Superior court division gaston county north carolina business court jason fisher



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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

GASTON COUNTY NORTH CAROLINA BUSINESS COURT
JASON FISHER, et al., )

)

Plaintiffs, ) Case No. 08-CvS-3154

)

v. )

)

COMMUNICATIONS WORKERS OF )

AMERICA, et al., )

)

Defendants. )
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

BY COMMUNICATION WORKERS OF AMERICA (CWA) and CWA DISTRICT 3
COME NOW Defendants Communications Workers of America (CWA) and CWA District 3, and in support of their motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), submit the following Memorandum.

PLAINTIFFS’ ALLEGATIONS

On June 11, 2008, Plaintiffs filed a Complaint against Communications Workers of America (hereinafter “CWA”), CWA District 3, and CWA Local 3602. CWA and District (referred to collectively as “CWA”) received Plaintiffs’ Complaint on June 19, 2008. On July 11 Plaintiffs filed an Amended Complaint to include an exhibit omitted from the original complaint.


In their Amended Complaint, Plaintiffs allege that CWA violated the North Carolina Identity Theft Protection Act, N.C.G.S. § 75-62 by posting on an employee bulletin board allegedly accessible to the general public an intra-union communication that included the name and Social Security number of some employees. See Amended Complaint, Para.s 20-31 and Ex. A thereto. Plaintiffs further allege that the posting of the internal union communication containing Social Security numbers is an unfair and deceptive trade practice under N.C.G.S. § 75-1.1, and an intrusion into Plaintiffs’ seclusion and private affairs. See Amended Complaint, Para.s 32-46.

ARGUMENT



1. The Rule 12(b)(6) Standard

On a motion to dismiss pursuant to Rule 12(b)(6), NCRCP, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. Craven v. Cope, 656 S.E.2d 729, 731 (N.C.App. 2008).

“Dismissal under Rule 12(b)(6) is proper when one or more of the following three conditions is satisfied: (1) when on its face the complaint reveals no law that supports plaintiff’s claim; (2) when on its face the complaint reveals the absence of fact sufficient to make a good claim; and (3) when some fact disclosed in the complaint necessarily defeats plaintiff’s claim.”
Johnson v. Bollinger, 356 S.E.2d 378, 380 (N.C. App. 1987). A complaint is

deemed sufficient to withstand a motion to dismiss under Rule 12(b)(6) where no

“insurmountable bar” to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim. Ibid., citing Presnell v. Pell, 260 S.E.2d 611, 613 (N.C. 1979). The system of notice pleading affords a sufficiently liberal construction of complaints, “but a complaint must nonetheless state enough to give the substantive elements of at least some legally recognized claim or it is subject to dismissal under Rule 12(b)(6).” Stanback v. Stanback, 254 S.E.2d 611, 626 (N.C. 1979), citing Sutton v. Duke, 176 S.E.2d 161, 167 (N.C. 1970).

2. Plaintiffs’ Causes of Action Fail to State Claims for Relief

A. First Cause of Action (North Carolina Identity Theft Protection Act)

Plaintiffs fail to allege sufficient facts to support their first cause of action (asserting a violation of the North Carolina Identity Theft Protection Act). The Act’s provision regarding the protection of Social Security numbers proscribes the following acts:

“(a) Except as provided in subsection (b) of this section, a business may not do any of the following:
(1) Intentionally communicate or otherwise make available to the general public an individual’s Social Security number.

(2) Intentionally print or imbed an individual’s Social Security number on any card required for the individual to access products or services provided by the person or entity.

(3) Require an individual to transmit his or her Social Security number over the Internet, unless the connection is secure or the Social Security number is encrypted.

(4) Require and individual to use his or her Social Security number to access an Internet Web site, unless a password or unique personal identification number or other authentication device is also required to access the Internet Web site.

(5) Print an individual’s Social Security number on any materials that are mailed to the individual, unless state or federal law requires the Social Security number to be on the document mailed.

(6) Sell, lease, loan, trade, rent, or otherwise intentionally disclose an individual’s Social Security number to a third party without written consent to the disclosure from the individual, when the party making the disclosure knows or in the exercise of reasonable diligence would have reason to believe that the third party lacks a legitimate purpose for obtaining the individual’s Social Security number.”




N.C.G.S. § 75-62. Although the Amended Complaint does not specify which subsection of the Act Defendants are alleged to have violated, only subsections (a)(1) and (a)(6) are implicated by the facts alleged by Plaintiffs. There is no allegation that Defendants: (1) printed cards containing Social Security numbers [subsection (a)(2)]; (2) required Plaintiffs to transmit their Social Security numbers over the internet [subsection (a)(3)]; required Plaintiffs to use their Social Security numbers to access a website [subsection (a)(4)]; or printed Social Security numbers on documents mailed to Plaintiffs [subsection (a)(5)].

Plaintiffs failed to proffer facts supporting a claim that Defendants intentionally communicated or otherwise made available to the general public their Social Security numbers. None of the facts cited in Plaintiffs’ Amended Complaint indicate that any alleged action taken by Defendants was for nefarious or improper purposes. Plaintiffs allege that authorized agents of Defendants “disseminated” Plaintiffs’ Social Security numbers as contained in the “NC.xls” document “by email and other means,” but do not allege that the individuals allegedly in receipt of the “NC.xls” document were members of the general public, or were not otherwise authorized to receive the document. Amended Complaint, Para. 30. In addition, the Exhibit attached to the Amended Complaint contains names and the associated “National_Id,” with no indication that the “National ID” is the person’s social security number. Plaintiffs further allege that authorized agents of Defendants posted a document containing Plaintiffs’ Social Security numbers on a bulletin board in a hallway in the Longpine facility that was accessible to the general public, but again fail to allege that any member of the general public accessed plaintiffs’ social security numbers or that the internal communication was an effort to provide Plaintiffs’ Social Security numbers to a member of the public or to facilitate identity theft, the crime this Act was enacted to prevent. Ibid. Further, nothing in Plaintiffs’ Amended Complaint defeats application of the defense provided by Subsection (b)(2) of the Act, which states that subsection (a) does not apply to instances where the collection, use, or release of a Social Security number is for internal verification or administrative purposes. N.C.G.S. § 75-1.1(b)(2).



3. Second Cause of Action (Deceptive Trade Practices)

Plaintiffs’ second cause of action asserts that Defendants’ conduct constitutes “unfair and deceptive trade practices” in violation of N.C.G.S. § 75-1.1. That provision states, in pertinent part, that

“(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

(b) For purposes of this section, “commerce” includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.”


Ibid. Thus, “in order to establish a violation of N.C.G.S. § 75-1.1, a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs.” Gray v. N.C. Ins. Underwriting Ass’n, 529 S.E.2d 676, 683 (N.C. 2000). “A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Marshall v. Miller, 276 S.E.2d 397, 403 (N.C. 1981). “A practice is deceptive if it has the capacity or tendency to deceive.” Ibid. Furthermore, “some type of egregious or aggravating circumstances must be alleged and proved before the [Act’s] provisions may [take effect]. Allied Distribs., Inv. v. Latrobe Brewing Co., 847 F.Supp. 376, 379 (E.D.N.C. 1993) (emph. supp.).

The North Carolina General Assembly declared its legislative intent in passing N.C.G.S. § 75.1.1:

“The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and the consuming public within this State, to the end that good faith and dealings between buyer and sellers at all levels of commerce be had in this State.”


State ex rel. Edmisten v. J.C. Penney Co., 233 S.E.2d 895, 899 (N.C. 1977). The primary purpose of the Unfair or Deceptive Trade Practices Act is to provide a “private cause of action for consumers.” Durling v. King, 554 S.E.2d 1, 4 ( N.C. App. 2001); citing Gray, supra. Although commerce is defined broadly under N.C.G.S. § 75-1.1(b), “the fundamental purpose of [the statute] is to protect the consuming public.” Ibid., citing Prince v. Wright, 141 N.C.App. 262, 268-269 (2000). Typically cases under N.C.G.S. § 75-1.1 involve buyer and seller. Ibid.

Setting aside whether or not Plaintiffs have sufficiently alleged “egregious” acts by Defendants that could be seen as “unfair” under the Act, there are clearly no allegations contained in the Amended Complaint that are “in or affecting commerce.” Defendants CWA and Local 3602 are affiliated labor organizations. Amended Complaint, Para.s 11-12. Plaintiffs are current or former employees of AT&T, Inc., represented by CWA for purposes of collective bargaining. Id. at Para.s 17-19. Thus, the relationship between Plaintiffs and Defendants was not that of buyer and seller, nor business and consumer, but of employee and labor representative, and as such, is not “in or affecting commerce” in the manner required by the statute. Furthermore, Plaintiffs have not alleged a single action taken by Defendants that involves commerce or the trade of goods and services in the manner at which the statute is directed, nor that otherwise impacts the marketplace in any way. Plaintiffs cannot sustain a claim under the Unfair or Deceptive Trade Practices Act when no “trade practices” are involved.


4. Third Cause of Action (Intrusion into Private Affairs)

Plaintiffs’ Third Cause of Action alleges that Defendant’s conduct constitutes and intrusion into Plaintiffs’ seclusion and private affairs. The North Carolina Courts have recognized the intrusive invasion into the private affairs of another as a valid cause of action. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Miller v. Brooks, 472 S.E.2d 350, 354 (N.C. App. 1996). North Carolina courts have held that ‘“intrusion’ as an invasion of privacy is a tort that does not depend upon any publicity given a plaintiff or his affairs but generally consists of an intentional physical or sensory interference with, or prying into, a person’s solitude or seclusion or his private affairs.” Hall v. Post, 355 S.E.2d 819, 823 (N.C. App. 1987), rev’d. on other grounds, 372 S.E.2d 711 (N.C. 1988). Thus, “[g]enerally, there must be a physical or sensory intrusion or an unauthorized prying into confidential personal records to support a claim for invasion of privacy by intrusion.” Broughton v. McClatchy Newspapers, Inc., 588 S.E.2d 20, 27 (N.C. App. 2003); citing Burgess v. Busby, 544 S.E.2d 4 (N.C. App. 2001).

In their Amended Complaint Plaintiffs fail to articulate how their allegations, if true, constitute evidence that any of their personal affairs or private concerns were intruded upon by Defendants. Specifically, there is no allegation that that Judy Brown (the “Membership Dues Specialist” who allegedly e-mailed the spreadsheet containing the names and Social Security numbers of 33 AT&T employees), or the person who allegedly posted the “NC.xls” document on the bulletin board, were not authorized to view or access those employees’ Social Security numbers. Further, the Amended Complaint contains no allegation that any agent, officer, or employee of Defendants, without authorization, intentionally pried into Plaintiffs’ confidential personal records. Rather, the allegation is that agents of Defendants emailed or otherwise communicated and/or posted a document containing Plaintiff’s Social Security numbers. Amended Complaint, Para.s 30-31. Plaintiffs’ claims are not the type of intrusion recognized by North Carolina courts, specific examples of which include “physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.” Hall, 355 S.E.2d at 823. Thus, Plaintiffs fail to plead an intrusion into their private affairs or concerns necessary to support a claim of invasion of privacy by intrusion as recognized by the North Carolina courts. If anything, Plaintiffs allege disclosure by Defendants of Plaintiffs’ private facts. The North Carolina courts, however, recognize no cause of action for the invasion of privacy by disclosure of private facts. Hall v. Post, 372 S.E.2d 711 (N.C. 1988).

WHEREFORE, based on the above and foregoing, Defendants CWA and CWA District 3 respectfully submit that the motion to dismiss is due to be granted, and that an appropriate order should follow.

Respectfully submitted,

___________/s/___________

Joyce Murphy Brooks, Esq.

NCSB #8196

Brooks Law Offices

6845 Fairview Road

Charlotte, NC 28210

704.765.4899



jmbrooks@brookslaw-nc.com

__________/s/___________________________

Robert M. Weaver, Esq.

Pro hac vice applicant

Nakamura, Quinn, Walls, Weaver & Davies LLP

Suite 380, 2700 Highway 280 East

Birmingham, AL 35233

205/870-9989

rweaver@nqwlaw.com

CERTIFICATE OF SERVICE
The undersigned certifies that on August 11, 2008 the foregoing document was served on counsel for the plaintiffs by electronic transmission and on August 12, 2008 by first class mail, postage prepaid.
________/s/________________

Joyce Murphy Brooks






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