockram v.
Genesco, Inc., 680 F.3d. 1046, 1053–54 (8th Cir. 2012) (“[A]ctual reputational harm is an absolute
prerequisite in a [Missouri] defamation action.”) (quoting Kenney v. Wal-Mart Stores, Inc., 100
S.W.3d. 809, 817 (Mo. 2003) (en banc).
In this case, plaintiff has combined all his claims of defamation in Count I, and in a separate
section of the Complaint entitled “Injuries Caused by Defendants’ Actions in Count I” (paragraphs
62-84), he lists a litany of alleged injuries that were caused by all the defamatory remarks defendants
made about him. Doc. 22 at 15. More specifically he states:

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That the defamatory remarks made about the Plaintiff adversely affected him in his
personal life and as a professional in baseball, as his reputation had been hurt by the
publication and set off a fire of events that led to more damage, as will be explained
in the following paragraphs.
Id. All of the factual allegations in the subsequent paragraphs, however, specifically relate to
alleged injuries flowing from the 2007 Email, not the alleged defamatory remarks to Kristen Peter
made in 2016. For example, plaintiff alleges that in 2008, Ms. Cooper refused to speak to him and
“a mob of people” followed him in public harassing him and calling him obscene and discriminatory
names. Doc. 22 at 16. He also alleges that in 2008, he fled the State of Missouri while on
misdemeanor probation to be with family after abusing prescription medicines and contemplating
suicide due to the threats and harassment from members of the community of Independence,
Missouri. Id. Plaintiff also alleges that in 2009, Ms. Cooper shared the 2007 Email with a
prosecutor, which somehow persuaded the prosecutor to extradite plaintiff back to Missouri, where
he faced burglary charges, spent ten months in jail, and eventually pleaded guilty to a misdemeanor.
Doc. 22 at 16-17 (citing to State v. Pujols, 0916-CR01559). Plaintiff further alleges in his
Complaint that “due to the effects caused by the Defendants’ actions, the plaintiff was no longer able
to work or train at the Tom Urquhart School of Baseball due to him suffering injuries to his
reputation. According to the school, because of the statements made about him on [G]oogle by [Ms.
Cooper] and her supporters between the years 2008 and 2010.” Doc. 22 at 17-18.
The Court has combed through this section of the Complaint, and it finds that all the alleged
injuries occurred between 2007 and 2015, well before 2016 when plaintiff spoke with Kristen Peter.
It is clear to the Court that the alleged injuries in paragraphs 62-84 do not arise from defendants’
alleged defamatory remarks to Kristen Peter, but rather they all relate to the 2007 Email and its

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republication in 2014, which the Court has found is not actionable as defamation because it contains
subjective statements of opinion.
At this point in litigation, plaintiff need not set forth evidence that he suffered actual
reputational harm as a result of the defendants’ alleged defamatory remarks to Kristen Peter, but he
“must include sufficient factual information to provide the ‘grounds’ on which the claim rests, and
to raise a right to relief above a speculative level.” Schaaf, 517 F.3d at 549 (citing Twombly, 127
S. Ct. at 1964-65 & n.3.) “The complaint must ‘provide a defendant with some indication of the loss
and the causal connection that the plaintiff has in mind.’” Id. (quoting Dura Pharms., Inc. v. Broudo,
544 U.S. 336, 347 (2005)). Plaintiff pleads no facts tending to show actual damages that arose from
defendants’ alleged defamatory remarks to Kristen Peter and, therefore, he has failed to state a
claim. See id. (affirming dismissal of claim for failing to adequately alleged that defendants caused
injuries to plaintiffs). See also King v. Union Station Holdings, LLC, No. 4:12-CV-696 SNLJ, 2012
WL 5351598, at *5 (E.D. Mo. Oct. 30, 2012) (dismissing defamation claim under Missouri law for,
among other things, insufficient allegations regarding damages).
B.

Intentional Infliction of Emotional Distress

Finally, defendant Albert Pujols moves to dismiss plaintiff’s claim of intentional infliction
of emotional distress against him. The Missouri Supreme Court has recognized the tort of
intentional infliction of emotional distress. Nazeri, 860 S.W.2d at 316. In order to state a claim of
intentional infliction of emotional distress, a Complaint must adequately plead four elements: “(1)
the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and
outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.” Polk v.
INROADS/St. Louis, Inc., 951 S.W.2d 646, 648 (Mo. Ct. App. 1997) (citing Hyatt v. Trans World

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Airlines, Inc., 943 S.W.2d 292, 295 (Mo. Ct. App. 1997)). Although there is not a precise definition
of what constitutes “extreme and outrageous” conduct, the Missouri Supreme Court has held that
the conduct “must have been ‘so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997) (en banc) (quoting Warrem v.
Parrish, 436 S.W.2d 670, 673 (Mo. 1969)). The conduct must be “more than malicious and
intentional” and a claim does not lie for mere “insults, indignities, threats, annoyances, or petty
oppressions.” Polk, 951 S.W.2d at 648 (citing Viehweg v. Vic Tanny Int’l. of Mo., Inc., 732 S.W.2d
212, 213 (Mo. Ct. App. 1987)). “It is for the court to determine, in the first instance, whether the
defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery.” Id. (citing Restatement (Second) of Torts section 46 cmt. h (1965)). “The court must
determine whether an average member of the community upon learning of the facts alleged by
plaintiff would exclaim ‘outrageous!’” Polk, 951 S.W.2d at 648 (quoting Viehweg, 732 S.W.2d at
213)).
In this case, plaintiff alleges that on July 25, 2016, at 2:28 p.m., Albert Pujols made a phone
call to plaintiff’s house in which he made “mafia style” threats to plaintiff. Doc. 22 at 13. Plaintiff
alleges Albert Pujols stated “that if the Plaintiff decides to sue the Defendants, he would make sure
that the Plaintiff gets put away for many years. He stated that the Plaintiff does not have money for
attorneys to go against him or any criminal charges he could bring up.” Id. “He further stated that
if the Plaintiff sues him, talks to the media, or Major League Baseball about this situation, that he
would come after him.” Id. Plaintiff also alleges that defendant Albert Pujols called plaintiff’s
father to see if plaintiff was “cooperating.” Id. at 14. According to the Complaint, the following

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day, someone claiming to be a “Private Investigator” called plaintiff’s father “trying to intimidate
him” by “asking about the whereabouts of the Plaintiff and other questions that made the Plaintiff’s
father feel uncomfortable.” Id.
“Missouri case law reveals very few factual scenarios sufficient to support a claim for
[intentional infliction of emotional distress].” Bailey v. Bayer CropScience L.P., 563 F.3d 302, 310
(8th Cir. 2009) (citation omitted). The conduct alleged here – three intimidating phone calls, one
of which is not even necessarily connected to defendant Albert Pujols – falls “well short of a level
of extremity that could be said to exceed all possible bounds of decency and be regarded as atrocious
and utterly intolerable.” Gillis v. Principia Corp., 111 F.Supp.3d 978, 987 (E.D. Mo. 2015), aff’d,
832 F.3d 865 (8th Cir. 2016). The standard itself states that a claim does not lie for mere “insults,
indignities, threats, annoyances, or petty oppressions.” Polk, 951 S.W.2d at 648 (emphasis added).
Based on governing Missouri precedent, the Court does not believe that the conduct alleged in the
Complaint is “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”
Gibson, 952 S.W.2d at 249 (quoting Warrem, 436 S.W.2d at 673). See also Hodge ex rel. Skiff v.
Hodge, 78 F.Supp.2d 29, 36 (N.D.N.Y. 1999) (applying New York law) (a husband’s allegations
that his wife’s personal guardian made numerous harassing telephone calls to him were insufficient
to state a claim for intentional infliction of emotional distress); Moses v. Prudential Ins. Co. of Am.,
369 S.E.2d 541, 543 (Ga. 1988) (applying Georgia law) (threatening message left on former
employee’s telephone answering machine by his former supervisor did not rise to requisite level of
outrageousness and egregiousness to reasonably and foreseeably result in mental distress, precluding
employee from recovering for wilful infliction of emotional distress).

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Plaintiff has failed to state a claim of intentional infliction of emotional distress as to
defendant Albert Pujols. Because plaintiff has not alleged conduct that is sufficiently outrageous
to state a claim for intentional infliction of emotional distress under Missouri law, the Court need
not address whether plaintiff must plead that Albert Pujols’s conduct was intended to cause extreme
emotional distress to plaintiff, or whether plaintiff suffered bodily harm as a result. For these
reasons, defendant’s motion to dismiss plaintiff’s claim for intentional infliction of emotional
distress is granted.
V. Conclusion
In sum, the Court finds plaintiff has failed to state a claim for defamation. The statements
made in the 2007 Email are protected opinions and not statements of fact, and therefore are not
actionable under state defamation law. As for defendants Albert and Deidre Pujols’s statements to
Kristen Peter, the remarks were defamatory, but plaintiff has failed to allege any reputational injuries
or damages that were a result of these remarks. Finally, plaintiff has failed to state a claim of
intentional infliction of emotional distress against Albert Pujols. The conduct plaintiff alleges does
not rise to the level of outrageousness such that it is actionable under Missouri law.
Accordingly,
IT IS HEREBY ORDERED that plaintiff Wilfrido Pujols’s Motion for Leave to File
Surresponse to Defendants’ Reply to Opposition Memorandum is GRANTED. The Clerk of Court
shall detach and docket plaintiff’s Surresponse, which was attached to the motion for leave.
[Doc. 44]
IT IS FURTHER ORDERED that plaintiff Wilfrido Pujols’s Motion for Leave to File
Reply to Defendants’ Response to Opposition Memorandum is DENIED as moot. [Doc. 43]

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IT IS FURTHER ORDERED that defendants Jose Alberto Pujols, Deidre Pujols, and the
Pujols Family Foundation’s motion to dismiss is GRANTED. [Doc. 27]
An appropriate Order of Dismissal will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 28th day of September, 2017.

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