A complaint may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or a fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim, but a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Despite the liberal nature of the concept of notice pleading, however, 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
N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 12(b)(6). A claim for relief must still satisfy the requirements of the substantive laws which gave rise to the pleadings, and no amount of liberalization should seduce the pleader into failing to state enough to give the substantive elements of his claim. While an incorrect choice of theory should not result in dismissal of the claim, the allegations must suffice to state a claim under some legal theory.
Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13 (N.C. Ct. App. 1982).

Our Supreme Court has stated: "'A [complaint] may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or a fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim,' [b]ut a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Sutton v. Duke, 277 N.C. 94, [102-03], 176 S.E.2d 161, 166(1970), quoting Moore, Federal Practice, § 12.08 (1968). (Emphasis original.)

Morrow v. Kings Dep't Stores, Inc., 57 N.C. App. 13, 16-17 (N.C. Ct. App. 1982)

The tort of intentional infliction of mental or emotional distress is formally recognized in North Carolina. The claim exists when a defendant's conduct exceeds all bounds usually tolerated by decent society and the conduct causes mental distress of a very serious kind.

The elements of the tort consist of:
(1) extreme and outrageous conduct,
(2) which is intended to cause and does cause
(3) severe emotional distress.

The tort may also exist where defendant's actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress. Recovery may be had for the emotional distress so caused and for any other bodily harm which proximately results from the distress itself. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483 (N.C. Ct. App. 1986)

§ 9.2(A). Assault and Battery. Most jurisdictions permit a jury to consider an award of punitive damages for assault and battery 1 when attended by certain aggravating elements, 2 such as malice, 3 a willful, wanton, or reckless disregard for the rights of others, 4 insult or oppression. 5 Even if the assault and battery may be criminal in nature, it does not automatically require an instruction on punitive damages. 6 Punitive damages will be denied where these aggrevated elements are missing. 7 The usual justification for awarding punitive damages is punishing and deterring the defendant from committing similar acts in the future. 8 A majority of courts adopt the rule that some actual damages must be shown before a punitive award is allowed. 9 Some courts hold that nominal damages are a sufficient 10 foundation for such an award.

1-9 Punitive Damages § 9.2

Mukeshia’s parents. Plaintiffs sought compensatory and punitive damages. Defendants answered, asserting affirmative defenses, and simultaneously moved to dismiss the complaint pursuant to G.S. § 1A-1, Rule 12(b)(6) on grounds the complaint failed to state a claim upon which relief could be granted. Plaintiffs subsequently submitted to a voluntary dismissal of their claims against defendant Brenner, moved to strike certain of the affirmative defenses asserted by the remaining defendants, and moved for partial summary judgment.

N.C. Gen.Stat. 1:253

Because this appeal arises from defendant's motion to dismiss for failure to state a claim, “we treat plaintiff ['s] factual allegations as true. The question then becomes whether the allegations of the complaint, if treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” Thompson v. Waters, 351 N.C. 462, 462-63, 526 S.E.2d 650, 650 (2000) (citations omitted).
Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.
Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted).

* See more at: http://caselaw.findlaw.com/nc-court-of-appeals/1508214.html#sthash.PealPmwO.dpuf * However, Plaintiff claims that the DPD took no action regarding his complaint, nor did they offer him any compensation for his injuries. (Id.) Accordingly, he filed the present action on June 22, 2007. * Legal Standards * To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a plaintiff must first comply with Fed. R. Civ. P. 8(a)(2), which requires “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1964 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). * While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements * -6- * Case 1:07-cv-00492-RAE Document 28 Filed 03/07/2008 Page 6 of 11of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true. * Twombly, 127 S. Ct. at 1964-65 (internal citations omitted). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 1969. * The standard by which the complaint is to be judged is the same to succeed under Fed. R. Civ. P. 12(c). 5A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure § 1367 (2d ed. 1990); Ramirez v. Department of Corrections, Colo., 222 F.3d 1238 (10th Cir. 2000). Defendant must again show that the complaint does not state a claim for relief. Further, under both rules, the Court must construe all factual allegations in the light most favorable to Plaintiff. Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). * Discussion * ARGUMENT * 1. Title VII claim * A. Burden of proof: The Plaintiff has the burden of production to come forward with facts demonstrating a prima facie case. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). * B. Elements: The Plaintiff must allege that: (i) she is a member of a protected class; (ii) she was qualified for the position she held; (iii) she suffered an adverse employment action; (iv) that adverse action occurred in circumstances giving rise to an inference of discrimination. Id. at 506. The Defendants concede that the Plaintiff has plead sufficient facts to establish the first and third elements. * C. Elements not supported by Complaint: element (ii): The Complaint does not allege that the Plaintiff met the * minimum qualification standards for the position she held. element (iv): The Complaint does not allege any facts demonstrating that * the Plaintiff was terminated in circumstances giving rise to an inference of discrimination. The Complaint does not state that the Plaintiff was replaced by a person outside the protected class, * 3Because the motion is brought pursuant to Fed. R. Civ. P. 12(b)(6), only the specific facts alleged in the Complaint are properly before the Court. Extended factual recitation is unnecessary and duplicative of the Complaint itself.see e.g. St. Mary’s, 509 U.S. at 506, nor any other facts suggesting that the termination was in any way related to her sex. * 2. Defamation claim * A. Burden of proof: The Plaintiff has the burden of proof by clear and convincing evidence. Barnett v. Denver Publishing Co., 36 P.3d 145, 147 (Colo. App. 2001). * B. Elements: To state a claim for defamation under Colorado law, a plaintiff must allege: (i) a defamatory statement; (ii) published to a third party; (iii) the existence of special damages or actionability absent special damages; and (iv) actual malice. Card v. Blakeslee, 937 P.2d 846, 850 (Colo. App. 1996); Barnett, 36 P.3d at 147. The Defendants concede that the Plaintiff has plead sufficient facts to establish elements (i) and (iii). * C. Elements not supported by the Complaint: element (ii): The Plaintiff has not alleged that the statement was * published to a third party. Paragraph 7 of the Complaint states that the alleged defamatory statement was made by Defendant Jack Smith during a disciplinary meeting with the Plaintiff and Lisa Doe, Smith Corp.’s Human Resources Manager. As a matter of law, Ms. Doe is not a “third party” because she is an employee and agent of Defendant Smith Corp. and its owner, Jack Smith. See Johnson v. Made-Up Case, 000 P.2d 999 (Colo. 2000). Thus, even when taken as true, the alleged publication of the statement to Ms. Doe is insufficient to state a claim for defamation. * element (iv): The Plaintiff has not alleged facts showing that the statement was made with actual malice. * CONCLUSION * For the foregoing reasons the Defendants’ Motion to Dismiss should be granted and the First and Second Claims for Relief should be dismissed. Dated: _______ Respectfully submitted, * _______________________ * IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger * Case No. 999-MK-9999 (XXX) JANE ROE, * Plaintiff, * v. * SMITH CORP., and JACK SMITH, * Defendant. ______________________________________________________________________________ * SAMPLE RESPONSE TO SAMPLE MOTION TO DISMISS * ______________________________________________________________________________ COMES NOW Plaintiff Jane Roe, through undersigned counsel, in opposition to the * Defendants’ Motion to Dismiss (# XY). The Plaintiff contends that she has alleged sufficient facts in the Complaint to state claims for both sex discrimination under Title VII and common- law defamation. * 1. Title VII claim * A. Burden of proof: The Plaintiff concedes that she bears the burden of production of a prima facie case. * B. Elements: The Plaintiff agrees with the Defendants’ identification of the elements of a prima facie case. * C. The Complaint sufficiently alleges elements (ii) and (iv): element (ii): Paragraph 4 of the Complaint, which states “At all times * herein, the Plaintiff has been a competent and capable employee,” sufficiently alleges that the Plaintiff was qualified for her position. In addition, paragraph 11 of the Complaint alleges that “Smith Corp. has never had any cause to question the Plaintiff’s ability to perform her job.” * Both statements, construed in the light most favorable to the Plaintiff, allege that the Plaintiff had the minimum qualifications for the position. * element (iv): Paragraph 6 of the Complaint alleges that Defendant Jack Smith repeatedly commented that “girls aren’t cut out for this kind of work” and that, referring to the Plaintiff and Mary Clark, “I don’t know why Tom hired these bitchy little crybabies in the Receiving Department.” These comments, some directed specifically at the Plaintiff, are direct evidence of sex-based discrimination. Such comments can give rise to an inference of discrimination. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000). * 2. Defamation claim * A. Burden of proof: The Plaintiff disputes that she must prove her defamation claim by clear and convincing evidence. The Defendants’ citation to Barnett v. Denver Publishing Co., 36 P.3d 145, 147 (Colo. App. 2001) is misplaced, as that case involves a claim against a public figure. Because there is no claim that the Plaintiff here is a public figure, she need only prove her defamation claim by a preponderance of the evidence. Id. * B. Elements: The Plaintiff disputes the Defendants’ recitation of the elements of the claim. Specifically, the Plaintiff denies that element (iv), actual malice, is an element of a defamation claim involving a private person. Id. * C. The Complaint states the necessary elements of defamation: element (ii): The Plaintiff denies that Ms. Doe’s employment with Smith * Corp. makes her the agent of Defendant Smith as a matter of law. See Different Made-Up Case v. Hanrahan, 000 P.3d 100 (Colo. App. 2001). Moreover, even assuming that publication of the statement to Ms. Doe is insufficient, paragraph 16 of the Complaint alleges that “Defendant Smith made this statement in a loud voice such that others outside the office could hear it.” Paragraph 19 states that “Thereafter, Mary Clark told the Plaintiff that she had heard that Jack * Smith had accused Plaintiff of being a thief.” These statements are sufficient to allege that Defendant Smith published the false statements to third parties. * element (iv): The Plaintiff denies that actual malice is required to state a claim of defamation by a private party. Barnett, 36 P.3d at 147. In the alternative, the Plaintiff contends that the comments alleged in paragraph 6 sufficiently demonstrate Defendant Smith’s actual malice towards the Plaintiff. * Accordingly, the Plaintiff requests that the Defendants’ Motion to Dismiss be *