Opinion
No. COA12–859.
2013-04-2
Douglas CROWELL, Plaintiff v. Brian M. DAVIS, Secretswall.Com, [and] John Doe, Defendants.
Eric E. Rainey, for Plaintiff. Burt Langley, P.C., by Katherine Langley, for Defendants.
Appeal by plaintiff from order entered 17 January 2012 by Judge Laura J. Bridges in Buncombe County Superior Court. Heard in the Court of Appeals 7 January 2013. Eric E. Rainey, for Plaintiff. Burt Langley, P.C., by Katherine Langley, for Defendants.
ERVIN, Judge.
Plaintiff Douglas Crowell appeals from an order dismissing his complaint against Defendants Brian M. Davis, Secretswall.com, and John Doe for failing to state a claim pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), and dismissing his complaint against Defendant Secretswall.com for lack of personal jurisdiction pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(2). After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
A. Substantive Facts
Defendant Davis owns and operates Secret swall.com, which is a website that allows persons to draft and publish anonymous comments concerning various topics. According to Plaintiff, Defendants authored and knowingly published several false statements “naming the Plaintiff and his prior place of employment, and accusing the Plaintiff of wrongdoing and poor moral character, among other accusations.” Despite the fact that these statements were false, Defendants subsequently re-posted them on other websites. At the time that these statements were disseminated on the internet, Plaintiff was “legally eligible for employment with several prospective employers” and was seeking employment. Plaintiff alleged that Defendants posted these anonymous comments for the purpose of “induc[ing] prospective employers to refrain from contracting with the Plaintiff.” Defendant Davis repeatedly threatened to make additional posts if Plaintiff pursued removal of the existing posts “or [took] other actions against Defendants.”
B. Procedural History
On 31 August 2011, Plaintiff filed a complaint against Defendants in which he attempted to assert claims for libel per se, libel per quod, wrongful interference with a prospective contract, wrongful interference with contract rights, and negligence per se based upon alleged violations of North Carolina's cyberstalking and extortion statutes. On 26 October 2011, Defendants Davis and Secretswall.com filed an answer in which they denied the material allegations of Plaintiff's complaint, asserted various affirmative defenses, and sought dismissal of Plaintiff's complaint on the grounds that the trial court lacked personal jurisdiction over Defendant Secretswall.com and that Plaintiff had failed to state a valid claim for relief against them. On 2 December 2011, Plaintiff filed a motion seeking leave to amend his complaint on the grounds that “justice requires that leave be granted to amend.” On 17 January 2012, the trial court entered an order dismissing Plaintiff's complaint without making any reference to Plaintiff's amendment motion. Plaintiff noted an appeal to this Court from the trial court's order.
Although the dismissal motion filed by Defendants Davis and Secretswall.com made no mention of Defendant Doe, the trial court's order dismissed Plaintiff's complaint in its entirety rather than simply as to Defendants Davis and Secretswall.com. As a result, we believe that the trial court's order does, in fact, dispose of all of Plaintiff's claim and is, for that reason, a final judgment subject to appeal pursuant to N.C. Gen.Stat. § 7A–27 (b).
II. Legal Analysis
A. Plaintiff's Amendment Motion
1. Standard of Review
The extent to which a motion to amend a litigant's pleading should be granted or denied is committed to the sound discretion of the trial court. Coffey v. Coffey, 94 N.C.App. 717, 722, 381 S.E.2d 467, 471 (1989), disc. review improvidently granted,326 N.C. 586, 391 S.E.2d 40 (1990). For that reason, “we review a trial court's ruling on a motion to amend pleadings for abuse of discretion.” Bartlett Milling Co. v. Walnut Grove Auction & Realty Co., 192 N.C.App. 74, 89, 665 S.E.2d 478, 490,disc. review denied,362 N.C. 679, 669 S.E.2d 741 (2008). “An abuse of discretion will be found where a trial court's ruling ‘is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ “ Pinewood Homes, Inc. v. Harris, 184 N.C.App. 597, 607, 646 S.E.2d 826, 833–34 (2007) (quoting State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied,547 U.S. 1073, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006)).
2. Validity of Amendment Motion
In his brief, Plaintiff contends that the trial court erred by dismissing his complaint without allowing him to amend his prior allegations. More specifically, Plaintiff alleges that the trial court's failure to make findings of fact or provide any indication of the reasoning underlying its failure to grant Plaintiff's amendment motion prior to dismissing Plaintiff's complaint constituted a clear abuse of discretion. We do not find Plaintiff's argument persuasive.
In their brief, Defendants argue that a dismissal pursuant to N .C. Gen.Stat. § 1A–1, Rule 12(b)(6) precludes a trial court from allowing an amendment motion. Admittedly, this Court has stated that, “[a]fter dismissal of plaintiff's complaint under [N.C. Gen.Stat. § 1A–1,]Rule 12(b)(6), the trial court was no longer empowered to grant plaintiff leave to amend under [N.C. Gen.Stat. § 1A–1,] Rule 15(a).” Johnson v. Bollinger, 86 N.C.App. 1, 7, 356 S.E.2d 378, 382 (1987). However, given the existence of other reasons for declining to overturn the trial court's dismissal order based on its failure to allow Plaintiff's amendment motion, we need not determine whether the principle enunciated in Johnson is controlling in this instance.
“A party may amend his pleading once as a matter of course at any time before a responsive pleading is served[;] ... [o]therwise[, as is the case here,] a party may amend his pleading only by leave of court or by written consent of the adverse party.” N.C. Gen.Stat. § 1A–1, Rule 15(a). As Plaintiff correctly notes, leave to amend should be “freely given when justice so requires,” Id., with the “[l]iberal amendment of pleadings [being] encouraged by the Rules of Civil Procedure in order that decisions be had on the merits and not avoided on the basis of mere technicalities.” Phillips v. Phillips, 46 N.C.App. 558, 560–61, 265 S.E.2d 441, 443 (1980) (citing Mangum v. Surles, 281 N.C. 91, 98–99, 187 S.E.2d 697, 702 (1972)). A trial judge does, however, have the authority to deny an amendment motion in appropriate instances. Nationsbank of N.C., N.A. v. Baines, 116 N.C.App. 263, 268, 447 S.E.2d 812, 815 (1994) (holding that “[a]cceptable reasons for which a motion to amend may be denied are undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice, and futility of the amendment”) (citation and quotation marks omitted); Coffey, 94 N.C.App. at 722, 381 S.E.2d at 471 (stating that “ ‘[a]pparent’ or ‘declared’ reasons [for denying a party's motion to amend] approved by our courts include: undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice and futility of the amendment”) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226 (1962)).
At the time that he sought leave to amend his complaint, Plaintiff provided no explanation of the reason that he sought to amend his complaint, did not attach a proposed amendment to his motion, and never described the additions, deletions, or changes that he sought to make in the event that his request to amend his complaint was allowed. In fact, Plaintiff has not described the nature of his proposed amendment with any degree of specificity on appeal either. In light of Plaintiff's complete failure to describe the nature of the amendment that he proposed to make to his complaint, the trial court had no basis for determining whether Plaintiff's request for leave to amend had been unduly delayed, would be futile, or would unlawfully prejudice Defendants and we have no basis for determining whether the trial court's failure to rule on Plaintiff's amendment motion before dismissing his complaint constituted an abuse of discretion or impermissibly prejudiced Plaintiff. As a result, Plaintiff is not entitled to relief from the trial court's order on the grounds that the order in question implicitly denied Plaintiff's motion for leave to amend his complaint.
As we have already noted, the trial court never explicitly ruled on Plaintiff's amendment motion before dismissing his complaint. In addition, the record does not establish that Plaintiff did anything beyond filing his amendment motion to have that motion heard and decided by the trial court. According to N.C.R.App. P. 10(a)(1), “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context” and “to obtain a ruling upon the party's request, objection, or motion.” Although we have treated the trial court's failure to allow Plaintiff's amendment motion prior to the dismissal of Plaintiff's complaint as tantamount to a denial of Plaintiff's motion in the body of this opinion, we do not wish to be understood as having held that a trial court's failure to rule upon an amendment motion is equivalent to the denial of that motion and is reviewable as such on appeal or that Plaintiff adequately preserved this issue for appellate review given that we have addressed and resolved Plaintiff's contention on other grounds.
B. Motion to Dismiss
Secondly, Plaintiff contends that the trial court erred by dismissing his complaint for failure to state a claim for which relief can be granted pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6). In seeking to persuade us of the merits of this contention, Plaintiff contends that he pled sufficient facts to preclude dismissal of any of his claims and that the trial court erred by reaching a contrary conclusion. We do not find any of Plaintiff's arguments to this effect persuasive.
1. Standard of Review
As a result of the fact that a “motion to dismiss under N.C. [Gen.Stat. § 1A–1, Rule] 12(b)(6) tests the legal sufficiency of the complaint,” “the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). In other words, “[b]ecause this appeal is based on defendants' motion to dismiss, we treat plaintiff['s] factual allegations as true.” Block v. County of Person, 141 N.C.App. 273, 275, 540 S.E.2d 415, 417 (2000). The same is not, however, true of the plaintiff's legal conclusions. Jackson v. Bumgardner, 318 N.C. 172, 174–75, 347 S.E.2d 743, 745 (1986) (stating that, in considering whether to grant or deny a dismissal motion lodged pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), “all allegations of fact are taken as true but conclusions of law are not”) (citing Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)). A complaint is subject to dismissal pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) “(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; [and] (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's claim.” Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985) (citing Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S .E.2d 240, 241 (1981), and Schloss Outdoor Advertising Co. v. City of Charlotte, 50 N.C.App. 150, 152, 272 S.E.2d 920, 922 (1980)). We review a trial court's decision to grant a motion to dismiss pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) using a de novo standard of review. Jones v. Coward, 193 N.C.App. 231, 233, 666 S.E.2d 877, 879 (2008). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Bridges v. Parrish, ––– N.C.App. ––––, ––––, 731 S.E.2d 262, 265 (2012) (quoting State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)) (quotation marks omitted), cert. denied, ––– N.C. ––––, ––– S.E.2d –––– (2013).
2. Analysis of Sufficiency of Plaintiff's Claims
a. Libel Per Se
According to well-established North Carolina law, “libel per se is a publication by writing, printing, signs or pictures which, when considered alone without innuendo, colloquium or explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace .” Renwick v. News & Observer Pub. Co., 310 N.C. 312, 317, 312 S.E.2d 405, 408–09 (citing Flake v. Greensboro News Co., 212 N.C. 780, 787, 195 S.E. 55, 60 (1938)), cert. denied, 469 U.S. 868, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984). Although Plaintiff argues that his libel per se claim should have survived Defendants' dismissal motion because he “name[ed] the Plaintiff and his prior place of employment[ ] and accus[ed] the Plaintiff of wrongdoing and poor moral character,” we decline to find Plaintiff's argument persuasive for at least two reasons.
First, Plaintiff failed to allege that any of Defendants' comments impeached him “in” his trade or profession. Any attempt to plead a libel per se claim must assert the making of “an imputation which is necessarily harmful in its effect on plaintiffs' business.” Ellis v. Northern Star Co., 326 N.C. 219, 229, 388 S.E.2d 127, 133 (1990) (emphasis in original). More specifically, although Plaintiff's complaint asserts that Defendants' comments mentioned his prior employer, it contains no allegation to the effect that Defendants' comments addressed any conduct in which Plaintiff engaged in the course of his trade or profession. In the absence of allegations establishing a connection between the allegedly defamatory statements and Plaintiff's work, no cognizable claim for libel per se has been stated.
As we understand the argument advanced in Plaintiff's brief, he makes no claim that the allegedly defamatory statements accused him of committing an infamous crime, suffering from an infectious disease, or otherwise subjecting him to ridicule, contempt, or disgrace.
Secondly, Plaintiff failed to plead any facts whatsoever in support of his claim. Although “North Carolina is a notice pleading jurisdiction,” so that, “as a general rule, there is no particular formulation that must be included in a complaint or filing in order to invoke jurisdiction or provide notice of the subject of the suit to the opposing party,” Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008), a plaintiff's pleading must still “give[ ] sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial.” Sutton, 277 N.C. at 102, 176 S.E.2d at 165 (quoting 2A J Moore, Moore's Federal Practice § 8.13 (2d ed.1968)) (internal quotation marks omitted). An assertion that Defendants' website contained statements “accusing the Plaintiff of wrongdoing and poor moral character, among other accusations” simply does not provide Defendants with adequate notice of the nature of Plaintiff's claim. Among other things, Plaintiff failed to specify the content of the statements that Defendants made or when they appeared on the Secretswall.com website. As a result, the trial court properly concluded that Plaintiff had failed to state a claim for libel per se.
b. Libel Per Quod
A successful libel per quod claim must rest upon a statement which is “not obviously defamatory but[,] when considered with innuendo, colloquium, and explanatory circumstances[,] become[s] libelous.” Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979). “In publications which are libelous per quod the innuendo and special damages must be alleged and proved.” Flake, 212 N.C. at 785, 195 S.E.2d at 59. The allegations made in support of Plaintiff's libel per quod claim are identical to those made in support of his libel per se claim except for the additional assertion that the statements published on Secretswall.com “prejudice[d] and reflect[ed] unfavorably on the Plaintiff's position.” As a result, Plaintiff's complaint failed to provide Defendants with notice of the defamatory statements that they were alleged to have made about Plaintiff. In addition, Plaintiff failed to allege the innuendo and special damages that gave Defendants' statements their libelous character. As a result, the trial court did not err by dismissing Plaintiff's libel per quod claim.
Although Plaintiff asserts in his brief that he alleged special damages with respect to this claim, he has not cited us to any specific portions of his complaint in which the necessary innuendo and special damages are alleged and we have not found any such allegations after carefully examining the document in question on our own.
Plaintiff also argues in his brief that his complaint pleads a viable claim for defamation based on the theory that Defendants' statements were “susceptible of two interpretations one of which is defamatory and the other not.” Arnold, 296 N.C. at 537, 251 S.E.2d at 455. Aside from the fact that Plaintiff does not appear to have included such a claim in his complaint, his failure to adequately describe the statements that Defendants allegedly made precludes acceptance of this argument.
c. Wrongful Interference Claims
Next, Plaintiff challenges the trial court's decision to dismiss his claims for wrongful interference with prospective contract and wrongful interference with a contract right. We do not find Plaintiff's argument persuasive.
Although Plaintiff alleges that he was “working towards employment with several prospective employers” at the time that Defendants published unflattering statements about him, this assertion establishes that, instead of having entered into a contractual relationship with a third party or being in the process of doing so, Plaintiff had not yet reached a definitive or tentative employment agreement with anyone. Put another way, Plaintiff's allegation does not, even when read in the most expansive manner possible, establish that he had any contractual relationship with a particular prospective employer, that any employer intended to enter into a contractual relationship with him, that Defendants knew of specific employers who had employed or planned to employ Plaintiff, or that, in the absence of Defendants' conduct, he lost the benefit of any contractual relationship or was precluded from entering into a contractual relationship with anyone. In the absence of such allegations, Plaintiff has failed to plead a viable claim for either wrongful interference with contract or wrongful interference with a prospective contractual relationship. Embree Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992) (stating that the first element of a claim for tortious interference with a contract is “a valid contract between the plaintiff and a third person”) (quoting United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988)); Cameron v. New Hanover Memorial Hospital, 58 N.C.App. 414, 440, 293 S.E.2d 901, 917 (indicating that a claim for wrongful interference with prospective economic advantage must rest upon allegations that the defendant, acting without justification, “induc[ed] a third party to refrain from entering into a contract with [the plaintiff] which contract would have ensued but for the interference”) (citing Spartan Equip. Co. v. Air Placement Equip. Co., 263 N.C. 549, 559, 140 S.E.2d 3, 11 (1965)), disc. review denied,307 N.C. 127, 297 S.E.2d 399 (1982). As a result, the trial court correctly dismissed Plaintiff's claims for wrongful interference with contractual or prospective contractual relations.
d. Negligence Per Se
In his pleadings, Plaintiff attempted to allege various negligence per se claims, with each such claim predicated upon alleged violations of North Carolina's cyberstalking statute, N.C. Gen.Stat. § 14–196.3(b), or its extortion statute, N.C. Gen.Stat. § 14–118.4. Although Plaintiff describes these claims as sounding in negligence, he actually alleges in his complaint that Defendants engaged in intentional conduct. In Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), the Supreme Court addressed the interrelationship between intentional conduct and negligence, stating that
[d]efining “willful negligence” has been more difficult. At first glance the phrase appears to be a contradiction in terms. The term “willful negligence” has been defined as the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed. A breach of duty may be willful while the resulting injury is still negligent. Only when the injury is intentional does the concept of negligence cease to play a part. We have noted the distinction between the willfulness which refers to a breach of duty and the willfulness which refers to the injury. In the former only the negligence is willful, while in the latter the injury is intentional.
312 N.C. at 714–15, 325 S.E.2d at 248 (citations omitted). As a result, a claim sounding in negligence simply does not lie in the event that the defendant intended the injury that resulted from his or her conduct. In his fifth, sixth, seventh, and eighth causes of action, Plaintiff explicitly alleges that Defendants willfully failed to comply with various statutory obligations and that they acted in this manner “in order to harass, annoy and abuse” Plaintiff. In his ninth cause of action, Plaintiff alleged that “Defendant Davis wrongfully communicated this threat in order to obtain [an] advantage and immunity, and to deprive the Plaintiff of his valuable rights.” As a result, given that Plaintiff has alleged that Defendants acted in an intentional manner and that they intended the specific consequences which resulted from their actions, Plaintiff has failed to adequately allege any negligence-based claims in his complaint.
Plaintiff has mistakenly numbered his ninth cause of action as his seventh.
The fundamental problem with the manner in which Plaintiff has attempted to assert almost all of his claims is that he has simply set out a boilerplate recitation of the elements of the claims that he has attempted to assert without setting out any factual allegations at all. Although notice pleading does not require highly detailed pleadings it does, as we have already noted, require the plaintiff to set out the basic facts upon which his or her attempt to obtain a finding of liability rests.
III. Conclusion
Thus, for the reasons set forth above, we hold that the trial court did not err by dismissing Plaintiff's complaint for failing to state a claim for which relief could be granted pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) without giving him a chance to amend his pleadings. As a result, the trial court's order should be, and hereby is, affirmed.
Although Plaintiff has also challenged the trial court's determination that it lacked personal jurisdiction over Defendant Secretswall.com and that Defendants were immune from liability pursuant to 47 U.S.C. § 230, we need not address those contentions given our conclusion that Plaintiff's complaint was properly dismissed pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6).
AFFIRMED. Chief Judge MARTIN and Judge DILLON, concur.
Report per Rule 30(e).