Davis v. Walt Disney Company

Full title: Mr. Leslie Davis, Earth Protector Licensing Corporation, and Earth…

Court: United States District Court, D. Minnesota

Date published: Aug 23, 2004

Civil No. 04-1749 (DWF/SRN) (D. Minn. Aug. 23, 2004)

Opinion

Civil No. 04-1749 (DWF/SRN).

August 23, 2004

Nathan A. Busch, Esq., Busch Law Firm, Saint Louis Park, Minnesota, counsel for Plaintiffs.

Paul B. Klaas, Esq., Sri K. Sankaran, Esq., and Heather D. Redmond, Esq., Dorsey and Whitney LLP, Minneapolis, MN, counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN FRANK, District Judge

Introduction

The above-entitled matter came on for hearing before the undersigned United States District Judge on August 6, 2004, pursuant to Defendants The Walt Disney Company's, Disney Channel's, and ABC, Inc.'s (collectively the "Defendants") Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.¹ For the reasons set forth below, Defendants' Motion to Dismiss is granted in part and denied in part.

1 Defendants argue that they are not proper parties to this action. Based on the parties' representations during oral argument, it is the Court's understanding that this issue will be resolved without the Court's assistance.

Background

Plaintiffs' ten-count complaint against Defendants alleges: (1) infringement and contributory infringement of a federally registered trademark ( 15 U.S.C. § 1114); (2) trademark infringement and false designation of origin ( 15 U.S.C. § 1125(a)); (3) federal trademark dilution ( 15 U.S.C. § 1125(c)); (4) state deceptive trade practices act (Minn. Stat. § 325D.43); (5) state trademark dilution (Minn. Stat. § 333.285); (6) state unfair competition; (7) infringement of a federally registered copyright ( 17 U.S.C. § 101, et seq.); (8) false designation of origin and unfair competition; (9) defamation of Leslie Davis; and (10) defamation of Earth Protector, Inc.

Plaintiffs allege they were injured when Defendants broadcast "Up, Up, and Away," a television movie about a family of suburban superheroes who uncover and thwart the plot of the diabolical president of an environmental software company, "Earth Protectors." The plot of "Up, Up, and Away" is briefly summarized as follows: A software developer at "Earth Protectors" has created software that can control the minds of children. The software was originally intended to be used for good, but the evil president of "Earth Protectors," Malcolm, instead attempts to use the software to achieve world domination. Malcolm starts by using the software on a bank teller during a robbery. Eventually, Malcolm distributes the software to school-aged children as "homework" in an effort to control their minds and to compel the students to steal money from their families and deliver it to Malcolm. One of the students who receives the "homework" is Scott Marshall, the youngest child in the family of superheroes. However, Scott Marshall has not developed superpowers like his other family members, such as the ability to fly, shoot electricity from his fingertips, or use x-ray vision. Malcolm uses mind control on Scott to discover that his superhero family members are deathly afraid of aluminum foil. Using this knowledge to his advantage, Malcolm lures Scott's family to a phony rescue, where Malcolm traps them in a cage made out of aluminum foil. Even without superhuman powers, Scott and his friends ultimately thwart the mind control plan and save the day. Presumably, at the end of the movie "Earth Protectors" returns to its noble pursuits.

Plaintiffs Leslie Davis ("Davis"), Earth Protector Licensing Corp. ("EPLC"), and Earth Protector, Inc. ("EPI") (collectively the "Plaintiffs") are real-life political activists and environmentalists. Plaintiffs provide a variety of educational and advocacy services and materials related to the promotion of environmental protection and social betterment. (Compl. at 1-5.) Plaintiff EPLC owns a federally registered trademark "EARTH PROTECTOR" for use in connection with "printed reports, booklets, pamphlets and magazines whose subject matter includes solid waste recycling, energy management, fuel development, acid rain and lead poisoning" and "clothing, namely sweatshirts, t-shirts, jeans, caps and sneakers." ( See Compl. ¶ 18 Ex. C.) Plaintiffs allege that they have used the "EARTH PROTECTOR" trademark in connection with its products and services at least as early as 1983 and that this mark has become famous. (Compl. ¶ 29.) Plaintiffs also claim they have used the mark in connection with additional goods and services aimed at promoting the preservation of the environment and social betterment, including the development, production and broadcast of Earth Protector Television shows. ( See Compl. ¶¶ 5, 32.) Plaintiff EPI alleges that it legally owns United States Copyright Number Vau-49-947, consisting of "Earth Protectors" superhero cartoon characters and designs therein, as well as the title "Earth Protectors." ( See Compl. ¶ 90.)

Although "Up, Up, and Away" is a fantasy children's movie that features a fictional entity called "Earth Protectors," Plaintiffs allege that the movie's use of "Earth Protectors" has, among other things, created a likelihood of confusion. Beyond creating a likelihood of confusion, Plaintiffs claim that the movie has diluted the "EARTH PROTECTOR" trademark, infringed its copyrighted material, and defamed Davis and EPI .

No discovery has been taken in this case. Defendants now move for dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted and, in the alternative, summary judgment under Rule 56.²

2 Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Because no discovery has taken place, the Court will consider only Defendants' Motion to Dismiss.

Discussion

I. Defendants' Rule 12(b)(6) Motion to Dismiss

In deciding a motion to dismiss, the Court must assume all facts in the Complaint to be true and construe all reasonable inferences from those facts in the light most favorable to the complainant. See Morton v. Becker, 793 F.2d 185, 187 (8^th Cir. 1986). The Court grants a motion to dismiss only if it is clear beyond any doubt that no relief could be granted under any set of facts consistent with the allegations in the Complaint. Id. The Court may grant a motion to dismiss on the basis of a dispositive issue of law. See Nietzke v. Williams, 490 U.S. 319, 326 (1989). The Court need not resolve all questions of law in a manner which favors the complainant; rather, the Court may dismiss a claim founded upon a legal theory which is "close but ultimately unavailing." Id. at 327. The purpose of a motion to dismiss is to test the sufficiency of a complaint, not to rule on its merits. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "[a] short and plain statement of the claim showing that the pleader is entitled to relief."

A. First Amendment Defense

Defendants claim that the First Amendment bars all counts of Plaintiffs' Complaint because, based solely on Plaintiffs' pleading, "Up, Up, and Away" is a constitutionally protected parody.

First, it is not clear from the pleadings alone that "Up, Up, and Away" is, in fact, a parody. On this point, discovery is essential. For example, Defendants' desired message in "Up, Up, and Away" is highly relevant to this Court's inquiry into whether the movie is a parody of the Plaintiffs and whether any such parodic intent should weigh in favor or against a finding of a likelihood of confusion. See, e.g., Girl Scouts of the United States of Am. v. Bantam Doubleday Dell Publ'g Group, Inc., No. 89 Civ. 1194, 1989 WL 122769 (S.D.N.Y. Oct. 10, 1989) (denying summary judgment on defendant's First Amendment parody defense as premature where no discovery on defendant's intent, actual confusion, and proximity of parties in marketplace had occurred); Anheuser-Busch, Inc. v. Balducci Pubs., 28 F.3d 769, 774 (8^th Cir. 1994) (examining defendant's intent to parody).

Second, any constitutional interest in free expression must be balanced against a trademark holder's interest in protecting its mark. See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901-02 (9^th Cir. 2002), cert. denied, 537 U.S. 1171 (2003).³ This balancing approach applies to works of artistic expression:

3 Similar balancing of the constitutional interest and an individual's rights is required for Plaintiffs' defamation and copyright claims. See Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302-03 (8^th Cir.) (en banc); Belmore v. City Pages, Inc., 880 F. Supp. 673, 676-77 (D. Minn. 1995).

in deciding the reach of the Lanham Act in any case where an expressive work is alleged to infringe a trademark, it is appropriate to weigh the public interest in free expression against the public interest in avoiding consumer confusion.

See Cliff Notes, Inc. v. Bantam Doubleday Dell Publ'g Group, Inc., 886 F.2d 490, 493-94 (2^nd Cir. 1989). See also Anheuser-Busch, 28 F.3d at 775. Therefore, the constitutional protection of free expression can be overcome by trademark interests if there is a likelihood of confusion. See Anheuser-Busch, 28 F.3d at 777. Here, Defendants' movie undoubtedly involves some artistic expression and therefore is likely entitled to some degree of First Amendment protection. However, as the Court explains below, infra, it is unable at this early stage — and without the benefit of discovery — to evaluate the risk of confusion. See generally Girl Scouts of the United States of Am. v. Bantam Doubleday Dell Publ'g Group, Inc., 808 F. Supp 1112 (S.D.N.Y. 1992) (balancing First Amendment rights against risk of confusion after discovery). Absent the ability to evaluate the likelihood of confusion and without knowing whether the movie is a parody, it is impossible to balance any alleged risk of confusion against the interest in freedom of expression. Consequently, this Court denies Defendants' motion to dismiss Plaintiffs' claims based on their First Amendment defense.

B. Trademark Infringement, False Designation of Origin, Unfair Competition, Deceptive Trade Practices

Plaintiffs' claims include separate counts for federal trademark infringement ( 15 U.S.C. § 1114) and false designation of origin ( 15 U.S.C. § 1125(a)), as well as state deceptive trade practice (Minn. Stat. § 325D.43) and state unfair competition. The central issue in an action for trademark infringement or false designation of origin under the Lanham Act is whether the unauthorized use of the mark is "likely to cause confusion." 15 U.S.C. § 1114(1); 15 U.S.C. § 1125(a)(1)(A).⁴ "Likelihood of confusion" exists when the defendant's use of a mark is likely to confuse, deceive or cause mistake among an appreciable number of ordinary buyers as to the source of or association between the parties' products or services. See Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1096 (8^th Cir. 1996). When evaluating likelihood of confusion, a court must consider: (1) the strength of the mark; (2) similarity between the two marks; (3) competitive proximities; (4) alleged infringer's intent to confuse; (5) evidence of actual confusion; and (6) degree of care expected of potential customers. See id. If the court determines as a matter of law from the pleadings that the goods are unrelated and confusion is unlikely, the complaint should be dismissed. See Toho Co., Ltd. v. Sears, Roebuck Co., 645 F.2d 788 (9^th Cir. 1981); Murray v. Cable Nat'l Broad. Co., 86 F.3d 858, 861 (9^th Cir. 1996).

4 Because the necessary elements of the state claims are intimately connected to the federal statutory claims, the Court's conclusion as to whether Plaintiffs have sufficiently pled its federal cause of action will also determine the viability of Plaintiffs' unfair competition and deceptive trade practices claims. See Minn. Stat. §§ 325D.44. See also Woodroast Sys., Inc. v. Restaurants Unltd., Inc., 793 F. Supp. 906, 917 (D. Minn. 1992); Mars Musical Adventures, Inc. v. Mars, Inc., 159 F. Supp. 2d 1146, 1153 (D. Minn. 2001).

Examining the allegations of Counts I, II, IV, and VI, the Court concludes that Plaintiffs' allegations are sufficient to state a claim. Defendants argue that, as a matter of law, there is no likelihood of confusion. Although the Court believes it is highly doubtful that Plaintiffs' counts for trademark infringement and related causes of action will survive a timely motion for summary judgment after adequate time for discovery, at this point the Court must accept Plaintiffs' allegations as true. That being the case, Plaintiffs have alleged that they have used the "Earth Protector" mark in connection with numerous goods and services, including "developing, producing, and broadcasting Earth Protector Television shows."⁵ ( See Compl. ¶ 32.) Plaintiffs have also alleged that Defendants' advertisement and broadcast of "Up, Up, and Away" "are likely to cause confusion, mistake, and/or deception." ( See Compl. ¶ 56).

5 Plaintiffs' trademark protection is not necessarily limited to the goods and services listed in its registration. In Ocean Bio-Chem, Inc. v. Turner Network Television, Inc., 741 F. Supp. 1546, 1557 (S.D. Fla. 1990), the court explained that while a trademark holder cannot use the shield of incontestability for goods or services beyond those listed in the registration, a trademark holder can still receive some protection in connection with such goods or services. In Ocean Bio-Chem, Inc., the court also noted that it must compare "the parties' ultimate products: those that [plaintiff] markets under [its trademark] and the [defendant's] movie itself." Id. (emphasis added). The court did not limit the comparison to goods listed in the plaintiff's registration.

The cases cited by Defendant do not persuade this Court that Plaintiffs' trademark claims should be dismissed. For example, in Zeocrystal, Hooker, and Toho, the nature of the goods and services involved were not contested. See, e.g., Zeocrystal Indus., Inc. v. Fox Broad. Co., 923 F. Supp. 132, 134 (N.D. Ill. 1996) (plaintiff's crystals for removing odors versus defendant's children's television show); Hooker v. Columbia Pictures Indus., Inc., 551 F. Supp. 1060, 1066 (N.D. Ill. 1982) (woodcarvings versus fictional police show; plaintiff did not allege that the goods he produces are in any way related to the television product of defendants); Toho Co., Ltd. v. Sears, Roebuck Co., 645 F.2d 788, 790-91 (9^th Cir. 1981) (nature of the goods not in dispute; plaintiff produces literary works and toys while defendant sells garbage bags).

Here, the nature of Plaintiffs' goods and services are contested, making dismissal on the pleadings inappropriate. While the Court rejects the veracity of Plaintiffs' allegation that the goods and services of Plaintiffs and Defendant are "identical" ( see Compl. ¶ 38, 42 and 43), the Court recognizes that Plaintiffs are entitled to protection covering the goods and services claimed in its trademark registration,⁶ as well as goods and services which would reasonably be thought by the buying public to come from the same source. See Balducci, 28 F.3d at 774; E. Remy Martin Co., S.A. v. Shaw-Ross Int'l Imports, Inc., 756 F.2d 1525, 1530 (11^th Cir. 1985). Because Plaintiffs allege that they have used the "Earth Protector" mark in connection with television movies, this Court cannot determine that its goods and services are not so wholly unrelated to Defendants' goods that, as a matter of law, there is no likelihood of confusion. On this point, discovery is necessary. Therefore, Defendants' Motion to Dismiss with respect to Counts I, II, IV and VI is denied.⁷

6 Printed reports, booklets, pamphlets and magazines whose subject matter includes solid waste recycling, energy management, fuel development, acid rain and lead poisoning in Class 16; and Clothing, namely sweatshirts, T-shirts, jeans, caps and sneakers in Class 25.

7 Defendant also cites at Ocean Bio-Chem, Inc. v. Turner Network Television, Inc., 741 F. Supp. 1546 (S.D. Fla. 1990) to support its argument that, as a matter of law, there is no likelihood of confusion. In Ocean Bio-Chem, however, the Court ruled on summary judgment after the parties had adequate time for discovery. Id. at 1561.

The Court feels compelled, however, to inform the parties that this was a close case. While Plaintiffs have met the minimum pleading requirements and have sufficiently pleaded a nexus (albeit tenuous) between the goods and services of the parties to survive dismissal, Plaintiffs undoubtedly will have a difficult time ultimately establishing that their goods and services are similar enough to Defendants' to cause a likelihood of confusion.

C. Copyright Infringement

Plaintiffs allege in Counts VII and VIII that the cartoon superhero characters depicted and the name "Earth Protectors" used in "Up, Up, and Away" infringe on their copyrighted material consisting of a cartoon drawing of several superhero figures and the words "Earth Protectors." Defendants have moved to dismiss Plaintiffs' copyright claims, arguing that they are inadequate to overcome the constitutional protection of parody afforded by the fair use provision in 17 U.S.C. § 107.

Section 107 provides that "the fair use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement." Four statutory factors are to be explored and weighed together in determining whether a use of copyrighted work is fair:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

See Belmore v. City Pages, Inc., 880 F. Supp. 673 (D. Minn. 1995).

Here, Defendants focus exclusively on the final factor; whether the new work will be a market substitute for the copyrighted material. While this factor is "undoubtedly the most important," no single fair use factor is determinative. Id. Defendants rely primarily on Belmore to support their motion. However, Belmore was before the court on summary judgment, after significant discovery had been conducted. The court in Belmore therefore had the benefit of the defendant author's explanation of his intent to criticize the copyrighted work at issue, as well as his reasoning behind his choice to reprint the entirety of the copyrighted work to effectuate his critical commentary. Id. at 678-79. This Court, however, is without any such benefit and is left completely in the dark with respect to Defendants' desired message, if any, in "Up, Up, and Away."⁸

8 It has not escaped this Court's notice that while on the one hand Defendants argue that their use of "Earth Protectors" was pure coincidence, it also argues on the other hand that "Up, Up, and Away" is a parody of the real-life Plaintiffs. The Court understands the assumptions that Defendants must make in moving to dismiss on the pleadings, but their arguments beg the question of whether one can unintentionally parody another's work.

A parody may or may not be fair use and Defendants' suggestion that any parodic use here is presumptively fair is premature. As a threshold matter, it is not evident that Defendants' movie makes any critical commentary on the substance or style of Plaintiffs' copyrighted material; and therefore, it is unclear whether the fair use doctrine is even implicated. Assuming that the creators of "Up, Up, and Away" copied Plaintiffs' copyrighted material (as the court must assume here), without knowing the creator's intent in doing so, the Court simply cannot assess the Defendants' fair use defense. For example, in Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., the court explained that appropriation of copyrighted work solely for profit and not for creative purposes cannot constitute parody ( 737 F. Supp. 826, 831 (S.D.N.Y. 1990)), thus illustrating the importance of discovering Defendants' intent here. Any inference that Defendants intended to parody the real-life Plaintiffs is speculative absent further proof.

While the Court, again, has serious doubts about Plaintiffs' ability to maintain their copyright causes of action past the summary judgment stage of litigation, the Court cannot, taking Plaintiffs' allegations as true, determine that Defendants are entitled to a judgment on its fair use defense at this time. Defendants' motion with respect to Plaintiffs' Counts VII and VIII is, therefore, denied.

D. Trademark Dilution

Plaintiffs assert claims of federal and state trademark dilution of the "Earth Protector" mark (Counts III and V), arguing that Defendant's use of "Earth Protectors" is "likely to dilute and blur" and to "tarnish" its mark. Plaintiffs must demonstrate five elements to support a claim of dilution under both federal and state law: (1) plaintiffs' mark is famous; (2) plaintiffs' mark is distinctive; (3) defendant's use must be "commercial use in commerce"; (4) the use must have occurred after the plaintiffs' mark has become famous; and (5) the use must cause dilution of the distinctive quality of plaintiffs' mark. See Northland Ins. Cos. v. Blaylock, 115 F. Supp. 2d 1108, 1122 (D. Minn. 2000). Noncommercial use is excepted under both statutes. See 15 U.S.C. § 1125(c)(4)(B); Minn. Stat. § 333.285(c)(2).

Defendant argues that the movie "Up, Up, and Away" does not propose a commercial transaction and therefore is outside of the reach of anti-dilution statutes. Specifically, Defendants argue that the fictional "Earth Protectors" name is not used in promotional trailers for "Up, Up, and Away," is not part of the title, and therefore is not used to propose a commercial transaction. The cases cited by Defendants to support this argument all involve parodies entitled to First Amendment protection. See, e.g., Mattel, 296 F.3d at 906; Mastercard Int'l, Inc. v. Nader 2000 Primary Comm., Inc., 2004 WL 434404, at *7-9 (S.D.N.Y. 2004). As discussed above, supra, this Court declines to find as a matter of law that "Up, Up, and Away" is a parody. Again, absent evidence of Defendants' intent with respect to its use of "Earth Protectors" in "Up, Up, and Away" (i.e., did Defendants intend to parody the real-life organization, to imply a connection with the real-life organization, or was their use the result of pure coincidence?), a finding of the commercial or noncommercial nature of the use of "Earth Protectors" is premature and speculative.

In addition, Defendants argue that Plaintiffs' dilution claims should be dismissed for failure to plead actual dilution. To recover under either anti-dilution statute, Plaintiffs must show actual dilution, as opposed to a likelihood of dilution. See 15 U.S.C. § 1125(a); Minn. Stat. § 333.285(a); Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433 (2003). Plaintiffs have only pleaded that dilution is likely to occur. ( See Complaint ¶¶ 78, 83.) Because Plaintiffs have failed to plead a required element of dilution, Counts III and V of the Complaint are dismissed without prejudice.

E. Defamation

Plaintiffs EPI and Leslie Davis assert claims of defamation (Counts IX and X). Plaintiff alleges that a reasonable person would believe that the fictional environmental company "Earth Protectors" and its fictional president, Malcolm, in "Up, Up, and Away" depicted the real companies Earth Protector, Inc., and its real-life president Leslie Davis, respectively. ( See Compl. ¶¶ 126-129.) For example, Plaintiffs claim that based on the story line and characters' actions in "Up, Up, and Away" Defendants have made several defamatory statements against Plaintiffs. These alleged "statements" can be summarized as follows: Plaintiffs Davis and EPI engage in environmental terrorism, control the minds of children to cause them to commit crimes and destructive acts, and engage in crimes such as kidnapping, attempted murder and arson.

A statement must be reasonably susceptible of a defamatory meaning to be actionable. See Greenbelt Co-op. Publishers Ass'n v. Bresler, 398 U.S. 6, 14 (1970); Peoples Bank Trust Co. v. Globe Int'l Publ'g, Inc., 978 F.2d 1065, 1068 (8^th Cir. 1992). Accord Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 1415 (C.D. Cal. 1987), aff'd, 867 F.2d 1188 (9th Cir.) ("When one cannot reasonably interpret the material as portraying actual facts about the plaintiff, no damage to reputation can result."). Whether a statement is reasonably susceptible of an interpretation which implies a provably false assertion of fact is a question of law for the court. See Films of Distinction, Inc. v. Allegro Film Prods., Inc., 12 F. Supp. 2d 1068, 1080 n. 7 (C.D. Cal. 1998).

"Up, Up, and Away" is an entirely fictitious fantasy movie. It is a story of a family of superheroes who ultimately foil the evil plan of one man to dominate the world through computer generated mind control. The general tenor of the movie and the fictional context in which the alleged defamatory material arises negate any possible impression that the Defendants were asserting objective facts. The movie even includes a disclaimer that "[a]ny similarity to actual persons, living or dead, or actual event is purely coincidental and unintentional." ( See Sankaran Decl. Ex. A.) Moreover, with respect to Leslie Davis' defamation claim, the only similarity between the real-life Mr. Davis and the fictitious character in the movie is that they both are the president of a fictional corporation called "Earth Protectors" or the real-life Earth Protector, Inc. The president of "Earth Protectors" in "Up, Up, and Away" is named Malcolm, not Leslie. Malcolm appears to be in his early twenties, whereas Mr. Davis is allegedly 67 years old. Even taking all of the facts alleged by Plaintiffs to be true, no reasonable person could understand that the fictional Malcolm refers in any way to Leslie Davis or interpret the movie as being defamatory of either EPI or Mr. Davis. See Films of Distinction, 12 F. Supp. 2d at 1081 (where a movie as a whole was "clearly a work of fiction," statement was not defamatory as a matter of law). Accordingly, the Court dismisses Plaintiffs' defamation claims.

Defendants also argue that Plaintiff EPI's claim for defamation should be dismissed because it failed to allege actual malice, which is required of a corporation alleging defamation under Minnesota law. Because the Court has already dismissed Plaintiff Davis' and EPI's defamation claims, it is not necessary to reach this issue. However, the Court points out that EPI pleads that the alleged defamatory statements were "made with a reckless or negligent disregard for the falsity of the statement." ( See Compl. §§ 152(f); 156(f); 160(f); 164(f) and 168(f) (emphasis added)). Actual malice, which Defendants acknowledge, is present when a statement is published "with knowledge that the statements were false or with reckless disregard of whether they were true or false." See Northwest Airlines, Inc. v. Astaea Aviation Servs., Inc., 111 F.3d 1386, 1395 (8^th Cir. 1997) (citation omitted) (emphasis added). Without reaching the issue of whether EPI was required to plead actual malice, the Court finds that EPI has done so.

CONCLUSION

Accordingly, based on the files, records, and proceedings herein, and for the reasons set forth above, IT IS ORDERED that:

1. Defendants' Motion to Dismiss (Doc. No. 9) is DENIED IN PART and GRANTED IN PART, as follows:

a. Defendants' Motion to Dismiss Counts I, II, IV, VI, VII and VIII of Plaintiffs' Complaint is DENIED;

b. Defendants' Motion to Dismiss Counts III and V is GRANTED WITHOUT PREJUDICE; and

c. Defendants' Motion to Dismiss Counts IX and X is GRANTED WITH PREJUDICE.