MOTIONS BY ALL HVJT DEFENDANTS

Transcription

1 NORTH CAROLINA ' - ":- - W THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION GUILFORD COUNTY i8i8 JAN? Q p.3: CVS 3273 LOUIS M. BOUVIER, JR, KARW!- i W- ^ 03., C.S.C, ANDREA NIEHANS, SAMUEL R, NIEHANS, and JOSEPH D. GOLDEN, <^M^, Plaintiffs, v. DEFENDANTS HOLTZMAN VOGEL JOSEFIAKTORCHINSKYPLLC, WILLIAM CLARK PORTER, W, STEVE ROBERTS, EMN CLARK, HOLTZMAN VOGEL JOSEFIAK GABRIELA FALLON, AND STEVEN TORCHINSKY PLLC, STEVE SAXE'S MOTION TO DISMISS THE ROBERTS, ERIN CLARK, GABRIELLA AMENDED COMPLAINT FALLON, STEVEN SAXE, and the PAT MCCRORY COMMITTEE LEGAL DEFENSE FUND, Defendants. Defendants Holtzman Vogel Josefiak Torchinsky PLLC, Steve Roberts, Erin Clark, Gabriela Fallen, and Steven Saxe (collectively, "HVJT Defendants" move the Court to dismiss Plaintiffs' Amended Complaint pursuant to Rules 12(b(l, 12(b(2, and 12(b(6 of the North Carolina Rules of Civil Procedure for the reasons set forth more specifically below: MOTIONS BY ALL HVJT DEFENDANTS 1. The HVJT Defendants move to dismiss Plaintiffs' First Claim (Libel for lack of personal jurisdiction pursuant to Rule 12(b(2 and for failure to state a claim under Rule 12(b(6 because: a. The alleged statements in the Amended Complaint are subject to the absoluteprivilege immunity (a fonn of quasi-judicial immumty because, among other

2 things, the statements were made in the due course of, and were relevant to, a quasijudicial proceeding. b. The alleged statements are subject to the qualified-privilege immunity because, among other things, (1 the statements were (a on a subject matter (i in. which the declaraat had an interest, or (ii in reference to which the declarant had a right or duty, (b to a person having a corresponding interest, right, or duty, (c on a privileged occasion, and (d in a manner and under circumstances fauly warranted by the occasion and duty, right, or interest; and (2 the Amended Complaint fails to sufficiently state a claim, for actual malice. 2. The HVJT Defendants move to dismiss Plaintiffs' First Claim (Libel pursuant to Rule 12(b(6 for failure to state a claim because the statements alleged in the Amended Complaint do not constitute libel per se. The alleged statements do not accuse Plamtiffs of having an infectious disease, do not accuse Plamtiffs of committing an infamous crime, do not injure Plaintiffs m their trade or profession, and do not subject Plaintiffs to contempt, ridicule, or disgrace. 3. The HVJT Defendants move to dismiss Plaintiffs' Second Claim (Civil Conspiracy and Third Claim (Punitive Damages pursuant to Rule 12(b(6 for failure to state a claim because civil conspiracy and punitive damages must be dependent on an underlying independent claim of unlawful conduct and the statements alleged in the Amended Complaint are privileged and/or are not libelous. 4. The HVJT Defendants move to dismiss Plaintiffs' Second Claim (Civil Conspiracy pursuant to Rule 12(b(6 for failure to state a claim because Plaintiffs allege the same facts for the basis of both the conspiracy claim and the underlying libel claim.

3 5. The HVJT Defendants move to dismiss Plaintiffs' class action allegations pursuant to Rule 12(b(l for lack of subject matter jurisdiction and pursuant to Rule 12(b(6 for failure to state a claim for a class action because, among other things, the allegations in the Amended Complaint do not allege the contents of any specific statement(s in any Election Protests concerning the putative class members sufficient to state a claim for libel. Further, the allegations in the Amended Complaint fail to establish that: (a the putative class members are so numerous that it would be impractical to bring them all before the court, (b the putative class members each have an interest in either the same issue of law or of fact, and that issue predominates over issues affecting only individual class members, or (c the class representatives will famy and adequately represent the interests of all members of the class. ADDITIONAL MOTIONS BY FALLON AND SAXE 6. In addition to the motions to dismiss listed above, Defendants Gabriela Fallon and Steven Saxe also each move to dismiss the Amended Complaint pursuant to Rule 12(b(l for lack of subject-matter jurisdiction and pursuant to Rule 12(b(6 for failure to state a claim because, among other things, the named Plaintiffs lack standing to sue (or otherwise fail to state a claim against either Fallen or S axe for libel and conspiracy and, therefore, lack standing to sue Fallen or Saxe on behalf of the putative class members. WHEREFORE, Defendants Holtzman Vogel Josefiak Torchinsky PLLC, Steve Roberts, Erin dark, Gabriela Fallon, and Steven S axe request that the Court dismiss Plaintiffs' Amended Complaint in its entirety.

4 Respectfully submitted this 19th day of January, /'"/../..'' ( }'u^u^ C-^^LC,^ ^^ y^'y, Charles F. Marshall NC State Bar No.: cmarshall@brookspierce.com Craig D. Schauer NC State Bar No.: cshauer@brookspierce.com Attorneys for Defendants Holtzman Vogel Josefiak Torchinsky PLLC, Steve Roberts, Erin dark, Gabriela Fallon, and Steven Saxe. OF COUNSEL: BROOKS PIERCE McLENDON HUMPHREY & LEONARD, LLP PO Box 1800 Raleigh, NC Telephone: Facsunile:

5 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing was served by depositing a copy of the same in the United States Mail, First Class, postage affixed, and addressed to the following: Anita Earls Allison J. Riggs Jaclyn. IVtaffetore Southern Coalition for Social Justice 1415 Highway 54, Suite 101 Durham, NC anita@southerncoalition.org allison@southemcoalition. org jaclyn@southemcoalition.org Pressly M. Mullen Ripley Rand Womble Bond Dickinson (US LLP P.O. Box. 831 Raleigh, NC Telephone: Facsimile: press.millen@wbd-us.com ripley.rand@wbd-us.com Philip R. Isley Blanchard, Miller, Lewis & Isley, P.A Hillsborough Street Raleigh, NC Telephone: Facsimile: pisley@bmlilaw. com Counsel for McCrory Defense Fund Marshall Hurley Marshall Hurley, PLLC Suite 300 Gateway Business Center 2400 Freeman Mill Road Greensboro, NC Committee Legal Counsel for William Clark Porter, W Counsel for Plaintiffs This the 19th day of January, ^t.t^ 'k^t-t^ /^Wyi-i ^ / /^' ^-^ /^ Charles F. Marshall