{
  "id": 8523381,
  "name": "MR. CARL MATTHEWS v. JOHNSON PUBLISHING CO., INC.",
  "name_abbreviation": "Matthews v. Johnson Publishing Co.",
  "decision_date": "1988-04-05",
  "docket_number": "No. 8721SC590",
  "first_page": "522",
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  "last_updated": "2023-07-14T22:39:00.818604+00:00",
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  "casebody": {
    "judges": [
      "Judges Arnold and Orr concur."
    ],
    "parties": [
      "MR. CARL MATTHEWS v. JOHNSON PUBLISHING CO., INC."
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nPlaintiff commenced this civil action on 10 February 1986 alleging that defendant corporation intentionally and negligently failed to include plaintiff and his contributions to the sit-in movement of the 1960\u2019s in any of the issues of its publication, Ebony Magazine, published since February 1960, nor in its November 1985 Fortieth Anniversary Issue. The complaint further alleged that defendant was a member of a conspiracy which included the National Association for the Advancement of Colored People (NAACP), and the mayors and Board of Aldermen of Winston-Salem, North Carolina, serving between 25 May 1960 and February 1986, which conspired \u201cto suppress [plaintiffs contributions and successes and to otherwise prevent him from receiving due recognition\u201d for the successes of the sit-in movement of the 1960\u2019s. Plaintiff further alleged that defendant\u2019s \u201cnegligent and conspiratorial conduct\u201d caused him severe emotional distress, humiliation, depression and physical harm, as well as a loss of earnings and other compensations.\nIn response to the complaint, defendant filed a motion to dismiss on 18 April 1986, pursuant to G.S. 1A-1, Rule 12(b)(6), contending that plaintiff had failed to state a claim upon which relief could be granted. The matter came on for hearing on 2 June 1986 and defendant\u2019s motion to dismiss was allowed. From the order dismissing this action with prejudice plaintiff appeals.\nBy this appeal plaintiff has asked this Court to consider whether the trial court erred in dismissing the complaint pursuant to G.S. 1A-1, Rule 12(b)(6).\nIt is a familiar rule of law that when considering a 12(b)(6) motion to dismiss, the court must treat the allegations of the complaint as true, and determine whether they are sufficient to establish a claim under some recognized legal theory. Harris v. NCNB Nat\u2019l Bank, 85 N.C. App. 669, 355 S.E. 2d 838 (1987). The complaint must provide sufficient notice of the circumstances under which the claim arises and make allegations which adequately satisfy the substantive elements of a valid claim. Fox v. Wilson, 85 N.C. App. 292, 354 S.E. 2d 737 (1987).\nApplying these principles to the case sub judice, we are faced with no other possible alternative except to affirm the trial court\u2019s order dismissing the action.\nWe note at the outset that plaintiff is attempting to recover for acts of defendant which occurred as early as 1960. It is clear to us that any claims plaintiff has brought forward for libel, intentional infliction of emotional distress, conspiracy, or product liability based upon these actions are time-barred. See G.S. 1-46-56. The remainder of the discussion, however, is limited to plaintiffs claims which arose from having been omitted from the February 1985 Fortieth Anniversary Issue of defendant\u2019s magazine.\nPlaintiff bases his entire claim upon the assertion that defendant failed to publish anything about his contribution to the sit-in movement in its publication, Ebony Magazine. He particularly objects to not having been included in the November 1985, Fortieth Anniversary Issue. He alleges that this action, or rather inaction, rose to the level of establishing an actionable claim grounded in negligence, and proceeds under the theories of intentional infliction of emotional distress, product liability, and also alludes to libel. His remaining theory of the case is that defendant was engaged in a conspiracy intended to deprive him of public recognition. Plaintiff has failed to present any facts which would allow him to proceed further under those or any other recognized legal theory.\nIn order to establish a cause of action for intentional infliction of emotional distress, plaintiff must allege that defendant committed: (1) an extreme or outrageous act, (2) which was intended to cause and resulted in, (3) severe emotional disturbance in another person. Dickens v. Puryear, 302 N.C. 437, 276 S.E. 2d 325 (1981). We have before us no such act.\nIt is also quite clear to us that defendant\u2019s publication, Ebony Magazine, does not constitute the type of product contemplated by G.S. 99B, otherwise known as the North Carolina Product Liability Act. G.S. 99B-H3) specifically provides that a \u201c \u2018[p]roduct liability action\u2019 includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design formulation, ... or labeling of any product.\u201d Although novel, plaintiffs theory is untenable.\nThe libel theory, which was never clearly specified as such, similarly fails due to the absence of any writing or picture published by the defendant which referred to the plaintiff in any manner whatsoever. The establishment of any claim for libel must necessarily begin with a \u201cpublication by writing, printing, signs or pictures . . .\u201d Renwick v. The News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 317, 312 S.E. 2d 405, 409 (1984); see also 53 C.J.S. Libel and Slander; Injurious Falsehood secs. 1-9 (1987). It is undisputed that defendant published no words or pictures relating to the plaintiff. In fact, the absence of any reference is precisely what the plaintiff has emphasized.\nLastly, plaintiff failed to allege any specific facts which when considered could establish a cause of action for conspiracy. We agree with defendant that at most plaintiff merely showed that the alleged members of the conspiracy \u201cengaged in unconscious and unknowing parallel conduct [in] not participating in activity to cause [plaintiff] to receive some form of public recognition.\u201d We simply have no facts before us which would even suggest common purpose or concerted activity. Therefore, the trial court\u2019s order is\nAffirmed.\nJudges Arnold and Orr concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Dr. G. Ray Motsinger, for plaintiff-appellant.",
      "West, Wood, James & Banks, by Phillip S. Banks, III, and Johnson, Toal & Batiste, by I. S. Leevy Johnson, for defendant-ap-pellee."
    ],
    "corrections": "",
    "head_matter": "MR. CARL MATTHEWS v. JOHNSON PUBLISHING CO., INC.\nNo. 8721SC590\n(Filed 5 April 1988)\nLibel and Slander \u00a7 14; Negligence \u00a7 22; Trespass \u00a7 2\u2014 sit-in movement \u2014 failure to include defendant\u2019s contributions in magazine \u2014 complaint insufficient to state claim\nPlaintiffs complaint alleging that defendant publishing company intentionally and negligently failed to include anything about plaintiffs contributions to the sit-in movement of the 1960s in any issues of Ebony magazine published since February 1960 or in its November 1985 Fortieth Anniversary Issue was properly dismissed for failure to state a claim for relief since (1) any claims based on defendant\u2019s acts which occurred as early as 1960 are time barred, and (2) plaintiffs allegations relating to the Fortieth Anniversary Issue were insufficient to state claims for intentional infliction of emotional distress, product liability, libel or conspiracy.\nAPPEAL by plaintiff from Seay, Thomas W., Judge. Judgment entered 10 June 1986. Heard in the Court of Appeals 3 December 1987.\nDr. G. Ray Motsinger, for plaintiff-appellant.\nWest, Wood, James & Banks, by Phillip S. Banks, III, and Johnson, Toal & Batiste, by I. S. Leevy Johnson, for defendant-ap-pellee."
  },
  "file_name": "0522-01",
  "first_page_order": 550,
  "last_page_order": 553
}
