PROMETHEUS GRP. ENTERS., LLC v. GIBSON, 2023 NCBC 23

STATE OF NORTH CAROLINA
WAKE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 14236
PROMETHEUS GROUP
ENTERPRISES, LLC,
Plaintiff,
v.
RANDY GIBSON and PROSPECTA
SOFTWARE,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO DISMISS
AND
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
1. 	Prometheus Group Enterprises, LLC (“Prometheus”) complains that
Randy Gibson, its former employee, left work to join a competitor, allegedly breaching
his restrictive covenants and taking confidential information in the process. 	The
competitor he joined, Prospecta Software (“Prospecta”), is alleged to have connived
with Gibson to acquire Prometheus’ trade secret and other confidential information.
2. 	Prometheus 	filed 	its 	verified 	Complaint 	on 	16 	November 	2022,
(ECF No. 3), along with a contemporaneously filed Motion for Preliminary Injunction
(the “PI Motion”), (ECF Nos. 5, 14).1 On 18 January 2023, Defendants countered with
their Motion to Dismiss Plaintiff’s Verified Complaint (the “Motion to Dismiss”), (ECF
No. 16), (together, the “Motions”).
1 Plaintiff’s first Motion for Preliminary Injunction was filed without a supporting brief, (ECF
No. 5). The Court notified Plaintiff of its deficiency, and Plaintiff filed its Amended Motion
for Preliminary Injunction on 2 January 2023 with the requisite brief, (ECF No. 14). 	See
BCR 7.2.
Prometheus Grp. Enters., LLC v. Gibson, 2023 NCBC 23.

3. 	For the following reasons, the Court GRANTS in part and DENIES in
part 	Defendants’ 	Motion 	to 	Dismiss 	and 	DENIES 	the 	Plaintiff’s 	Motion 	for
Preliminary Injunction.
Brown Rudnick, LLP, by Kelsey D. Bond, Aaron C. Lang, Marshall
Jones, and Dylan P. Kletter, for Plaintiff Prometheus Group Enterprises,
LLC.
Bradley Arant Boult Cummings, LLP, by Matthew S. DeAntonio and
Hanna E. Eickmeier, for Defendants Prospecta Software and Randy
Gibson.
Earp, Judge.
I. 	BACKGROUND
4. 	The following background is a recitation of the allegations in the
Complaint for the purpose of evaluating the Motions.2
5. 	Prometheus is a Delaware LLC with its principal place of business in
Raleigh, North Carolina. 	It describes itself as “the leading provider of enterprise
asset management software.” Prometheus researches, designs, and develops its asset
management 	software 	to 	“enhance 	enterprise 	resource 	planning-based 	asset
maintenance 	systems[.]” 	Prometheus 	also 	provides 	training 	and 	consulting
2 For purposes of Rule 12(b)(6) of the North Carolina Rules of Civil Procedure (“Rule(s)”), the
Court is limited to a review of the Complaint and any documents incorporated in the
Complaint. Moch v. A. M. Pappas & Assoc., LLC, 251 N.C. App. 198, 206 (2016). See also
Jackson/Hill Aviation, Inc. v. Town of Ocean Isle Beach, 251 N.C. App. 771, 775 (2017)
(“Perhaps the most fundamental concept of motions practice under Rule 12 is that evidence
outside the pleadings . . . cannot be considered in determining whether the Complaint states
a claim on which relief can be granted.”). 	Accordingly, the Court does not consider the
affidavits of Jay Golonka, (ECF Nos. 25, 39), Randy Gibson, (ECF No. 21), or Julian Blackley,
(ECF No. 20), in its analysis of the Motion to Dismiss. The affidavits are considered only for
their evidentiary value with respect to the Motion for Preliminary Injunction, discussed
below.

regarding its software. Its offerings are “used in various industries around the world
to drive cost savings, productivity, uptime, and reliability.” 	(Compl. ¶¶ 9, 12, ECF
No. 3.)
6. 	Randy Gibson (“Gibson”) is an individual who resides in Raleigh, North
Carolina. 	(Compl. ¶ 10.) 	In January 2018, Prometheus hired Gibson to work as a
“Master Data Consulting Manager” in its Raleigh office. 	As a condition of Gibson’s
employment, he executed a Proprietary Information, Inventions and Non-Solicitation
Agreement (the “Employment Agreement”). 	(Compl. ¶¶ 13-14, Ex. A.) 	Because
Gibson 	was 	allegedly 	given 	“unlimited 	access” 	to 	Prometheus’ 	confidential
proprietary 	information, 	the 	Employment 	Agreement 	contains 	prohibitions 	on
competing, 	soliciting 	customers, 	and 	disclosing 	confidential 	information.
(Compl. ¶¶ 14-21.)
7. 	The non-compete clause in the Employment Agreement states:
To protect Proprietary Information, I agree that during my employment
with the Company and for a period of one (1) year after my last day of
employment with the Company, I will not directly or indirectly engage
in (whether as an employee, consultant, proprietor, partner, director or
otherwise), or have any ownership interest in, or participate in the
financing, 	operation, management or control 	of, 	any person, 	firm,
corporation or business that engages in a Restricted Business in a
Restricted Territory. It is agreed that ownership of no more than one
percent (1%) of the outstanding voting stock of a publicly traded
corporation shall not constitute a violation of this provision.
(Compl. Ex. A, § 4 [“Employment Agreement”].)
8. 	The Employment Agreement defines a Restricted Business as “any
business related to the creation, development, distribution or servicing of enterprise
application software designed to improve enterprise asset management capabilities

and related operations, or conducting research or development with regard thereto[.]”
The 	definition 	also 	includes 	businesses 	Prometheus 	was 	actively 	researching,
developing, or marketing at the time of Gibson’s termination, if he was involved in
the research. (Employment Agreement § 4.2(a).)
9. 	The Restricted Territory encompasses:
(i) the entire world; (ii) North America; (iii) the United States of
America; (iv) each state in which the Company does business or did
business at any time within two (2) years prior to the termination of my
employment with the Company; (v) the States of Maryland, Virginia,
North Carolina, South Carolina and Georgia; (vi) the State of North
Carolina; and (vii) Wake County.
(Employment Agreement § 4.2(b).)
10. 	The customer non-solicitation clause in the Employment Agreement
reads:
To protect the Company’s Proprietary Information . . . . I also agree that
for the period of my employment by the Company and for one (l) year
after the date of termination of my employment with the Company I will
not, either directly or through others: . . . (c) solicit or attempt to solicit
(i) any customer to which the Company sold any product, or for which
the Company performed any service, within two (2) years prior to the
termination 	of 	my 	employment 	with 	the 	Company; 	or 	(ii) 	any
prospective customer that the Company called on at any time within two
(2) years prior to the termination of my employment with the Company
(collectively, a “Company Customer”)[.]
(Employment Agreement § 3.)
11. 	The nondisclosure clause states, in relevant part:
I recognize that all Proprietary Information (as defined below) is and
shall remain the sole and exclusive property of the Company. At all
times during my employment and thereafter, I will hold in strictest
confidence and will not disclose or use any Proprietary Information,
except as such disclosure or use may be required in connection with my

work for the Company or unless the Company expressly authorizes such
disclosure or use in writing.
(Employment Agreement § 1.1.)
12. 	“Proprietary 	Information” 	is 	defined 	as 	“all 	confidential 	and/or
proprietary knowledge, data or information of the Company.” 	This sentence is
followed by a lengthy list of categories of information that encompass almost every
type of business information conceivable. (Employment Agreement § 1.2.)
13. 	Over his years with Prometheus, Gibson worked “with hundreds of
customers and solicited potential customers located around the world, with a
significant number throughout North America and the United States in particular.”
(Compl. ¶ 22.)
14. 	However, 	on 	29 	June 	2022, 	Gibson 	voluntarily 	resigned 	from
Prometheus. 	Later that year he began working as a Senior Solutions Architect for
Prospecta, an Australian LLC with its principal place of business in Chatswood,
Australia. Prospecta allegedly advertises this position as one in which the incumbent
“designs 	and 	drives 	Prospecta’s 	business 	outcomes 	and 	works 	directly 	with
Prospecta’s customers to design, implement and support customer solutions as a part
of the sales-engagement and pre-sales processes.” (Compl. ¶¶ 11, 23, 25.)
15. 	Prometheus alleges that Prospecta “is engaged in substantial business
activity within North Carolina including . . . marketing to and servicing customers
and employing key staff within the state[.]” (Compl. ¶ 7.) Prospecta advertises itself
as “a leading platform for Master Data Management and Data Governance[.]” 	Its

software “orchestrates your enterprise data strategy . . . [to] propel your business
growth and advancements[.]” (Compl. ¶ 26.)
16. 	Prometheus contends that Gibson’s new job with Prospecta violates the
Employment Agreement’s non-compete clause. 	(Compl. ¶ 27.) 	And, Prometheus
alleges, “[g]iven the nearly identical nature of Gibson’s role and responsibilities at
Prometheus 	and 	his 	new 	business-generating 	and 	customer-facing 	role 	and
responsibilities at Prospecta, Plaintiff reasonably believes that Defendants have used
Prometheus’ confidential information . . . to solicit or attempt to solicit Prometheus’
customers and prospects[.]” (Compl. ¶28.)
17. 	When Prometheus discovered that Gibson was working for Prospecta, it
sent a letter to both Prospecta and Gibson highlighting the Employment Agreement’s
prohibitions 	on 	competing, 	soliciting 	customers, 	and 	disclosing 	confidential
information. 	(Compl. ¶ 29.) 	The letter “demanded that Prospecta immediately
terminate Gibson through the period of the Agreement’s non-compete and non-
solicitation provisions.” 	(Compl. ¶ 30.) 	Although Prometheus has followed up
multiple 	times, 	it 	alleges 	that 	neither 	Gibson 	nor 	Prospecta 	has 	responded.
(Compl. ¶ 31.)
18. 	Prometheus believes that Gibson is still employed by Prospecta, and it
further believes that the two “continue to improperly use Prometheus’ confidential
information 	to 	directly 	or 	indirectly 	solicit 	or 	attempt 	to 	solicit 	Prometheus’
customers and prospective customers in contravention of the terms Agreement [sic].”
(Compl. ¶¶ 32-33.)

19. 	Prometheus lists the allegedly purloined information as “confidential
and proprietary records via Salesforce” that include “information regarding existing
clients, client contracts and proposals, identified and/or actively pursued prospective
clients and business opportunities, contact information for existing and prospective
clients, notes and files relating to interactions and communications with existing and
prospective clients, and information relating to closed sales and closed lost business
opportunities[.]” (Compl. ¶ 28.) Prometheus alleges that the information at issue is
“not available from general sources or otherwise known outside the business and that
[it] cannot be derived and developed independently.” (Compl. ¶ 21.)
20. 	Prometheus filed this suit asserting claims for: (1) injunctive relief, (2)
breach of contract, (3) tortious interference with contract, (4) misappropriation of
trade secrets, and (5) violation of the North Carolina Unfair and Deceptive Trade
Practices Act (“UDTPA”). It seeks an injunction to prevent Prospecta from employing
Gibson through 29 June 2023, and to prevent both Defendants from using or
disclosing its confidential information. 	(Compl. ¶¶ 34-39, Prayer for Relief B, C.)
Defendants move to dismiss all of Prometheus’ claims. (See generally Mot. Dismiss,
ECF No. 16.)
21. 	After briefing was complete on the Motions, the Court held a hearing
on 28 February 2023, at which all parties participated through counsel. The Motions
are now ripe for disposition.

II. 	ANALYSIS
A. Motion to Dismiss
22. 	Dismissal of a claim is appropriate “(1) when the Complaint on its face
reveals that no law supports plaintiff’s claim; (2) when the Complaint reveals on its
face the absence of fact sufficient to make a good claim; [or] (3) when some fact
disclosed in the Complaint necessarily defeats the plaintiff’s claim.” 	Oates v. JAG,
Inc., 314 N.C. 276, 278 (1985). Otherwise, “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, 103 (1970) (emphasis omitted).
23. 	The Court construes the Complaint liberally and accepts all factual
allegations 	as 	true. 	See 	Laster 	v. 	Francis, 	199 	N.C. 	App. 	572, 	577 	(2009).
Nonetheless, the Court is not required “to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences.” Good Hope
Hosp., Inc. v. N.C. HHS, Div. of Facility Servs., 174 N.C. App. 266, 274 (2005) (quoting
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). 	The Court may consider
documents attached to the pleadings, to which the Complaint specifically refers,
including a contract that forms the basis of an action. 	See Oberlin Capital, L.P. v.
Slavin, 147 N.C. App. 52, 60-61 (2001).

Breach of Contract – against Gibson3
24. 	Prometheus 	alleges 	that 	Gibson 	has 	breached 	his 	Employment
Agreement by violating its prohibitions on competing, soliciting customers and
prospects, and disclosing confidential proprietary information. 	(Compl. ¶¶ 27-28,
41-48.)
25. 	In response, Gibson 	contends 	that the claim should be dismissed
because the Employment Agreement’s non-compete and non-solicit provisions are
overbroad 	and 	therefore 	unenforceable. 	(Defs.’ 	Br. 	Supp. 	Mot. 	Dismiss 	8-15
[“Defs.’ Supp. Br.”], ECF No. 17; Defs.’ Reply Br. Further Supp. Mot. Dismiss 2-9
[“Defs.’ Reply Br.”], ECF No. 42.) 	He also argues that Prometheus has not alleged
facts sufficient to plead a breach of the Employment Agreement’s nondisclosure
provision. (Defs.’ Supp. Br. 15-17; Defs.’ Reply Br. 9.)
26. 	In response, Prometheus defends the scope of its restrictive covenants
and alternatively recommends that the Court blue pencil the language of the
non-compete to rid it of any excess that might exist. (Pl.’s Br. Opp. Defs.’ Mot. Dismiss
3-14 [“Pl.’s Opp. Br.”], ECF No. 38.)
27. 	To state a claim for breach of the Employment Agreement, Prometheus
must allege the existence of a valid contract and breach of its terms. Poor v. Hill, 138
N.C. App. 19, 26 (2000). 	To be valid, a covenant not to compete must be: “(1) in
writing; (2) part of an employment contract; (3) based on valuable consideration; (4)
3 Prometheus’ first claim seeks injunctive relief. Although styled as a claim, it is a request
for a remedy and will be treated that way. See Window World of St. Louis, Inc. v. Window
World of Bloomington, Inc., 2021 NCBC LEXIS 88, at **36 (N.C. Super. Ct. Oct. 6, 2021).

reasonable as to time and territory; and (5) designed to protect a legitimate business
interest.” Med. Staffing Network, Inc. v. Ridgway, 194 N.C. App. 649, 655 (2009).
28. 	In North Carolina, covenants not to compete are considered restraints
on trade and are closely scrutinized. Hartman v. W.H. Odell & Assocs., 117 N.C. App.
307, 311 (1994) (“A covenant in an employment agreement providing that an
employee will not compete with his former employer is not viewed favorably in
modern law. ”) (cleaned up); Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C.
App. 315, 323 (2008) (“Covenants not to compete restrain trade and are scrutinized
strictly.”); ChemiMetals Processing, Inc. v. McEneny, 124 N.C. App. 194, 197 (1996)
(“Our Courts have a long history of carefully scrutinizing . . . covenants that prevent
an employee from competing with his former employer.”).
29. 	To be enforceable, non-competition covenants must be narrowly tailored
to protect a legitimate business interest of the employer. 	See Sterling Title Co. v.
Martin, 266 N.C. App. 593, 597 (an “otherwise procedurally valid covenant not to
compete” must still be “designed to protect a legitimate business interest of the
employer”); Hartman, 117 N.C. App. at 316 (restrictive covenant cannot be “wider in
scope than is necessary to protect the business of the employer”). If the covenant is
“too broad to be a reasonable protection to the employer’s business[,] it will not be
enforced.” 	Whittaker Gen. Med. Corp. v. Daniel, 324 N.C. 523, 528 (1989). 	See also
Horner Int’l Co. v. McKoy, 232 N.C. App. 559, 566 (2014) (finding unenforceable
covenant that was too broad in scope to protect the legitimate business interests of
former employer).

30. 	Legitimate business interests include, inter alia, protecting the goodwill
that arises from the former employee’s contacts with customers and safeguarding the
confidential information to which the former employee had access. See United Labs.,
Inc. v. Kuykendall, 322 N.C. 643, 652-53 (1988).
31. 	While non-solicitation agreements must meet the same requirements as
covenants not to compete, non-solicitation agreements are more easily enforced. See,
e.g., McGriff Ins. Servs. v. Hudson, 2023 NCBC LEXIS 4, at **16-17 (N.C. Super. Ct.
Jan. 17, 2023); Sandhills Home Care, L.L.C. v. Companion Home Care - Unimed, Inc.,
2016 NCBC LEXIS 61, at **36 (N.C. Super. Ct. Aug. 1, 2016).
32. 	Ultimately, 	whether 	a 	restrictive 	covenant 	is 	reasonable 	and
enforceable is a matter of law for the Court to decide. See, e.g., Med. Staffing Network,
Inc., 194 N.C. App. at 655 (2009). 	Therefore, the Court analyzes the covenants at
issue keeping in mind that the restraint should be no more restrictive than necessary
to protect the legitimate business interest implicated. 	Digital Realty Trust, Inc. v.
Sprygada, 2022 NCBC LEXIS 71, at **24 (N.C. Super. Ct. July 1, 2022).
33. 	Prometheus 	avers 	that 	the 	non-competition 	provision 	in 	Gibson’s
employment 	agreement 	is 	necessary 	to 	protect 	its 	proprietary 	information.
(Employment Agreement § 4.) 	Although protecting proprietary information is a
legitimate business interest, see A.E.P. Industries v. McClure, 308 N.C. 393, 408
(1983), this restriction is not sufficiently tailored to that interest.
34. 	Instead of using language directly prohibiting Gibson from providing a
competitor with the proprietary information that he accessed while working in his

role for Prometheus, the non-compete uses imprecise language that has a much
broader sweep. It purports to prohibit Gibson from directly or indirectly engaging in,
having an 	ownership interest 	in, 	or participating in 	the 	financing, 	operation,
management or control of, any business that engages in a Restricted Business in a
Restricted Territory. (Employment Agreement § 4.)
35. 	North Carolina courts have repeatedly warned the drafters of restrictive
covenants about the dangers of using the phrase “directly or indirectly” when defining
the scope of a non-compete. 	See, e.g., VisionAIR, Inc. v. James, 167 N.C. App. 504,
508 	(2004) 	(non-compete 	with 	“directly 	or 	indirectly” 	competing 	clause 	was
unenforceable because it blocked “wholly unrelated work”); Power Home Solar, LLC
v. Sigora Solar, LLC, 2021 NCBC LEXIS 55, at *24-25 (N.C. Super. Ct. June 18, 2021)
(North Carolina courts have routinely refused to enforce noncompete provisions that
prevent a prior employee from “indirectly” working for a competitor or similar
business); Cty. of Wake PDF Elec. & Supply Co. v. Jacobsen, 2020 NCBC LEXIS 103,
at *18 (N.C. Super. Ct. Sept. 9, 2020) (“Particularly problematic are covenants that
restrict an employee from ‘directly or indirectly’ having any association with a
competing business.”); NFH, Inc. v. Troutman, 2019 NCBC LEXIS 66, at *38-39 (N.C.
Super. Ct. Oct. 29, 2019) (non-compete prohibiting employee from competing “directly
or indirectly” with a former employer “in any manner” was unreasonably broad); Akzo
Nobel Coatings, Inc. v. Rogers, 2011 NCBC LEXIS 42, at **31-32 (N.C. Super. Ct.
Nov. 3, 2011) (“North Carolina courts have refused to enforce noncompetition clauses
using the terms ‘directly or indirectly.’ ”). 	Cf. CNC/Access, Inc. v. Scruggs, 2006

NCBC LEXIS 22, at *23-26 (N.C. Super. Ct. Nov. 17, 2006) (prohibiting a party “from
even indirect ownership of a competing company . . . . cannot be seen as protecting a
legitimate business interest of the employer”).
36. 	Not only does this non-compete use the disfavored “directly or indirectly”
phrase, it compounds the problem by purporting to prohibit Gibson from accepting
employment of any kind with any business if that business engages in a “Restricted
Business” in any way. Even before one gets to the definition of Restricted Business,
the problem with this approach is apparent. 	The language utilized would prohibit
Gibson from taking a wholly unrelated position with a company that produces and
services IT products if one of its products falls within the definition of Restricted
Business. Consequently, even working as a line cook in the cafeteria at IBM, Oracle,
or SAP would be forbidden.
37. 	This is unquestionably overbroad. See, e.g., CopyPro, Inc. v. Musgrove,
232 N.C. App. 194, 201-02 (2014) (covenant preventing former salesperson from
working in any capacity, including as a custodian, was unenforceable because it far
exceeded the restriction necessary to protect former employer’s legitimate business
interests); Med. Staffing Network, Inc., 194 N.C. App. at 656 (“we have held that
restrictive covenants are unenforceable where they prohibit the employee from
engaging in future work that is distinct from the duties actually performed by the
employee”); Hartman, 117 N.C. App. at 317 (holding unenforceable covenant that
would prevent former employee from having any association whatsoever—including
working as a custodian—for any business that provides actuarial services); 	Digital

Realty Trust, Inc., 2022 NCBC LEXIS 71, at **39 (“When the language describing the
restricted duties strays from the employee’s own duties and essentially restricts the
employee from taking positions with a competitor that would not harm his former
employer’s legitimate business interests, it is too broad to be enforceable.”).
38. 	When the definition of Restricted Business is considered, Prometheus’
problems with overbreadth do not improve. 	A Restricted Business is “any business
related 	to 	the 	creation, 	development, 	distribution 	or 	servicing 	of 	enterprise
application software designed to improve enterprise asset management capabilities
and related operations[.]” 	(Employment Agreement § 4.2(a).) 	Webster’s dictionary
lists the words “affiliated,” “allied,” “kindred,” and “akin” as synonyms for the word
“related.” 	See 	Related, 	Merriam-Webster 	Dictionary, 	https://www.merriam-
webster.com/dictionary/related (last visited Mar. 21, 2023). 	By adding this layer,
Prometheus attempts to widen its prohibition to restrict Gibson from accepting any
type of position with any business that is related or connected to a business that
creates, sells, or services asset management products or services among its other data
management products or services.4 	The result is manifestly overbroad. Cf. Digital
Realty Trust, Inc., 2022 NCBC LEXIS 71, at **37-38 (“Defining the scope of a
noncompete by including unnamed affiliates and subsidiaries . . . is a perilous
course.” (citing Rel. Ins. Inc. v. Pilot Risk Mgmt. Consulting, LLC, 2022 NCBC LEXIS
49, at *35 (N.C. Super. Ct. May 25, 2022)); Med. Staffing Network, Inc., 194 N.C. App.
4 Indeed, in support of its Motion for Preliminary Injunction, Prometheus explains, “there is
no enterprise asset management without data management; it is an integral component of
any enterprise.” 	(Aff. Jay Golonka Supp. Pl.’s Reply Supp. Am. Mot. Prelim. Inj. ¶ 3
[“Golonka Aff.”], ECF No. 25.)

at 657 (finding no “legitimate business interest in preventing competition with . . . an
unrestricted and undefined set of [the employer’s] affiliated companies that engage
in business distinct from the” former employer); VisionAIR, Inc. 167 N.C. App. at 508-
09 (refusing to enforce non-compete when the scope of the restriction purported to
prevent the employee from “doing even wholly unrelated work at any firm similar to”
his former employer); Henley Paper Co. v. McAllister, 253 N.C. 529, 534-35 (1960)
(holding restrictive covenant not tailored to employee’s position to be too wide to
enforce).
39. 	Exacerbating the problem even more, the Restricted Territory in this
non-compete is as broad as it gets, covering “the entire world[.]” 	(Employment
Agreement § 4.2(b).) 	Although a worldwide covenant not to compete is not per se
invalid, the facts must be such that a worldwide restriction is reasonable and
necessary. 	Compare Biesse Am., Inc. v. Dominici, 2019 NCBC LEXIS 50, at *24-25
(N.C. Super. Ct. Aug. 19, 2019) (finding unlimited territory unreasonable), with
Digital Realty Trust, Inc., 2022 NCBC LEXIS 71, at **33 (finding restriction that
covered the United States, North and South America, Europe, Asia, Australia and
Africa to be supported by facts in sale of business context).
40. 	The reasonableness of a geographic restriction is evaluated based on six
factors:
(1) the area, or scope, of the restriction; (2) the area assigned to the
employee; (3) the area where the employee actually worked or was
subject to work; (4) the area in which the employer operated; (5) the
nature of the business involved; and (6) the nature of the employee’s
duty and his knowledge of the employer’s business operation.

Hartman, 117 N.C. App. at 312. 	Some elasticity exists when analyzing time and
territory 	restrictions 	because 	they 	are 	read 	in 	tandem 	to 	determine 	their
reasonableness. 	Id. at 311-12.
41. 	Here, the time limitation is relatively short (one year post employment)
but, even so, Prometheus’ alleged facts do not support a worldwide restriction.
Broadly stating that Gibson “worked with hundreds of customers and solicited
potential customers around the world, with a significant number throughout North
America and the United States in particular[,]” (Compl. ¶ 22), does not give the Court
enough information to evaluate the reasonableness of a worldwide restriction.
Moreover, including language in the Employment Agreement that the parties agree
that the restriction is “reasonably necessary” to protect Prometheus’ interests does
not end the question because deciding the reasonableness of a restrictive covenant is
the Court’s domain. 	See Med. Staffing Network, Inc., 194 N.C. App. at 655 (“The
reasonableness of a non-competition covenant is a matter of law for the court to
decide.”).
42. 	Additionally, North Carolina’s blue pencil rule cannot be used to salvage
this far-reaching non-compete. The rule is one of excision, not modification. “A court
at most may choose not to enforce a distinctly separable part of a covenant in order
to render the provision reasonable. 	It may not otherwise revise or rewrite the
covenant.” Hartman, 117 N.C. App. at 317. See also NFH, Inc., 2019 NCBC LEXIS
66, at *33 (North Carolina’s strict blue pencil doctrine allows the court to “avoid
scrapping an entire covenant” by “enforc[ing] the divisible parts of [the] covenant that

are reasonable.”); cf. Whittaker Gen. Med. Corp., 324 N.C. at 528 (“The courts will not
rewrite a contract if it is too broad but will simply not enforce it.”).
43. 	To be a “distinctly separable” provision, other restrictions in the covenant
must not be dependent on the portion to be excised . 	See Nat’l Investments, Inc. v.
Rice, 2016 N.C. App. LEXIS 1119, 1120 (2016) (unpublished) 	(citing 	Jon 	P.
McClanahan & Kimberly M. Burke, Sharpening the Blunt Blue Pencil: Renewing
the Reasons for Covenants Not to Compete in North Carolina, 90 N.C. L. REV . 1931,
1955-56 (Sept. 2012)).
44. 	Furthermore, application of the blue pencil rule is within the discretion of
the Court. See McGriff Ins. Servs., 2023 NCBC LEXIS 4, at **32 (citing Tech. Ptnrs.,
Inc. v. Hart, 298 F. App’x 238, 243 (4th Cir. 2008) (applying North Carolina law)).
45. 	Here, the geographical restrictions are presented as a list, but they are
joined by the conjunctive “and”—preventing them from being “distinctly separable.”
(Employment Agreement 4.2(b): “(i) the entire world . . . (vi) the State of North
Carolina; and (vii) Wake County”) (emphasis added). See Wells Fargo Ins. Servs. USA
v. Link, 2018 NCBC LEXIS 42, at *23 (N.C. Super. Ct. May 8, 2018) (holding that the
term “and/or” should be “read in the conjunctive sense for the purpose of applying the
‘blue pencil’ doctrine” and declining to strike part of a list).
46. 	Furthermore, 	Plaintiff’s 	argument 	that 	the 	parties 	contracted 	in
paragraph 6 of the Employment Agreement to give the Court power to revise its
territorial limits to make them reasonable does not rescue it. 	The parties cannot
contract to give a court power that it does not have. See Welcome Wagon Int’l, Inc. v.

Pender, 255 N.C. 244, 248 (1961) (“The court is without power to vary or reform the
contract by reducing either the territory or the time covered by the restrictions.”);
Penn v. Standard Life Ins. Co., 160 N.C. 399, 402 (1912) (“Courts are not at liberty to
rewrite contracts for the parties. We are not their guardians, but the interpreters of
their words. We must, therefore, determine what they meant by what they have
said—what their contract is, and not what it should have been.”).
47. 	Similarly, the Court declines Prometheus’ invitation to excise the word
“indirectly” from the covenant. 	Despite use of the disjunctive “or,” the structure of
the provision does not clearly establish that the drafter intended for the words in this
modifying phrase to be used alternatively. The Court will not exercise its discretion
to blue pencil a provision that was not clearly drafted to be divisible.5 Cf. Bev. Sys.
of the Carolinas, LLC, 368 N.C. at 700 (“Allowing litigants to assign to the court their
drafting duties as parties to a contract would put the court in the role of scrivener,
making judges postulate new terms that the court hopes the parties would have
agreed to be reasonable at the time the covenant was executed or would find
reasonable after the court rewrote the limitation. We see nothing but mischief in
allowing such a procedure.”).
48. 	Given 	its 	vast 	breadth, 	Prometheus’ 	non-compete 	provision 	is
unenforceable as a matter of law. 	Because it is not a valid contractual provision,
5 This is not the first time a court applying North Carolina law has determined that a
Prometheus restrictive covenant was too broad to be enforced. 	See Prometheus Group
Enters., LLC v. Viziya Corp., 2014 U.S. Dist. LEXIS 107231, at *15-19 (E.D.N.C. Aug. 4, 2014)
(finding restrictive covenant “unreasonable and therefore unenforceable as a matter of law”).

Prometheus’ claim for breach of contract on this basis fails.6 	The Court therefore
GRANTS Defendants’ Motion to Dismiss the breach of contract claim asserted
against Gibson to the extent Prometheus alleges that Gibson has violated the
non-competition provision in the Employment Agreement, and this aspect of the
claim is DISMISSED with prejudice.
49. 	The customer non-solicitation provision fares no better. For a year after
Gibson left employment, the provision purports to restrict him from soliciting or
attempting to solicit:
(i) any customer to which the Company sold any product, or for which
the Company performed any service, within two (2) years prior to the
termination of [Gibson’s] employment with the Company; or (ii) any
prospective customer that the Company called on at any time within two
(2) years prior to the termination of [Gibson’s] employment with the
Company (collectively, a “Company Customer”)[.]
(Employment Agreement § 3(c).)
50. 	While North Carolina courts are generally more willing to enforce a
targeted non-solicitation clause, again Prometheus has overreached. The restriction
covers any customer to which the Company sold any product or performed any service
(within two years prior to Gibson’s resignation date) without regard to whether
Gibson 	himself 	had 	any 	contact 	with, 	or 	even 	knowledge 	of, 	the 	customer.
Prometheus’ failure to limit the non-solicitation provision to customers with whom
6 Prometheus argues that the position Gibson has taken with Prospecta involves some of the
same duties he had with it and, therefore, directly violates the non-compete. But before the
Court can address any similarities between Gibson’s old position and his new one, as the
party seeking to enforce a non-compete, Prometheus has the burden to prove that the
covenant itself is reasonable in scope. This, it has not done.

Gibson had some contact or ability to influence makes the provision impermissibly
overbroad. See, e.g., Andy-Oxy., Inc. v. Harris, 2019 N.C. App. LEXIS 902, at *14-16
(2019) (finding a covenant unenforceable that prohibited former employee from
“soliciting any customer within the restricted territory, irrespective of whether [he]
had contact with that customer during his employ or whether that customer was even
known to” him); Mech. Sys. & Servs. v. Howard, 2021 NCBC LEXIS 69, at *9-10 (N.C.
Super. Ct. Aug. 11, 2021) (finding facially unreasonable non-solicitation clause
purporting to bar former employee from soliciting customers in any field, whether or
not he had any knowledge of them or contact with them). Cf. Sterling Title Co., 266
N.C. App. at 598-99 (customer non-solicit covering current or former customers with
whom defendant had “any form of ‘contact’ ” during employment, regardless of extent,
“suggests that the [restriction] is unreasonable.”).7
7 This case differs from Sandhills Home Care, L.L.C., 2016 NCBC LEXIS 61. In Sandhills,
this Court considered the enforceability of a non-solicitation provision that restricted former
employees from soliciting any of the employer’s customers, regardless of whether the
particular employee had any contact with a customer. Because the employer had “a relatively
small and easily identified set of customers” and the duration of the restriction was relatively
short (one year), the Court could not conclude at the Rule 12(b)(6) stage that the restriction
was unreasonable as a matter of law. Our appellate courts have held similarly. See Triangle
Leasing Co. v. McMahon, 327 N.C. 224, 229 (1990) (enforcing restrictive covenant prohibiting
former employee from “soliciting the business of plaintiff’s known customers in areas in which
the company operates” when area was limited to eastern and central North Carolina and
defendant and his wife were employed by the company in Wilmington); Wade S. Dunbar Ins.
Agency, Inc. v. Barber, 147 N.C. App. 463, 469 (2001) (following sale of business, enforcing
covenant that restricted former owner from soliciting any customer with an active account at
the time of defendant’s termination).
Here, however, Plaintiff alleges that its products and services are used in “various industries
around the world[,]” (Compl. ¶ 12), and that “Gibson worked with hundreds of customers and
solicited potential customers located around the world,” (Compl. ¶ 22). 	There is no small,
identifiable set of customers. See NFH, Inc., 2019 NCBC LEXIS 66, at *36-37 (enforcing non-
solicitation provision where plaintiff alleged that it operated in a relatively small geographic
area, Iredell County, and defendant was “the face of the company”). 	Furthermore, the

51. 	Indeed, 	this 	non-solicitation 	provision, 	as 	phrased, 	would 	prohibit
Gibson from soliciting business from Prometheus’ prospective customers that Gibson
has never met, in countries Gibson has never visited (virtually or otherwise), for
products and services Gibson has never handled. 	And, because it contains a “look
back” provision to include any customer Prometheus solicited or attempted to solicit
for 	any 	product 	or 	service 	within 	two 	years 	prior 	to 	Gibson’s 	resignation,
(Employment Agreement § 3(c)), two years must be added to the one-year duration of
the restriction, making the time restriction three years. 	See Farr Assoc., Inc. v.
Baskin, 138 N.C. App. 276, 280-81 (2000) (explaining that the “look-back” period must
be added to the restrictive period to determine the length of the time limitation). A
three year limitation is a significant undertaking, even for a narrowly drawn non-
solicitation provision. And this one is not narrowly drawn.
52. 	Simply put, the non-solicitation provision is far too expansive to be
enforceable under North Carolina law. See, e.g., Hejl v. Hood, Hargett & Assocs., 196
N.C. App. 299, 307 (2009) (finding impermissible a non-solicitation agreement that
included prospective customers for whom defendant had merely quoted a product or
service and extending to areas where plaintiff had no connections or personal
knowledge of customers).
restriction is not limited to the solicitation of established customers. See Aesthetic Facial &
Ocular Plastic Surgery Ctr., P.A. v. Zaldivar, 264 N.C. App. 260, 272-73 (2019) (where a non-
solicitation clause “reaches not only clients, but potential clients, and extends to areas where
[p]laintiff had no connections or personal knowledge of customers, the [provision] is
unreasonable.”).

53. 	Like 	the 	non-compete, 	because 	the 	non-solicitation 	provision 	is
unenforceable as a matter of law, Prometheus’ claim for breach of contract on this
basis fails. 	Accordingly, the Court GRANTS Defendants’ Motion to Dismiss the
breach of contract claim asserted against Gibson to the extent Prometheus alleges
that 	Gibson 	has 	violated 	the 	non-solicitation 	provision 	in 	the 	Employment
Agreement, and this aspect of the claim is DISMISSED with prejudice.
54. 	Finally, the Court addresses the sufficiency of Prometheus’ claim for breach
of 	the 	nondisclosure 	provision 	in 	the 	Employment 	Agreement. 	Unlike
non-competition 	and 	non-solicitation 	provisions, 	a 	nondisclosure 	provision 	is
generally not considered to be a restraint on trade. See Chemimetals Processing, Inc.,
124 N.C. App. at 197 (“An agreement is not in restraint of trade, however, if it does
not seek to prevent a party from engaging in a similar business in competition with
the promisee, but instead seeks to prevent the disclosure or use of confidential
information.”); McElmurry v. Alex Fergusson, Inc., 2006 U.S. Dist. LEXIS 10760, at
*40 (M.D.N.C. Mar. 8, 2006) (“In contrast to covenants not to compete, confidentiality
agreements are not restraints of trade if their purpose and effect is merely to prevent
disclosure or use of confidential information.”). Non-solicitation provisions are “more
tailored and less onerous on employees’ ability to earn a living” than noncompete
restrictions. 	Akzo Nobel Coatings, Inc., 2011 NCBC LEXIS 42, at **31. 	Thus, the
nondisclosure 	provision 	is 	not 	subjected to 	the 	same level of 	scrutiny 	as 	the
non-competition and non-solicitation provisions. 	See id. (“[s]uch agreements may,
therefore, be upheld even though the agreement is unlimited as to time and area”).

55. 	The nondisclosure provision in the Employment Agreement requires
Gibson to “hold in strictest confidence and . . . not [to] disclose or use any Proprietary
Information” without prior approval. (Employment Agreement § 1.1.)
56. 	Prometheus alleges that Gibson, while employed, had “unlimited access
to Prometheus’ confidential and proprietary records[.]” 	(Compl. ¶ 21.) 	It alleges,
“[u]pon information and belief, [that] Gibson and Prospecta [have and] continue to
improperly use Prometheus’ confidential information to directly or indirectly solicit
or 	attempt 	to 	solicit 	Prometheus’ 	customers 	and 	prospective 	customers 	in
contravention of the terms Agreement [sic].” (Compl. ¶ 33.)
57. 	As this Court has previously observed, “stating a claim for breach of
contract is a relatively low bar.” 	Vanguard Pai Lung, LLC v. Moody, 2019 NCBC
LEXIS 39, at *11 (N.C. Super. Ct. June 19, 2019). 	Alleging the existence of a valid
contract and breach of its terms is sufficient. 	See Poor, 138 N.C. App. at 26 (2000).
Prometheus has alleged the existence of a valid contract. 	(See generally Compl.
¶¶ 14-20; Employment Agreement.) 	Allegations of Gibson’s breach, even though
stated upon information and belief, will suffice at this early stage. 	See Myrtle
Apartments, Inc. v. Lumbermen's Mut. Casualty Co., 258 N.C. 49, 51 (1962) (a
plaintiff “may allege facts based on actual knowledge, or upon information and
belief”); Link, 2018 NCBC LEXIS 42, at *31-32 (allegations “upon information and
belief,” that defendant used “Confidential Information . . . to identify, contact, solicit,
and induce” former customers was sufficient on a motion to dismiss).

58. 	The Court therefore DENIES Defendants’ Motion to Dismiss the breach
of contract claim asserted against Gibson, to the extent Prometheus alleges that
Gibson has violated the nondisclosure provision in the Employment Agreement.
Tortious Interference – Against Prospecta
59. 	Focusing on Gibson’s new employer, Prometheus alleges that Prospecta
“knowingly induced Gibson to violate his [Employment] Agreement with Prometheus
without justification.” (Compl. ¶¶ 29-30, 52, 54.)
60. 	In response, Prospecta first argues that the claim should be dismissed
because 	the 	Employment 	Agreement 	on 	which 	the 	action 	is 	premised 	is
unenforceable. 	Prospecta then argues that Prometheus has insufficiently pled two
elements of the claim: 	Gibson’s breach of the Employment Agreement and the
existence of actual damages. (See Defs.’ Supp. Br. 17-18; Defs.’ Reply Br. 10.)
61. 	To plead tortious interference, Prometheus must allege: “(1) a valid
contract between the plaintiff and a third person which confers upon the plaintiff a
contractual right against a third person; (2) the defendant knows of the contract; (3)
the defendant intentionally induces the third person not to perform the contract; (4)
and in doing so acts without justification; (5) resulting in actual damage to plaintiff.”
United Labs., Inc., 322 N.C. at 661 (citing Childress v. Abeles, 240 N.C. 667 (1954)).
“The pleading standards for a tortious interference with contract claim are strict.”
Urquhart v. Trenkelbach, 2017 NCBC LEXIS 12, at *15 (N.C. Super. Ct. Feb. 8, 2017).
62. 	There can be no claim for tortious interference when there is no contract.
See Bev. Sys. of the Carolinas, 368 N.C. at 700 (“plaintiff must first establish the

existence 	of 	a 	valid 	contract”). 	Therefore, 	Prometheus’ 	claim 	that 	Prospecta
interfered with its non-competition or non-solicitation clauses fails because those
clauses are unenforceable. The Court’s analysis, then, turns to whether Prometheus
has stated a claim for interference with its nondisclosure provision.
63. 	Prometheus short shrifts the requirement that it plead that Prospecta
intentionally 	induced 	Gibson 	to 	breach 	the 	nondisclosure 	provision. 	Without
supporting facts, Prometheus pleads in conclusory fashion only that, “Prospecta has
knowingly induced Gibson to violate his [Employment] Agreement with Prometheus
without justification.” (Compl. ¶ 54.) This is not enough. See, e.g., Gallaher v. Ciszek,
2020 NCBC LEXIS 124, at *16 (N.C. Super. Ct. Oct. 16, 2020) (dismissing claim for
tortious interference because it contained no allegations of any “purposeful conduct,”
“active persuasion,” “request,” or “petition” to induce a party not to perform its
contract); Charah, LLC v. Sequoia Servs., LLC, 2020 NCBC LEXIS 52, at *22, n.2
(N.C. Super. Ct. Apr. 17, 2020) (declining to address defendant’s alleged breach of a
nondisclosure provision in analysis of tortious interference claim because plaintiff did
not sufficiently allege that new employer induced former employee to breach the
nondisclosure provision after becoming aware of its existence).
64. 	The same conclusory allegation fails to satisfy Prometheus’ obligation to
plead 	legal 	malice, 	particularly 	where, 	as 	here, 	the 	Complaint 	alleges 	that
Prometheus and Prospecta are competitors. (See Compl. ¶¶ 37, 53). The Complaint
must have “a factual basis to support the claim of malice[,]” since “general allegations
of malice are insufficient[.]” Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 605

(2007) (citing Spartan Equip. Co. v. Air Placement Equip. Co., 263 N.C. 549, 559
(1965)). Further, “the complaint must admit of no motive for interference other than
malice.” Filmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 674 (2001) (citing Privette
v. Univ. of N.C. at Chapel Hill, 96 N.C. App. 124, 134-35 (1989)). 	Malice in this
instance refers to legal malice, not actual malice. See Lunsford v. Viaone Servs., LLC.,
2020 NCBC LEXIS 111, at *14 (N.C. Super. Ct. Sept. 28, 2020) (“A plaintiff must
plead legal malice, which is just another way of saying ‘the intentional doing of the
harmful act without legal justification.’ ” (quoting Childress, 240 N.C. at 675)).
65. 	Interference with a contract is “justified if it is motivated by a legitimate
business 	purpose, 	as 	when 	the 	plaintiff 	and 	the 	defendant, 	an 	outsider, 	are
competitors.” 	Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487, 498 (1992).
However, a defendant’s interference is without privilege or justification if it is “not
reasonably related to the protection of a legitimate business interest[.]” Privette, 96
N.C. App. at 134 (quoting Smith v. Ford Motor Co., 289 N.C. 71, 94 (1976)). 	“If the
defendant’s only motive is a malicious wish to injure the plaintiff, his actions are not
justified.” Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216, 221 (1988).
66. 	Further, the means by which the competition takes place must be
lawful. 	“Competition in business constitutes justifiable interference in another’s
business relations and is not actionable so long as it is carried on in furtherance of
one’s own interests and by means that are lawful.” Hooks, 322 N.C. at 221 (emphasis
added). See also MarketPlace 4 Ins., LLC v. Vaughn, 2023 NCBC LEXIS 31, at **35-
36 (N.C. Super. Ct. Feb. 24, 2023) (stating that “[t]his limitation on a defendant’s

ability to assert justification is eminently logical” and determining that defendant’s
alleged unlawful use of confidential information, among other things, was not
justified).
67. 	In this case, the Complaint alleges, in conclusory fashion, only that,
“Prospecta has knowingly induced Gibson to violate his [Employment] Agreement
with Prometheus without justification.” 	(Compl. ¶ 54.) 	Conclusory allegations are
not enough. See, e.g., Charah, LLC, 2020 NCBC LEXIS 52, at *16-17 (claim dismissed
for lack of factual allegations to support legal malice). 	Cf. Myrtle Apartments, Inc.,
258 N.C. at 51 (“In testing the sufficiency of a complaint, the court ignores the
conclusions and looks to the facts.”). 	Pleading legal malice is not a “toothless
requirement[.]” Lunsford, 2020 NCBC LEXIS 111, at *14. See Harris, 184 N.C. App.
at 605 (“general allegations of malice are insufficient” (citing Spartan Equip. Co., 263
N.C. at 559)).
68. 	Without 	sufficient 	factual 	allegations 	to 	support 	legal 	malice,
Prometheus’ claim for tortious interference with contract fails. Therefore, the Court
GRANTS Prospecta’s Motion to Dismiss Count III (Tortious Interference – Against
Prospecta). 	However, the Court elects to dismiss this claim without prejudice. See,
e.g., First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013) (“[t]he decision to
dismiss an action with or without prejudice is in the discretion of the trial court”).
Misappropriation of Trade Secrets – Against Defendants
69. 	Prometheus alleges that during his employment, Gibson “was required
to have and did have unlimited access to Prometheus’ confidential and proprietary

records via Salesforce8, which included information regarding existing clients, client
contracts and proposals, identified and/or actively pursued prospective clients and
business opportunities, contact information for existing and prospective clients, notes
and files relating to interactions and communications with existing and prospective
clients, 	and 	information 	relating 	to 	closed 	sales 	and 	closed 	lost 	business
opportunities, and which includes information not available from general sources or
otherwise known outside the business and that cannot be derived and developed
independently.” (Compl. ¶ 21.)
70. 	Prometheus further alleges that “Prometheus and Gibson understood
that 	he 	would 	have 	access 	to 	[this] 	confidential 	and 	commercially 	sensitive
information. 	Accordingly, 	the 	[Employment] 	Agreement 	contained 	express
provisions to protect such proprietary information.” (Compl. ¶ 15.)
71. 	However, 	Prometheus 	alleges, 	“Defendants 	have 	disclosed 	and/or
acquired Prometheus’ confidential information . . . by improper means because it
knew 	that the 	confidential information was 	secret 	and that the 	disclosure 	of
confidential 	information 	by 	Gibson 	constituted 	a 	breach 	of 	the 	[Employment]
Agreement with Prometheus.” 	(Compl. ¶ 60.) 	It titles Count IV of the Complaint,
“Misappropriation of Trade Secrets – North Carolina Trade Secrets Protection Act –
Against Defendants.”
8 	Salesforce 	is 	“cloud-based 	software 	designed 	to 	help 	businesses 	connect 	to 	their
customers[.]” SALESFORCE, What is Salesforce, https://www.salesforce.com/products/what-is-
salesforce/ (last visited Mar. 21, 2023).

72. 	Defendants counter that Prometheus has neither sufficiently identified
a trade secret nor adequately pleaded the acts of misappropriation required to state
a claim. (Defs.’ Supp. Br. 18-21; Defs.’ Reply Br. 10-13.)
73. 	A trade secret in North Carolina is “business or technical information”
that “[d]erives independent actual or potential commercial value from not being
generally known or readily ascertainable though independent development or reverse
engineering by persons who can obtain economic value from its disclosure or use” and
“[i]s the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.” 	N.C.G.S. § 66-152(3). 	This can include “a formula, pattern, program,
device, compilation of information, method, technique, or process[.]” Id.
74. 	Misappropriation is defined as the “acquisition, disclosure, or use of a
trade secret of another without express or implied authority or consent[.]” N.C.G.S.
§ 66-152(1). 	Misappropriation does not occur, however, when a trade secret is
discovered by “independent development, reverse engineering, or was obtained from
another person with a right to disclose the trade secret.” Id.
75. 	To survive a motion to dismiss, Prometheus must “identify a trade secret
with sufficient particularity so as to enable a defendant to delineate that which he is
accused of misappropriating and a court to determine whether misappropriation has
or is threatened to occur.” Washburn, 190 N.C. App. at 326 (quoting Analog Devices,
Inc. v. Michalski, 157 N.C. App. 462, 468 (2003)). General, sweeping, and conclusory
allegations are inadequate. See Krawiec v. Manly, 370 N.C. 602, 610 (2018).

76. 	Defendants argue that the lengthy list of descriptors that Prometheus
uses to describe its confidential information (“information regarding existing clients,
client contracts and proposals, identified and/or actively pursued prospective clients
and business opportunities, contact information for existing and prospective clients,
notes and files relating to interactions and communications with existing and
prospective clients, and information relating to closed sales and closed lost business
opportunities,” (Compl. ¶ 21)), is not sufficiently particular to put them on notice of
what they are accused of misappropriating and otherwise to satisfy Washburn.
77. 	Although it is true that North Carolina courts have found that some of
the descriptions of information Prometheus lists are, standing alone, too imprecise to
meet its pleading requirement, the difference here is that Prometheus also alleges
that this is a compilation of confidential information housed in Salesforce. This Court
has 	previously 	determined 	that 	compilations 	of 	data 	stored 	and 	capable 	of
manipulation in Salesforce may qualify as a trade secret. 	Compare Power Home
Solar, LLC, 2021 NCBC LEXIS 55, at *35-37 (information compiled in Salesforce
platform could qualify as a trade secret); Addison Whitney, LLC v. Cashion, 2017
NCBC LEXIS 23, at **13-18 (Salesforce database treated as trade secret on motion
for preliminary injunction); and Koch Measurement Devices, Inc. v. Armke, 2015
NCBC LEXIS 45, at *13 (N.C. Super. Ct. May 1, 2015) (“where an individual
maintains a compilation of detailed records over a significant period of time,” creating
value for the business as a compilation, “those records could constitute a trade
secret”), with Aecom Tech. Corp. v. Keating, 2012 NCBC LEXIS 9, at **7-8 (N.C.

Super. Ct. Feb. 6, 2012) (“customer lists, customer contract information, pricing
information, and product information” was insufficient); and Washburn, 190 N.C.
App. at 327 (“confidential client information and confidential business information”
along with clients’ “specific requirements and needs [ ] and other confidential
information” about the business was insufficient). 	Thus, the Court determines that
Prometheus has sufficiently pleaded the existence of a trade secret to withstand
scrutiny at this stage.
78. 	Having alleged the existence of a trade secret Prometheus must also
allege sufficient facts to support its contention that there has been misappropriation.
Alleging that it “reasonably believes” that Defendants are using its trade secrets to
solicit customers because Gibson had “unlimited access to Prometheus’ confidential
and proprietary records via Salesforce” and given the “nearly identical nature of
Gibson’s role and responsibilities at Prometheus and his new business-generating
and customer-facing role and responsibilities at Prospecta” is not enough. 	(Compl.
¶¶ 21, 28.) 	See Am. Air Filter Co. v. Price, 2017 NCBC LEXIS 9, at *22-23 (N.C.
Super. Ct. Feb. 3, 2017) (“access to, and therefore an ‘opportunity to acquire,’ an
employer’s trade secrets, without more, is not sufficient to establish a prima facie case
of misappropriation”); Daniel Grp., Inc. v. Am. Sales & Mktg., 2016 NCBC LEXIS
112, at *27-28 (N.C. Super. Ct. Dec. 15, 2016) (dismissing claim when plaintiff did
not allege how defendants misappropriated its trade secrets).
79. 	As in Wells Fargo Ins. Servs. USA v. Link, “there is no allegation that
[Gibson] accessed or acquired trade secrets at any time when [he] was not authorized

to do so.” 2018 NCBC LEXIS 42, at *38. But unlike Link, Prometheus does not allege
that clients have changed their allegiances, nor does Prometheus offer any other facts
to support a “significant inferential leap” that Gibson or Prospecta is using its trade
secrets. Id. at *40-41. Prometheus alleges only its conclusion that, because Gibson’s
new position is “nearly identical” to his former position, “[u]pon information and
belief, Gibson and Prospecta continue to improperly use Prometheus’ confidential
information 	to 	directly 	or 	indirectly 	solicit 	or 	attempt 	to 	solicit 	Prometheus’
customers and prospective customers[.]” (Compl. ¶¶ 28, 33.) This is insufficient.9
80. 	Therefore, the Court GRANTS Defendants’ Motion to Dismiss Count IV
(Misappropriation of Trade Secrets – Against Defendants) and DISMISSES this
claim without prejudice.
9 The doctrine of inevitable disclosure, upon which Prometheus appears to rely, has not been
adopted in North Carolina, and the Court declines to adopt it on the allegations presented
here. See, e.g., Analog Devices, Inc., 157 N.C. App. at 470-71 (declining to adopt the doctrine
to support an injunction that would act as an “absolute barrier” to defendant working in a
particular field when the covenant was not limited by factors that would establish the
relevance of the trade secrets at issue). 	See also Southeast Anesthesiology Consultants v.
Charlotte-Mecklenburg Hosp. Auth., 2018 NCBC LEXIS 137, at *57-58 (N.C. Super. Ct. June
22, 2018) (declining to adopt the inevitable disclosure doctrine and summarizing cases).
To the extent the doctrine has been recognized by other courts, more was alleged than has
been alleged here. See, e.g., Merck & Co. v. Lyon, 941 F. Supp. 1443, 1460 (MDNC 1996) (“In
finding 	a 	likelihood 	of 	disclosure, 	other 	courts 	that 	have 	applied 	the inevitable
disclosure theory have considered the degree of competition between the former and new
employer, and the new employer’s efforts to safeguard the former employer’s trade secrets,
and the former employee’s lack of forthrightness both in his activities before accepting his job
and in his testimony, as well as the degree of similarity between the employee’s former and
current position.”) (cleaned up).

Violations of North Carolina Unfair or Deceptive Trade Practices Act
81. 	Prometheus bases its UDTPA claim on the same facts it alleges to
support its claims for breach of contract, misappropriation of trade secrets, and
tortious interference with contract. (Compl. ¶¶ 63-66; Pl.’s Opp. Br. 19.)
82. 	“To establish a prima facie case of unfair and deceptive trade practices,
a plaintiff must show that (1) the defendant committed an unfair or deceptive act or
practice, (2) the act was in or affecting commerce, and (3) the act proximately caused
injury to the plaintiff.” White v. Consol. Planning, Inc., 166 N.C. App. 283, 303 (2004).
83. 	Defendants contend that the claim should be dismissed because no
aggravating circumstances have been alleged with respect to Prometheus’ breach of
contract claim, and neither the misappropriation nor the tortious interference claim
survives dismissal. (Defs.’ Supp. Br. 21-24; Defs.’ Reply Br. 13.)
84. 	The Court agrees. 	Although claims for tortious interference with
contract and misappropriation of trade secrets can form the basis of a UDTPA claim,
see, e.g., Med. Staffing Network, Inc., 194 N.C. App. at 659-60; Bldg. Ctr., Inc. v.
Carter Lumber, Inc., 2016 NCBC LEXIS 79, at *30 (N.C. Super. Ct. Oct. 21, 2016),
here those claims have been dismissed. 	See, e.g., Combs & Assocs. v. Kennedy, 147
N.C. App. 362, 374 (2001) (“Having determined that the trial court properly granted
summary judgment on [the misappropriation of trade secrets, tortious interference
with contract and civil conspiracy] claims, we likewise conclude that no claim for
unfair and deceptive trade practices exists.”); Salon Blu, Inc. v. Salon Lofts Grp.,
LLC, 2018 NCBC LEXIS 72, at *19-20 (N.C. Super. Ct. July 16, 2018) (dismissing

UDTPA claim when premised on claim for tortious interference with contract that
did not survive motion to dismiss); Link, 2018 NCBC LEXIS 42, at *49-51 (dismissing
UDTPA claim when the underlying misappropriation of trade secrets and intentional
interference with contract claims were dismissed).
85. 	Finally, because Chapter 75 creates “an independent claim that stands
alone as a distinct action[,]” Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C.,
2003 NCBC LEXIS 6, at **138 (N.C. Super. Ct. May 2, 2003), the Court reviews the
allegations to determine if there are sufficient facts of potentially unfair or deceptive
conduct for Prometheus to maintain a UDTPA claim notwithstanding dismissal of its
tortious interference and misappropriation of trade secret claims. 	See, e.g., Velocity
Sols., Inc. v. BSG Fin., LLC, 2016 NCBC LEXIS 19, at **7-8 (N.C. Super. Ct. Feb. 22,
2016) (granting motion to dismiss breach of contract claim but denying motion to
dismiss UDTPA claim where plaintiff alleged defendant had “specifically engaged
and directed [plaintiff’s former employee] to utilize [p]laintiff’s confidential and
proprietary information in order to achieve competitive gain”).
86. 	The remaining allegations are Prometheus’ “reasonable belief” that
Gibson breached the nondisclosure provision in the Employment Agreement because
of the similarity of the work he is doing and conclusory allegations that Defendants
are using Prometheus’ confidential information to solicit customers. 	(See generally
Compl.) While sufficient to state a claim for breach of the nondisclosure provision “a
mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to
sustain an action under N.C.G.S. § 75-1.1.” 	Branch Banking & Trust Co. v.

Thompson, 107 N.C. App. 53, 62 (1992). 	“North Carolina law requires a showing of
‘substantial aggravating circumstances’ to support a claim under the [UDTPA].”
Broussard v. Meineke Disc. Muffler Shops, 155 F.3d 331, 347 (4th Cir. 1998).
Prometheus’ contentions here fall short of that mark.
87. 	Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Count
V (Violations of North Carolina Unfair or Deceptive Trade Practices Act – Against
Defendants) and DISMISSES the claim without prejudice.
B. PI Motion
88. 	A preliminary injunction is an “extraordinary measure taken by a court to
preserve the status quo of the parties during litigation.” 	Ridge Cmty. Invs., Inc. v.
Berry, 293 N.C. 688, 701 (1977). Plaintiff bears the burden to establish the “right to
a preliminary injunction[,]” Pruitt v. Williams, 288 N.C. 368, 372 (1975), and it must
show: 	(1) a likelihood of success on the merits, and (2) that it is likely to sustain
irreparable loss unless the injunction is issued or, “if, in the opinion of the Court,
issuance is necessary for the protection of [Plaintiffs’] rights during the course of
litigation.” A.E.P. Indus., Inc., 308 N.C. at 401. See also Bd. Of Provincial Elders v.
Jones, 273 N.C. 174, 182 (1968) (the burden is on the applicant); VisionAIR, Inc, 167
N.C. App. at 508 (a preliminary injunction will issue only upon the movant’s showing
of these two factors); N.C.G.S. § 1-485; N.C.G.S. § 1A-1, R. 65.
89. 	“Likelihood of success means a ‘reasonable likelihood.’ ” Am. Air Filter
Co., 2017 NCBC LEXIS 9, at *11 (quoting A.E.P. Indus., Inc., 308 N.C. at 404).
Irreparable injury exists when “the injury is one to which the complainant should not

be required to submit or the other party permitted to inflict, and is of such continuous
and frequent recurrence that no reasonable redress can be had in a court of law.”
A.E.P. Indus., Inc., 308 N.C. at 407 (emphasis omitted).
90. 	An injunction is proper only “when irreparable injury is real and
immediate.” 	DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 586 (2002).
Plaintiff “must do more than merely allege that irreparable injury will occur.” United
Tel. Co. of Carolinas v. Universal Plastics, Inc., 287 N.C. 232, 236 (1975). It must “set
out with particularity facts supporting such statements so the court can decide for
itself if irreparable injury will occur.” Id.
91. 	In addition, the potential harm Prometheus will suffer if no injunction
is entered must outweigh the potential harm to Gibson if an injunction is entered.
See Addison Whitney, LLC, 2017 NCBC LEXIS 23, at **12-13 (citing Williams v.
Greene, 36 N.C. App. 80, 86 (1978)).
Findings of Fact
92. 	Unlike its consideration of the Motion to Dismiss, which was limited to
consideration of the Complaint and its attachments, the Court may properly consider
both the pleadings and the affidavits filed by the parties in its review of Prometheus’
Motion for Preliminary Injunction. Therefore, in addition to the factual background
above, the Court finds the following facts for purposes of Prometheus’ motion. These
findings are not binding at later stages of the litigation, including but not limited to
a trial on the merits. 	See Lohrmann v. Iredell Mem’l Hosp., Inc., 174 N.C. App. 63,
75 (2005); Daimlerchrysler Corp., 148 N.C. App. at 578.

93. 	Prospecta operates in the data management space, whereas Prometheus
operates in the enterprise asset management space. 	(Aff. Jay Golonka Supp. Pl.’s
Reply Supp. Am. Mot. Prelim. Inj. ¶ 3 [“Golonka Aff.”], ECF No. 25.)
94. 	However, 	among 	other 	things, 	Prospecta 	offers 	master 	data
management 	and 	migration 	tools 	that 	may 	compete 	in 	some 	respects 	with
Prometheus’ Master Data as a Service (“MDaaS) software. 	Likewise, Prospecta’s
“MDO FUSE: 	Data-Driven Process Platform” may compete with “The Prometheus
Platform.” 	(Golonka Aff. ¶ 3.) 	Prospecta does not sell or produce enterprise asset
management software itself. 	The “vast majority” of its projects are not enterprise
asset management projects. (Aff. Julian Blackley ¶ 22 [“Blackley Aff.”], ECF No. 20.)
95. 	While working at Prometheus, Gibson was a “subject matter expert for
Prometheus master data solutions and software tools.” 	(Golonka Aff. ¶ 5.) 	He did
not have responsibility for identifying customers or closing sales, but he did meet
with customers as-needed10 to discuss and demonstrate these solutions. (Aff. Randy
Gibson ¶¶ 25-26 [“Gibson Aff.”], ECF No. 21.)
96. 	While at Prometheus, Gibson had access to Prometheus’ confidential
information. (Golonka Aff. ¶ 6.) He occasionally used Salesforce to perform normal
and routine aspects of his job. 	(Gibson Aff. ¶ 27.)11 	However, he did not take any
10 Golonka adds in a second affidavit that Gibson had contact with customers or prospective
customers that operate in all 50 states and in at least seven provinces in Canada. He adds
that Gibson had contact with customers or prospective customers located in at least eight
countries. (Golonka Aff. Opp. Mot. Dismiss ¶¶ 7-8, ECF No. 39.) The Court does not deem
it necessary to determine the extent of Gibson’s role to determine the pending motion.
11 Gibson testified by affidavit that before he left Prometheus, he accessed his HR file and the
only version of an Employment Agreement he found was an unsigned version that contains

Prometheus property or information with him when he left. 	He returned the
company computer and did not retain any digital files from it. (Gibson Aff. ¶ 34.)
97. 	When Gibson joined Prospecta, he was instructed not to disclose any
confidential information from any past employer. (Gibson Aff. ¶¶ 33-34, Blackley Aff.
¶¶ 27-30.)
98. 	Gibson has been assigned to work with Prospecta’s European customers.
(Gibson Aff. ¶¶ 47-48.)
99. 	Gibson, on behalf of Prospecta, attended the ASUG Best Practices in Oil
and Gas conference in September 2022 that Prometheus also attended. 	Both
companies are focused on their master data offerings. (Golonka Aff. ¶ 12, Gibson Aff.
¶ 50.)
100. 	Importantly, nowhere in the record is there any evidence that Gibson,
or anyone at Prospecta, has used Prometheus’ confidential information to solicit
Prometheus’ customers or otherwise, despite the fact that Gibson left Prometheus’
employ almost nine months ago.
no non-solicitation or non-competition provisions. 	(Gibson Aff. ¶¶ 8-10.) 	Golonka contests
this assertion. 	He testified that he, too, accessed Gibson’s HR file and verified that the
Employment Agreement in Gibson’s file is the same as the one attached to Prometheus’
Complaint in this action. 	(Golonka Aff. Opp. Mot. Dismiss ¶ 4.) 	Because the primary
difference between the document Gibson found and the one Golonka says is in the file and
also attached to the Complaint lies only in the existence of the non-competition and
non-solicitation provisions, and because the nondisclosure provision, upon which the Motion
for Preliminary Injunction turns, exists in both documents, the Court needs not resolve this
disputed fact for purposes of this motion. (Compare Gibson Aff., Ex. 3, ECF No. 21.3, with
Compl., Ex. A.)

Conclusions of Law
101. 	The Court has jurisdiction over the parties and the subject matter of this
action.
102. 	For the same reasons the Court dismisses the claims stated above, the
Court concludes that Prometheus is unlikely to succeed on its claims for breach of the
non-competition and non-solicitation provisions in the Employment Agreement, as
well as its claims for tortious interference with contract, misappropriation of trade
secrets, and unfair and deceptive trade practices.
103. 	As for the sole remaining claim, Count II, Gibson’s breach of the
Employment Agreement’s nondisclosure provision, the Court concludes that although
Prometheus’ bare-bones allegations are sufficient for Rule 12(b)(6) purposes, neither
they, nor the evidence presented, satisfies Prometheus’ burden either to establish a
reasonable likelihood of success on the merits or that it is likely to sustain irreparable
loss unless an injunction is issued. Gibson has testified that he did not retain or take
any Prometheus property or information. 	Prometheus, on the other hand, alleges
only 	that 	it 	reasonably 	believes 	that 	Defendants 	are 	using 	its 	confidential
information. 	Noticeably absent are any facts to support Prometheus’ belief that
Gibson has breached, or is even contemplating a breach of his nondisclosure
obligation.
104. 	To warrant the extraordinary relief that Prometheus requests, more is
needed than the fact that Gibson had access to confidential information when he
worked for Prometheus and speculation arising from Gibson’s attendance on behalf

of Prospecta at a conference also attended by Prometheus. See Digital Recorders, Inc.
v. McFarland, 2007 NCBC LEXIS 23, at **20-21 (N.C. Super. Ct. June 29, 2007)
(court denied a preliminary injunction, in part, because there was a “dearth of
evidence in [the] record that [defendants] used any confidential information or trade
secrets”); Aeroflow Inc. v. Arias, 2011 NCBC LEXIS 21, at **20 (N.C. Super. Ct. July
5, 2011) (preliminary injunction denied when plaintiff failed to present “any specific
evidence to bolster its suspicion that [defendant] has or will violate the non-disclosure
provision”).
105. 	Because Prometheus has failed to demonstrate both that it would likely
succeed on the merits of its claim and that it would be likely to sustain irreparable
harm in the absence of the issuance of an injunction, it has not carried its burden of
establishing 	a 	right 	to 	extraordinary 	relief. 	The 	Court 	therefore 	DENIES
Prometheus’ Motion for Preliminary Injunction.
III. 	CONCLUSION
106. 	WHEREFORE, the Court hereby ORDERS as follows:
a. 	Defendants’ Motion to Dismiss is GRANTED in part and DENIED
in part.
i. 	Defendants’ Motion to Dismiss Count I (Injunctive Relief) is
GRANTED, and Count I (Injunctive Relief) is dismissed
without prejudice to Prometheus’ ability to seek injunctive
relief if otherwise warranted;

ii. 	Defendants’ Motion to Dismiss Count II (Breach of Contract)
is GRANTED as it pertains to the non-competition and non-
solicitation provisions of the Employment Agreement, and as
to those provisions, the breach of contract claim is dismissed
with prejudice. 	Except as stated, Defendants’ Motion to
Dismiss Count II (Breach of Contract) is DENIED.
iii. 	Defendants’ 	Motion 	to 	Dismiss 	Count 	III 	(Tortious
Interference), Count IV (Misappropriation of Trade Secrets),
and Count V (Violations of North Carolina Unfair or Deceptive
Trade Practices Act) is GRANTED, and Count III (Tortious
Interference), Count IV (Misappropriation of Trade Secrets),
and Count V (Violations of North Carolina Unfair or Deceptive
Trade Practices Act) are dismissed without prejudice.
b. 	Prometheus’ Motion for Preliminary Injunction is DENIED.
IT IS SO ORDERED, this the 21 day of March, 2023.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases