IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
SHIPYARD BREWING COMPANY,
LLC,
Plaintiff,
v.
LOGBOAT BREWING COMPANY,
LLC, et al.,
Defendants.

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No. 2:17-cv-04079-NKL

ORDER
Defendant Logboat Brewing Company moves to dismiss Count V of the Amended
Complaint for failure to state a claim. Doc. 39. Plaintiff Shipyard Brewing Company, LLC
opposes the motion, but asks in the alternative for leave to amend. For the reasons discussed
below, Logboat’s motion to dismiss Count V is granted in part, and Shipyard is granted seven
days from the date of this Order in which to file an amended Count V.
I.

Background
Shipyard alleges that it is a craft brewery with registered trademarks that it uses in

connection with its goods and services, most notably, its varieties of beer. Count V is a claim for
defamation against Logboat. Shipyard alleges in the “Facts” section of the Amended Complaint:
33.
Shortly [after filing this lawsuit on May 15, 2017],
one star reviews begin appearing on Shipyard’s Facebook page
from Facebook members living in or near Columbia, Missouri.
Most of the comments referenced the lawsuit. All of the
comments directed negative sentiments towards Shipyard. One
of the commenters appears to be a relative of Logboat cofounder Judson Ball.
34.
Presently, 193 comments appear on Shipyard’s
Facebook page. Of those, 189 comments are of the nature
described above.

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 35.
Upon information and belief, Logboat, through
its principals or its agents acting at the encouragement of and
for the benefit of its principals, made defamatory statements
concerning Shipyard to members of the general public as
retribution for Shipyard filing suit.
36.
The hundreds of one star reviews on Shipyard’s
Facebook page, as well as negative articles in the press, are a result
of Logboat’s actions.
37.
Such defamatory statements include, but are not
limited to, suggestions that Shipyard is pursuing this lawsuit for
ulterior motives, unsubstantiated claims that Shipyard is a
trademark bully, and general insults concerning Shipyard’s
business and the quality of its beers.
Doc. 38, p. 9. Under “Count V—Defamation,” Shipyard alleges:
82.
Logboat, through its principals, or its agents acting
at the encouragement of and for the benefit of its principals, made
defamatory statements as described herein concerning Shipyard
to members of the general public as retribution for Shipyard filing
suit.
83.

Logboat was at fault for making such statements.

84.
Such statements tended to expose Shipyard to
hatred, contempt, or ridicule, or to deprive Shipyard the benefit
of public confidence, as evidenced in the hundreds of one star
reviews on Shipyard’s Facebook page.
85.
Logboat’s statements were heard by members of
the general public in and around Logboat’s location in Columbia,
Missouri.
86.
Shipyard’s reputation was damaged by Logboat’s
defamatory statements.
Id., pp. 15-16.
II.

Discussion
Logboat argues that Count V should be dismissed for three reasons: Shipyard does not

plead sufficient facts, Shipyard fails to allege the falsity of any alleged defamatory statement,
and to the extent any statement is alleged, such statement is an opinion and therefore not
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 actionable. Doc. 40, p. 2.
For purposes of deciding a motion to dismiss for failure to state a claim, a court accepts
the factual allegations contained in the complaint as true, and liberally construes the allegations
in favor of the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). To
survive a motion to dismiss, the complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is plausible if its “factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556
U.S. at 678).
In analyzing a claim for defamation, Missouri courts ask first whether the statement is
defamatory at all and if so, whether a privilege, such as the one applicable to statements of
opinion, shelters the maker from legal action. See Kennedy v. Microsurgery & Brain Research
Inst., 18 S.W.3d 39, 44 (Mo. App. 2000) (citing Pape v. Reither, 918 S.W.2d 376, 380 (Mo.
App. 1996), and Diez v. Pearson, 834 S.W.2d 250, 252 (Mo. App. 1992)). The elements of a
claim of defamation are: (1) the 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) that
damages the plaintiff’s reputation. Smith v. Humane Society of U.S., 519 S.W.3d 789, 798 (Mo.
2017) (en banc) (citing Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 598-99 (Mo. 2013)
(en banc)).
A.

Sufficiency of the facts pleaded

With respect to sufficiency of the facts pleaded, Logboat argues that while Count V
alleges “Logboat … made defamatory statements as described herein concerning Shipyard to
members of the general public as retribution for filing suit[,]” the Amended Complaint does not
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 describe what defamatory statements Logboat made. Doc. 40, p. 3 (quoting Doc. 38, ¶ 82).
However, in the “Facts” section of the Amended Complaint, Shipyard alleges that Logboat made
defamatory statements through its principals or its agents to members of the general public, Doc.
38, ¶ 35, and two paragraphs later, alleges that “[s]uch defamatory statements include, but are
not limited to, suggestions that Shipyard is pursuing this lawsuit for ulterior motives,
unsubstantiated claims that Shipyard is a trademark bully, and general insults concerning
Shipyard’s business and the quality of its beers[,]” id., ¶ 37. Shipyard has therefore sufficiently
identified the allegedly defamatory statements that Logboat made.
B.

Allegations of falsity

Logboat next argues that Shipyard does not plead the falsity of any statement that
Logboat made. Doc. 40, p. 3. Shipyard responds that it did so when it alleged that “[s]uch
defamatory statements include, but are not limited to, suggestions that Shipyard is pursuing this
lawsuit for ulterior motives, unsubstantiated claims that Shipyard is a trademark bully, and
general insults concerning Shipyard’s business and the quality of its beers.” Doc. 44, p. 5
(emphasis in original). Shipyard continues, “The word ‘unsubstantiated’ is defined as ‘not
proven to be true….
false.”

In other words, Logboat’s claims that Shipyard is a trademark bully are

Id., pp. 5-6 (citing www.meriam-webster.com/dictionary/unsubstantiated).

Logboat

replies that the definition quoted by Shipyard—“not proven to be true”—“does not include or
reference the word false or falsity in general[,]” and that Shipyard has therefore failed to plead
falsity with respect to its defamation claim. Doc. 46, p. 3. But Logboat has construed the
allegations in its favor, when they must be construed in Shipyard’s favor for purposes of the
motion to dismiss. See Eckert, 514 F.3d at 806. A reasonable inference may be drawn that in
alleging Logboat made an “unsubstantiated” claim, Shipyard has alleged that Logboat made a
false claim. Therefore, Logboat’s argument concerning the insufficiency of the pleading of
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 falsity fails with respect to this statement.
Shipyard did not specifically respond to Logboat’s argument concerning the sufficiency
of pleading of falsity of the other two statements, concerning “ulterior motives” and “general
insults.”

But Shipyard elsewhere in its response argues that Logboat’s statements imply

assertions of objective facts, or undisclosed defamatory facts, and are therefore actionable.
Those arguments will be discussed below.
C.

Statements of opinion

Finally, Logboat argues that Shipyard has failed to allege an actionable statement under
Missouri’s defamation law because any alleged statements merely qualify as opinions. Doc. 40,
pp. 3-4. Statements of opinion are privileged under the First Amendment's guarantee of freedom
of speech and cannot be the basis of a 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). 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, 519 S.W.3d at 799 (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).
Nonetheless, “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)). See
also Pape v. Reither, 918 S.W.2d 376, 380 (Mo. App. 1996) (explaining that the privilege for
pure opinion “does not apply when the statement of opinion necessarily implies the existence of
undisclosed defamatory acts”). But this exception does not swallow the rule. To qualify as
defamatory under Missouri law, opinion statements must be provable as false. Id. In drawing
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 the line between opinion and fact, Missouri courts ask 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 Clinch v. Heartland Health,
187 S.W.3d 10-17-18 (Mo. App. 2006) (“Whether a statement is fact or opinion is a question of
law, and we make this determination based on the totality of the circumstances surrounding a
given statement.”) (internal citation omitted)).
The three, allegedly defamatory statements attributed to Logboat are its “suggestions that
Shipyard is pursuing this lawsuit for ulterior motives,” “unsubstantiated claims that Shipyard is a
trademark bully,” and “general insults concerning Shipyard’s business and the quality of its
beers.” A reasonable fact finder could conclude that the first statement, “that Shipyard is
pursuing this lawsuit for ulterior motives,” implies an assertion of objective fact, based on the
totality of the circumstances.

An “ulterior motive” is simply “a secret reason.”

https://www.merriam-webster.com/dictionary/ulterior%20motive.

See

Whether Shipyard has a

reason for filing the lawsuit, that it has kept secret and beyond the reasons expressly stated in the
complaint, is capable of being proven. Under Missouri law, the alleged statement is more than
mere opinion.
The other two alleged statements, concerning “unsubstantiated claims that Shipyard is a
trademark bully,” and “general insults about Shipyard’s business and the quality of its beers,” are
opinions. As discussed above, the allegation that Logboat made an “unsubstantiated” claim is
sufficient to allege a falsity, but even so, calling Shipyard a trademark bully is merely an
expression of an opinion, and is a statement similar to ones that that Missouri courts have found
do not support a claim of defamation. In Smith, 519 S.W.3d at 800-01, for example, the
Missouri Supreme Court held that use of the phrase “puppy mill” in a report describing a kennel
was not actionable. The phrase was “ʽimprecisely used’ as ‘rhetorical hyperbole,’ and a ‘lusty
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 and imaginative expression of [ ] contempt[.]” Id. (citing Milkovich, 497 U.S. at 16–17, and
Nazeri v. Mo. Valley College, 860 S.W.2d 303, 314 (Mo. 1993) (en banc) (considering whether a
term is too “imprecise” to be actionable)). Although “puppy mill” carried a negative connotation,
a negative connotation alone does not make a statement actionable. Id. at 801. The Missouri
Supreme Court further held that statements about the “severity” of the business’s violations, and
that it was one of “worst licensed kennels in the state”, were subjective assessments that did not
state an actionable claim for defamation. Id. at 801-02. See also Pujols v. Pujols Family
Foundation, 2017 WL 4310436, * 5 (E.D. Mo. Sept. 28, 2017) (statement that “these two young
men have ruined many lives” was not an objective fact capable of being proven as false; what
constitutes “ruining a life” is subjective, and the opinion, while a pejorative one, was not
actionable in defamation as a matter of law) (citing Old Dominion Branch No. 496, Nat’l 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)).
Similar to the statements in Smith, the phrase “trademark bully” is an imprecise
description or subjective assessment of Shipyard’s conduct, and cannot be proven as an objective
fact. The phrase may carry a negative connotation, but that alone does not suffice to make it
defamatory. Likewise, general insults about Shipyard’s business and the quality of its beers are
merely subjective assessments. Such expressions of opinion are protected by absolute privilege
under the First Amendment.
Shipyard argues generally that statements do not qualify as pure opinion when they
contain assertions of objective facts that can be verified as true or false. Doc. 44, pp. 6-7 (citing
Castle Rock Remodeling, LLC v. Better Business Bureau, 354 S.W.3d 234, 241 (Mo. App. 2011),
and Pape v. Reither, 918 S.W.2d 376, 382 (Mo. App. 1996) (explaining that an objective fact is
one that can be verified as true or false)). But Shipyard does not suggest how the “trademark
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 bully” and “general insults” statements could be verified as true or false. See Doc. 44, pp. 6-7.
Shipyard also argues that the allegedly defamatory statements imply the existence of
undisclosed defamatory facts, and are therefore actionable. Doc. 44, p. 8 (citing Pape, 918
S.W.2d at 380; and Restatement (Second) of Torts § 566, cmt. b (1977)). It states that its
defamation claim arises out of the marked increase in negative comments that the public posted
on Facebook after the lawsuit was filed, and which Logboat’s principals or agents encouraged by
making defamatory statements to the members of the public. Shipyard argues that it “should be
allowed to pursue the undisclosed defamatory acts that give rise to the negative comments
through discovery.” Id. The argument is not persuasive. Nothing that Shipyard alleges in
connection with the “trademark bully” and “general insults” statements implies the existence of
undisclosed defamatory facts. As discussed above, Shipyard has alleged statements of opinion.
Shipyard does not even suggest what the undisclosed defamatory facts might be.
Finally, Shipyard argues that the “trademark bully” statement is defamatory per se
because it falsely imputes conduct to Shipyard that is incompatible with its business and
therefore actionable. Doc. 44, p. 7 (citing Pape, 918 S.W.2d at 380). Shipyard says that it is
required by law to protect its trademarks or risk losing them, and that it is good business practice
to do so because the maintenance of strong marks is important to its brand. Id., pp. 7-8.
Whether the statement is defamatory per se does not change the outcome, however. In the case
that Shipyard cites, Pape, a construction project owner wrote a letter to the construction firm and
others, attempting to enforce settlement of a dispute that had arisen over the project. In the letter,
the project owner stated, “It is my position that you participated in fraudulent and or [sic] illegal
acts.” 918 S.W.2d at 380. Mr. Pape, an employee of the construction firm who had worked on
the project, sued the project owner for defamation. The Court of Appeals held that the statement
clearly identified Mr. Pape and that the subject of the statement was not vague or imprecise.
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 “Furthermore,” the court explained, “statements which falsely impute conduct incompatible with
one's business, trade or profession are defamatory per se.” Id. (citation omitted). The court held
that “[i]t is clear that the allegation of ‘fraudulent and or illegal acts’ pertains to a professional
context. Fraudulent or illegal conduct committed in one's professional endeavors is, of course,
incompatible with those endeavors, so that this statement is defamatory per se (assuming, as we
must, that appellant can demonstrate its falsity).” Id. The court “next inquire[d] whether some
privilege applies to this statement which prevents it from being actionable[,]” such as
“[s]tatements of opinion [which] are protected by an absolute privilege…rooted in the First
Amendment[.]” Id. The court held that the statement was a protected opinion, inasmuch as it
was qualified by the phrase, “It is my position[.]” Id. “[I]t is impossible to interpret this
statement as positing a verifiable proposition, and verifiability is the crux of the fact/opinion
distinction in defamation law.” Thus here, even if the “trademark bully” statement is defamatory
per se, it does not establish an actionable claim of defamation.

As discussed above, the

statement is an expression of opinion and therefore protected by absolute privilege under the
First Amendment.
To summarize, the Court has held that Shipyard has stated a claim with respect to
Logboat’s alleged statement that Shipyard is pursuing this lawsuit for ulterior motives, but has
failed to state a claim with respect to the alleged statements concerning unsubstantiated claims
that Shipyard is a trademark bully, and general insults concerning Shipyard’s business and the
quality of its beers.
D.

Request for leave to amend

Finally, Shipyard has asked for leave to amend if the Court dismisses Count V of the
Amended Complaint. Doc. 44, p. 9. Shipyard points out that leave to amend should be freely
granted. Id. (citing Fed. R. Civ. P. 15(a)(2), and Tyler v. Armontrout, 917 F.2d 1138, 1143 (8th
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 Cir. 1990)). It further argues that none of the “limited circumstances” justifying denial of leave
exist, such as undue delay, bad faith on the part of the movant, futility of amendment, or unfair
prejudice to the nonmovant. Id. (citing Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th
Cir. 2001)). Logboat opposes amendment, on the basis that the deadline to amend the pleadings,
which has already been extended once, passed two months ago on October 21, 2017, Doc. 37,
and that the deadline for completion of discovery is February 3, 2018, Doc. 43. Because the
Court has dismissed at least part of Count V, and leave to amend should be freely granted, the
Court will permit Shipyard to file an amended Count V within seven days of the date of this
Order, and as consistent with this Order. Although the discovery deadline is February 3, 2018, a
defamation claim has already been part of this lawsuit since at least October 17, 2017, so
Logboat should not be unfairly prejudiced by amendment of Count V. If Logboat requires
additional time to complete discovery with respect to amendments to the claim, it may make an
appropriate motion.
III.

Conclusion
Defendant Logboat Brewing Company, LLC’s motion to dismiss Count V, Doc. 39, is

granted in part, consistent with this Order. Plaintiff Shipyard Brewing Company, LLC shall
have seven days from the date of this Order in which to file an amended Count V, consistent
with this Order.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 29, 2017
Jefferson City, Missouri

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