North Carolina law: Jolly v. Academy Collection

David A. Szwak

North Carolina law: Jolly v. Academy Collection

Postby David A. Szwak » Sat Jan 14, 2006 6:32 pm

Jolly v. Academy Collection Service, Inc.
400 F.Supp.2d 851
M.D.N.C.,2005.
Nov 03, 2005

The second, third, fourth, and fifth claims for relief in plaintiffs' complaint are for libel, libel per se, slander, and slander per se, respectively. Generally, libel and slander are two forms of defamation, with the difference between them being that slander involves spoken words and libel is written words. Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C.App. 274, 277, 450 S.E.2d 753, 756 (1994). A statement is defamatory if it tends "to prejudice another in his reputation, office, trade, business, or means of livelihood." Donovan v. Fiumara, 114 N.C.App. 524, 526, 442 S.E.2d 572, 574 (1994)(quoting, Morrow v. Kings Department Stores, 57 N.C.App. 13, 20, 290 S.E.2d 732, 736, disc. review denied, 306 N.C. 385, 294 S.E.2d 210 (1982)). The statement must also be false. Id. at 528, 442 S.E.2d at 574.
[7] [8] Slander and libel are also divided into two general categories of defamation per se and defamation per quod. [FN6] A defamatory statement that charges a plaintiff with a crime involving moral turpitude, impeaches his or her trade or business, or accuses him or her of having a "loathsome disease" is actionable per se and the plaintiff does not have to allege or prove malice or special damages. They are presumed. Id. at 527-528, 442 S.E.2d at 574- 575. For other defamatory statements, malice and special damages must be alleged and proven. Id. In pleading a cause of action for defamation, a plaintiff must recount the allegedly defamatory statement either verbatim or at least with enough specificity to allow the Court to decide if the statement is defamatory. Morrow, 57 N.C.App. at 21, 290 S.E.2d at 737.


FN6. At least for libel, there is a third class of statements--those
are statements capable of being read in two ways, with one being defamatory and the other not. However, this category is not relevant to the case at bar.


Plaintiffs have certainly not pled the elements of libel or slander per se. There is no allegation that could even remotely be construed as claiming that any of the defendants accused any of the plaintiffs of committing a crime of moral turpitude or having a loathsome disease. As for impeaching plaintiffs in their trade or business, plaintiffs generally claim that their trade or business was disrupted by defendants' actions. However, they have not set out facts alleging that defendants made false statements actually impeaching them in their business or trade. In fact, they have not even revealed the nature of their business or trade, much less alleged that defendants stated that they were unfit to perform it or performed it poorly. Finally, as will be discussed next, plaintiffs have not pled the allegedly defamatory statements with sufficient specificity. For all of these reasons, plaintiffs' have not stated claims for libel or slander per se under North Carolina law and the claims should be dismissed.
The Court also concludes that plaintiffs have not pled proper claims for libel and slander per quod. The primary problem for plaintiffs is that they have not directly set out any false and defamatory statements which defendants are alleged to have made. The actual statement of claims in their complaint is completely conclusory. It does not give either the wording of any defamatory statements or even describe their nature. Nor can any such statements be gleaned from the factual portions of the complaint with enough specificity to allow the Court to determine whether or not they could be defamatory.
*862 It is true that some paragraphs in the complaint do reference false or deceptive representations. However, the accusations are vague and/or do not involve defamatory comments. Paragraph 20 of the complaint states that "defendants used false representations or implication [sic] that the individual was an attorney," paragraph 22 says that "defendants used false representations or deceptive means to collect or attempt to collect an alleged debt or obtain information," paragraph 25 says defendants were involved in "communicating certain false information about plaintiffs," and "making untrue statements defaming, maligning and/or in other ways misrepresenting plaintiffs and/or communicating such incorrect and defamatory statements to third parties," and paragraph 26 claims that defendants acted in concert and "used or attempted to use false, misleading, abusive, unfair and/or deceptive means, presentations and/or procedures, including ... identif[ying] plaintiff as a person who doesn't pay debts."
None of these allegations of false statements are sufficient to state a claim for libel or slander. The claim that defendants falsely represented themselves to be attorneys, even if accurate, did not defame plaintiffs or call their reputation into question, the allegations of false, defamatory, or maligning statements in paragraphs 22 and 25 are entirely conclusory and do not detail the statements in any fashion. Finally, plaintiffs' general statement that defendants identified "plaintiff" as a person who does not pay debts is also insufficient to state a claim. The accusation is in the middle of a lengthy list of alleged bad acts, which is in turn connected to the above stated series of adjectives including "false" and "defaming," but also including "abusive" and "unfair." Because of this, it is not clear whether plaintiffs are alleging that defendants falsely made this statement or whether this statement is merely unfair and abusive. More importantly, the complaint also lacks necessary details regarding the exact statements made by defendants and their context. It gives nothing more than a general description of the idea plaintiffs believe was conveyed by defendants' statements. In violation of North Carolina's requirements for pleading defamation claims, plaintiffs have not provided the alleged statements with enough specificity to allow the Court to decide whether they are defamatory.
The deficiency in plaintiffs' claims is further illustrated by their response briefs. In their response brief to Citibank's motion, plaintiffs do not really refer to the statements from the complaint listed above in the complaint, but instead state that failure to remove the debt from credit reports after it was not validated within 30 days "constitutes willful defamation" and that Citibank's "continued willful listings of an alleged debt in credit reporting agencies proves defamation." (Pl. Resp. to Citibank's Mot. pp. 3, 4) As with their federal claims, plaintiffs oppose Citibank's motion by adding allegations to create a moving target. They also rely on the same unsupported and apparently inaccurate interpretations of federal law. This cannot save their claim.
Plaintiffs' response to Green and Academy's motion is similar. They again state that failure to remove the contested and unvalidated debt from credit reports constitutes defamation. (Pl. Resp. to Academy and Green's Mot. to Dis. p. 3) Plaintiffs do also refer to and clarify the statement in the complaint that defendants made it seem as if plaintiff Hollar was a person who did not pay her debts. However, their explanation does not help their case because it becomes clear from their brief that defendants did not actually make a statement to this effect, but that plaintiffs (and likely only Robert Jolly) simply inferred *863 this from the previously mentioned credit reports and/or statements allegedly made by defendant Green. [FN7] The brief states that by making repeated telephone calls and putting "collection purpose" into a credit report, Academy "labeled Mrs. Hollar as a person that does not pay her [d]ebts, and could not be trusted" and that defendants' publishing of "unverified information" in a credit report also caused this. (Id. at p. 4) It claims that Robert Jolly, in a letter attached to the complaint as Exhibit 1, stated that Mr. Green's repeated phone calls and false statements to him "caused information to be Diverged to him that disclosed Mrs. Hollar was a person that could not be trusted. [sic]" (Id.) Again, some of these arguments rely on facts not in the complaint and all are nothing more than plaintiffs or Jolly's inferences based on whatever statements defendants actually made. Their failure to include these statements prevents the Court from determining whether the statements were ones that could give the impression that plaintiffs claim they did. [FN8] Under North Carolina law, this failure makes dismissal appropriate. See Morrow, 57 N.C.App. at 21, 290 S.E.2d at 737 (dismissing slander claim where the complaint " 'leaves to conjecture that which must be stated' " quoting Leasing Corp. v. Miller, 45 N.C.App. 400, 405-406, 263 S.E.2d 313, 317, disc. rev. denied, 300 N.C. 374, 267 S.E.2d 685 (1980)).


FN7. To the extent Robert Jolly made the statements based on his inferences, he could potentially be liable for slander, but not defendants.



FN8. It is also worth noting that plaintiffs' assertion concerning statements in Mr. Jolly's letter is not accurate. While filled with hyperbolic language, threats of various legal actions, and a list of
alleged misdeeds by defendants, the letter never mentions that defendants made statements that Hollar was a person who did not pay debts, never mentions statements to credit reporting agencies, and does not say that Robert Jolly or anyone else believed Hollar was a person that did not pay her debts. Again, Robert Jolly's letter, under his construction of it, would expose him to a libel action by Hollar, but would not in any way implicate defendants. But, in fact, as for why Hollar was fired, the letter states that "[b]ecause of your deliberate/willful actions and disruption of my business the person you tried to contact has been terminated." (Complaint Ex. 1 p. 2) It in no way attributes the firing to nonpayment of debts or a lack of trust. Plaintiffs' contention to the contrary is false and, unfortunately, all too indicative of the abusive manner in which they have conducted this lawsuit.


[9] [10] There is an additional reason for dismissing plaintiffs' claims for libel and slander per quod. North Carolina law requires that special damages be pled in order to state these claims. Donovan, 114 N.C.App. at 527-528, 442 S.E.2d at 574-575. Also, the damages must be of a pecuniary nature, not from humiliation. Williams v. Rutherford Freight Lines, Inc., 10 N.C.App. 384, 387, 179 S.E.2d 319, 322 (1971). Both federal and North Carolina pleading rules require that items of special damages be individually set out. Fed.R.Civ.P. 9(g) ("When items of special damage are claimed, they shall be specifically stated."); N.C. Gen.Stat. § 1A-1, Rule 9(g)("When items of special damage are claimed each shall be averred.").
Plaintiffs have not met the pleading requirements for special damages. They do mention special damages in the complaint, However, it is only in the statement that defendants' acts caused "plaintiffs special, general and punitive damages." (Complaint ¶ 23) These damages are not listed, enumerated, nor explained in any way, much less as to each plaintiff. The complaint does not even contain allegations that could be considered to be pecuniary damages arising from any alleged libel or *864 slander. The only arguable exception is the reference in Exhibit 1 of the complaint to plaintiff Hollar being fired from her job by plaintiff Robert Jolly. In their response briefs, plaintiffs contend that this is an example of pecuniary damage suffered by Hollar. However, as explained earlier, Exhibit 1 does not allege that slander or libel led to her firing, but instead attributes it to the disruption of Mr. Jolly's business by other bad acts allegedly committed by defendants. See n. 7 supra. This does not state a claim for relief. Tallent v. Blake, 57 N.C.App. 249, 255, 291 S.E.2d 336, 340 (1982) (no damages present where loss of job stemmed from events other than slander). Plaintiffs have not adequately pled special damages. Because of this and all of the other reasons previously set out, all of plaintiffs' claims for libel and slander should be dismissed.

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