Atkore Int'l, Inc. v. Dinkheller

Atkore Int’l, Inc. v. Dinkheller, 2025 NCBC 20.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
GUILFORD COUNTY 24CV022644-400

ATKORE INTERNATIONAL, INC.,

Plaintiff, ORDER AND OPINION ON
DEFENDANTS’ MOTION TO
v. DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT
KEITH D. DINKHELLER and
NATIONAL PIPE & PLASTICS, INC., [Public] 1

Defendants.

1. THIS MATTER is before the Court following the 16 December 2024 filing

of Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint (the Motion).

(ECF No. 55 [Mot.].) Pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil

Procedure (the Rule(s)), Defendants Keith D. Dinkheller (Dinkheller) and National

Pipe & Plastics, Inc. (National Pipe; and with Dinkheller, Defendants) seek to dismiss

all claims asserted against them by Plaintiff Atkore International, Inc. (Atkore) in

the Amended Complaint, (ECF No. 33 [Am. Compl.]). (Mot. 1.)

2. For the reasons set forth herein, the Court hereby GRANTS in part and

DENIES in part the Motion.

1 Recognizing that this Order and Opinion cites to and discusses the subject matter of
documents that the Court has temporarily allowed to remain under seal in this action, the
Court initially filed this Order and Opinion under seal on 2 April 2025, (see ECF No. 94), and
requested that the parties advise the Court whether any portions of the Order and Opinion
deserved to remain under seal. On 10 April 2025, the parties notified the Court that all
parties conferred and agreed that there is no material in this Order and Opinion that requires
sealing. Accordingly, the Court now files this public version of the Order and Opinion and
will promptly unseal the previously filed version, (ECF No. 94). The Court requests that the
Guilford County Clerk of Court unseal the document previously filed under seal on Odyssey,
(24CV022644-400, at Event No. 44).
Miller Monroe & Plyer, PLLC by Jason A. Miller and John W. Holton,
and Foley & Lardner, LLP by Taylor L. Appling and Donald Schroeder
for Plaintiff.

Littler Mendelson, P.C. by Kevin Cleys, Kellie A. Tabor, Stephen D.
Dellinger for Defendants.

Robinson, Chief Judge.

I. INTRODUCTION

3. This action arises out of Dinkheller’s employment at Atkore. Atkore

initiated this action contending that Dinkheller left Atkore for a competitor, National

Pipe, in violation of his employment agreement and the restrictive covenants found

therein, taking with him to National Pipe trade secret information. Atkore also

contends National Pipe wrongfully interfered with Dinkheller’s employment

agreement by inducing him to breach the restrictive covenants found therein.

II. FACTUAL BACKGROUND

4. The Court does not make findings of fact on a motion to dismiss pursuant

to Rule 12(b)(6), but instead recites only those factual allegations included in the

Amended Complaint that are relevant to the Court’s determination of the Motion.

A. The Parties

5. Atkore is a corporation with its principal place of business in Illinois that

is authorized to do business in North Carolina. (Am. Compl. ¶ 7.) Atkore is a “leading

global manufacturer and distributor of electrical, safety, and infrastructure

solutions[,]” and “manufactures electrical conduit and fittings, among other

products.” (Am. Compl. ¶ 13.)

6. Dinkheller is a resident and citizen of North Carolina. (Am. Compl. ¶ 8.)
7. National Pipe is a Delaware corporation that is authorized to do business

in North Carolina. (Am. Compl. ¶ 9.) National Pipe “manufactures and sells

infrastructure products in the energy, water, and telecommunications spaces.” (Am.

Compl. ¶ 65.)

B. Dinkheller’s Work at Atkore

8. Atkore’s business has “three key product categories: (1) Plastic Pipe,

Conduit and Fittings; (2) Metal Electrical Conduit & Fittings; and (3) Electrical Cable

& Flexible Conduit.” (Am. Compl. ¶ 14.) Plastic Pipe, Conduit and Fittings is

Atkore’s largest product category, accounting for over one-third of Atkore’s net sales.

(Am. Compl. ¶ 15.) Additionally, a major initiative of Atkore’s for the last two years

has been “expansion into the market of PVC water pipe manufacturing.” (Am.

Compl. ¶ 16.)

9. Dinkheller began working at Atkore in 2013 as the Manager of Production

Control in Utah. (Am. Compl. ¶ 41.) He has held many positions at Atkore, including

Production Manager in Utah, Plant Manager in New York, and Plant Manager in

Oregon. (Am. Compl. ¶ 41.) Thereafter, he was promoted to “Regional Director of

Operations over multiple plants, with plant managers across the country reporting

to him.” (Am. Compl. ¶ 41.)

10. During his tenure at Atkore, Dinkheller gained many skills and insight into

industry specific information. (Am. Compl. ¶ 42.) Dinkheller “had access to and

performed work for Atkore facilities across the country”, had “a direct line of

communication with Atkore’s CEO,” and “access to and development of Atkore’s
confidential . . . information about its manufacturing processes, strategies, materials,

formulas, and equipment[.]” (Am. Compl. ¶ 40.)

11. Dinkheller resigned from Atkore in January 2023, but shortly thereafter

“asked to return to Atkore after just a few months of working in a different industry.”

(Am. Compl. ¶ 43.)

12. When Dinkheller returned to Atkore, “Atkore’s initiative to expand its

water pipe business was at the forefront of its strategic growth plan.” (Am.

Compl. ¶ 44.) Dinkheller was enlisted to help in this effort, with Atkore creating “a

specialized position just for Dinkheller—the Director of Technical Program

Management—with the specific purpose of having Dinkheller oversee the execution

of this top-priority initiative[.]” (Am. Compl. ¶ 44.)

13. On 20 June 2023, Dinkheller executed a Confidentiality, Non-Competition,

Non-Solicitation and Proprietary Rights Agreement (the Dinkheller Agreement),

which contains several obligations related to Dinkheller’s renewed employment with

Atkore. (Am. Compl. ¶ 18; see Am. Compl. Ex. A, ECF No. 33.1 [Agt.].)

14. As to his confidentiality obligations, the Dinkheller Agreement provides

that the

Employee will at all times, both during the period while Employee is
affiliated with the Company and after Employee’s affiliation with the
Company ends, maintain in confidence and will not, without the prior
written consent of the Company, use, except in the course of
performance of Employee’s duties for the Company or by court order,
disclose or give to others any Confidential Information. Upon the
termination of Employee’s affiliation with the Company, with or without
Cause, or if the Company otherwise requests, (a) Employee will return
to the Company all tangible Confidential Information and copies thereof
(regardless how such Confidential Information or copies are
maintained), and (b) Employee will deliver to the Company any property
of the Company which may be in Employee’s possession, including, but
not limited to, notes, notebooks, memoranda, reports, lists, records,
specifications, software programs, data, graphics, computers,
equipment, models, tools, cell phones, credit cards, keys, access cards,
documentation or other materials of any nature and in any form,
whether written, printed, electronic format or otherwise, relating to any
matter within the scope of the Company’s business or concerning any of
its dealings or affairs and any other Company property in Employee’s
possession, custody or control (whether prepared by Employee or
others). The terms of this Section 7 are in addition to, and not in lieu of,
any other contractual, statutory, common law, or legal obligation that
Employee may have relating to the protection of the Company’s
Confidential Information.

(Agt. at ¶ 7.) “Confidential Information” as it is used in the Dinkheller Agreement,

means

confidential and proprietary information of the Company (including its
subsidiaries, parents, affiliates, successors and assigns), whether in
written, oral, electronic or other form, including but not limited to,
information and facts concerning business plans, marketing plans,
strategies, forecasts, customers, future customers, suppliers, licensors,
licensees, partners, investors, affiliates or others, training methods and
materials, financial information, pricing models and methods, sales
prospects, client and partner lists, inventions, tests, test results, product
assessments, improvements, products, designs, methods, show-how and
know-how, techniques, systems, processes, software programs,
algorithms, formulae, works of authorship, code, technical data and
specifications, or any other technical or trade secrets of the Company or
of any third party provided to Employee or the Company; provided that,
Confidential Information will not include information that is in the
public domain other than through any fault or act by Employee.

(Agt. at ¶ 1.) Further, the Dinkheller Agreement states that Dinkheller’s

confidentiality obligations “shall survive indefinitely any termination of Employee’s

affiliation with the Company with or without cause.” (Agt. at ¶ 7.)

15. As to his non-competition obligations, the Dinkheller Agreement provides

that
During the period in which Employee is employed by or otherwise
affiliated with the Company and for a period of twelve (12) months
following the last day of Employee’s affiliation with the Company (the
“Restricted Period”), Employee will not, without the prior written
consent of the Company:

a. For Employee or on behalf of any other person or entity, directly
or indirectly, either as principal, partner, stockholder, officer,
director, member, employee, consultant, agent, representative or
in any other capacity, provide services to or engage with any
business within the Restricted Territory (as defined below) which
is directly or indirectly Competitive (as defined in Section 1) with
the business of the Company, to the extent such services or
engagement are the same as, or substantially similar to, the
services that Employee performed for the Company during the
two (2) year period preceding Employee’s separation from
employment with the Company. Nothing contained herein will
preclude Employee from purchasing or owning securities of any
such business if such securities are publicly traded, and provided
that Employee’s holdings do not exceed one percent (1%) of the
issued and outstanding securities of any class of securities of such
business.

(Agt. at ¶ 2.) Pursuant to the Dinkheller Agreement, a business is “competitive” if it

performs any of the services or manufactures or sells any of the products
provided or offered by the Company or if it performs any other services
and/or engages in the marketing, production, manufacture, distribution
or sale of any product or service similar to the services or products which
were performed, produced, marketed, manufactured, distributed, sold,
under development or planned by the Company during Employee’s
affiliation with the Company, or which could substitute for such
products or services.

(Agt. at ¶ 1.) The Dinkheller Agreement also defines “Restricted Territory” as

any country, state, region, territory or geographic location in which
Employee provided services to or on behalf of the Company or within
which Employee had a material presence or influence for the Company,
within the two (2) year period preceding Employee’s separation from
employment with the Company.

(Agt. at ¶ 3.b.)
16. In his role as Director of Technical Program Management, Dinkheller was

in charge of many initiatives, including but not limited to “managing the capital plan,

plant builds, equipment installation, capacity growth, [and] new product

development[,]” and he was “a key technical architect of Atkore’s strategic plans for

its water business for 2025.” (Am. Compl. ¶ 45.) Dinkheller “routinely consulted with

Atkore’s President (Electrical), John Pregenzer, to review and update the strategic

plan he was executing for Atkore.” (Am. Compl. ¶ 45.) Additionally, Dinkheller was

“given sole authority” to “manage and spend all of the funds allocated by Atkore for

this key strategic initiative, to select and purchase all equipment needed, to direct

the installation and incorporation of all equipment at the key manufacturing

locations[,]” as well as other responsibilities associated with this project. (Am.

Compl. ¶ 46; see also Am. Compl. ¶ 47.)

17. As a result, Dinkheller knew “Atkore’s entire playbook for its water pipe

expansion initiative,” as well as “in depth knowledge of Atkore’s electrical conduit

and fittings production capabilities, capital investment plan, raw material sourcing,

and procurement strategy, including direct relationships with the suppliers.” (Am.

Compl. ¶ 48.) For example, Dinkheller “prepared a confidential PowerPoint

presentation” which outlined strategies for implementing the initiatives he was

overseeing, and presented this PowerPoint “to a small group of Atkore’s executive

leadership team to request significant expenditure for the initiative.” (Am.

Compl. ¶ 2.)
18. In addition to his work on the water initiative, Dinkheller also “remained

heavily involved on the electrical pipe side[,]” maintaining a “national influence over

the water pipe expansion initiative and the electrical pipe business, both of which are

nationwide businesses for Atkore.” (Am. Compl. ¶ 49.)

C. Dinkheller’s Resignation from Atkore and Related Conduct

19. During July 2024—Dinkheller’s last month of employment at Atkore—he

spent a majority of his time “traveling to North Carolina and to Atkore’s plant in Fort

Mill, South Carolina.” (Am. Compl. ¶ 50.) Dinkheller was there to help “Atkore’s

Fort Mill plant with its optimization by improving its productivity and output and

reducing water on the electrical pipe side of the business.” (Am. Compl. ¶ 50.)

However, Atkore believes that Dinkheller “demonstrate[d] a lack of focus and

attention[,]” and “was not giving his best efforts[.]” (Am. Compl. ¶¶ 50–51.) By way

of example, Atkore alleges that Dinkheller “directed critical changes to the blending

and extrusion processes at the Fort Mill, SC plant”; however, “Fort Mill’s equipment

was not adequate to handle the specifications of the blend that Dinkheller directed

causing several mechanical breakdowns and a less effective compounding process[.]”

(Am. Compl. ¶ 52.)

20. On 18 July 2024, National Pipe “posted its position for Director of

Operations in Colfax, NC[,]” which was subsequently offered to Dinkheller on 26 July

2024. (Am. Compl. ¶ 53.) National Pipe’s original posting for the position “stated

that the salary range was $160,000 to $180,000 annually.” (Am. Compl. ¶ 56.)

However, Dinkheller’s offer for employment was for $220,000. (Am. Compl. ¶ 56.)
21. On 2 August 2024, Dinkheller accepted National Pipe’s offer, and on

8 August 2024, Dinkheller informed Atkore of his resignation. (Am. Compl. ¶ 58.)

On the same day as his resignation, Atkore sent Dinkheller a letter, “reminding him

of his post-employment restrictive covenants and obligations.” (Am. Compl. ¶ 60.)

Thereafter, on 15 August 2024, Atkore sent a letter to National Pipe, “providing them

with a copy of [Dinkheller’s] employment agreement containing his restrictive

covenants.” (Am. Compl. ¶ 61.)

22. Atkore also alleges that during the pendency of this litigation, Dinkheller

disclosed to the public, through the filing of an affidavit, “the location of every single

facility where Atkore’s water pipe expansion initiative is taking place, the dollar

amount of the capital expenditure, and the identity of certain products and models

included.” (Am. Compl. ¶ 4.)

III. PROCEDURAL HISTORY

23. On 11 October 2024, this action was initiated with the filing of the Verified

Complaint. (ECF No. 3.) Thereafter, on 15 November 2024, Atkore filed its Amended

Complaint—the operative pleading—asserting six claims: (1) breach of contract

against Dinkheller related to the non-competition provision within the Dinkheller

Agreement (Count One), (Am. Compl. ¶¶ 69–77); (2) tortious interference with

contract against National Pipe (Count Two), (Am. Compl. ¶¶ 78–90); (3) breach of

fiduciary duties against Dinkheller (Count Three), (Am. Compl. ¶¶ 91–100);

(4) constructive fraud against Dinkheller (Count Four), (Am. Compl. ¶¶ 101–06);

(5) unfair and deceptive trade practices against Defendants (Count Five), (Am.
Compl. ¶¶ 107–10); and (6) misappropriation of trade secrets against Defendants

(Count Six); (Am. Compl. ¶¶ 111–24).

24. Thereafter, the Motion was filed, and following complete briefing, the Court

held a hearing on 11 March 2025 (the Hearing), where all parties were represented

through counsel. (See ECF No. 89.) The Motion is ripe for determination.

IV. LEGAL STANDARD

25. In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court

reviews the allegations in the Amended Complaint in the light most favorable to

Atkore. See Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5 (2017). The

Court’s inquiry is “whether, as a matter of law, the allegations of the Complaint . . .

are sufficient to state a claim upon which relief may be granted under some legal

theory[.]” Harris v. NCNB Nat’l Bank, 85 N.C. App. 669, 670 (1987). The Court

accepts all well-pleaded factual allegations in the relevant pleading as true. See

Krawiec v. Manly, 370 N.C. 602, 606 (2018). The Court is therefore 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. Dep’t of Health & Human

Servs., 174 N.C. App. 266, 274 (2005) (citation omitted).

26. Furthermore, the Court “can reject allegations that are contradicted by the

documents attached, specifically referred to, or incorporated by reference in the

Complaint.” Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 206 (2016)

(citation omitted). The Court may consider these attached or incorporated documents

without converting the Rule 12(b)(6) motion into a motion for summary judgment.
Id. (citation omitted). Moreover, the Court “may properly consider documents which

are the subject of the Complaint and to which the Complaint specifically refers even

though they are presented by the Defendants.” Oberlin Capital, L.P. v. Slavin, 147

N.C. App. 52, 60 (2001) (citation omitted).

27. Our Supreme Court has observed that “[i]t is well-established that

dismissal pursuant to Rule 12(b)(6) is proper when ‘(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.’ ” Corwin v. British Am.

Tobacco PLC, 371 N.C. 605, 615 (2018) (quoting Wood v. Guilford Cnty., 355 N.C. 161,

166 (2002)). This standard of review for Rule 12(b)(6) motions is the standard our

Supreme Court “routinely uses . . . in assessing the sufficiency of a Complaint in the

context of complex commercial litigation.” Id. at 615 n.7 (citations omitted).

V. ANALYSIS

28. Defendants have moved to dismiss each claim asserted against them, and

the Court addresses each claim in turn.

A. Count One: Breach of Contract Against Dinkheller

29. Atkore asserts Count One against Dinkheller for breach of the Dinkheller

Agreement, alleging that the Dinkheller Agreement is a “valid and enforceable non-

compete agreement,” (Am. Compl. 70), and Dinkheller breached such agreement

when he “began working for National Pipe, a competitor of Atkore, within 12 months

following the termination of his employer with Atkore,” (Am. Compl. ¶ 74).
30. “The elements of a claim for breach of contract are (1) existence of a valid

contract and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C. App. 19,

26 (2000). When these elements are alleged, “it is error to dismiss a breach of contract

claim under Rule 12(b)(6),” and our appellate courts routinely reverse trial court

orders that require anything more. Woolard v. Davenport, 166 N.C. App. 129, 134

(2004). “[S]tating 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).

31. As an initial matter, non-compete covenants are “not viewed favorably in

modern law.” VisionAIR, Inc. v. James, 167 N.C. App. 504, 508 (2004) (citation

omitted). In determining whether a non-compete agreement is, in fact, reasonable,

valid, and enforceable, courts must examine the “reasonableness of its time and

geographic restrictions, balancing the substantial right of the employee to work with

that of the employer to protect its legitimate business interests.” Okuma Am. Corp.

v. Bowers, 181 N.C. App. 85, 86 (2007).

32. As this Court has explained,

[t]o be valid, the restrictions on the employee’s future employability by
others must be no wider in scope than is necessary to protect the
business of the employer. If a non-compete covenant is too broad to be a
reasonable protection to the employer’s business it will not be
enforced. The courts will not rewrite a contract if it is too broad but will
simply not enforce it.

PDF Elec. & Supply Co., LLC v. Jacobsen, 2020 NCBC LEXIS 103, at *17–18 (N.C.

Super. Ct. Sept. 9, 2020) (quoting VisionAIR, 167 N.C. App. at 508). “The
reasonableness of a non-competition covenant is a matter of law for the court to

decide.” Medical Staffing Network, Inc. v. Ridgway, 194 N.C. App. 649, 655 (2009).

33. Based on these principles, the North Carolina Court of Appeals has declined

to enforce non-compete covenants prohibiting employees from directly or indirectly

having any association with competing businesses. See, e.g., VisionAIR, 167 N.C.

App. at 508–09; Hartman v. W.H. Odell & Assocs., 117 N.C. App. 307, 308 (1994).

34. Additionally, “[a] restriction as to territory is reasonable only to the extent

it protects the legitimate interests of the employer in maintaining [its]

customers.” Hejl v. Hood, Hargett & Assocs., Inc., 196 N.C. App. 299, 306 (2009)

(quoting Manpower, Inc. v. Hedgecock, 42 N.C. App. 515, 523 (1979)). “Ordinarily, a

covenant’s geographic scope will be found reasonable if it encompasses the area

served by the business that the covenant protects[.]” Beverage Sys. of the Carolinas,

LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 698 (2016) (citing Thompson

v. Turner, 245 N.C. 478, 481–82 (1957)).

35. The Dinkheller Agreement, and specifically Paragraph 7, contains the non-

compete provision at issue in this case. Paragraph 7 provides that

During the period in which Employee is employed by or otherwise
affiliated with the Company and for a period of twelve (12) months
following the last day of Employee’s affiliation with the Company (the
“Restricted Period”), Employee will not, without the prior written
consent of the Company:

a. For Employee or on behalf of any other person or entity, directly
or indirectly, either as principal, partner, stockholder, officer,
director, member, employee, consultant, agent, representative or
in any other capacity, provide services to or engage with any
business within the Restricted Territory (as defined below) which
is directly or indirectly Competitive (as defined in Section 1) with
the business of the Company, to the extent such services or
engagement are the same as, or substantially similar to, the
services that Employee performed for the Company during the
two (2) year period preceding Employee’s separation from
employment with the Company. Nothing contained herein will
preclude Employee from purchasing or owning securities of any
such business if such securities are publicly traded, and provided
that Employee’s holdings do not exceed one percent (1%) of the
issued and outstanding securities of any class of securities of such
business.

(Agt. at ¶ 7.) Further, the Dinkheller Agreement defines “Restricted Territory” as

any country, state, region, territory or geographic location in which
Employee provided services to or on behalf of the Company or within
which Employee had a material presence or influence for the Company,
within the two (2) year period preceding Employee’s separation from
employment with the Company.

(Agt. at ¶ 3.b.)

36. Defendants raise a number of arguments in support of their Motion, which

Defendants contend, when read together, support their contentions that “the

[Dinkheller] Agreement is unenforceable because the time, territory, and scope of the

restrictions are overbroad, and the [Dinkheller] Agreement violates North Carolina

public policy because it constitutes an unreasonable restraint on trade.” (Memo.

Supp. Mot. 9, ECF No. 56 [Br. Supp.].)

37. First, Defendants argue that by inclusion of the prohibition that Dinkheller

shall not “provide services to or engage with any business within the Restricted

Territory . . . which is directly or indirectly Competitive” to Atkore, the Dinkheller

Agreement is rendered unenforceable. (Br. Supp. 9.)

38. Second, Defendants contend that by defining the word “Company” to mean

“Atkore International, Inc., [and] its parents, subsidiaries, affiliates, successors, and
assigns[,]” the non-compete is overly broad in scope as it relates to which businesses

are deemed “Competitive” given it is not limited to the business of Atkore alone. (Br.

Supp. 10.) Defendants argue that as a result of this definition, the “scope of

prohibited activities includes products or services which were under development by

any of Atkore’s related entities, regardless of whether Dinkheller even knew that

those products or services were planned” by Atkore. (Br. Supp. 12.)

39. Third, Defendants contend the temporal restrictions are overly broad, as

the non-compete provision “applies ‘for twelve (12) months’ after Dinkheller’s

separation from [Atkore] and also contains a two-year lookback period[,]” along with

an extension of “one-to-two years if certain actions occur.” (Br. Supp. 13.) As a result,

Defendants argue that “the temporal restrictions in the [Dinkheller] Agreement total

three years at a minimum, and may extend up to five years,” which Defendants argue

is unreasonable. (Br. Supp. 13.)

40. Fourth and finally, Defendants argue that the geographic scope is overly

broad. Defendants note that Atkore has alleged that through his leadership roles,

“Dinkheller had a national influence over the water pipe expansion initiative and the

electrical pipe business, both of which are nationwide businesses for Atkore[.]” (Br.

Supp. 14 (citing Am. Compl. ¶ 44).) Defendants argue that according to the

Dinkheller Agreement, since Dinkheller could not provide services to “any business

within the Restricted Territory[,]” and the Restricted Territory includes any “country,

state, region, territory or geographic location” where Dinkheller “provided services
. . . [or] had a material presence or influence” on Atkore, this “spans the entirety of

Atkore’s . . . operations in the Unites States, if not the globe.” (Br. Supp. 14.)

41. Atkore responds by arguing that Defendants overlook that the “noncompete

is expressly limited to prohibiting only those duties that are the same or substantially

similar to the services he provided during the last two years of his Atkore

employment.” (Pl.’s Resp. Mot. 6, ECF No. 78 [Br. Opp.].) Additionally, Atkore picks

apart each of Defendants’ arguments, as discussed above, on the basis that the case

law relied upon as to each argument is not analogous to the facts of this case. (Br.

Opp. 8–10.)

42. The Court concludes that, on the facts as pleaded, the Dinkheller

Agreement is overly broad and unreasonable as a matter of law. The Court finds that

the time, scope, and geographic restrictions, when considered as a whole, are overly

broad and not reasonably limited to protecting Atkore’s business interests. The time

restrictions—including the two-year lookback period—paired with the broad

definition of the “Company,” which could encompass many entities beyond Atkore,

and the far-reaching geographic restriction, which essentially covers the entire

country given the allegations within the Amended Complaint, all support Defendants’

contention that the Dinkheller Agreement is overly broad and unenforceable as a

matter of law.
43. For this reason, the Court hereby GRANTS the Motion in part as to Count

One based on the non-competition restrictive covenant detailed in Paragraph 7 of the

Dinkheller Agreement, and Count One is DISMISSED with prejudice. 2

B. Count Two: Tortious Interference with Contract against National
Pipe

44. Atkore has asserted Count Two against National Pipe, alleging that

“National Pipe intentionally induced Dinkheller to commence work for National Pipe

in violation of” the non-competition and non-disclosure restrictive covenants found

within the Dinkheller Agreement. (Am. Compl. ¶ 81.)

45. To state a claim for tortious interference with contract, a complaint must

allege that:

(1) a valid contract [exists] 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 Lab., Inc. v. Kuykendall, 322 N.C. 643, 661 (1988). As this Court has often

noted, “[t]he pleading standards for a tortious interference with contract claim are

strict.” Kerry Bodenhamer Farms, LLC v. Nature’s Pearl Corp., 2017 NCBC

LEXIS 27, at *16 (N.C. Super. Ct. Mar. 27, 2017) (alteration in original) (quoting

Urquhart v. Trenkelbach, 2017 NCBC LEXIS 12 at *15 (N.C. Super. Ct. Feb. 8, 2017)).

46. First, Atkore has alleged that it “has a valid and enforceable employment

agreement with Dinkheller” which contains “provisions against the use or disclosure

2 “The decision to dismiss an action with or without prejudice is in the discretion of the trial

court.” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).
of Atkore’s confidential information and trade secrets” and “restrictions against

competing with Atkore for a limited period of time within certain geographic areas.”

(Am. Compl. ¶ 79.)

47. As to the non-competition provision within the Dinkheller Agreement, the

Court has found that provision to be unenforceable as a matter of law. (See

supra ¶ 35.) As a result, to the extent Count Two is based on the non-competition

provision of the Dinkheller Agreement, the Motion is GRANTED and Count Two is

DISMISSED with prejudice to that limited extent.

48. The Court now turns its analysis to the non-disclosure provision within the

Dinkheller Agreement to determine whether Atkore has sufficiently alleged Count

Two on this basis.

49. When assessing the validity of restrictive covenants in an employment

agreement, North Carolina law distinguishes between restrictive covenants—which

restrain trade—and confidentiality agreements—which are only meant to prevent

the disclosure or use of confidential information. See Amerigas Propane, L.P. v.

Coffey, 2015 NCBC LEXIS 98, at **10 (N.C. Super. Ct. Oct. 15, 2015).

50. “Unlike non-competition and non-solicitation provisions, a nondisclosure

provision is generally not considered to be a restraint on trade.” Prometheus Grp.

Enters., LLC v. Gibson, 2023 NCBC LEXIS 42, at **24 (N.C. Super. Ct. Mar. 21,

2023). Accordingly, a “nondisclosure provision is not subjected to the same level of

scrutiny as the non-competition and non-solicitation provisions” of an employment

agreement. Id. at **25. For this reason, “[s]uch agreements may, therefore, be
upheld even though the agreement is unlimited as to time and area[.]” Akzo Nobel

Coatings, Inc. v. Rogers, 2011 NCBC LEXIS 42, at **31 (N.C. Super. Ct. Nov. 3, 2011).

51. Dinkheller’s non-disclosure obligations are outlined in paragraph 7 of the

Dinkheller Agreement. (See Agt. at ¶ 7; see supra ¶ 14.)

52. Defendants contend Count Two should be dismissed on the basis that

Atkore has only alleged “conclusory allegations to support this claim which should be

ignored.” (Br. Supp. 22.) Atkore disagrees with this characterization of its

allegations, arguing it has “set forth factual allegations supporting the elements of

its tortious interference claim” against National Pipe, including National Pipe’s

“knowledge of Dinkheller’s noncompete and [National Pipe’s] wrongful purpose of

inducing Dinkheller’s breach to stifle fair competition in the marketplace[.]” (Br.

Opp. 13.)

53. Atkore alleges that (1) the Dinkheller Agreement is a “valid and enforceable

employment agreement,” (Am. Compl. ¶ 79); (2) “National Pipe was notified in

writing of Dinkheller’s employment agreement . . . prior to Dinkheller commencing

employment for National Pipe,” (Am. Compl. ¶ 80); (3) National Pipe interfered with

the Dinkheller Agreement by “placing Dinkheller in a position where he has disclosed

and is utilizing Atkore’s confidential information and trade secrets,” (Am.

Compl. ¶ 83); (4) National Pipe’s conduct was done “without justification[,]” (Am.

Compl. ¶ 87); and (5) Atkore is entitled to recover for “the resulting actual damages

it has suffered[,]” (Am. Compl. ¶ 90). The Court finds Atkore’s allegations sufficient
at this stage to state a claim for tortious interference with contract against National

Pipe as to the non-disclosure provision within the Dinkheller Agreement.

54. Therefore, the Court hereby DENIES the Motion in part as to Count Two

to the extent it is based on the non-disclosure provision within the Dinkheller

Agreement.

C. Counts Three and Four: Breach of Fiduciary Duty & Constructive
Fraud Against Dinkheller

55. Atkore has asserted Count Three against Dinkheller for breach of fiduciary

duty, alleging that Dinkheller “owed Atkore fiduciary duties given the relationship of

trust and confidence between the two parties,” (Am. Compl. ¶ 92), and that he

breached his duties when he “knowingly and intentionally put his interests and those

of National Pipe ahead of Atkore’s,” (Am. Compl. ¶ 97). Similarly, Atkore has

asserted Count Four against Dinkheller for constructive fraud, alleging that “[a]

relationship of trust and confidence existed between Atkore and Dinkheller,” (Am.

Compl. ¶ 102), and that Dinkheller “took advantage of that position of trust in order

to benefit himself,” (Am. Compl. ¶ 103).

56. In order to establish a claim for breach of fiduciary duty, plaintiff must

show that: (1) defendant owed plaintiff a fiduciary duty; (2) defendant breached his

fiduciary duty; and (3) the breach of fiduciary duty was a proximate cause of injury

to plaintiff. Farndale Co., LLC v. Gibellini, 176 N.C. App. 60, 68 (2006). “To establish

constructive fraud, a plaintiff must show that defendant (1) owes plaintiff a fiduciary

duty; (2) breached this fiduciary duty; and (3) sought to benefit himself in the
transaction.” Crumley & Assocs., P.C. v. Charles Peed & Assocs., P.A., 219 N.C. App.

615, 620 (2012).

57. North Carolina’s courts have consistently held that an employer-

employee relationship is not a fiduciary one, even where the employee has significant

management authority, absent some allegation that the employee exercised

dominance and control over his employer. See Austin Maint. Constr., Inc. v. Crowder

Constr. Co., 224 N.C. App. 401, 410 (2012) (finding no breach of fiduciary

duty because “any confidence that Plaintiff reposed in [employee] consisted of nothing

more than relying on him to competently perform his assigned duties”); Dalton v.

Camp, 353 N.C. 647, 652 (2001) (quoting King v. Atl. Coast Line R.R. Co., 157 N.C.

44, 62–63 (1911)) (“Under the general rule, ‘the relation of employer and employee is

not one of those regarded as confidential.’ ”); Allegis Grp., Inc. v. Zachary Piper LLC,

2013 NCBC LEXIS 12, at *32 (N.C. Super. Ct. Feb. 25, 2013) (holding that “basic

management responsibilities” do not support a fiduciary relationship); Battleground

Veterinary Hosp., P.C. v. McGeough, 2007 NCBC LEXIS 33, at *16 (N.C. Super. Ct.

Oct. 19, 2007) (“Even when an employee is entrusted with substantial managerial

authority, a fiduciary relationship will not exist absent evidence that such authority

led to the employer being subjugated to the ‘improper influences or domination of

[its] employee.’ ” (citation omitted)).

58. “Where an employee is neither an officer nor a director, extraordinary

circumstances are necessary to impose a fiduciary duty arising out of the employment

relationship.” Southeast Air Charter, Inc. v. Stroud, 2015 NCBC LEXIS 82, at *16
(N.C. Super. Ct. Aug. 17, 2015) (citing Dalton, 353 N.C. at 652). These “extraordinary

circumstances” occur when an employer is “subjugated to the improper influences or

domination of his employee.” Dalton, 353 N.C. at 652; see also DSM Dyneema, LLC

v. Thagard, 2015 NCBC LEXIS 50, at *21–22 (N.C. Super. Ct. May 12, 2015) (holding

that the plaintiff failed to allege “the extraordinary or special type of employer-

employee relationship that gives rise to a fiduciary duty” because the facts pleaded

“failed to allege that Thagard enjoyed the sort of domination or influence over DSM

that our courts have found necessary to create a fiduciary duty”).

59. Defendants argue that Counts Three and Four should be dismissed, as the

Amended Complaint “lacks sufficient facts to establish Dinkheller had any fiduciary

duty to Atkore[,]” a fundamental element to both Counts Three and Four. (Br.

Supp. 23, see also Br. Supp. 25.) Defendants support this contention by arguing the

“allegations confirm the relationship between Dinkheller and Atkore is that of a

standard employer/employee,” and that the “Amended Complaint confirms

Dinkheller worked under the supervision of others and his authority was subservient

to those higher-ranking individuals.” (Br. Supp. 24.)

60. In response, Atkore argues its allegations are sufficient at this stage,

providing that “Dinkheller’s influence and assumption of a specialized, new senior

level position to oversee and execute Atkore’s water expansion initiative” established

a fiduciary duty between the two parties. (Br. Opp. 13.)

61. While Atkore alleges that Dinkheller was a senior-level employee with

substantial managerial authority over the water pipe expansion initiative, the
pleaded facts do not show that Dinkheller possessed the type of domination and

influence over Atkore that create fiduciary duties.

62. As a result, Counts Three and Four both fail. Therefore, the Court hereby

GRANTS the Motion in part as to Counts Three and Four, and Counts Three and

Four are DISMISSED without prejudice.

D. Count Five: UDTPA Against Defendants

63. Atkore brings Count Five against both Dinkheller and National Pipe,

alleging that Defendants have violated the UDTPA through “Dinkheller’s use of his

specialized leadership position to continue procuring Atkore’s highly confidential

proprietary information on its strategies for water pipe expansion and

optimization[,]” while “simultaneously conspiring with National Pipe to engage in

competitive employment in disregard of fiduciary duties, confidentiality obligations

and restrictive covenants.” (Am. Compl. ¶ 108.)

64. To state a claim for a violation of N.C.G.S. § 75-1.1 (UDTPA), a plaintiff

must allege that “(1) defendant committed an unfair and deceptive act or practice,

(2) the action in question was in or affecting commerce, and (3) the act proximately

caused injury to the plaintiff.” Dalton, 353 N.C. at 656. “A practice is unfair if it is

unethical or unscrupulous, and it is deceptive if it has a tendency to deceive.” Id.

65. Defendants seek dismissal of Count Five, arguing Count Five “rests upon

other claims which should be dismissed for the reasons outlined herein and should be

dismissed on that basis alone.” (Br. Supp. 30.) Atkore does not raise any opposition

as to Count Five in its response brief, and as a result, the Court deems Defendants’
request for dismissal of Count Five to be unopposed. See BCR 7.2 (“The function of

all briefs required or permitted by this rule is to define clearly the issues presented

to the Court and to present the arguments and authorities upon which the parties

rely in support of their respective positions. A party should therefore brief each issue

and argument that the party desires the Court to rule upon and that the party intends

to raise at a hearing.”).

66. Therefore, the Court hereby GRANTS the Motion as to Count Five, and

Count Five is DISMISSED without prejudice.

E. Count Six: Misappropriation of Trade Secrets Against Defendants

67. Atkore has asserted Count Six against both Dinkheller and National Pipe,

alleging that “Dinkheller had access to, reviewed and used Atkore’s trade secrets”;

“Dinkheller then disclosed this trade secret information to National Pipe, as well as

to the public in his affidavit in this case”; “[t]hese trade secrets are not easily or

readily ascertainable through independent development or reverse engineering”; and

Atkore “engages in reasonable efforts to maintain the secrecy of such trade secret

information.” (Am. Compl. ¶¶ 112–17.)

68. The North Carolina Trade Secrets Protection Act defines a trade secret as

business or technical information, including but not limited to a formula,
pattern, program, device, compilation of information, method,
technique, or process that:

a. Derives independent actual or potential commercial value from
not being generally known or readily ascertainable through
independent development or reverse engineering by persons who
can obtain economic value from its disclosure or use; and
b. Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

N.C.G.S. § 66-152(3). “To plead misappropriation of trade secrets, a plaintiff 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.” Krawiec, 370 N.C. at 609

(citation omitted).

69. Defendants seek dismissal of Count Six for two reasons, arguing Atkore has

failed to identify both the trade secrets at issue, and any acts of misappropriation

thereof, with sufficient particularity. (Br. Supp. 27–30.)

70. First, Defendants contend that Atkore’s allegedly misappropriated trade

secret information is “not entitled to protection as a ‘trade secret’ and cannot support

a claim for misappropriation.” (Br. Supp. 28.) Second, Defendants contend Atkore’s

allegations regarding misappropriation are “just the ‘inevitable disclosure’ doctrine

dressed up as an alleged act of misappropriation.” (Br. Supp. 29.)

71. Atkore rebuts this argument, pointing out that it “pled specifically

identifiable confidential, trade secret information that Dinkheller misappropriated

from a PowerPoint document when he shared that same information in his public

affidavit[.]” (Br. Opp. 4 (citing ECF No. 33 at ¶¶ 2–4).) Atkore argues that “this level

of specificity gives sufficient notice of the identity of the trade secrets at issue in this

case.” (Br. Opp. 5.) Atkore further argues that it has “pled sufficient factual

allegations to support its claim” given that it has alleged “Dinkheller has

misappropriated the above-referenced trade secrets by taking such information from
the PowerPoint and disclosing the combination of all of it to [National Pipe] and the

public without Atkore’s consent.” (Br. Opp. 6.)

72. The Court agrees as to Dinkheller. At this stage, the Court finds that

Atkore has sufficiently identified such trade secrets as the information contained in

the PowerPoint presentation and has alleged that such information was subsequently

shared on the public record in this matter through Dinkheller’s affidavit, (see ECF

No. 33).

73. As to National Pipe, Atkore alleges that “Dinkheller’s use and/or disclosure

of Atkore’s confidential information and trade secrets has occurred and is currently

occurring[,]” (Am. Compl. ¶ 119). These allegations, paired with the allegations

discussed herein regarding National Pipe interfering with the Dinkheller Agreement

by “placing Dinkheller in a position where he has disclosed and is utilizing Atkore’s

confidential information and trade secrets,” (Am. Compl. ¶ 83), are minimally

sufficient at this early stage to state a claim against National Pipe for

misappropriation of trade secrets.

74. Therefore, the Court hereby DENIES the Motion in part as to Count Six.

VI. CONCLUSION

75. THEREFORE, the Court hereby GRANTS in part and DENIES in part

the Motion as follows:

a. The Motion is GRANTED as to Count One, and Count One is

DISMISSED with prejudice;
b. The Motion is GRANTED as to Count Two to the extent it relies

on the non-compete provision within the Dinkheller Agreement, and

Count Two is DISMISSED with prejudice to that limited extent. The

Motion is DENIED as to Count Two to the extent it relies on the non-

disclosure provision within the Dinkheller Agreement;

c. The Motion is GRANTED as to Count Three, and Count Three is

DISMISSED without prejudice;

d. The Motion is GRANTED as to Count Four, and Count Four is

DISMISSED without prejudice;

e. The Motion is GRANTED as to Count Five, and Count Five is

DISMISSED without prejudice; and

f. The Motion is DENIED as to Count Six.

SO ORDERED, this the 10th day of April, 2025.

/s/ Michael L. Robinson
Michael L. Robinson
Chief Business Court Judge