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Unless advised otherwise by council, the re-filing will probably exclude Calloway and House and only the Corporation named as a defendant.
NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
DURHAM COUNTY
COMPLAINT
96CVS02155
STEPHEN RAY WINTER Plaintiff
vs.
The News and Observer Publishing Co.
(NandoNet) and
Kirk House (ISDN dept.),
James Calloway (General Manager),
Defendants
The Plaintiff hereby alleges and says:
I
The Plaintiff, STEPHEN RAY WINTER is a citizen and resident of the County of Durham, State of North Carolina. The Plaintiff was a customer of NandoNet accessing their network from a local call to RTP North Carolina since 10/95. The Plaintiff is a Christian minister, and codirector of Winter Academy (a State registered non-public school) who does publishing via electronic media (PreRapture BBS etc., this includes educational and homeschooling support) and the Plaintiff is in business selling computer telecommunications equipment. The Plaintiff is the owner of the Internet domain, prime.org. The Plaintiff's permanent Internet account with NandoNet played a major and essential role in the Plaintiff's ministry and business. The Plaintiff's NandoNet monthly charges were automatically billed by NandoNet automatically to the Plaintiff's Corporate American Express card.
II
The Defendants are The News and Observer Publishing Co. (a North Carolina Corporation with its principle place of business at 215 South McDowell Street Raleigh, NC 27601) and two employees directly involved in the decision to breach the Plaintiff's contract, Kirk House of the ISDN services and James Calloway the General Manager of "New Media Division"
III
The Defendant Kirk House was advised before the Plaintiff opened his NandoNet permanent IP account and established the prime.org domain that the Plaintiff had theological and other enemies who would, when the Plaintiff's account was set up, flood NandoNet with fallacious complaints against the Plaintiff in an effort to have the Plaintiff's account cancelled. The Plaintiff also advised Defendant Kirk House that the Plaintiff was a controversial religious preacher with many enemies. The Defendant Kirk House advised the Plaintiff that these issues would not be a problem. Based upon these assurances the Plaintiff moved his ministry and business focus to the internet and his prime.org domain. On May 30, 1996 the Plaintiff noticed that his internet connection was down and when he inquired, he was called by Defendant Kirk House and advised that his account had been ordered cancelled personally by Defendant Kirk House because of complaints. The same day the Plaintiff advised Defendants Kirk House and James Calloway that the complaints were fallacious attempts to get the Plaintiff's account cancelled and that the Plaintiff and his family were being damaged. This caused the Plaintiff much frustration, wasted time and mental anguish far in excess of $10000. The Plaintiff asks that the court award damages in excess of $10000 against the Defendants. A reasonable person would expect a service provider to offer them assistance in such matters of fallacious complaints, especially when honestly forewarned before entering into contract.
IV
The Defendants were fully advised and aware that there were bitter theological opponents of the Plaintiff attempting to wage a campaign of frivolous complaints against the Plaintiff to try to have his account cancelled. The Defendants were advised that these complaints even often included counterfeit articles not published by the Plaintiff. The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff mental anguish and frustration and damaged him in excess of $10000.
V
The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff damages to his business in excess of $10000. The Plaintiff had been advertising his Internet address and web page for months and his commercial web site of http://www.prime.org/sellcom/index.htm had become an international presence on the World Wide Web. The Plaintiff was involved in business relationships with his suppliers that involved his web presence and his email account. Confirmations and business were done via the Plaintiff's email account.
VI
The Defendants' breach of contract cancelling of the Plaintiff's ISDN account and thereby falsely labeling the Plaintiff as a "net abuser" has caused the Plaintiff great damage to his ability to defend himself against his bitter theological opponents in the future, since they would simply be able to point to the NandoNet cancellation as leverage to cancel any subsequent accounts with competitors. This effectively censors the Plaintiff from publishing his religious views and damages the Plaintiff in excess of $10000.
VII
The Defendants' cancelling of the Plaintiff's account and thereby falsely labeling the Plaintiff as a net abuser has caused the Plaintiff great damage to his reputation, defamed his character, and, since the Plaintiff is in the computer business and was using his Nando domain account to do business both direct and as advertising has caused the Plaintiff damages in excess of $10000.
VIII
The Plaintiff invested thousands of dollars in equipment, software, and advertising to establish the Plaintiff's ministry including a web site and computer bulletin board (accessible from the Internet) as a direct result of the contract for Internet service with NandoNet. The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff damages to his international ministry and educational support in excess of $10000.
IX
The Plaintiff invested thousands of dollars in technical labor hours researching and installing software, and advertising to establish the Plaintiff's ministry including a web site and computer bulletin board (accessible from the Internet) as a direct result of the contract for Internet service with NandoNet. The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff damages including but not limited to lost profits from business in excess of $10000.
X
The Plaintiff invested thousands of dollars in equipment, software, and advertising to establish the Plaintiff's computer hardware business including a web site and email as a direct result of the contract for Internet service with NandoNet. The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff damages to his international ministry and educational homeschool support in excess of $10000. These damages include, but are not limited to the thousands of dollars invested in equipment and many technical and administrative man hours.
XI
The Defendants failed to act in a manner that a reasonable person would expect in the matter of the ongoing campaigns of frivolous complaints against the Plaintiff by the Plaintiffs bitter theological opponents. Instead, the Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff damages to his business and reputation in excess of $10000.
XII
The Defendant took previous threatening action against the Plaintiff to censor him from exercising his right to publish in public areas over which the Defendant has no jurisdiction causing the Plaintiff to suffer a plethora of damages in excess of $10000 in a violation of civil rights of the Plaintiff.
XIII
The public forums where the Plaintiff was exercising his right to free speech are a virtual "no man's land" in cyberspace. Compared to the average fare on these groups, the Plaintiff's publishing were mild at their most intense, AND were most often exceeded in volume by attacks (often vicious open attempts to violate the Plaintiff's civil rights) from his bitter theological opponents and other antagonists who wage an ongoing campaign to have the Plaintiff's views censored. The Defendants deliberately and knowingly breached their written contract to provide the Plaintiff with 24 hour ISDN internet service. This breach caused the Plaintiff a plethora of damages to his international ministry and educational support in excess of $10000.
XIV
In light of the importance of the Internet to modern society for so many aspects of life and business, to allow the Defendant to commit the aforementioned actions and deliberate malicious breach of contract with impunity against an individual who was merely exercising his rights of free speech in an open public arena, guilty of nothing more than being unpopular with his theological opponents would be very bad law and set a very bad legal precedent. The Defendants have also made themselves coconspirators with the Plaintiff's bitter theological opponents who openly conspired to violate the Plaintiff's civil rights by having his religious publishing censored. WHEREFORE, the Plaintiff prays judgment against the Defendants for the damages to the Plaintiff listed above and in addition to the aforementioned:
1. Punitive damages in excess of $10000 for the Plaintiff's deliberate violations of the civil rights of the Plaintiff including but not limited to the right of free speech that any reasonable person would expect on the Usenet.
2. Additional damages in excess of $10000 for damages including but not limited to emotional strain, frustration, and general inconvenience and lost time suffered by the Plaintiff due to the direct actions of the Defendants.
3. Additional damages in excess of $10000 for lost profits from the Plaintiff's current and future business dealings due to the damage to the Plaintiff's reputation inflicted by the Defendant's discrimination against the Plaintiff and their deliberate breach of contract.
4. Additional punitive damages in excess of $10000 against the Defendant for failure to act in a manner that a reasonable person would expect, to protect a customer an ongoing campaign to deprive the Plaintiff of freedom of speech and publication via the internet.
7. Additional punitive damages in excess of $10000 against the Defendant for failure to act in a responsible manner that a reasonable person would expect towards a paying customer.
8. Any and all additional damages including punitive damages in excess of $10000 against the Defendant that the court believes would be covered by any other established legal precedent towards the aforementioned breach of contract and any and all torts committed by the Defendants against the Plaintiff..
9. Reasonable legal fees incurred by the Plaintiff in his efforts to recover damages through the courts.
_____________________________________(seal)_
Stephen Ray Winter (the Plaintiff) 1806 Albany St. Durham, NC 27705-3134
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing instrument
was served upon all parties to the above cause by depositing a copy
hereof, postage fully prepaid, in the United States Mail, properly
addressed as disclosed by the pleadings of record herein to each
said party or his/her attorney of record on the day
of , 19 .
Signature of Party or Attorney:
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