Moch v. A.M. Pappas & Associates, LLC
251 N.C. App. 198
| N.C. Ct. App. | 2016Background
- Kenneth I. Moch was CEO of Chimerix (2010–2014). In Oct 2014 he sent anonymous emails alleging misconduct by A.M. Pappas & Associates principals using the account pappasventureswhistleblower@gmail.com.
- Defendants (A.M. Pappas & Associates, Art Pappas, Ford Worthy) sued the anonymous sender for libel in June 2015 as "John Doe/Jane Doe."
- In Oct–Nov 2015 defendants’ counsel sent settlement-demand letters to Moch identifying him as the sender, enclosing subpoenas for documents and testimony, and threatening to publicly identify him and refer criminally where appropriate.
- Defendants amended the Doe complaint to name Moch in Nov 2015. Moch then sued defendants for abuse of process and unfair or deceptive trade practices (UDTPA).
- Defendants moved to dismiss under Rule 12(b)(6). The trial court dismissed Moch’s complaint with prejudice; Moch appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether letters/subpoenas support a UDTPA claim under N.C. Gen. Stat. § 75‑1.1 | Moch: letters and threatened tactics were unfair/deceptive and harmed him in commerce | Defendants: communications were actions by attorneys within scope of legal representation and thus not "commerce" under § 75‑1.1(b) | Court: UDTPA claim fails because conduct at issue was attorney activity within the learned‑profession exemption (not "in or affecting commerce") |
| Whether Moch plausibly alleged abuse of process based on subpoenas and settlement letters | Moch: totality of circumstances (Saturday deposition subpoena, voluminous document demands, settlement pressure) shows ulterior motive and misuse of process | Defendants: subpoenas and litigation conduct were within legitimate litigation function; no misuse alleged | Court: Moch did not preserve differing theories and failed to show a malicious misuse beyond regular litigation process; abuse‑of‑process claim dismissed |
Key Cases Cited
- Stanback v. Stanback, 297 N.C. 181 (definition and elements of abuse of process)
- Sutton v. Duke, 277 N.C. 94 (pleading rules: treat well‑pleaded allegations as admitted but not legal conclusions)
- Arnesen v. Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440 (standards for dismissal where complaint reveals no law supporting claim)
- Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396 (de novo review of Rule 12(b)(6) dismissal)
- Reid v. Ayers, 138 N.C. App. 261 (learned‑profession exemption under § 75‑1.1 and application to law firms)
- Davis Lake Community Ass’n v. Feldmann, 138 N.C. App. 292 (attorney conduct falls within learned‑profession exemption; UDTPA claims cannot be based on opposing counsel’s acts)
- Schlieper v. Johnson, 195 N.C. App. 257 (documents attached to complaint control on Rule 12(b)(6) review)
- Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597 (elements of abuse of process)