United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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
OF THE CASE
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”
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. ).
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,
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).
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.”
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.
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).
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