United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
QFS Transportation, LLC ("QFS") initiated this
breach of contract action in September 2018 against its
former intermodal shipping agent, defendant Infinity Transport
Services, Inc. ("Infinity"), and Infinity's
owner and primary principal, defendant Joseph Dimperio
("Dimperio"). (Doc. 1). Defendants filed an answer
and counterclaim against plaintiff. (Doc. 7). This matter is
before the Court on plaintiffs motion to dismiss Counts 3 and
4 of defendants' counterclaim (Doc. 14), defendants'
response in opposition (Doc. 21), and plaintiffs reply
memorandum (Doc. 23). Pursuant to the undersigned's
standing order to foster increased oral advocacy
opportunities for newer lawyers, the Court heard oral
arguments on the motion to dismiss on February 20, 2019.
November 6, 2018, defendants filed their answer and
counterclaims for breach of contract (Count 1), unjust
enrichment (Count 2), defamation (Count 3), and tortious
interference with business relationships (Count 4). (Doc.
In their Count 3 defamation counterclaim, defendants allege
that they maintain contractual and business relationships
with owner-operators and drivers who transport freight for
their customers. (Id. at ¶ 18). Defendants
allege that QFS "failed to properly pay or compensate
those owner-operators and drivers and improperly mishandled,
depleted, or failed to return compensation, escrow funds, and
deposits to those owner-operators and drivers."
(Id. At ¶ 19). Defendants allege that QFS and
its authorized agents, however, "have made false
statements of material fact to Defendants'
owner-operators and drivers" suggesting that defendants,
rather than QFS, are improperly holding or refusing to return
escrow funds. (Id. at ¶ 20). Defendants allege
that "[t]hese false statements by QFS and/or its
authorized agents are defamatory, reflect unfavorably on
Defendants' character, and have injured Defendants'
trade and business." (Id. at ¶ 21).
Defendants allege that QFS "made such false and
defamatory statements unreasonably, negligently, with
knowledge of their falsity, and/or with reckless disregard
for the truth or falsity of such statements."
(Id. at ¶ 22). Defendants allege that they
suffered damages as a result of the false and defamatory
statements. (Id. At ¶23).
their Count 4 tortious interference with business
relationships counterclaim, defendants allege that their
owner-operators and drivers signed lease agreements with QFS,
and QFS collected funds from the owner-operators and drivers
to be held in escrow for the stated purpose of reimbursing
QFS for certain advanced expenses, including charge-backs,
damaged shipments, per diem charges, toll violations, fuel
taxes, fuel surcharges, and detention fees. (Id. at
¶¶ 25-26). However, QFS failed to return the escrow
funds under certain agreed-upon conditions, stating that QFS
is withholding the funds due to "active
litigation." (Id. at ¶¶ 27-28).
Defendants' contractual and economic relations with the
owner-operators and drivers suffered as a result.
(Id. at ¶ 29).
Plaintiffs Motion to Dismiss Counts 3 and 4 of
Defendants' Counterclaim (Doc. 14) A. Rule 12(b)(6)
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
"[T]he statement need only give the defendant fair
notice of what the . .. claim is and the grounds upon which
it rests." Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
Count 3 (Defamation)
moves to dismiss defendants' Count 3 counterclaim for
defamation on the basis that it fails to state the necessary
elements for defamation under Ohio law. (Doc. 14). Plaintiff
argues that defendants have not (1) identified any actual
statements or specific third-party recipients, (2) alleged
that QFS's statements, if any, were defamatory, (3) shown
that QFS's statements were not privileged, or (4) pled
that the alleged defamatory statements were defamatory per
se, or that there were any special damages. (Id. at
argue that they have pled sufficient facts to support each
element of their defamation claim. Defendants contend that
"[s]pecific facts are not necessary; the statement need
only give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests." (Doc. 21 at
4-5) (quoting MedChoice Fin., LLC v. ADS Alliance Data
Sys., 857 F.Supp.2d 665, 673 (S.D. Ohio 2012)).
Defendants argue that their counterclaim specifically alleges
that plaintiff or its agents made statements falsely
suggesting defendants were withholding escrow funds.
(Id. at 5). Defendants argue that they have
sufficiently alleged that plaintiffs statements were
defamatory by expressly alleging that these statements
"reflect[ed] unfavorably on [Defendants'] character,
and have injured Defendants' trade and business."
(Id. at 6) (citing Doc. 7 at ¶ 21).
Ohio law, "defamation occurs when a publication contains
a false statement 'made with some degree of fault,
reflecting injuriously on a person's reputation, or
exposing a person to public hatred, contempt, ridicule, shame
or disgrace, or affecting a person adversely in his or her
trade, business or profession.'" Jackson v.
Columbus, 883 N.E.2d 1060, 1064 (Ohio 2008) (quoting
A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg.
& Const. Trades Council, 651 N.E.2d 1283, 1298 (Ohio
1995)). To state a claim for relief for defamation, plaintiff
must allege facts showing: "(1) that a false statement
of fact was made, (2) that the statement was defamatory, (3)
that the statement was published, (4) that the plaintiff
suffered injury as a proximate result of the publication, and
(5) that the defendant acted with the requisite degree of
fault in publishing the statement." Boulger v.
Woods, No. 2:17-cv-186, 2018 WL 527009, at *8 (S.D. Ohio
Jan. 24, 2018) (citing Susan B. Anthony List v.
Driehaus, 779 F.3d 628, 632-33 (6th Cir. 2015) (in turn
quoting Am. Chem. Soc. v. Leadscope, Inc., 978
N.E.2d 832, 852, ¶ 77 (Ohio 2012)). Failure to establish
any one of these elements is fatal to the claim. Id.
Courts have held that the general pleading standards of Rule
8(a)(2) apply to defamation claims. Universal Health
Grp. v. Allstate Ins. Co., No. 09-12524, 2010 WL
2278618, at *4 (E.D. Mich. May 12, 2010) (Report and
Recommendation) ("[N]othing in the Federal Rules
suggests that pleading a defamation claim is subject to
higher pleading standard than any other claim."),
adopted, 2010 WL 2287151 (E.D. Mich. June 4, 2010);
Scheser v. Island Hospitality Mgmt., No. 09-cv-961,
2010 WL 1742532, at *l (W.D. Ky. Apr. 28, 2010) (there is
"no reason to impose a heightened pleading
standard" in a defamation case).
first argues that defendants have failed to identify false
and defamatory statements or third-party recipients. (Doc. 14
at 6). Plaintiff argues that defendants' defamation claim
is a "bare allegation" and fails to "plead or
identify what was specifically communicated, to which
owner-operators and drivers the 'suggestions' [about
the withholding of escrow funds] were made, how the
'suggestions' were made (orally or in writing), and
where and when they were made," (Id.).
Plaintiff also argues that defendants have not alleged that
any statements were defamatory and only make a conclusory
statement that they have been injured in their trade and
business, without explaining how. (Id. at 8).
defamation [counterclaim] must allege the substance of the
alleged defamatory statements although they need not be set
out verbatim." Doe v. Univ. of Dayton, No.
3:l7-cv-134, 2018 WL 1393894, at *5 (S.D. Ohio Mar. 20,
2018), aff'd, No. 18-3339, 2019 WL 1224606 (6th
Cir. Mar. 15, 2019). Under Ohio law, a statement is
defamatory if it, inter alia, "affect[s] a person
adversely in his or her trade, business or profession."
Croce v. N.Y.Times Co., 345 F.Supp.3d 961, 974 (S.D.
Ohio 2018) (internal citations omitted). Defendants'
counterclaim sufficiently identifies the substance of the
alleged defamatory statement-that QFS and/or its agents made
false statements of fact suggesting that defendants were
"improperly holding or refusing to return" escrow
funds-and the third parties to whom QFS made the alleged
statements-to defendants' owner-operators and drivers.
(Doc. 7 at ¶ 20). Defendants also allege that these
statements made by QFS to defendants' owner-operators and
drivers were false and defamatory and injured defendants'
trade and ...