Brown v. Great Circle

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

MARIA PYUL BROWN, ET AL.,

Plaintiffs,

v. Case No. 2:19-cv-04135-NKL

GREAT CIRCLE, ET AL.,

Defendants.

ORDER

Defendant Joshua Turner moves to dismiss Plaintiffs’ Second Amended Complaint for

failure to state a claim pursuant to Rule 12(b)(6). Doc. 59. Plaintiffs’ complaint alleges eight

counts, including five counts against Turner for Conspiracy, Tortious Interference with Parental

Relationship, Negligent Infliction of Emotional Distress, Defamation, and Malicious Prosecution.

Doc. 50. Plaintiffs’ claims arise out of an alleged conspiracy between the Defendants to interfere

with the parental relationship between Maria Brown and her son, P.A.T., a minor. For the reasons

set forth below, the motion to dismiss is GRANTED.

I. Alleged Facts

Plaintiffs state that Plaintiff Maria Brown and Defendant Joshua Turner are the parents of

Plaintiff P.A.T., a ten-year-old child. Doc. 50, at ¶ 1, 17. Plaintiffs and Turner have litigated the

custody of their child in state court, and have been subject to multiple investigations by the

Children’s Division of the Missouri Department of Social Services. Id., at ¶ 1. Plaintiffs allege that

Turner repeatedly and consistently interfered with Plaintiffs’ parent-child relationship, that he has

influenced the investigations by the Children’s Division, and that Plaintiffs have been investigated

or subject to the services of the Children’s Division as a result of Turner’s “incorrect, false, and/or

malicious complaints.” Id., at ¶¶ 28.i. (interference with parent-child relationship), 7 (interference

with investigations), 2 (undue investigations or services). Plaintiffs specifically allege that Turner

has made false allegations in Court documents against Brown, has manufactured evidence, and

has conspired with others against Plaintiffs. Id., at ¶¶ 28.d., 44.i., 60.

Plaintiffs assert that Turner worked in coordination with Detmer with the goal to “cover up

Defendant Turner’s nefarious conduct, destroy his son’s mother . . . and thereby save money on

litigation and child support.” Id., at ¶ 51. The complaint asserted that “[a]ny and/or all of the

Turner-Detmer family have . . . knowingly and/or unknowingly acted with reckless regard for

Plaintiffs’ rights, making false reports, manipulating the legal system (both judicial and

administrative process, and related entities), and inter alia acting with malice toward Plaintiff

Brown.” Id., at ¶ 26.

Specifically, the pleadings allege that Turner and Detmer “instituted one or more legal

proceeding(s) against Plaintiff in which complaints were made, by Defendant without probable

cause and with malice.” Id., at ¶ 84; that Turner has used Defendant Detmer’s “past and current

connections to influence the Children’s Division’s investigation,” Id., at ¶ 28.h; that Turner and

Detmer “directly interfered with Court ordered custody and Plaintiffs’ Constitutional Rights to a

parent-child relationship,” Id., at 44.e.; that “Turner and/or Detmer made one or more false hotline

reports,” Id., at ¶ 44.k.; “and that “Defendants Turner and/or Detmer worked in coordination with

and/or leveraged, threatened, and intimidated Defendant Gatewood into conducting the

investigation and making findings consistent with what Defendants Turner and Detmer wanted in

the results.” Id., at ¶ 38.f.; see also id., at ¶¶ 60.b., d., 66. As evidence of their allegations, Plaintiffs

additionally assert that hundreds of text messages exist which illustrate that Detmer coached

Defendant Turner how to address the Children’s Division investigation. Id., at ¶¶ 37, 38.a.

Plaintiffs additionally assert that Turner used Johnston Paint’s business resources “to

influence or otherwise alter investigations and/or reports concerning abuse of Plaintiff P.A.T. to

ward custody of the child.” Id., at ¶¶ 7, 38.g. (alleging use of business resources including phones

to discuss Social Services investigation), 44 (alleging use of time, money, and resources). The

complaint added to Turner’s involvement with Johnston Paint, stating that “Defendant Johnston

Paint in coordination, and/or by and through Defendants Turner and Detmer used their professional

capacity and connections to create a conflict of interest by obtaining personal services of law

enforcement whom willing colluded with Defendant Johnston Paint to circumvent the custody

court order for their employee, Defendant Joshua Turner.” Id., at ¶ 46.

II. Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

“must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible

on its face.’” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). A claim has facial plausibility when its allegations rise above the

“speculative” or “conceivable,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007), and

where “the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Such a complaint

will be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp.,

514 F.3d 801, 806 (8th Cir. 2008). However, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

III. Discussion

A. Count I – Conspiracy

Defendant Turner argues that Plaintiffs have only stated legal conclusions and have

therefore not sufficiently pleaded the elements required to prove a claim of conspiracy. In order to

state a claim for civil conspiracy under Missouri law a plaintiff must plead that there were “(1)

two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or

course of action, (4) one or more unlawful overt acts, and (5) resulting damages.” Aguilar v. PNC

Bank, N.A., 853 F.3d 390, 402–03 (8th Cir. 2017) (citing Mackey v. Mackey, 914 S.W.2d 48, 50

(Mo. Ct. App. 1996)).

Plaintiffs’ pleadings assert that there were multiple individuals working towards the joint

goal of interfering with Social Services investigations to affect the custody determinations which

resulted in the claimed harm to Brown’s parental relationship with her child. What is not alleged

in the pleadings other than through conclusory legal statements, however, is what specific actions

Turner actually took and whether any of those actions were done in furtherance of a conspiracy.

To show that a meeting of the minds occurred, Plaintiffs must show that the alleged conspirators

had “a unity of purpose or a common design and understanding.” Rosemann v. St. Louis Bank, 858

F.3d 488, 500 (8th Cir. 2017) (citation omitted). Though Plaintiffs allege that Turner may have

colluded with the Defendants for a common goal, Plaintiffs did not specifically plead that there

was coordination between the Defendants, nor are there facts that would show there was

coordination between these parties.

Even if Plaintiffs were to succeed in establishing that there was a meeting of the minds,

Plaintiffs have not asserted facts which could support a finding that the underlying alleged actions

taken by Turner were unlawful. Plaintiffs complaint offered only conclusory statements as to the

unlawfulness of the actions allegedly committed by Turner as part of the conspiracy. These

claimed actions include Turner’s being coached by Detmer on how to handle the Children’s

Division investigation, use of Detmer’s contacts to affect the investigation, and use of Johnston

Paint resources to affect the investigation. But conclusory statements that these actions were

unlawful or resulted in interference with Plaintiffs’ parent-child relationship are insufficient to

successfully plead that an unlawful act occurred. Without specific facts stating what actions were

taken and why these acts are unlawful, Plaintiffs have not alleged that Turner or the other

Defendants took any action that was forbidden to them. To the extent that Plaintiffs do allege

actions that could be presumed to be unlawful, such as where Plaintiffs allege that Turner made

false statements in court documents and that Turner manufactured evidence, these conclusory

assertions still fail to plead a claim against Turner. Plaintiffs have not identified what the alleged

false statements where or what they were regarding, nor have they asserted any details about what

the alleged manufactured evidence was. A pleading is insufficient if it provides only “naked

assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted) (internal quotation marks omitted). Without any factual support, Plaintiffs have

not pleaded a plausible claim of conspiracy on these allegations. Accordingly, this claim must also

be dismissed.

Plaintiffs also separately allege that “Defendant Johnston Paint in coordination, and/or by

and through Defendants Turner and Detmer used their professional capacity and connections to

create a conflict of interest by obtaining personal services of law enforcement whom willing

colluded with Defendant Johnston Paint to circumvent the custody court order for [Defendant

Turner].” Doc. 50, at ¶ 46. Here as above, Plaintiffs have not provided specific facts that show that

the Defendants were aware of each other’s actions and acted in coordination. Plaintiffs’ pleadings

do not state how the alleged creation of a “conflict of interest” rises to the level of being an

unlawful act, nor do they state what this conflict was and how it relates to this case. The allegations

of collusion with law enforcement would relate to a potential separate conspiracy between

Johnston Paint and those providing the law enforcement services, a claim that Plaintiffs have not

argued and which is separate from the claims against Turner. The pleadings’ conclusory statement

that Johnston Paint may have colluded with law enforcement to “circumvent the custody court

order” does not state what activity was taken, how this action circumvented the court order,

whether that activity was unlawful in any way, and whether Turner was aware of this alleged

collusion.

Having not pleaded the facts necessary to plead that Detmer was aware of the conspiracy

to interfere with Plaintiffs’ parental relationship, Plaintiff cannot prove a claim of conspiracy. This

claim must therefore be dismissed.

B. Count II – Tortious Interference with Parental Relationship

Defendant Turner argues that a claim of tortious interference with parental relationship

fails in a case such as this where the claimed interference was not accomplished by the abduction

of the child.

Plaintiffs rely on Kramer v. Leineweber, 642 S.W.2d 364 (Mo. App. S.D. 1982) to assert

this claim against Turner for his alleged involvement in a conspiracy that resulted in interference

of the parental relationship between Brown and her child.1 But in Meikle v. Van Biber, the court

expressly limited Kramer, and held that “Missouri case law has only allowed recovery in damages

for interference with a parent’s right to custody of a minor child where it was alleged and proved

1. Plaintiffs cite as additional support Restatement (Second) of Torts § 700. Reliance

on this is also inapt as § 700 defines a cause of action for “[o]ne who, with knowledge that the

parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent

legally entitled to its custody or not to return to the parent after it has been left him, is subject to

liability to the parent.” Restatement (Second) of Torts § 700. As above, Plaintiffs have not pleaded

such a claim.

that the tort committed was accomplished by abduction of the child.” Meikle v. Van Biber, 745

S.W.2d 714, 715 (Mo. App. W.D. 1987). Plaintiffs supported their claim using only case law

consistent with this limitation. See Kramer v. Leineweber, 642 S.W.2d 364 (Mo. App. S.D. 1982)

(involving abduction of a child); Kipper v. Vokolek, 546 S.W.2d 521 (Mo. App. 1977) (applying

the cause of action only where a child has been abducted or induced not to return to the custodial

parent); Rosefield v. Rosefield, 221 Cal. App.2d 431 (Cal. App. 1963) (involving abduction);

Brown v. Brown, 61 N.W.2d 656 (Mich. 1953) (same).

As above, Plaintiffs have not specifically pleaded facts to support that Turner interfered

with Plaintiffs’ parental relationship either directly or through a conspiracy. But even if such

interference were established, Plaintiffs have asserted that Brown has been limited in her parental

relationship due to an allegedly inappropriate custody order, not through the abduction or physical

removal of the child. Having not alleged specifics facts necessary to plead a plausible claim of

tortious interference with parental relationship, this claim must be dismissed.

C. Count III – Negligent Infliction of Emotional Distress

Defendant Turner argues that Plaintiffs have not sufficiently pleaded the elements required

to prove a claim of negligent infliction of emotional distress. Under Missouri law, to state a claim

for intentional infliction of emotional distress a plaintiff must plead (1) a legal duty of the

defendant to protect the plaintiff from injury, (2) a breach of that duty, (3) proximate cause, (4)

injury to plaintiff, (5) that the defendant “should have realized that his conduct involved an

unreasonable risk of causing distress,” and (6) that “the emotional distress or mental injury must

be medically diagnosable and must be of sufficient severity so as to be medically significant.”

Couzens v. Donohue, 854 F.3d 508, 518 (8th Cir. 2017) (quoting Thornburg v. Fed. Express Corp.,

62 S.W.3d 421, 427 (Mo. Ct. App. 2001)).

Plaintiffs allege generally that they suffered emotional distress and emotional hardship as

a result of the Defendants’ actions. Plaintiffs, however, have not specifically identified what the

actions taken by Defendant Turner were, nor have they provided support showing that those

actions caused distress to Plaintiffs. Instead, the complaint includes only vague language that does

not attribute responsibility to any particular defendant. See e.g., Doc. 50, ¶ 71.c. (alleging that

Plaintiffs endured “[c]onsistent and/or repeated harassment and/or angry and/or hostile conduct by

one or more of the Defendants . . . .”).

Even if presumed that Turner was responsible for some conduct that resulted in Plaintiffs’

emotional distress, this claim could not succeed because Plaintiffs did not plead that Defendant

owed a duty to Plaintiff. The complaint asserts that Defendents should have known that their

actions were likely to breach “duties of civility, fairness, human nature . . . and/or fiduciary duties.”

Doc. 50, ¶ 71.e. While Turner concedes that he owes a duty to protect his child, he argues that the

allegations by Plaintiffs in this count address only emotional distress by Plaintiff Brown. Other

than the conclusory assertion that “Plaintiffs have suffered emotional distress as a result of

Defendants’ actions,” Id., at 69, the complaint specifies only emotional hardship relating to

Plaintiff Brown. See id., at 69-72. Plaintiffs have not provided any factual basis or legal argument

supporting the claim that Turner owed Plaintiff Brown a legally cognizable duty. Indeed, Plaintiffs

did not oppose these issues in their response to Defendant’s motion. Plaintiffs have offered only

conclusory statements to support their broad assertion that at least one of the Defendants in this

case caused them emotional injuries. Having failed to allege the facts necessary to plead a plausible

case of negligent infliction of emotional distress against Turner, this claim must be dismissed.

D. Count V – Defamation

Defendant Turner argues that Plaintiffs’ pleadings fail to state a claim of defamation

because they do not identify any specific statements made by Turner. Under Missouri law, to state

a claim for defamation a plaintiff must plead “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.” Cockram v. Genesco, Inc., 680 F.3d 1046, 1050 (8th Cir. 2012)

(quoting Missouri ex rel. BP Prods. N. Am. Inc. v. Ross, 163 S.W.3d 922, 929 (Mo. 2005) (en

banc)). “[A] claim for defamation will survive a motion to dismiss if the communication alleged

in the petition, together with matters of inducement and innuendo alleged in the petition, is capable

of a defamatory meaning.” Klein v. Victor, 903 F. Supp. 1327, 1330 (E.D. Mo. 1995) (citations

omitted).

Plaintiffs allege in their complaint only that Defendant “orally communicat[ed] false,

defamatory, and reckless statements to third-parties, including, but not limited to, Defendants,

Defendant’s employees, and the public about any allegations against Plaintiff Maria P. Brown.”

Doc. 50, ¶ 80. Plaintiffs did not identify any specific statements that may have been made against

Plaintiff Brown, nor have they provided any legal argument to support the sufficiency of the

pleading of this claim. Without any factual support, Plaintiffs have not pleaded a plausible claim

of defamation. Accordingly, this claim must also be dismissed.

E. Count VI – Malicious Prosecution

Defendant Turner argues that Plaintiffs have not sufficiently pleaded the elements required

to prove a claim of malicious prosecution. Under Missouri law, to state a claim for malicious

prosecution a plaintiff must plead “1) commencement of an earlier suit against plaintiff; 2)

instigation of the suit by defendant; 3) termination of the suit in plaintiff's favor; 4) lack of probable

cause for the suit; 5) malice by defendant in instituting the suit; and 6) damage to plaintiff resulting

from the suit.” Zike v. Advance Am., Cash Advance Centers of Missouri, Inc., 646 F.3d 504, 509

(8th Cir. 2011) (quoting State ex rel. Police Ret. Sys. of St. Louis v. Mummert, 875 S.W.2d 553,

555 (Mo.1994) (en banc)).

Plaintiffs allege that Turner “instituted one or more legal proceeding(s) against Plaintiff in

which complaints were made, by Defendant without probable cause and with malice.” Doc. 50. at

¶ 84. Plaintiffs do not identify any particular lawsuit brought by Turner against Plaintiffs, nor do

they provide any further support for the allegations that Defendant brought these proceedings

without probable cause and with malice. Even if the entirety of this allegation is taken as true,

Plaintiffs have still failed to plead the third and sixth elements of a claim for malicious prosecution.

Plaintiffs do not allege that the previous lawsuit(s) where terminated in favor of Plaintiffs, a

determination not supported by the facts as the only court decision noted by Plaintiffs are pending

cases and a decision allowing joint custody. Additionally, Plaintiffs have not alleged facts

supporting the assertion that damages were sustained as a result of the alleged malicious

prosecution. Having not alleged specifics facts necessary to plead a plausible claim malicious

prosecution, this claim must be dismissed.

IV. Conclusion

For the reasons discussed above, Defendant Turner’s motion to dismiss is GRANTED. The

complaint against Defendant Joshua Turner is dismissed without prejudice.

/s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: December 10, 2019

Jefferson City, Missouri