Missouri Primate Foundation et al v. People for the Ethical Treatment of Animals, Inc. et al

Filing 40

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants' motion to dismiss 11 is GRANTED as to Counts I, II and III of plaintiffs' complaint. Defendants' counterclaim remains pending before the Court. I will rule on plaintiffs' motion to dismiss defendants' counterclaim in a later order. Signed by District Judge Catherine D. Perry on 9/21/2017. (CBL)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MISSOURI PRIMATE FOUNDATION,
et al.

)
)
)
Plaintiffs,
)
)
v.
)
)
PEOPLE FOR THE ETHICAL
)
TREATMENT OF ANIMALS, INC., et al. )
)
Defendants.
)

Case No. 4:16 CV 2163 CDP

MEMORANDUM AND ORDER
On November 2, 2016, defendant People for the Ethical Treatment of
Animals (PETA) sent a letter to plaintiffs Missouri Primate Foundation, Connie
Braun Casey, Andrew Sawyer, and Jane Does 1 and 2. This letter served as a
sixty-day notice of intent to file a lawsuit by defendants PETA and Angela Scott.
The notice alleged plaintiffs were in violation of the Endangered Species Act
because the poor living conditions of chimpanzees housed at the facility
constituted a “take” pursuant to the Act. Before the conclusion of the sixty-day
notice period, plaintiffs filed this lawsuit asserting three claims against PETA and
Scott. In Counts I and II, plaintiffs seek declaratory and injunctive relief. In
Count III, plaintiffs allege a claim for defamation against defendant PETA.

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This action is before me now on defendants’ motion to dismiss all three of
the claims. Because I find that this court does not have subject-matter jurisdiction
to hear plaintiffs’ claims for declaratory and injunctive relief, Counts I and II must
be dismissed. Also, as plaintiffs have failed to state a claim for which relief can be
granted, I will dismiss Count III.
I.

Background1
The Missouri Primate Foundation is a private, nonprofit corporation located

in Festus, Missouri. Connie Braun Casey is the president of the organization.
People for the Ethical Treatment of Animals, Inc. (PETA), is a nationwide
nonprofit organization focused on animals’ rights. Defendant Angela Scott
previously worked as a volunteer at the Missouri Primate Foundation. Plaintiffs
allege that under false pretenses, Scott gained access to the facility, took pictures,
and videos, and later provided this information to PETA.
Plaintiff Andrew Sawyer is the owner of a chimpanzee named Joey, who
was allegedly housed at the MPF facility. Jane Doe 2 is the owner of a
chimpanzee named Chloe, who was also alleged to have been held at the facility.

1

The facts contained herein are taken from the allegations set out in plaintiffs’ complaint. They
are considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009); Neitzke v. Williams, 490 U.S. 319, 326-327 (1989).
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Jane Doe 1, originally another plaintiff in this case, has since dismissed herself
from the lawsuit.2
On November 2, 2016, PETA and Scott sent a written notice to plaintiffs of
their intention to file a lawsuit against them under the Endangered Species Act, 16
U.S.C. §§ 1540(g)(1)(A), (2)(A). In this letter, defendants alleged that plaintiffs’
possession of approximately sixteen chimpanzees3 (named in the notice letter as
Chloe, Mikayla, Joey, Tonka, Tammy, Connor, Candy, Allie, Kirby, Daisy, KK,
Kimmy, Crystal, Kerry, Cooper, and Coby) constitutes a “taking,” in violation of
the Endangered Species Act, 16 U.S.C. § 1538 (a)(1)(B) and its implementing
regulation, 50 C.F.R. § 17.21(c)(1).
The ESA defines a “take” of an endangered species as to “harass, harm,
pursue, hunt, shoot, wound, kill capture, or collect, or to attempt to engage in any
such conduct.” 16 U.S.C § 1532(19). Defendants’ notice letter asserted that their
claims against plaintiffs involved the “harass” and “harm” elements of a take.
Under the implementing regulations of the ESA, the term “harass” is defined as
“an intentional or negligent act or omission which creates the likelihood of injury
to wildlife by annoying it to such an extent as to significantly disrupt normal
2

Jane Doe 1, the prior owner of chimpanzee Allie, voluntarily dismissed her claims against
PETA and Scott. (ECF No. 9). After learning of the Notice of Intent to Sue, Jane Doe 1 asserts
she transferred ownership and possession of Allie to an accredited sanctuary.
3
Chimpanzees are listed as endangered under the ESA, 50 C.F.R. § 17.11(h). As of September
14, 2015, non-wild chimpanzees are also included in the list of endangered wildlife protected
under the ESA. 80 Fed. Reg. 34499 (June 16, 2015).
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behavioral patterns which include, but are not limited to, breeding, feeding, or
sheltering.” 50 C.F.R. § 17.3. The term “harm” is defined as “an act which
actually kills or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding, feeding or
sheltering.” Id.
In the notice letter, defendants assert three grounds for alleging that
plaintiffs have committed a “take” of chimpanzees housed at their facility. First,
they claim the Missouri Primate Foundation, Connie Casey and Andrew Sawyer
keep the chimpanzee “Joey” in isolation, depriving him of the social interaction
and psychological stimulation fundamental to his well-being. Defendants also
assert that plaintiffs deny the chimpanzees complex and sanitary environments,
constituting a “take.” The notice letter states that the living conditions at Missouri
Primate Foundation can cause serious harm to the health and well-being of
chimpanzees as they have complex physical, psychological, and social needs.
Defendants’ letter advises plaintiffs that unless the violations cease, PETA and
Scott intend to file suit seeking declaratory relief and an injunction against
continued violations, including the transfer of the chimpanzees to an accredited
sanctuary.

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Before the sixty-day notice period elapsed, plaintiffs filed suit against PETA
and Scott. In Count I of their complaint, plaintiffs ask this Court to grant
declaratory relief in their favor. Specifically, plaintiffs ask the Court to issue a
decree stating that the housing, care and treatment of the chimpanzees at Missouri
Primate Foundation does not constitute a “take,” and that plaintiffs are in
compliance with the ESA. Plaintiffs deny that Joey, along with “each and every
one of the chimpanzees named in [d]efendants’ November 2, 2016 letter . . . are
housed at the facilities of the Missouri Primate Foundation.” (ECF No. 1 at 5). In
Count II, plaintiffs ask the Court to issue an injunction, enjoining and barring
defendants from filing their threatened law suit.
Lastly, in Count III, plaintiffs allege a state law claim against defendants for
defamation. This claim arises out of a series of statements and press releases made
by PETA regarding the care of the chimpanzees at the Missouri Primate
Foundation. Plaintiffs seek compensatory and exemplary damages, as well as
attorney fees and litigation costs.
Defendants have filed a motion to dismiss, pursuant to Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiffs lack
subject matter jurisdiction and have failed to state a claim upon which relief can be
granted. On June 23, 2017, defendants filed an answer to Count I of the

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complaint.4 Defendants also filed a counterclaim alleging MPF, Casey, Sawyer
and Jane Doe 2 are in violation of the “take” prohibition of the ESA. Defendants
seek declaratory and injunctive relief in their counterclaim. In response, plaintiffs
have filed a motion to dismiss defendants’ counterclaim, which the Court will
address in a later order.
II.

Discussion
A.

Count I ‒ Declaratory Judgment

In Count I of their complaint, plaintiffs ask the Court to declare they are not
in violation of the ESA. Defendants argue Count I should be dismissed for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure. Because defendants filed an answer to Count I after filing their motion
to dismiss, in the interests of judicial economy I will consider defendants’ request
to dismiss Count I pursuant to Rule 12(b)(1) as a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(h)(3).
A motion to dismiss for lack of subject matter jurisdiction may be brought at
any time pursuant to Fed. R. Civ. P. 12(h)(3). A Rule 12(h)(3) motion to dismiss is
evaluated under the same standards as a motion to dismiss pursuant to Rule
12(b)(1). Asarco LLC v. NL Indus., Inc., No. 4:11-CV-00864-JAR, 2012 WL
4480738, at *1 (E.D. Mo. Sept. 28, 2012). Under Rule 12(b)(1), dismissal is

4

Defendants did not file an answer to Counts II and III of plaintiffs’ complaint.
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appropriate if the party asserting jurisdiction has failed to satisfy a threshold
jurisdictional requirement. See Herden v. United States, 726 F.3d 1042, 1046 (8th
Cir. 2013). Here, plaintiffs maintain they have satisfied this threshold as federal
question jurisdiction exists. Defendants, however, contend no federal question is
presented as the ESA does not authorize plaintiffs’ action for declaratory
judgment.
In their complaint, plaintiffs ask this Court to enter a judgment and decree
that they are not in violation of the ESA, specifically that their care and housing of
the chimpanzees does not constitute a “take” under the act. Plaintiffs assert the
Court has federal subject matter jurisdiction pursuant to the Declaratory Judgment
Act, 28 U.S.C. 2201(a), 2202, and the ESA, 16 U.S.C. 1540(g)(5).
The Declaratory Judgment Act provides that, “[i]n a case of actual
controversy within its jurisdiction ..., any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could
be sought.” 28 U.S.C. § 2201(a). “[T]he Declaratory Judgment Act ... does not
provide an independent basis for federal jurisdiction.” Zutz v. Nelson, 601 F.3d
842, 850 (8th Cir. 2010) (citing Victor Foods, Inc. v. Crossroads Econ. Dev., 977
F.2d 1224, 1227 (8th Cir. 1992)). “[I]t is well settled that the declaratory judgment
statute is strictly remedial in nature and does not provide a separate basis for
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subject matter jurisdiction.” First Fed. Sav. & Loan Ass’n of Harrison, Ark. v.
Anderson, 681 F.2d 528, 533 (8th Cir. 1982).
The parties dispute whether the ESA provides an independent basis for
federal subject matter jurisdiction. Plaintiffs claim the ESA authorizes this Court
to grant the declaratory relief requested in Count I. However, while the ESA
expressly authorizes the issuance of declaratory judgments, the language of the
statute states that such judgments are for the enforcement of the Act. 16 U.S.C. §
1540 (emphasis added). The language of the ESA does not sanction anticipatory
suits by alleged violators of the law.
Plaintiffs have failed to cite a single case in which a declaratory judgment
was sought under the ESA by an alleged violator of the Act against a potential
plaintiff. In their memorandum in opposition to defendants’ motion to dismiss,
plaintiffs cite to People for the Ethical Treatment of Animals, Inc. v. Miami
Seaquarim, 189 F.Supp. 3d 1327 (S.D. Fl. 2016), along with Kuehl v. Sellner, 161
F. Supp. 3d 678 (N.D. Ia. 2016). Instead of supporting plaintiffs’ argument that
they are authorized to seek declaratory relief by way of the ESA’s citizen-suit
provision, these cases do the opposite. Neither case was filed by an alleged
violator of the ESA. They were both properly filed, after the requisite sixty-day
notice period, by private citizens against alleged violators of the Act’s “take”

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provision. Both cases mirror the counterclaim filed by defendants PETA and
Angela Scott in this case.
Plaintiffs also cite to Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300
U.S. 227, 244 (1937), in support of their argument. Plaintiffs rely on Aetna for the
proposition that because PETA and Scott have the right to seek a declaratory
judgment under the citizen suit provision of the ESA, plaintiffs are likewise
entitled to bring suit under this provision. I find plaintiffs’ reliance misplaced as
Aetna is distinguishable from the facts and issues presented here. The Aetna
decision involved an insurance-contract dispute where the insurer sought a
declaration that policies held by an insured were null and void. The Aetna court, in
finding the district court had jurisdiction pursuant to the Declaratory Judgment
Act, held that the character of the controversy and issue presented was the same,
whether it had been brought by the insurer or by the insured. Id. However, unlike
here, in Aetna there was no federal statute specifically governing the dispute. In
this case, the ESA citizen suit provision expressly states that a person may
commence a citizen suit in three specific circumstances:
(A) to enjoin any person, including the United States and any other
governmental instrumentality or agency (to the extent permitted by
the eleventh amendment to the Constitution) who is alleged to be in
violation of any provision of this chapter or regulation issued under
authority thereof; or (B) to compel the Secretary to apply, pursuant to
[certain provisions] with respect to the taking of any resident
endangered species or threatened species within any State; or (C)
against the Secretary where there is alleged a failure of the Secretary
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to perform any act or duty under section 1533 of this title which is not
discretionary with the Secretary.
16 U.S.C. § 1540(g)(1) (emphasis added). Congress has expressly determined the
type of suits that are authorized under the ESA, and plaintiffs’ claim for
declaratory judgment is not one of them.5
Because plaintiffs’ have not clearly pled a claim that arises under the
“Constitution, laws or treaties of the United States,” I find there is no federal
question jurisdiction here. See 28 U.S.C. § 1331; Rivet v. Regions Bank of
Louisiana, 522 U.S. 470, 475 (1998) (federal-question jurisdiction exists only
when a federal question is presented on the face of the plaintiff's properly pleaded
complaint). Accordingly, I will dismiss Count I of plaintiff’s complaint.
B.

Count II ‒ Injunctive Relief

In Count II, plaintiffs ask the Court to enjoin defendants from taking any
further action against them for violations of the ESA. Defendants argue that
because plaintiffs are not entitled to declaratory relief under Count I, they are
likewise not entitled to ancillary injunctive relief to enforce a declaration of nonliability.
5

Furthermore, even if this lawsuit was authorized under the ESA’s citizen suit provision,
plaintiffs failed to provide PETA and Angela Scott the requisite sixty-day notice period before
filing the suit. 16 U.S.C. §1540(g)(2)(i). “As a general rule, if an action is barred by the terms
of a statute, it must be dismissed.” Hallstrom v. Tillamook County, 493 U.S. 20, 32 (1989). The
language of the statute here is clear. In order to properly bring a claim for declaratory relief
under the Endangered Species Act, plaintiffs would have had to provide to defendants their own
sixty-day notice of intent to file suit.
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In Count II, as in Count I, plaintiffs assert the Court has the authority to
issue injunctive relief pursuant to the Declaratory Judgment Act and the citizen suit
provision of the ESA. The Declaratory Judgment Act, 28 U.S.C. § 2202, provides
that “[f]urther necessary or proper relief based on a declaratory judgment or
decree may be granted, after reasonable notice and hearing, against any adverse
party whose rights have been determined by such judgment.” (emphasis added).
Here, plaintiffs are not entitled to this ancillary relief. I have already considered
and determined that plaintiffs’ claim for declaratory relief under Count I is not
authorized under the statutory language of the ESA. Accordingly, I will dismiss
Count II for the same reason.
C. Count III ‒ Defamation
In Count III of their complaint, plaintiffs assert a claim for defamation under
Missouri law against defendant PETA. PETA argues Count III should be
dismissed as plaintiffs have failed to state a claim for relief pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes that the factual allegations in the complaint are true, and construes them in
favor of the plaintiff. Neitzke, 490 U.S. at 326-27.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a
complaint must contain, “a short plain statement of the claim showing that the
pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly, the Supreme Court
clarified that Rule 8(a)(2) requires complaints to contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” 550
U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 566 U.S. 662, 678-79 (2009).
Specifically, to survive a motion to dismiss, a complaint must contain enough
factual allegations, accepted as true, to state a claim for relief that is “plausible on
its face.” Twombly, 550 U.S. at 570. The issue in considering such a motion is not
whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of the claim. Neitzke, 490 U.S. at 327.
Under Missouri law, a plaintiff must show six elements in order to make a
sufficient claim for defamation. These elements are 1) publication, 2) of a
defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is
published with the requisite degree of fault, and 6) damages the plaintiff’s
reputation. Overcast v. Billings Mutual Insur. Co., 11 S.W.3d 62, 70 (Mo. 2000)
(en banc).
PETA claims plaintiffs fail to specifically identify any alleged defamatory
statements. Under Missouri law, a plaintiff must set forth specifically in the
complaint the words or statements which are alleged to be defamatory. See King
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v. Union Station Holdings, LLC, No. 4:12CV696SNLJ, 2012 WL 5351598, at *3
(E.D. Mo. Oct. 30, 2012); 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. Pattonville-Bridgeton Terrace Fire
Protection Dist., 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.”).
In the complaint, plaintiffs indicate three PETA press releases constitute the
alleged defamatory statements made against them. However, plaintiffs fail to
explicitly set forth the words or statements in these releases alleged to be
defamatory. Instead, plaintiffs refer in a general way to the three attached exhibits,
claiming the statements are “obvious.” This is an insufficient means to identify
alleged defamatory statements. More specificity is required in order to properly
plead a claim for defamation.
PETA further contends Count III fails to establish any facts showing damage
to plaintiffs’ reputation. Proof of actual harm to the plaintiff’s reputation is an
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absolute prerequisite in a defamation action. Cockram v. Genesco, Inc., 680 F.3d.
1046, 1053-54 (8th Cir. 2012). “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.” Id. at 1054 (quoting Arthaud v. Mutual of
Omaha Ins. Co., 170 F.3d. 860, 862 (8th Cir. 1999)).
In their complaint, plaintiffs state that the statements and press releases
“have damaged Plaintiffs’ reputation” and “…Plaintiffs have been subject to
ridicule, attorney’s fees and costs, and other damages to be proven at trial.”
However, plaintiffs provide no concrete examples as to how their reputation has
been damaged. I find conclusory statements such as these, lacking any factual
support, insufficient. Moreover, in response to PETA’s contention that Count III
fails to allege the necessary prerequisite of reputational harm, plaintiffs offer no
counterargument and merely reassert the same formulaic recitation set forth in their
complaint. Accordingly, I find Count III fails to state a cause of action upon which
relief can be granted and will dismiss plaintiffs’ defamation claim against PETA.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss [11] is
GRANTED as to Counts I, II and III of plaintiffs’ complaint.

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Defendants’ counterclaim remains pending before the Court. I will rule on
plaintiffs’ motion to dismiss defendants’ counterclaim in a later order.

__________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 21st day of September, 2017.

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