Jewel Sanitary Napkins, LLC v. Sprigs Life, Inc.

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JEWEL SANITARY NAPKINS, LLC, Plaintiff, v. SPRIGS LIFE INC. d/b/a MOTHERHOOD MAGAZINE, Defendant.

No. 5:23-cv-00376

United States District Court, N.D. Ohio, Eastern Division

March 4, 2024

Thomas M. Parker Magistrate Judge

OPINION AND ORDER

J Philip Calabrese United States District Judge

In this defamation lawsuit, Plaintiff Jewel Sanitary Napkins moves for partial judgment on the pleadings on two affirmative defenses (the eighth and eleventh) that Defendant Motherhood Magazine pleads. (ECF No. 19.) Generally, these defenses relate to whether Defendant caused the special damages Plaintiff alleges it sustained and apportionment of any damages between Defendant and another defendant in similar litigation pending in the Western District of Wisconsin. (ECF No. 9; see also ECF No. 18, ¶ 1, PageID #127.) For the reasons that follow, the Court DENIES Plaintiff's motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff bases its claims on the following facts pleaded in the complaint. At this stage of the proceedings, and in the present procedural posture, the Court construes the facts in the light most favorable to Defendant.

Jewel is a small business producing the “safest, most effective” sanitary napkins and pads. (ECF No. 1 ¶ 1, PageID #1.) Jewel's pads do not contain chemicals, but they have a layer of graphene to help “fight[] bacteria and promote[] wellness.” (Id.) These products were popular in the Amish community, where women prefer natural, chemical-free products. (Id., ¶ 2, PageID #2.) Jewel markets its sanitary napkins and pads under the “REIGN” brand. (Id., ¶ 14, PageID #4.)

Motherhood Magazine is a publication with “substantial Amish readership.” (Id., ¶ 3, PageID #2.) In the summer of 2022, during the pandemic when public health authorities encouraged vaccination against Covid-19 and some resisted those efforts, Motherhood Magazine published an anonymous letter about Jewel's products:

A letter for Mom-to-Mom

Warning about the Reign Sanitary Napkins not being what they were started out to be! Or what the Jewel started out to be. Heavy metals are being found in the graphine strips and ingredients/products as can be found in the covid vaccines! It seems some people are determined to get that vaccine in us. Please! Let's do not intentionally give in to the vaccines if it goes against our standards! As far as the Reign Napkins, I've had a big question mark in my mind about them, ever since I heard about the name change. When a product changes its name just because there is a catch it it somewhere - always! Do your research. And don't despair. There are other healthy pad options on the market nowadays too.

(Id., ¶ 41, PageID #9). Jewel filed suit on February 23, 2023. (ECF No. 1.)

Jewel alleges that this letter accuses the company of lying about its products, putting dangerous metals in the pads, and using them covertly and illegally to administer Covid vaccines to women without their consent. (Id., ¶ 3, PageID #1.) Further, Jewel alleges that Motherhood Magazine knew the letter was false. (Id., ¶ 5, PageID #2.) As a result of the letter's accusations, Jewel claims that its “[s]ales plummeted, immediately, by almost 50%” and that Amish women requested that their local distributors stop selling Jewel's products. (Id., ¶ 2 PageID #2.) Since August 2022, Jewel alleges that Motherhood Magazine's actions “directly caused a decrease in sales of REIGN products of just over $100,000 a month.” (Id., ¶ 75, PageID #14.) Also, it alleges special damages consisting of lost profits and other items in an unspecified amount exceeding $75,000. (Id., ¶ 76.)

Around the same time Motherhood Magazine published the anonymous letter, a Wisconsin-based publication, Busy Beaver, published a similar letter about Jewel. Jewel is simultaneously litigating a defamation case against Busy Beaver in the Western District of Wisconsin. Jewel Sanitary Napkins, LLC v. Busy Beaver Publ'ns, LLC, No. 3:23-cv-00126 (W.D. Wis.).

Plaintiff argues that the Motherhood Magazine letter constitutes defamation per se. A plaintiff who adequately pleads or proves defamation per se need not prove causation because Ohio law presumes damages. Plaintiff argues that Ohio law dictates that intentional torts, like defamation, are subject only to joint and several liability-and any intentional tortfeasor cannot apportion their liability among other intentional tortfeasors. Therefore, Defendant cannot assert an affirmative defense to mitigate its liability.

Defendant counters that it states a valid defense to defamation because the affirmative defense would negate causation, an element of Plaintiff's defamation claim. Defendant contends that the Busy Beaver case is a superseding cause of Plaintiff's alleged injury and mitigates or prevents any recovery. Defendant also points to two Ohio statutes to support its position.

ANALYSIS

Although the Sixth Circuit has not addressed whether the same pleading standard under Rule 8, requiring a showing of a plausible claim to relief, applies to affirmative defenses Depositors Ins. Co. v. Estate of Ryan, 637 Fed.Appx. 864, 869 (6th Cir. 2016), the Court has held that it does not, see Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 377-78 (N.D. Ohio 2023). Therefore, an affirmative defense “may be pleaded in general terms and will be held to be sufficient . . . as long as it gives plaintiff fair notice of the nature of the defense.” Lawrence v. Chabot, 182 Fed.Appx. 442, 456 (6th Cir. 2006).

“A motion for judgment on the pleadings . . . generally follows the same rules as a motion to dismiss the complaint under Rule 12(b)(6).” Bates v. Green Farms Condo. Assoc., 958 F.3d 470, 480 (6th Cir. 2020) (citing D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)). “The only difference between Rule 12(c) and Rule 12(b)(6)” is timing. Hunter v. Ohio Veterans Home, 272 F.Supp.2d 692, 694 (N.D.Ohio 2003).

Rule 12(c) provides that once “the pleadings are closed,” a party may “move for judgment on the pleadings.” Fed.R.Civ.P. 12(c).

While “under modern practice [the various Rule 12 motions] have to some extent become interchangeable, a Rule 12(c) motion should be contrasted with a motion to strike under Rule 12(f).” 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1369 (3d ed. Feb. 2024). “If a plaintiff seeks to dispute the legal sufficiency of fewer than all of the defenses raised in the defendant's pleading, he should proceed under Rule 12(f) rather than Rule 12(c) because the latter leads to entry of a judgment.” Id., § 1369; Fed. R. Civ. Pro. 12(f).

Here, because Plaintiff seeks to invalidate only two of Defendant's affirmative defenses and does not seek a judgment regarding the merits of any of its claims (despite spending considerable time briefing the defamation per se claim), Plaintiff's motion is properly treated as a motion to strike under Rule 12(f). See Signature Mgmt. Team, LLC v. Doe, No. 13-cv-14005, 2015 WL 1245861, at *2-3 (E.D. Mich. Mar. 18, 2015) (construing plaintiff's Rule 12(c) motion as a motion to strike because the plaintiff sought to invalidate one of the defendant's affirmative defenses).

Under Rule 12(f), a court may “order any redundant, immaterial, impertinent, or scandalous matter stricken from any pleading, motion, or other paper.” Fed R. Civ. P. 12(f). Motions to strike insufficient defenses are often a dilatory tactic and disfavored by the Court. Moreover, because striking any part of a pleading is a drastic remedy, Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822-23 (6th Cir. 1953), courts should strike a defense only where it raises no factual issues and is “so legally insufficient that it is beyond cavil that defendants could not prevail on [it].” United States v. Pretty Prods., Inc., 780 F.Supp. 1488, 1498 (S.D. Ohio 1991) (citation omitted); United States Sec. & Exch. Comm'n v. Thorn, No. 2:01-cv-290, 2002 WL 31412440, at *2 (S.D. Ohio Sept. 30, 2002) (recognizing that, to strike an affirmative defense, it must as a matter of law be so deficient that the defense would not succeed under any circumstances).

Defendant invites the Court to consider the Busy Beaver litigation as a matter outside the pleadings in ruling on the sufficiency of its affirmative defenses. (ECF No. 26, PageID #169.) Usually, courts do not consider matters outside the pleadings when ruling on a motion to strike. Pretty Prods., 780 F.Supp. at 1498. But the Court may take judicial notice of public records, including other lawsuits. See Fed.R.Evid. 201(b); Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999). The existence of the Busy Beaver suit and the potential overlap between the liability and damages theory at issue there are central to Defendant's opposition. Therefore, the Court considers the Busy Beaver litigation. See Hardin v. Reliance Tr. Co., No. 1:04-cv-2079, 2006 WL 2850457, at *2-*3 (N.D. Ohio Sept. 29, 2006) (taking judicial notice of other lawsuits in ruling on a plaintiff's motion to strike).

In the present procedural posture, the primary task for the Court is to determine whether, as a matter of law, Defendant can assert its apportionment defense against Plaintiff's claim of defamation per se.

I. Defamation Under Ohio Law

To maintain a defamation claim under Ohio law, a plaintiff must plead and ultimately prove: (1) a false and defamatory statement; (2) about Plaintiff; (3) was published without privilege to a third party; (4) with fault of at least negligence by the defendant; (5) that was either defamatory per se or caused special harm. Gosden v. Louis, 116 Ohio App.3 d 195, 206, 687 N.E.2d 481, 488 (Ohio Ct. App. 1996). Whether allegedly defamatory statements are actionable is a question of law for the Court. Becker v....