Quartana v. Utterback
| Decision Date | 25 February 1985 |
| Docket Number | No. 85-286C(B).,85-286C(B). |
| Citation | 609 F. Supp. 72 |
| Parties | Barbara QUARTANA, Plaintiff, v. John D. UTTERBACK, d/b/a All Star Dairy Association, Inc., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Terry Bond, Kaveny, Beach, Russell, Bond & Mittleman, Clayton, Mo., for plaintiff.
Richard Scherrer, Wilbur Tomlinson, Armstrong, Teasdale, Kramer & Vaughn, St. Louis, Mo., for defendant.
In this action seeking actual and punitive damages for allegedly libelous statements in a letter addressed to plaintiff's employer, defendant has moved under Rule 12(b)(6) to dismiss the complaint for failure to state a claim for relief.
A 12(b)(6) motion raises only an issue of law. Hence, in testing the sufficiency of the statement of plaintiff's claim for relief, we accept as true for purposes of the motion the facts alleged in the complaint.
Plaintiff alleges that at all relevant times she was employed by Sealright Co., Inc. as a sales representative and that defendant was a customer of Sealright purchasing large quantities of its packaging products on behalf of members of the All Star Dairy Association, Inc. As a high volume purchaser, doing some $2,000,000 business a year with Sealright, defendant was charged a lower price than that charged other (smaller) quantity customers.
With this background, plaintiff approached defendant and sought and obtained his permission to an arrangement whereby purchases by plaintiff's customer, Mama Tish's Enterprises, would be (and were) billed through All Star at the lower, quantity, price. As the result, All Star, as the nominal purchaser, became liable to Sealright for the Mama Tish's purchases invoiced to it.
There is no allegation that Sealright was aware of this arrangement whereby, at plaintiff's instance, Mama Tish's was using All Star's name and credit to obtain a lower price from Sealright than if the merchandise had been sold directly to it. The clear inference from the pleaded facts is to the contrary.
After All Star encountered problems in collecting from Mama Tish's, defendant wrote a letter to the credit manager of Sealright seeking his aid in obtaining payment. It is in this letter, attached as an exhibit to the complaint, that the allegedly libelous statements were contained. As alleged in the complaint, the letter "generally reported the substance of Plaintiff's contacts with (defendant) in regard to Mama Tish's and the transactions which followed and further stated that Defendant All Star Dairy Associations, Inc. was encountering difficulties in collecting sums owed by Mama Tish's on said transaction and that (defendant) was not going to let the Association lose money on an account that came about through your own sales person and her promises."
The following are the only allegedly false and libelous statements in the letter which are pleaded in the complaint.
1
Libel is defined in the Missouri cases as "the malicious defamation of a person made public by any printing or writing ... tending to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse." Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 53 (1955). And as held in Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 11 (1911), "There must be defamation in a libelous sense before there can be a libel." To the same effect is Brown v. Kitterman, 443 S.W.2d 146, 149 (Mo.1969). What this means is that "the writing must itself amount to a defamation, and that if (and only if) it is, then if it exposes one to hatred or contempt, etc., it is libelous." Coots, supra.
Although, as held in Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777 (Mo. banc 1976), it is desirable to attach the whole publication as an exhibit (as plaintiff did in this case) so that the Court may ascertain whether in the context they were used the words alleged to be libelous per se are in fact defamatory as a matter of law, nevertheless, in ruling the motion to dismiss, we must determine whether the particular words or statements are libelous.
As alleged, plaintiff's claim is simply that two statements in the letter which defendant attributed to her were not in fact made by her. These statements were (1) that Mama Tish's had a $5,000 credit line with Sealright, so that its credit is OK, and (2) that plaintiff would personally see that Mama Tish's paid the bills it incurred for the purchases.
Hence, the...
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