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Marshall v. American Broadcasting Companies, Inc.

United States District Court, E.D. North Carolina, Western Division

April 29, 2019

BARBARA SUMMEY MARSHALL, Plaintiff,
v.
AMERICAN BROADCASTING COMPANIES, INC., Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (DE 9), and motion for sanctions pursuant to Rule 11 (DE 23). Also before the court are plaintiff's motion for oral argument (DE 21) and motion for joinder of claims, which the court construes herein as a motion for leave to amend (DE 22). The issues raised by these motions are ripe for ruling. For the following reasons, the court grants the motion to dismiss, denies the motion for sanctions, and denies plaintiff's motions.

         STATEMENT OF THE CASE

         Plaintiff, who is an alleged former participant in an “Extreme Makeover: Home Edition” television program aired in 2011 on defendant's network, commenced this action, pro se, seeking relief for alleged injuries arising out participation by plaintiff and her family in the program. In complaint filed October 10, 2018, plaintiff asserts claims for “breach of contract of good faith and fair dealing, ” intentional infliction of emotional distress, negligence, and negligent entrustment. (Compl. p. 20). Plaintiff seeks damages for “loss of enjoyment of life/conscious pain and suffering, ” “pecuniary losses, ” other compensatory damages, and punitive damages, as well as equitable, injunctive, and declaratory relief. (Compl. pp. 26-27). Plaintiff attaches to the complaint the following documents:

1) Advertisement for a “Women Veterans' Forum” (DE 1-1).
2) Photograph of a house with a sign in front stating “Steps & Stages” (DE 1-2).
3) Honorable discharge certificate for plaintiff (DE 1-3).
4) Photograph of a gravestone for “James C. Neely Jr.” (DE 1-4).
5) Copy of a Federal Express envelope from “Extreme Makeovers - Home Ed.” to plaintiff followed by an unexecuted “2009 Family Application, ” “APPLICATION RELEASE AGREEMENT, ” and “LOCK AND KEY PRODUCTIONS” “LOCATION AGREEMENT” (DE 1-5).

         Defendant filed the instant motion to dismiss on November 5, 2018, seeking dismissal with prejudice of all claims for failure to state a claim upon which relief can be granted, relying upon the following documents:

1) Transcript of a June 19, 2018, motion hearing in the matter captioned Marshal v. The Walt Disney Company, No. 1:17-CV-726 (M.D. N.C. ).
2) Plaintiff's complaint in the matter captioned Marshal v. The Walt Disney Company, No. 1:17-CV-726 (M.D. N.C. ).

         Plaintiff filed response in opposition to the motion to dismiss on January 2, 2019, relying upon the following documents:

1) Plaintiff's motion for protective order and request for hearing in the matter captioned Marshall et al. v. American Broadcasting Companies Inc. et al., No. 1:16-CV-550 (M.D. N.C. ).
2) A settlement agreement between the State of North Carolina and Steps & Stages: Disabled Veterans Resource Agency, Inc. (“Steps & Stages”), dated October 16, 2015.
3) A complaint in the matter captioned Williams v. American Broadcasting Companies, Inc., dated September 21, 2005, filed in the Superior Court of California, County of Los Angeles (no case number specified).

         Defendant replied in support of its motion to dismiss on January 16, 2019, relying upon a “Lock and Key Productions Company Summary” published by “D&B Hoovers.” (DE 20-1).

         On January 24, 2019, after the instant motion to dismiss was submitted to the undersigned for decision, plaintiff filed a document titled “Response in Opposition to the Motion to Dismiss and Request for Oral Argument, ” which the court has designated as including a motion for oral argument. In support thereof, plaintiff relies upon two news articles.

         Plaintiff filed on February 26, 2019, the instant motion for joinder of claims, relying upon the following documents, in addition to documents already attached to the complaint:

1) Plaintiff's complaint in the matter captioned Marshal et al. v. State of North Carolina et al., No. 18-CV-12684 (Wake Co. Sup. Ct.) (hereinafter, the “Wake County Superior Court matter”).
2) An unpublished memorandum opinion by the United States Court of Appeals for the Ninth Circuit in the matter captioned Celador Int'l, Inc. v. American Broadcasting Companies, Inc., No. 11-55104 (9th Cir. Dec. 3, 2012).
3) Photocopy of a Department of the Army Achievement Medal for Maya V. Marshall.
4) An order in the matter captioned State of North Carolina et al. v. Barbara Marshall, individually and in her capacity as President of Steps & Stages: Disabled Veterans Resource Agency, Inc. et al., No. 13-CVS-6131 (Wake Co. Sup. Ct. Feb. 18, 2014).

         In March 2019, defendant filed response in opposition to plaintiff's motion for joinder, and defendant filed the instant motion for sanctions, relying upon the following documents not already included with filings above:

1) Plaintiff's complaint in the matter captioned Marshall et al. v. American Broadcasting Companies Inc. et al., No. 1:16-CV-550 (M.D. N.C. ).
2) An application to proceed in district court without prepaying fees or costs by Maya V. Marshall, including proposed complaint against The Walt Disney Company, in the a matter captioned No. 17-CV-800 (M.D. N.C. ).
3) A complaint in the matter captioned Clifton Roberto C.T. Marshall III v. “Extreme Home Makeover” Reality Television Show Broadcaster, Producer, Owner the Walt ...

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