Tanner v. Presidents-First Lady Spa, Inc.

• Decision Date: 15 June 1972
• Docket Number: No. 71 C 203(3).,71 C 203(3).
• Parties: Donald TANNER, Plaintiff, v. PRESIDENTS-FIRST LADY SPA, INC., a Corporation and Richard L. Minns, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

345 F. Supp. 950

Donald TANNER, Plaintiff, v. PRESIDENTS-FIRST LADY SPA, INC., a Corporation and Richard L. Minns, Defendants.

No. 71 C 203(3).

United States District Court, E. D. Missouri, E. D.

June 15, 1972.

COPYRIGHT MATERIAL OMITTED

Rosecan & Popkin, St. Louis, Mo., for plaintiff.

Jim J. Shoemake, Guilfoil, Symington & Petzall, St. Louis, Mo., for defendants.

MEMORANDUM AND ORDER

WEBSTER, District Judge.

This matter is before the court on motion of defendant Presidents-First Lady Spa, Inc. to dismiss the cause of action as barred by applicable Missouri statutes of limitations. Plaintiff instituted this action to recover damages for libel and slander. Jurisdiction of the court is based upon 28 U.S.C. § 1332, diversity of citizenship with amount in controversy exceeding $10,000.

The complaint states a claim in defamation. The applicable Missouri Statute of Limitations is two years from publication. Section 516.140 R.S.Mo. (1969), V.A.M.S.

The complaint alleges the facts which follow and which must be taken as true for purposes of the motion to dismiss. Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Boddie v. Connecticut, 401 U.S. 371, 373, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

Plaintiff, a California citizen, is an investor and has been a participant in the organization and operation of golf and various other types of membership clubs. Defendant Presidents-First Lady Spa, Inc., a Delaware corporation with its principal place of business in Houston, Texas is alleged to be the "successor in interest" to Presidents Health Club Spa of Clayton, Inc., and is alleged to maintain and operate health clubs through subsidiary corporations in the St. Louis area. Richard L. Minns is a citizen of the State of Texas. It is alleged that Presidents-First Lady Spa, Inc. and Minns have been engaged in the health club business since 1958.

The complaint alleges that in February, 1968 one George Shore, after surveying the St. Louis health club market, agreed with plaintiff and one Henry Kyle to open a health club in St. Louis County. Shore, Kyle and plaintiff agreed that each would have an equal interest in the health club which they planned to form. Shore selected property and a building owned by the Charles F. Vatterott Real Estate Company in St. Ann, Missouri as the location for the club. Shore, acting for himself, Kyle and plaintiff, agreed with the Vatterott Company for the lease of the property and building. During the preparation of a formal written lease, the Vatterott Company made the building available to plaintiff and his associates so that they could begin selling memberships to the proposed health club. In the complaint plaintiff alleges that he took various steps at this time anticipating the commencement of business, such as preparing the building, hiring employees, running advertisements, printing up brochures and selling memberships.

It is alleged that defendants, upon learning that plaintiff and his associates were entering the St. Louis health club market, "undertook a campaign of villification of plaintiff and his associates, the purpose and effect of which was to exclude plaintiff and his associates from being able to enter the St. Louis health club market. . . ." Defendants are said to have contacted the Vatterott Real Estate Company, "and villified plaintiff and his associates' reputations as to honesty and reliability and falsely maligned and slandered plaintiff and his associates to the said Vatterott Real Estate Company." It is charged that defendants "invented rumors" that "plaintiff and his associates were dishonest, untrustworthy and would cheat health club members out of their money", and that this induced Vatterott Company not to lease the property to plaintiff and his associates. Plaintiff charges that on or about March 8, 1968 Vatterott Company refused to sign the formal lease of the property to plaintiff, Shore and Kyle as a direct result of defendants' conduct.

Plaintiff alleges that defendants "maligned, slandered and villified plaintiff and his associates to the advertising managers of the St. Louis Post Dispatch and the St. Louis Globe-Democrat", and that as a consequence, these two newspapers refused to accept advertising for the proposed health club. Plaintiff also charges that defendants "falsely maligned and slandered plaintiff" to representatives of the Better Business Bureau. Plaintiff seeks damages for the alleged injury to his "business, reputation and property" suffered from March, 1968, the time of the alleged libel and slander, to the time of the filing of the complaint.

Plaintiff commenced this action on April 2, 1971, more than three years after March, 1968. Section 516.140 R.S. Mo. (1969) in pertinent part provides:

"Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of. . . ."

Plaintiff recognizes that under Missouri law that an action for libel or slander must be commenced within two years of the defamatory publication, but states that from May 12, 1969 until April 2, 1971, the day upon which he commenced the instant suit, an action instituted by him against the defendants herein was pending in this court, causing the statute of limitations to be tolled. It is defendant's contention that the statute of limitations was not tolled by Section 516.230 R.S.Mo. (1969)¹, V. A.M.S., and Fed.R.Civ.P. 3² while plaintiff's prior suit, Cause No. 69 C 148(1), was pending in this court. Defendant presents two arguments in support of this position: 1) plaintiff's prior suit, Cause No. 69 C 148(1), was not an action for libel and slander and thus did not fall within the savings provisions of § 516.230, and 2) plaintiff failed to take any steps to obtain personal jurisdiction over Presidents-First Lady Spa, Inc. and Richard L. Minns in Cause No. 69 C 148(1) and as a consequence the statute of limitations continued to run even after the complaint in that action was filed.

As noted by defendant, the defense of limitations may be raised by motion to dismiss where the complaint shows on its face that the action has not been instituted within the limitations period and it is apparent that there is no genuine factual controversy surrounding the question of the availability of the defense. Rohner v. Union Pacific Railroad Company, 225 F.2d 272, 274 (10th Cir. 1955); Hyatt Chalet Motels, Inc. v. Carpenters Local 1065, 430 F.2d 1119, 1120 (9th Cir. 1970); Rose Barge Line, Inc. v. Hicks, 421 F.2d 163 (8th Cir. 1970); Schaefer v. United States, 288 F.Supp. 93 (E.D.Mo.1968); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1277, at 332 (1969). As noted by plaintiff, for purposes of a motion to dismiss, the court may take judicial notice of its own records of proceedings. See Kithcart v. Metropolitan Life Ins. Co., 62 F.Supp. 93, 94 (W.D. Mo.1944), aff'd 150 F.2d 997 (8th Cir.), cert. denied 326 U.S. 777, 66 S.Ct. 267, 90 L.Ed. 470 (1945). Since matters outside the pleadings have been presented and not excluded by the court, defendant's motion to dismiss must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b). The parties have been given notice that the motion would be treated as one for summary judgment and have been given a reasonable opportunity to present all material made pertinent to a motion for summary judgment by Fed.R.Civ.P. 56.

The first prong of defendant's argument —the contention that this suit is not a "new action" filed "within one year after a prior nonsuit"—must be ruled against defendant.

The court's records show that on May 12, 1969 plaintiff filed a complaint seeking damages from Presidents-First Lady Spa, Inc., Cause No. 69 C 148(1). The complaint contained two counts. Count I charged Presidents-First Lady Spa, Inc. with several violations of certain provisions of the Sherman Anti-Trust Act, specifically, 15 U.S.C. §§ 1, 2. Count II charged Presidents-First Lady Spa, Inc. with tortious interference with plaintiff's business relationships with Charles Vatterott Real Estate Company, the St. Louis Globe-Democrat and the St. Louis Post Dispatch. On September 5, 1969, within two years of the defamatory publications alleged in the instant case, plaintiff filed an amended complaint, which added Richard L. Minns and President's Health Club Spa of Clayton, Inc. as parties defendant. The amended complaint was also in two counts. Count I charged defendants Presidents-First Lady Spa, Inc., President's Health Club Spa of Clayton, Inc. and Richard L. Minns with violations of 15 U.S.C. §§ 1, 2 and Count II charged the three defendants with tortious interference with plaintiff's business relationships. On April 2, 1971 with leave of court, plaintiff dismissed Cause No. 69 C 148(1) without prejudice. This was the same date on which he commenced the present suit.

Defendant here argues that plaintiff's first action, in claiming violation of the Sherman Act and tortious interference with business relationships, was different from the cause of action for libel and slander pleaded in the instant suit. Defendant contends that § 516.230 does not apply to permit plaintiff to commence this action within one year of suffering a nonsuit in Cause No. 69 C 148(1).

Voluntary dismissal of an action is a "nonsuit" within the meaning of § 516.230. Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 459 (Mo.1940). In determining for purposes of § 516.230 whether the cause of action pleaded in a second suit is the same as that alleged in the first, the same tests are applied as are used in determining whether a pleading is an amendment or a departure. Halloran v. Hackmann, 160 S.W.2d 769, 771 (Mo. 1942); Thomas v. Sterling Finance...