BIOMILQ, INC. v. GUILIANO, 2024 NCBC 25

STATE OF NORTH CAROLINA
ORANGE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 255
BIOMILQ, INC.,
Plaintiff and
Counterclaim Defendant,
v.
SHAYNE GUILIANO and 108LABS,
LLC,
Defendants and
Counterclaim Plaintiffs,
v.
MICHELLE EGGER;
BREAKTHROUGH ENERGY
VENTURES, LLC; BEV JOHN DOES;
and BIOMILQ JOHN DOES,
Counterclaim Defendants.
ORDER AND OPINION ON
MOTIONS TO DISMISS SECOND
AMENDED COUNTERCLAIMS
1. 	THIS MATTER is before the Court on the 4 August 2023 filing of
(1) Defendant-in-Counterclaim 	Breakthrough 	Energy 	Ventures, 	LLC’s 	Motion 	to
Dismiss Second Amended Counterclaims (“BEV’s Motion”), (ECF No. 177 [“BEV
Mot.”]); (2) Counterclaim Defendant Michelle Egger’s Motion to Dismiss (“Egger’s
Motion”), (ECF No. 180 [“Egger Mot.”]); and (3) BIOMILQ, Inc.’s Motion to Dismiss
Second Amended Counterclaims (“BIOMILQ’s Motion”; together, the “Motions”),
(ECF Nos. 185–86 [“BIOMILQ Mot.”]).1
1 The Court previously granted in part and denied in part as moot BIOMILQ’s Motion,
dismissing Leila Strickland (“Strickland”) pursuant to Rules 4 and 12(b)(5) of the North
Carolina Rules of Civil Procedure (the “Rule(s)”), which mooted the remainder of BIOMILQ’s
Motion as to Strickland. (9 Jan. 2024 Order & Op., ECF No. 250 [“9 Jan. Opinion”].) The
Court otherwise deferred ruling on BIOMILQ’s Motion to the extent BIOMILQ sought
dismissal of the Counterclaims against it pursuant to Rule 12(b)(6). (9 Jan. Opinion at 15.)
The Court now addresses the remainder of BIOMILQ’s Motion.
BIOMILQ, Inc. v. Guiliano, 2024 NCBC 25.

2. 	On 5 June 2023, Defendants Shayne Guiliano (“Guiliano”) and 108Labs,
LLC (“108Labs”; with Guiliano, “Defendants”), filed their First Amended Joint
Partial Answer to Plaintiff’s Second Amended Complaint and Second Amended
Counterclaims 	and 	Third-Party 	Claim 	(the 	“Counterclaims”). 	(ECF 	No. 	154
[“Countercls.”].) 	Now, 	pursuant 	to 	Rule 12(b)(6), 	Counterclaim 	Defendants
Breakthrough 	Energy 	Ventures, 	LLC 	(“BEV”), 	Michelle 	Egger 	(“Egger”), 	and
BIOMILQ, Inc. (“BIOMILQ”; together, “Movants”) seek dismissal of nearly all the
counterclaims alleged against them.
3. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motions.
Robinson, Bradshaw & Hinson, P.A., by J. Dickson Phillips and Stephen
D. Feldman, and Goodwin Procter, LLP, by Rachel M. Walsh, for
Plaintiff BIOMILQ, Inc.
Carnes Warwick, PLLC, by Jonathan A. Carnes and Tara D. Warwick,
for Defendants Shayne Guiliano and 108Labs, LLC.2
Wallis, Bowens, Averhart & Associates, PLLC, by Stephon J. Bowens and
Saleisha Averhart, for Defendant 108Labs, LLC.
McGuireWoods LLP, by Joan S. Anderson, and O’Melveny & Myers,
LLP, by Amy S. Park, for Counterclaim Defendant Breakthrough Energy
Ventures, LLC.
1 The Court observes that identical copies of BIOMILQ’s Motion were filed at ECF Nos. 185–
86.
2 Following the filing of the Motions and completion of briefing, Guiliano elected to proceed
pro se. (See ECF No. 223.) On 29 November 2023, the Court permitted attorneys Tara D.
Warwick and Jonathan A. Carnes of Carnes Warwick, PLLC to withdraw as counsel of record
for Mr. Guiliano, (ECF No. 232), but they remain as counsel for 108Labs in this action.

Ellis & Winters LLP, by James M. Weiss, Derrick C. Foard, and Jeremy
Falcone, for Counterclaim Defendant Michelle Egger.
Robinson, Judge.
I. 	INTRODUCTION
4. 	This action arises out of a dispute between BIOMILQ and Defendants
regarding certain human cell-cultured technologies and products. 	At issue in this
Order and Opinion are Defendants’ Counterclaims against Movants, who Defendants
contend 	conspired 	to 	misappropriate 	Defendants’ 	technology 	and 	intellectual
property for Movants’ own financial benefit. Defendants allege twenty-seven broad-
ranging counterclaims covering a litany of events. 	Movants seek dismissal of these
counterclaims, in their near-entirety, pursuant to Rule 12(b)(6).
II. 	FACTUAL BACKGROUND
5. 	The Court does not make determinations of fact on motions to dismiss
under 	Rule 12(b)(6) 	but 	instead 	recites 	only 	those 	factual 	allegations 	of 	the
Counterclaims that are relevant and necessary to the Court’s determination of the
Motions. 	Gateway Mgmt. Servs. v. Carrbridge Berkshire Grp., Inc., 2018 NCBC
LEXIS 45, at *9 (N.C. Super. Ct. May 9, 2018). 	When reviewing the allegations in
the Counterclaims pursuant to Rule 12(b)(6), the Court treats the allegations as true
but does not determine or opine on the veracity of those allegations. See Krawiec v.
Manly, 370 N.C. 602, 606 (2018); Wood v. Guilford Cty., 355 N.C. 161, 166 (2002).
A. 	The Formation of 108Labs and the Focus of its Research
6. 	Guiliano, who trained as an organic chemist and transitioned to focus on
inventing novel biomedical technologies, met Strickland in 2003. (Countercls. ¶¶ 14,

16.) The pair were married in 2008. (Countercls. ¶ 16.) Strickland was a scientific
researcher who, in 2013, expressed interest in returning to lab research. (Countercls.
¶ 17.)
7. 	Guiliano proposed that he and Strickland start a family-run company, and
in 2013, “they began discussing steps to form a biotechnology company and secure lab
facilities to begin research.” 	(Countercls. ¶ 19.) 	Guiliano alleges that around
11 September 2013, he “conceived of the concept of milking cells, or making milk with
mammalian mammary cells,” and from there, he and Strickland pursued research
related to cell-cultured milk, focused specifically on bovine milk. (Countercls. ¶ 20.)
8. 	The pair thereafter formed 108Labs on 1 October 2013. (Countercls. ¶ 21.)
108Labs 	is 	a 	member-managed 	limited 	liability 	company 	with 	Guiliano 	and
Strickland as its sole members. 	(Countercls. ¶ 22.) 	Guiliano alleges that he
developed the “concept for simultaneous biosynthesis of human milk and human milk
immunoglobulins,” and that Strickland memorialized the idea in a lab notebook.
(Countercls. ¶ 26.)
9. 	“On or about 30 September 2014, 108Labs began induction of lactation in a
polarized monolayer of mammary cells for the first time, using a 2D cell culture setup
in a transwell plate.” 	(Countercls. ¶ 34.) 	108Labs continued its research through
2018. (See Countercls. ¶¶ 35–37.)
10. 	On 18 September 2019, Strickland and Guiliano met with an individual at
FiberCell Technologies, Inc. (“FiberCell”) to discuss its bioreactors and the possibility
of using FiberCell’s services to run proof of concept experiments. (Countercls. ¶ 40.)

After 	initial 	discussions, 	FiberCell 	executed 	a 	non-disclosure 	agreement 	with
108Labs, and 108Labs thereafter began using FiberCell bioreactors for mammary cell
research. (Countercls. ¶ 41.)
11. 	The next day, 108Labs hired a patent attorney from Myers Bigel, P.A.
(“Myers Bigel”) to assist with identifying patentable concepts and filing patent
applications for its technology. (Countercls. ¶ 42.)
12. 	Defendants allege that on about 17 October 2019, “Guiliano conceived of
the human milk basement membrane formulation.” (Countercls. ¶ 43.)
B. 	108Labs’s 	Scientific 	Advances 	and 	Relevant 	Events 	Preceding
BIOMILQ’s Formation
13. 	Strickland 	met 	Egger 	on 	28 	June 	2019. 	(Countercls. 	¶ 81.) 	Egger
represented that she had experience working for General Mills as a food scientist and
with the Bill and Melinda Gates Foundation on the nutrition team. 	(Countercls.
¶ 83.) Guiliano first met Egger on or about 9 October 2019. (Countercls. ¶ 85.) Egger
signed a non-disclosure agreement for 108Labs at a meeting around that time, and
Defendants allege that Guiliano and Egger then discussed 108Labs’s research and
business plan. (Countercls. ¶ 85.)
14. 	Defendants allege that Egger suggested that she, 108Labs, Strickland, and
Guiliano form a new entity with Strickland as its majority owner. (Countercls. ¶ 86.)
Egger allegedly “asserted that her connections to the Gates Foundation could lead to
immediate non-dilutive funding.” (Countercls. ¶ 86.)
15. 	Around November 2019, 108Labs began leasing lab space and cold storage
at both the University of North Carolina at Chapel Hill (“UNC”) and the National

Institutes of Health to store samples from FiberCell and prepare its experimental
results. (Countercls. ¶ 53.)
16. 	On 13 December 2019, 108Labs submitted a grant application to the
National Science Foundation (“NSF”). (Countercls. ¶ 48.) Before doing so, it ensured
that “its intellectual property, business strategies, research and information related
to potential marketability of its anticipated products, and overall plan were held in
confidence, and were only shared with Strickland, Guiliano, those under non-
disclosure 	agreements, 	attorneys, 	or 	organizations 	committed 	to 	protecting
confidentiality.” (Countercls. ¶ 49.) Defendants allege on information and belief that
the 	NSF’s 	policies 	and 	procedures 	protect 	confidential 	information.
(Countercls. ¶ 50.)
17. 	Defendants 	allege 	that, 	throughout 	the 	remainder 	of 	2019, 	108Labs
developed a business plan for its technology, which was summarized in the NSF grant
application. 	(Countercls. ¶ 88.) 	The NSF grant application allegedly describes
(1) how Defendants and Strickland expected 108Labs’s business plan to unfold,
including that Defendants, Strickland, and Egger intended to form a “C-corp in 2020
that w[ould] license the technology for making human milk from 108Labs[,]” and
(2) the 	new 	company’s 	relationship 	to 	108Labs’s 	intellectual 	property.
(Countercls. ¶ 90.) 	Defendants allege that Strickland and Guiliano’s marriage
continued “in harmony” through August 2019. (Countercls. ¶ 177.)

18. 	Defendants allege that 108Labs intended to create a brand mark, “Biomilq,”
and 	that 	the 	mark 	was 	published 	on 	108Labs’s 	public 	Facebook 	page 	on
2 January 2020. (See Countercls. ¶ 93.)
19. 	On 8 January 2020, Guiliano and Strickland, “as individual inventors,” filed
with the United States Patent and Trademark Office (“USPTO”) U.S. Provisional
Patent Application No. 62/958,407 (the “ ’407 Provisional”), entitled “Live Cell
Constructs for Milk Production and Methods Using the Same.” 	(Countercls. ¶ 51;
Ex. F, ECF No. 154.7.) 	108Labs’s patent counsel at Myers Bigel thereafter sent
Guiliano 	and 	Strickland 	an 	assignment 	agreement 	that 	would 	transfer 	all
inventorship rights in the technology to 108Labs; however, the assignment was not
completed. (Countercls. ¶ 52.)
20. 	That same day, Defendants allege that “a C-corp under the tradename
Biomilq, Inc. was incorporated in the State of Delaware.” (Countercls. ¶ 94.)
21. 	Thereafter, on around 14 January 2020, Defendants allege that Guiliano
arranged for the transfer of samples, on a rolling basis, from FiberCell’s Maryland
lab space to 108Labs’s UNC lab space. 	(Countercls. ¶ 54.) 	Defendants allege that
early results from 108Labs’s “prolactin escalation protocol” showed “the presence of
lactose (milk sugars) and casein (milk proteins).” (Countercls. ¶ 55.)
22. 	On 11 February 2020, Strickland emailed an individual at the University
of California, Davis’s (“UC Davis”) Department of Food Science and Technology
regarding these results. (Countercls. ¶ 56.) Following execution of a non-disclosure
agreement, a series of “proof of concept samples” generated in January 2020 were

sent to UC Davis for additional testing. 	(Countercls. ¶ 57.) 	108Labs commissioned
and 	paid 	for 	the 	testing, 	and 	the 	results 	were 	sent 	directly 	to 	108Labs.
(Countercls. ¶ 58.)
23. 	Around this time, and throughout the following month, Defendants allege
that “a growing conflict between Strickland and Guiliano arose” regarding “what to
do with the intellectual property of 108Labs[.]” (Countercls. ¶ 187.)
24. 	On 16 March 2020, Strickland and Guiliano were informed that the results
of the UC Davis testing “provide[d] really strong evidence” that the pair were “making
a product that contains all the main human milk proteins[.]” 	(Countercls. ¶ 60
(cleaned up).) Defendants allege that, as of March 2020, all 108Labs’s technology was
developed and invented by Guiliano and Strickland, including the results of the
UC Davis testing. (Countercls. ¶ 61.)
C. 	BIOMILQ’s Formation and Early Fundraising
25. 	As 	stated, 	BIOMILQ 	was 	incorporated 	on 	8 	January 	2020.
(Countercls. ¶ 94.) Despite its formation, the exact nature of BIOMILQ’s relationship
to 108Labs was not decided. 	(Countercls. ¶ 95.) 	Defendants allege that, BIOMILQ
had no shareholders, contracts, labs or lab space, pending experiments, or intellectual
property at its formation. (Countercls. ¶ 96.)
26. 	On 6 February 2020, Egger posted on her personal blog titled, “Medium,”
that BIOMILQ may have made breast milk using “first-of-its-kind technology to
provide a cultured human-milk product[.]” (Countercls. ¶ 97.) Defendants allege that

108Labs did not approve the content and that the post did not mention 108Labs.
(Countercls. ¶ 98.)
27. 	Throughout February 2020, Defendants allege that Guiliano, Strickland,
and Egger had several meetings to discuss their individual roles and interests in
BIOMILQ and that the discussions resulted in proposed equity percentages as
follows: Strickland as Chief Science Officer and 53% member; Egger as Chief
Executive Officer and 42% member; and Guiliano as Technical Advisor and 5%
member.3 	(Countercls. ¶ 99.) 	At that time, 108Labs did not agree to any terms
regarding transfer of its intellectual property. (Countercls. ¶ 100.)
28. 	On 25 February 2020, Defendants allege that Egger emailed Guiliano and
Strickland, stating that BIOMILQ would purchase 108Labs’s technology, including
the ’407 Provisional, for $150,000.00 cash with no stipulations. (Countercls. ¶ 102.)
Defendants allege that Guiliano continued to view BIOMILQ as “part of 108Labs’[s]
business plan and in 108Labs’[s] family.” (Countercls. ¶ 103.)
29. 	On or about 20 March 2020, Egger had multiple meetings with potential
investors in BIOMILQ, and “met with Strickland and Guiliano beforehand to discuss
the ongoing issues of courting investors and deciding what was to be done with the
intellectual property.” (Countercls. ¶ 110.) During that meeting, Defendants allege
that Guiliano demanded Egger “refrain from using 108Labs’[s] scientific data in
3 The Counterclaims describe this plan as being for BIOMILQ to have members, but
corporations like BIOMILQ have shareholders, not members. 	See, e.g., N.C.G.S. § 55-2-02
(describing the Articles of Incorporation for corporations, including that the articles may set
forth information regarding the corporation’s board of directors and shareholders, including
the par value for authorized shares or classes of shares). Notwithstanding this fact, the Court
uses the term “member” in this paragraph as this was the term used by Defendants.

fundraising because 108Labs needed to understand the science and significance of
itsdiscoveries 	before 	sharing 	any 	data 	relating 	to 	proteomics 	and
immunoglobulins with third parties[.]” (Countercls. ¶ 111.) Egger allegedly refused.
(See Countercls. ¶ 112.)
30. 	In a discussion after the fact, Guiliano indicated to Strickland that he
wanted, in part, to hire a lawyer to issue a cease-and-desist letter to Egger, but he
alleges 	that 	Strickland 	reassured 	him 	and 	allowed 	him 	to 	“witness 	all 	calls
throughout the day on her computer.” 	(Countercls. ¶ 114.) 	Defendants allege that
other participants on the virtual 20 March 2020 meetings “were not expressly aware”
that Guiliano was present off-screen for those calls. (Countercls. ¶ 114.)
31. 	During one meeting that day, Defendants allege that Guiliano heard Egger
disclose 108Labs’s “proteomics data” to a BEV representative. 	(Countercls. ¶ 115.)
Egger allegedly continued to disclose aspects of 108Labs’s data, which 108Labs
considered to be a trade secret. (Countercls. ¶ 116.)
32. 	During the same call with Egger, Strickland, and a BEV representative,
Guiliano overheard the BEV representative ask, “when will the husband problem be
solved?” (Countercls. ¶ 116.) Egger allegedly responded that, “the contracts will be
finalized by Wednesday.” (Countercls. ¶ 116.) Defendants allege that “the husband
problem” referred to Guiliano, and that the following Wednesday was 25 March 2020.
(Countercls. ¶ 117.) When Guiliano confronted Strickland about this comment after
the 	call 	with 	BEV, 	she 	“tried 	to 	convince 	him 	that 	it 	was 	not 	a 	big 	deal.”

(Countercls. ¶ 118.) 	Notwithstanding Strickland’s assurances, Guiliano was no
longer permitted to observe investor calls with Strickland. (Countercls. ¶ 118.)
33. 	Ultimately, on 25 March 2020, BEV sent a letter of intent for a Simple
Agreement for Future Equity (“SAFE”) to Strickland and Egger, offering to invest
$3,000,000.00. 	(Countercls. 	¶¶ 130–31; 	see 	Ex. 	K, 	ECF 	No. 	154.12.) 	The
$3,000,000.00 offer was based on the pre-money valuation of BIOMILQ, “which was
assessed 	by 	BEV 	as 	$11,500,00.00 	and BEV’s 	expectation 	that 	it 	would 	own
approximately 26%” of BIOMILQ.4 (Countercls. ¶ 131.)
34. 	Strickland 	and 	Guiliano 	were 	at 	odds 	regarding 	issues 	of 	108Labs’s
intellectual 	property 	and 	what 	rights, 	if 	any, 	to 	assign 	to 	BIOMILQ. 	(See
Countercls. ¶ 133.) 	In a 25 March 2020 email, Strickland appeared to indicate that
108Labs and BIOMILQ’s interests were incompatible. (Countercls. ¶ 136; see Ex. M,
ECF No. 154.14.) 	That same day, Defendants allege that 108Labs began operating
as NeutraSiga Therapeutics (“NeutraSiga”), although that entity was not formally
organized 	and 	incorporated 	as 	a 	corporation 	until 	21 	October 	2020.
(Countercls. ¶ 218.)
35. 	Four days later, on 29 March 2020, Strickland resigned from 108Labs.
(Countercls. ¶ 139.) Strickland also messaged Guiliano, “I love you. No matter how
things unfold, that will not change. You are my partner in this life, and our science
is only a part of that partnership. I am never leaving you, and I hope you never leave
me.” 	(Countercls. ¶ 189.) 	Defendants allege that around this time, Strickland’s
4 The Counterclaims do not address how this offer factored into the previous plans for
ownership in the company. (Supra ¶ 27.)

actions began to reflect permanent separation from her marital relationship as a
“result of pressure from Egger” and individuals at BEV. (Countercls. ¶¶ 191–92.)
36. 	On 3 April 2020, Guiliano received an email from an attorney at Goodwin
Procter, LLP (“Goodwin Procter”) on behalf of BIOMILQ, attaching an offer to
purchase his interest in the ’407 Provisional and everything related to it for
$250,000.00. (Countercls. ¶ 143; see Ex. O, ECF No. 154.17.) Defendants allege that
the email provided that if BIOMILQ was unable to obtain the desired assignment, it
would “(1) terminate all working relationships with 108Labs, (2) terminate all
discussions with BEV, True Ventures, and other potential funding sources, and
(3) that all scientific development on this project would cease.” 	(Countercls. ¶ 144.)
In a follow up email from the attorney the next day, it was made clear that this was
BIOMILQ’s “best and final offer.” 	(Countercls. ¶ 147; see Ex. P, ECF No. 154.18.)
Allegations 	in 	the 	Counterclaims 	demonstrate 	that 	Strickland 	sent 	numerous
messages 	or 	emails 	to 	Guiliano 	encouraging 	him 	to 	accept 	the 	offer. 	(See
Countercls. ¶¶ 196–200 (describing the messages sent by Strickland to Guiliano).)
On behalf of 108Labs, Guiliano declined the offer. (Countercls. ¶ 153.)
37. 	On 10 April 2020, Strickland assigned all her rights in the ’407 Provisional
to BIOMILQ. (Countercls. ¶ 162.)
D. 	Patents and Trademark at Issue
38. 	Numerous patent applications relevant to this matter were filed with the
USPTO in 2020 and 2021, some of which ultimately issued as patents, as described

in detail in the Court’s 10 February 2023 Order and Opinion.5 See BIOMILQ, Inc. v.
Guiliano, 2023 NCBC LEXIS 24, at **6–9 (N.C. Super. Ct. Feb. 10, 2023) (describing
the patents, patent applications, and marks in detail based on the allegations in
BIOMILQ’s Amended Complaint).
39. 	As stated already herein, the ’407 Provisional was filed with the USPTO on
8 January 2020. (See Countercls. ¶ 62.a.)
40. 	On 26 May 2020, U.S. Provisional Application No. 63/030,149, titled “Milk
Product 	Compositions” 	was 	filed 	with 	the 	USPTO 	(the 	“ ’149 	Provisional”).
(Countercls. ¶ 62.b.) The ’149 Provisional disclosed “milk compositions that comprise
protein, lipid, and oligosaccharide components at concentrations that mimic and/or
are substantially similar to human breast milk as produced by a lactating female.”
(Countercls. ¶ 62.b.)
41. 	On 2 December 2020, U.S. Provisional Application No. 63/120,378, titled
“Cultured 	Milk 	Product 	Compositions” 	was 	filed 	with 	the 	USPTO 	(the 	“ ’378
Provisional”). 	(Countercls. ¶ 62.c.) 	It disclosed “milk components produced in vitro
and/or ex vivo from cultured bovine mammary cells.” (Countercls. ¶ 62.c.)
42. 	On 10 December 2020, U.S. Provisional Application No. 63/199,164, titled
“Live Cell Constructs for Production of Cultured Milk Product and Methods Using
the Same” was filed with the USPTO (the “ ’164 Provisional”). (Countercls. ¶ 62.d.)
5 While the information set forth in this Section II.D. is already in the record, the Court
restates it herein based on the allegations in the Counterclaims for ease of reference and to
comport with the Rule 12(b)(6) standard.

43. 	On 18 December 2020, U.S. Patent Application No. 17/247,672, titled “Live
Cell Constructs for Production of Cultured Milk Product and Methods Using the
Same” was filed with the USPTO (the “ ’672 Application”). (Countercls. ¶ 62.e.) The
’672 	Application 	claims 	priority 	to 	the 	’407 	Provisional 	and 	’149 	Provisional.
(Countercls. ¶ 62.e.) 	Defendants allege that the ’672 Application ultimately issued
as U.S. Patent No. 11,111,477 (the “ ’477 Patent”). (Countercls. ¶ 62.e.)
44. 	The same day, International Application No. PCT/US2020/066209 was filed
bearing the same title as the ’672 Application (“ ’209 International Application”).
(Countercls. ¶ 62.f.)
45. 	On 9 March 2021, U.S. Provisional Patent Application No. 63/200,480,
titled 	“Milk 	Product 	Compositions,” 	was 	filed 	with 	the 	USPTO 	(the
“ ’480 Provisional”). 	(Countercls. ¶ 62.g.) 	It disclosed “milk compositions that
comprise protein, lipid, and oligosaccharide components at concentrations that mimic
and/or are substantially similar to human breast milk as produced by a lactating
female.” (Countercls. ¶ 62.g.)
46. 	On 29 March 2021, U.S. Patent Application No. 17/301,216, titled “Milk
Product 	Compositions,” 	was 	filed 	with 	the 	USPTO 	(the 	“ ’216 	Application”).
(Countercls. ¶ 62.h.) The ’216 Application claims priority to the ’149 Provisional and
’480 Provisional. 	(Countercls. ¶ 62.h.) 	Defendants allege that the ’216 Application
ultimately 	issued 	as 	U.S. 	Patent 	No. 	11,206,843 	(the 	“ ’843 	Patent”).
(Countercls. ¶ 62.h.)

47. 	On 	6 	September 	2021, 	U.S. 	Patent 	Continuation 	Application
No. 17/467,358, titled “Live Cell Constructs for Production of Cultured Milk Product
and Methods Using the Same,” was filed with the USPTO (the “ ’358 Application”).
(Countercls. ¶ 62.i.) The ’358 Application was a continuation of the ’672 Application
from December 2020 and claimed priority to the same provisional patent applications.
(Countercls. ¶ 62.i.)
48. 	Finally, on 30 November 2021, Patent Cooperation Treaty Application
No. PCT/US21/61147, entitled “Cultured Milk Product Compositions” was filed (the
“ ’147 Treaty Application”). (Countercls. ¶ 62.j.) The ’147 Treaty Application claimed
priority to the ’348 Provisional. (Countercls. ¶ 62.j.)
49. 	Also at issue in this litigation is the registration of the mark “BIOMILQ”.
(See Countercls. ¶¶ 141–42.) 	Defendants allege that Egger applied for trademark
registration of the wordmark “BIOMILQ” with the USPTO on 29 March 2020.
(Countercls. ¶ 141; see Ex. N(a), ECF No. 154.15.) 	Defendants allege that, while
attorneys for BIOMILQ demanded that Guiliano cease to assert rights in that
wordmark as early as 25 June 2020, USPTO records do not reflect assignment of
rights 	in 	the 	wordmark 	from 	Egger 	to 	BIOMILQ 	until 	9 December 	2020.
(Countercls. ¶ 142 (citing Ex. N(b), ECF No. 154.16).)
E. 	Events that Followed Strickland’s Resignation from 108Labs
50. 	On 21 May 2020, roughly two months after Strickland resigned from
108Labs, Defendants allege that Strickland “posed as a principal of 108Labs to enter
108Labs’[s] secure lab and cold storage facility [at UNC] to remove all the cell-

cultured human milk and immunoglobulins samples” from 108Labs’s experiments.
(Countercls. ¶ 166.) 	Prior to removing those samples, Defendants allege that
Strickland and Egger discussed “the plan to take the samples” and that attorneys at
Goodwin Procter gave Strickland “approval to do so.” 	(Countercls. ¶ 166.) 	On
26 May 2020, the ’149 Provisional was filed with the USPTO, allegedly as a “direct
result [of] using information taken from 108Labs by Strickland and Egger[.]”
(Countercls. ¶ 168.) 	The ’149 Provisional listed only Strickland as an inventor.
(Countercls. ¶ 168.)
51. 	Defendants allege that, on or before 25 May 2020, Strickland provided
BIOMILQ with all her notebooks, “trade secrets, knowledge, know-how, protocols,
and other property belonging to 108Labs[.]” (Countercls. ¶ 205.)
52. 	In 	conversations 	with 	Guiliano 	in 	June 	2020, 	Strickland 	allegedly
confirmed that she gained unauthorized access to 108Labs’s secure storage facility
and took its samples on 21 May 2020. (Countercls. ¶ 167.)
53. 	On about 11 March 2021, Defendants allege that “Egger and Strickland
contacted 	scientific 	partners 	of 	108Labs, 	interfering 	with 	108[L]abs 	scientific
collaborations 	that 	were 	identified 	in 	a 	3 	March 	2021 	publication” 	regarding
108Labs’s 	history. 	(Countercls. 	¶ 220.) 	These 	scientific 	partners 	included
Dr. Daniella Barile (“Dr. Barile”) of UC Davis, who served as a “scientific advisor to
NeutraSiga,” and Dr. Rebecca Powell who served as a “contractual scientific advisor
to NeutraSiga[.]” (Countercls. ¶¶ 56, 220.)

54. 	In October 2021, Defendants allege that BIOMILQ moved forward with its
Series A funding, raising more than $21,000,000.00. (Countercls. ¶ 175.) Defendants
allege that BEV received shares in BIOMILQ around that time. (Countercls. ¶ 175.)
55. 	As a result of the above-described facts and circumstances, Defendants
allege that “108Labs has been divested of its property rights in intellectual property,
personal property, patents and patent applications, usurped business opportunities
and funds, scientific research, partnerships, and collaborations[,] . . . leaving it
impaired and unable to compete in the market[.]” (Countercls. ¶ 243.)
III. 	PROCEDURAL BACKGROUND
56. 	The Court sets forth herein only those portions of the procedural history
relevant to its determination of the Motions.6
57. 	Following the filing of the Court’s Order and Opinion on Defendants’ Joint
Motion to Dismiss or in the Alternative Hold Proceedings in Abeyance, Defendants
filed their First Amended Joint Answer and Counterclaims on 2 March 2023. (ECF
No. 127.) BIOMILQ thereafter filed its Second Amended Complaint on 21 April 2023
with leave of Court, (ECF No. 137), and the Court entered its Case Management
Order on 24 April 2023, (ECF No. 138).
58. 	Defendants subsequently sought partial dismissal of BIOMILQ’s Second
Amended Complaint, (see Defs.’ Partial Mot. Dismiss, ECF No. 145), which the Court
6 A detailed recitation of the procedural history of this matter may be found in the Court’s
10 February 2023 Order and Opinion on Defendants’ Joint Motion to Dismiss or in the
Alternative Hold Proceedings in Abeyance. 	See BIOMILQ, Inc. v. Guiliano, 2023 NCBC
LEXIS 24, at **12–14 (N.C. Super. Ct. Feb. 20, 2023). The Court does not restate herein the
procedural history stated in that Order and Opinion.

denied on 13 November 2023, see BIOMILQ, Inc. v. Guiliano, 2023 NCBC LEXIS 142
(N.C. Super. Ct. Nov. 13, 2023).
59. 	On 5 June 2023, Defendants filed the Counterclaims after being granted
leave to do so. (See Countercls.; ECF No. 150 (granting Defendants’ consent motion
for leave to amend).)
60. 	On 4 August 2023, all counterclaim defendants sought dismissal of nearly
all of their counterclaims through the filing of Motions to Dismiss pursuant to
Rule 12(b)(5)–(6).7 	(BEV Mot.; Egger Mot.; BIOMILQ Mot.; see also ECF No. 182
(Goodwin Procter’s Motion to Dismiss the Counterclaims).)
61. 	Defendants attempt to allege twenty-seven separate counterclaims. 	(See
Countercls.) The Court addresses herein only the claims alleged against BEV, Egger,
and BIOMILQ, separated into four groups.
62. 	First, Defendants assert against BIOMILQ claims for injunctive relief
(“Count One”), trespass to chattels (“Count Eight”), and civil liability for larceny
(“Count Nine”). (See Countercls. ¶¶ 258–75, 344–72.)
63. 	Second, Defendants assert claims against Egger for breach of fiduciary duty
(“Count Three”), breach of contract (“Count Sixteen”), and alienation of affections
(“Count Twenty-Two”). (See Countercls. ¶¶ 279–86, 439–42, 509–14.)
64. 	Third, 	Defendants 	assert 	claims 	against 	Egger 	and 	BIOMILQ 	for
declaratory relief (“Count Two”), constructive fraud (“Count Four”), conversion
7 The Court entered a scheduling order governing briefing on these motions to dismiss;
therefore, the Motions were timely filed. (See Scheduling Order, ECF No. 175.)

(“Count Seven”), slander of title (“Second Count Eleven”),8 tortious interference with
contract (“Count Fourteen”), and slander per se and per quod (“Count Fifteen”). (See
Countercls. ¶¶ 276–78, 287–300, 325–43, 400–06, 421–37.)
65. 	Finally, Defendants alleged claims against Movants for constructive trust
(“Count Five”); fraudulent conveyance (“Count Six”); misappropriation of trade
secrets under the North Carolina Trade Secrets Protection Act (“TSPA”), N.C.G.S.
§ 66-152 et seq. (“Count Ten”), and the federal corollary, 18 U.S.C. § 1836 et seq.
(“Count Eleven”); false designation of origin (“Count Twelve”); false advertising
(“Count Thirteen”); fraud (“Count Seventeen”); civil conspiracy (“Count Eighteen”);
unjust enrichment (“Count Nineteen”); violation of the North Carolina Unfair and
Deceptive Trade Practices Act (“UDTPA”), N.C.G.S. § 75-1.1 et seq. (“Count Twenty”);
loss of consortium (“Count Twenty-Three”); punitive damages (“Count Twenty-
Four”); and property interference pursuant to N.C.G.S. § 99A (“Count Twenty-Five”).
(See Countercls.)
66. 	The Motions seek dismissal of nearly every claim alleged against Movants,
except that BIOMILQ does not seek dismissal of Counts Eight, Nine, and Fourteen.
67. 	Following full briefing, the Court held a hearing on the Motions on
7 November 2023, at which all parties were present and represented through counsel.
(See ECF No. 210.)
8 The Counterclaims include two claims marked as number eleven. (See Countercls. ¶¶ 386–
406.) 	To avoid confusion, the Court refers to these claims as “Count Eleven” and “Second
Count Eleven,” rather than renumbering subsequent claims in full.

68. 	On 9 October 2023, two days following the filing of the Notice of Hearing on
the Motions, Defendants’ counsel filed sur-replies. 	(See ECF Nos. 211–13.) 	A sur-
reply is not a permitted brief in opposition to a motion absent an order of the Court
permitting further briefing. 	See BCR 7.7. 	The Court therefore does not consider
those filings in its determination of the Motions. (See ECF Nos. 211–13.)
69. 	The Motions are ripe for resolution.
IV. 	LEGAL STANDARD
70. 	In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court
reviews the allegations in the Second Amended Complaint in the light most favorable
to Plaintiffs. 	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
[Counterclaims] . . . 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)
(citation omitted). 	The Court accepts all well-pleaded factual allegations in the
relevant pleading as true. See Krawiec, 370 N.C. at 606. 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) (cleaned up).
71. 	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 Counterclaims] and to which the [Counterclaims] specifically
refers even though they are presented by the [Movants].” 	Oberlin Capital, L.P. v.
Slavin, 147 N.C. App. 52, 60 (2001) (citation omitted).
72. 	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, 355 N.C. at 166). 	This
standard of review for Rule 12(b)(6) motions is the standard our Supreme Court
“routinely uses . . . in assessing the sufficiency of complaints in the context of complex
commercial litigation.” Id. at 615 n.7 (citations omitted).
V. 	ANALYSIS
73. 	In this section, the Court addresses the Motions by claim group, (supra
¶¶ 62–65), beginning with the claims alleged against only BIOMILQ. 	The Court
turns next to claims against only Egger and proceeds thereafter to claims alleged
against both Egger and BIOMILQ. The Court concludes its analysis of the Motions
by considering the thirteen claims that Defendants allege against all Movants.
74. 	Prior to turning to the claims against BIOMILQ, the Court must first
address 	BEV 	and 	Egger’s 	arguments 	regarding 	Rule 	4(a) 	and 	Defendants’

summonses in this case. 	(See Egger Br. Supp. Mot. 9–10, ECF No. 181 [“Egger Br.
Supp.”]; BEV Br. Supp. Mot. 7, ECF No. 178 [“BEV Br. Supp.”]; BEV Reply Supp.
Mot. 2, ECF No. 207 [“BEV Reply”].)
75. 	Rule 4(a) provides that, “[u]pon the filing of the complaint, summons shall
be issued forthwith, and in any event within five days . . . . 	The date the summons
bears shall be prima facie evidence of the date of issue.” N.C.G.S. § 1A-1, Rule 4(a).
When a summons is not issued within five days, the action abates and
is deemed never to have commenced. 	Roshelli v. Sperry, 57 N.C. App.
305, 308 (1982). 	However, a properly issued and served summons can
revive and commence a new action on the date of its issuance, unless
defendant moves to dismiss the action prior to issuance and service of
the summons. Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107,
111 (1984); Roshelli, 57 N.C. App. at 308.
Pavin v. Foy, 289 N.C. App. 195, 197 (2023) (parallel citations omitted).
76. 	Here, Defendants’ summonses addressed to newly-added parties Egger and
BEV were not issued within five days of the filing of the Counterclaims as required
by 	Rule 4(a). 	Therefore, 	the 	Court 	determines 	that 	this 	action, 	as 	to 	the
Counterclaims, 	did not 	commence 	with the 	filing 	of 	the first 	iteration of 	the
Counterclaims on 6 February 2023, (ECF No. 120), or the second iteration filed on
2 March 2023, (ECF No. 127).
77. 	The effect of the summonses ultimately issued was to revive and commence
a new action on the date of issue, and therefore, as to Egger and BEV, the
Counterclaims are deemed filed on 20 April 2023. (Egger Mot. Ex. A, ECF No. 181.1
(civil summons issued for service upon Egger, dated 20 April 2023 at 8:58 a.m.); BEV
Mot. Ex. A, ECF No. 179.1 (civil summons issued for service upon BEV, dated

20 April 2023 at 8:58 a.m.).) This is a necessary determination, given that Movants
make various claim-specific statute of limitations arguments in the Motions, some of
which the Court addresses herein.
A. 	Count One: Injunctive Relief, Alleged Against Only BIOMILQ
78. 	BIOMILQ seeks dismissal of Count One against it. 	(BIOMILQ Br. Supp.
Mot. 11–12, ECF No. 187 [“BIOMILQ Br. Supp.”].)
79. 	Injunctive relief, often sought through a preliminary injunction, “is an
ancillary remedy, not an independent cause of action.” Revelle v. Chamblee, 168 N.C.
App. 227, 230 (2005). 	It is well-settled that “injunctive relief is not a standalone
claim[.]” 	Window World of St. Louis, Inc. v. Window World of Bloomington, Inc.,
2021 NCBC LEXIS 88, at **15 (N.C. Super. Ct. Oct. 6, 2021); see also Lendingtree,
LLC v. Intercontinental Capital Grp., Inc., 2017 NCBC LEXIS 54, at **16–17 (N.C.
Super. Ct. June 23, 2017) (granting defendants’ motion to dismiss a “purported cause
of action for preliminary injunction” and construing the claim as a request to file an
appropriate motion during the litigation).
80. 	Since there is no standalone claim for injunctive relief in North Carolina,
and because such relief is better sought through motions practice pursuant to
Rule 65, BIOMILQ’s Motion is GRANTED in part and Count One is hereby
DISMISSED without prejudice to Defendants’ ability to seek injunctive relief by
motion, if legally and procedurally warranted.9
9 Notwithstanding the Court’s conclusions that this claim should be dismissed, “[t]he 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). The Court concludes, in the exercise
of its discretion, that dismissal of Defendants’ Count One should be without prejudice to

B. 	Claims Alleged Against Only Egger
81. 	Defendants allege three claims for relief against only Egger: Counts Three,
Sixteen, and Twenty-Two. The Court also addresses Count Fourteen in this section
because only Egger seeks dismissal of that claim. (Egger Mot. 3; see Egger Br. Supp.
20–21.)
1. 	Count Three: Breach of Fiduciary Duty
82. 	Defendants allege a claim for breach of fiduciary duty against Egger,
contending that she was part of the 108Labs “team,” “was either a manager or
employee of 108Labs or was engaged in a partnership with 108Labs,” and/or the
BIOMILQ “partnership created by Strickland and Guiliano[.]” 	(Countercls. ¶ 282.)
Egger argues that dismissal of Count Three is proper because Defendants have failed
to allege facts that support a contention that Egger owed Defendants a fiduciary duty.
(See Egger Br. Supp. 11–12.) The Court agrees.
83. 	Defendants do not appear to allege or argue in the briefing that Egger owed
a de facto fiduciary duty to them, and therefore the Court considers only whether a
de jure fiduciary relationship exists. 	(See Countercls. ¶¶ 280–86; Defs.’ Br. Opp’n
Egger Mot. 14–15, ECF No. 196 [“Br. Opp. Egger Mot.”].)
84. 	In opposition to Egger’s Motion, Defendants argue that Egger “partnered
with 108Labs,” citing to a paragraph in the Counterclaims discussing the NSF Grant
Application and Strickland’s relationship to Egger as being part of 108Labs’s
business plan. (Br. Opp. Egger Mot. 15 (citing Countercls. ¶ 90).) Defendants admit
Defendants’ right to attempt to reassert such claim or to seek injunctive relief through the
filing of an appropriate motion.

that Egger was not an employee of 108Labs, arguing instead that she furthered its
marketing and fundraising goals and was provided confidential information pursuant
to a non-disclosure agreement. (Br. Opp. Egger Mot. 15.) Thus, it appears that the
only 	possible 	fiduciary 	relationship 	between 	Defendants 	and 	Egger 	was 	as 	a
purported partner through either Egger’s alleged furtherance of 108Labs’s marketing
goals or the BIOMILQ “partnership.”
85. 	“A claim for breach of fiduciary duty cannot exist in the absence of a
fiduciary relationship between the parties.” 	Sykes v. Health Network Sols., Inc.,
2017 NCBC LEXIS 73, at *67 (N.C. Super. Ct. Aug. 18, 2017) (citing Dalton v. Camp,
353 N.C. 647, 651 (2001)). While it is true that business partners in North Carolina
owe each other de jure fiduciary duties, see HAJMM Co. v. House of Raeford Farms,
Inc., 328 N.C. 578, 588 (1991), the allegations in the Counterclaims do not properly
support a legal contention that Egger was a “partner” in 108Labs. Defendants allege,
and it is clear, that 108Labs is a member-managed limited liability company and that
it does not have partners. 	(Countercls. ¶ 22.) 	Further, a careful review of all 551
paragraphs of the Counterclaims demonstrates that Defendants describe Egger as an
interloper into 108Labs’s affairs, not a partner in it. 	(See, e.g., Countercls. ¶¶ 105,
107, 113–16, 168, 192–93 (“Egger did not want to associate with, negotiate with, or
work with 108Labs”).) Defendants’ allegations simply do not support their conclusory
allegation 	that 	an 	ongoing 	partnership 	existed 	between 	Egger, 	Guiliano, 	and
108Labs, or that they took actions “in continuance and furtherance of a partnership

for profit.” Loyd v. Griffin, 2022 NCBC LEXIS 63, at **17 (N.C. Super. Ct. June 23,
2022).
86. 	Therefore, Egger’s Motion is GRANTED in part, and Count Three for
breach of fiduciary duty is DISMISSED with prejudice as to Egger.10
2. 	Count Fourteen: Tortious Interference with Contract
87. 	Egger argues that Defendants’ Count Fourteen for tortious interference
fails 	because 	Defendants 	did 	not 	allege 	that 	Egger’s 	actions 	were 	“without
justification.” 	(Egger Br. Supp. 20–21.) 	Count Fourteen is based upon Defendants’
allegation that in August 2020, Egger and BIOMILQ “threaten[ed] litigation if
UC Davis 	continued 	to 	work 	with 	108Labs” 	on 	“any 	milk 	project.”
(Countercls. ¶ 424.) 	Defendants allege that Dr. Barile of UC Davis resigned as a
scientific advisor to NeutraSiga because of this threat. (Countercls. ¶ 428.)
88. 	Egger argues that her alleged interference was for a legitimate business
purpose since, according to the allegations, her actions were taken on behalf of
BIOMILQ. 	(Egger Br. Supp. 21 (citing Countercls. ¶¶ 421, 429).) 	In response,
Defendants argue that Egger’s actions were not justified because making false
statements to a third-party is neither justified nor in support of a legitimate business
interest, but rather is based in malice. (Br. Opp. Egger Mot. 22.)
89. 	To state a claim for tortious interference with contract, a claimant must
allege: “(1) a valid contract exists between the [claimant] and a third person which
10 The Court, in its discretion, dismisses this claim, and others, with prejudice. Defendants
had three chances to state a claim in the Counterclaims, and further opportunity for
amendment(s) would not remedy the factual deficiencies.

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. v. Kuykendall, 322 N.C. 643, 661
(1988) (citing Childress v. Abeles, 240 N.C. 667, 674 (1954)).
90. 	“A motion to dismiss a claim of tortious interference is properly granted
where the complaint shows the interference was justified[.]” 	Pinewood Homes, Inc.
v. Harris, 184 N.C. App. 597, 605 (2007) (citing Peoples Sec. Life Ins. Co. v. Hooks,
322 	N.C. 	216, 	220 	(1988)). 	“The 	interference 	is 	‘without 	justification’ 	if 	the
defendants’ motives . . . were ‘not reasonably related to the protection of a legitimate
business interest’ of the defendant.” Privette v. Univ. of N.C., 96 N.C. App. 124, 134
(1989) (quoting Smith v. Ford Motor Co., 289 N.C. 71, 94 (1976)). 	Accordingly, the
counterclaims “must admit of no other motive for interference other than malice.” Id.
at 134–35. 	Mere “[g]eneral allegations of malice are insufficient as a matter of
pleading.” Pinewood Homes, Inc., 184 N.C. App. at 605 (citation omitted).
91. 	The Court agrees with Egger’s argument that Defendants’ allegations fail
as to the fourth required element of Count Fourteen: acting without justification.
Defendants allege only generally that Egger had no reasonable motive or explanation
“other than a malicious effort to stop 108Labs from legally advancing its own
scientific research[.]” 	(Countercls. ¶ 429.) 	This conclusory allegation is insufficient
to satisfy Defendants’ pleading requirements.

92. 	Further, the Counterclaim must admit of no motive for interference other
than malice and have a factual basis to support the assertion of malice. 	Pinewood
Homes, Inc., 184 N.C. App. at 605. 	In this case the face of the Counterclaims, as
Egger 	points 	out, 	provides 	a 	factual 	reason 	for 	her 	actions 	other 	than
malice: competition.
93. 	Therefore, the Court GRANTS Egger’s Motion, and Count Fourteen is
DISMISSED with prejudice.
3. 	Count Sixteen: Breach of Contract
94. 	Egger seeks dismissal of Count Sixteen, arguing that Defendants failed to
sufficiently allege the existence of a valid contract and that the claim is time-barred.
(Egger Br. Supp. 22; Egger Reply Br. 4, ECF No. 206 [“Egger Reply”].)
95. 	To properly plead breach of contract, the claimant must allege “(1) [the]
existence of a valid contract and (2) [a] breach of the terms of that contract.” Poor v.
Hill, 138 N.C. App. 19, 26 (2000) (citing Jackson v. Cal. Hardwood Co., 120 N.C. App.
870, 871 (1995)).
96. 	Defendants 	allege 	that 	Egger 	signed 	a 	non-disclosure 	agreement 	on
9 October 2019 and that it was a valid contract. (Countercls. ¶¶ 439–40.) Defendants
also allege that Egger breached the agreement by sharing 108Labs’s confidential
information during the 20 March 2020 investor calls. 	(Countercls. ¶¶ 110, 441.)
While these allegations are sufficient to satisfy the elements of Defendants’ claim,
they also demonstrate that the claim is time-barred.

97. 	“A 	statute 	of 	limitations 	can 	provide 	the 	basis 	for 	dismissal 	on 	a
Rule 12(b)(6) motion if the face of the complaint establishes that plaintiff’s claim is
so barred.” Soderlund v. N.C. Sch. of the Arts, 125 N.C. App. 386, 389 (1997) (citation
omitted). 	Dismissal on this basis “is proper only when all the facts necessary to
establish that the claim is time-barred are either alleged or admitted in the
complaint, construing the complaint liberally in favor of plaintiff.” Lau v. Constable,
2017 NCBC LEXIS 10, at **10 (N.C. Super. Ct. Feb. 7, 2017) (cleaned up) (citing Fox
v. Sara Lee Corp., 210 N.C. App. 706, 708–09 (2011)).
98. 	A breach of contract action has a three-year statute of limitations which
begins to run at the time of notice of the breach. 	N.C.G.S. § 1-52(1); Brown v.
Lattimore Living Tr., 264 N.C. App. 682, 687 (2019). Defendants affirmatively allege
that 	Guiliano 	was 	listening 	to 	the 	20 	March 	2020 	investor 	call 	when 	Egger
purportedly breached the non-disclosure agreement. 	(Countercls. ¶¶ 110, 114–18.)
Defendants even allege that Guiliano “confronted Strickland about the disclosures
made by Egger” after the call. (Countercls. ¶ 118.) Therefore, the limitations period
ran on 20 March 2023, a month before this action was deemed initiated.11 (See supra
¶¶ 74–77.)
11 Although styled as a counterclaim, the Counterclaims added new parties Egger and BEV
to the action. As to them, the Counterclaims are not a compulsory counterclaim but rather
initiate an action against BEV and Egger as third-party defendants pursuant to Rule 14(a).
This distinction is important here, as our Supreme Court recently held that, for purposes of
determining whether the statute of limitations for a compulsory counterclaim has run, the
counterclaim will be deemed filed as of the date of the initiation of the action, i.e., when the
complaint was filed. See Upchurch v. Harp Builders, Inc., 2024 N.C. LEXIS 144, at *8, 12–
13 (“[T]he Rules do not preclude the relation back of [compulsory] counterclaims,” as the
Rules “do not treat the filing of compulsory counterclaims as procedurally equivalent to the
commencement of civil actions.”). Here, where a summons must issue pursuant to Rule 4(a),

99. 	Therefore, Egger’s Motion is GRANTED in part, and Count Sixteen for
breach of contract is DISMISSED with prejudice.
4. 	Count Twenty-Two: Alienation of Affections
100. 	For a claim of alienation of affections to withstand a motion to dismiss, the
Counterclaims must allege: “(1) that the plaintiff and his or her spouse ‘were happily
married, and that a genuine love and affection existed between them; (2) that the love
and affection so existing was alienated and destroyed; and (3) that the wrongful and
malicious acts of the defendant produced and brought about the loss and alienation
of such love and affection.’ ” 	Beavers v. McMican, 2024 N.C. LEXIS 147, at *11–12
(N.C. Mar. 22, 2024) (quoting McCutchen v. McCutchen, 360 N.C. 280, 283 (2006)).
“A malicious act has been loosely defined to include any intentional conduct that
would probably affect the marital relationship.” Id. at *12 (cleaned up). 	Where the
defendant has engaged in sexual intercourse with the plaintiff’s spouse, malice is
presumed. Id.
101. 	Egger contends that this claim fails because Defendants have not alleged
the malice required to support this claim or that Egger was the controlling or effective
cause of the dissolution of Guiliano’s marriage. 	(Egger Br. Supp. 27–28; Egger
Reply 14.) Additionally, Egger argues that Guiliano and Strickland were separated
in March 2020, and that any claims against her that are based on acts prior to
20 April 2020 are time-barred. (Egger Br. Supp. 28.)
the claimant does not get the benefit of a relation back to the filing of the complaint for statute
of limitations purposes, as the action is newly initiated with respect to the third-party
defendant.

102. 	Claims for alienation of affections have a three-year statute of limitations
that begins to run when “the wrong,” or the “the actual alienation of the spouse’s
affections by a third party,” is complete. 	McCutchen, 360 N.C. at 283. 	However,
mandatory accrual does not happen on the date of separation; it can occur post-
separation. Id. at 284. Egger’s contention that the claim is time-barred fails because
the Counterclaims do not affirmatively allege facts that would cause the Court to
conclude as a matter of law that the statute of limitations period began to run in
March 2020. 	Therefore, the Court next considers Egger’s argument regarding the
insufficiency of Defendants’ allegations of malice.
103. 	Here, the Counterclaims allege generally that “Strickland and Guiliano’s
love was alienated by the intentional and malicious acts of . . . Egger[.]” (Countercls.
¶ 513.) 	Because Defendants do not allege sexual intercourse, they must instead
allege that the wrongful and malicious acts of Egger produced and brought about the
alienation through allegations of intentional conduct that would affect the marital
relationship. Beavers, 2024 N.C. LEXIS 147, at *20 (citation omitted).
104. 	Defendants have failed to allege malicious conduct by Egger, designed to
alienate the affections of Strickland. 	The Counterclaims allege that Egger and
Strickland had an ongoing business relationship. 	(See Countercls. ¶¶ 90, 97, 109,
219–20.) 	Defendants have not alleged malicious conduct by Egger designed to
alienate the affections of Strickland and Guiliano but rather focus their allegations
only on their business dealings. 	See Beavers, 2024 N.C. LEXIS 147, at *16 (citing
Coachman v. Gould, 122 N.C. App. 443, 448 (1996)). Even reading the Counterclaims

in the light most favorable to Defendants, the Court agrees with Egger that there is
no allegation, or collection of allegations, that could be read together that would allow
the Court to infer that Egger was the controlling or effective cause of the dissolution
of Strickland and Guiliano’s marriage. (See Egger Reply 14.)
105. 	Therefore, Egger’s Motion is GRANTED in part, and Count Twenty-Two
for alienation of affections is DISMISSED with prejudice.
C. 	Defendants’ Claims Against BIOMILQ and Egger
106. 	Defendants allege five claims against Egger and BIOMILQ together. 	The
Court addresses each claim in turn.
1. 	Count Two: Declaratory Relief
107. 	“A motion to dismiss for failure to state a claim is seldom appropriate ‘in
actions for declaratory judgments, and will not be allowed simply because the plaintiff
may not be able to prevail.’ ” Morris v. Plyler Paper Stock Co., 89 N.C. App. 555, 557
(1988) (quoting N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 439
(1974)). 	“Rather, a motion to dismiss a declaratory[ ]judgment claim is appropriate
only when the complaint does not allege an actual, genuine existing controversy,
which prevents a court from entering a purely advisory opinion.” Bennett v. Bennett,
2019 NCBC LEXIS 19, at *30–31 (N.C. Super. Ct. Mar. 15, 2019) (cleaned up). The
question 	is 	“only 	whether 	[Defendants] 	have 	identified 	an 	actual, 	genuine
controversy.” Id. at *32.
108. 	Defendants seek a declaration from the Court that 108Labs is the owner of
certain intellectual property. (See Countercls. ¶¶ 276–78.)

109. 	Egger contends that the claim makes no mention of her, and that it
therefore presents no actual or real controversy between her and 108Labs. 	(Egger
Br. Supp. 10 (citing Claggett v. Wake Forest Univ., 126 N.C. App. 602, 608 (1997)).)
Defendants do not respond to this argument. (See Br. Opp. Egger Mot. 14–15 (making
fiduciary duty arguments without mention of the declaratory judgment claim).) The
Court therefore agrees with Egger’s argument. 	It is clear based on the allegations,
and Defendants’ failure to respond on this point, that there is no actual or real
controversy between 108Labs and Egger regarding the intellectual property issues
alleged. 	Egger’s Motion is therefore GRANTED in part, and Count Two for
declaratory judgment against Egger is hereby DISMISSED without prejudice.
110. 	BIOMILQ separately contends that Count Two fails as to it because
Defendants pleaded no cognizable basis that 108Labs was the owner of equitable title
to the intellectual property at issue in this litigation. 	(BIOMILQ Br. Supp. 12–13.)
BIOMILQ highlights that, based on the allegations in the Counterclaims, Strickland
did not assign her rights in the ’407 Provisional to 108Labs, and she ultimately did
assign her rights in it to BIOMILQ. (BIOMILQ Br. Supp. 13–14.)
111. 	Defendants fail to respond to this argument, again seemingly conceding the
lack of controversy. 	(See Defs.’ Br. Opp’n BIOMILQ Mot. 12–13, ECF No. 194 [“Br.
Opp. BIOMILQ Mot.”].) Defendants instead focus their attention on Strickland and
how, in their view, she was “required” to assign her rights in the ’407 Provisional to
108Labs. 	(Br. Opp. BIOMILQ Mot. 12–13.) 	Strickland is no longer a party to the
action, and Defendants do not argue how or why Strickland’s assignment of her

interest to BIOMILQ was wrongful or should be rendered invalid. 	(See Br. Opp.
BIOMILQ Mot. 12–13.)
112. 	“It is not the Court’s job to sift through the record to make [Defendants’]
case for [them].” Brewster v. Powell Bail Bonding, Inc., 2020 NCBC LEXIS 27, at *9
(N.C. Super. Ct. Mar. 11, 2020) (cleaned up); see also BIOMILQ, Inc. v. Guiliano,
2023 NCBC LEXIS 137, at *3 (N.C. Super. Ct. Nov. 3, 2023).
113. 	Notwithstanding that failure, and although the Court would prefer that the
claim was alleged in a more definite and concrete fashion, the Court is nevertheless
able to identify an actual, genuine existing controversy between Defendants and
BIOMILQ regarding who is the rightful owner of title in the ‘407 Provisional and
other patents and/or Provisional Patent Applications at issue in this litigation.
(Countercls. ¶ 278.)
114. 	Therefore, BIOMILQ’s Motion is DENIED in part as to Count Two for
declaratory judgment.
2. 	Count Four: Constructive Fraud
115. 	To state a claim for constructive fraud, a plaintiff must allege “(1) that the
defendant owes the plaintiff a fiduciary duty; (2) that the defendant breached that
duty; and (3) that the defendant sought to benefit himself in the transaction.” Bryant
v. Wake Forest Univ. Baptist Med. Ctr., 281 N.C. App. 630, 637 (2022). The element
of a “relation of trust and confidence” is satisfied when there is a fiduciary duty owed
to the plaintiff; constructive fraud is “based on a confidential relationship rather than

a specific misrepresentation.” 	Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666
(1997) (cleaned up).
116. 	As 	an 	initial matter, 	the 	Court 	has 	already 	determined herein 	that
Defendants have failed to allege a cognizable basis on which Egger owed a fiduciary
duty to Defendants. 	Therefore, Egger’s Motion is GRANTED in part, and Count
Four for constructive fraud is DISMISSED with prejudice as to her.
117. 	BIOMILQ argues that Count Four makes no mention of it, despite the claim
being captioned in a manner that would seem to suggest that the claim was alleged
against it. 	BIOMILQ specifically argues that “Defendants do not allege, and could
not plausibly allege, that BIOMILQ owed them fiduciary duties.” 	(BIOMILQ Br.
Supp. 20 n.11.) The Court agrees.
118. 	A thorough review of the Counterclaims demonstrates that there is no
mention of BIOMILQ owing anyone a fiduciary duty,12 and instead the allegations
concern only Egger and Strickland’s purported fiduciary duties. 	As a result,
Defendants have failed to allege a necessary element of constructive fraud.
119. 	Therefore, the Court GRANTS in part BIOMILQ’s Motion, and Count Four
for breach of fiduciary duty is DISMISSED with prejudice.
12 Nor could it, based on the allegations here. Even if Guiliano happened to be a director or
officer of BIOMILQ, “a corporation does not owe a reciprocal fiduciary duty to its directors
and officers.” 	Merrell v. Smith, 2020 NCBC LEXIS 150, at **22 (N.C. Super. Ct. Dec. 22,
2020) (citing Talisman Software, Sys. & Servs. v. Atkins, 2015 NCBC LEXIS 108, at *12 (N.C.
Super. Ct. Nov. 18, 2015)).

3. 	Count Seven: Conversion
120. 	Under North Carolina law, “[t]wo essential elements are necessary in a
claim for conversion: (1) ownership in the plaintiff, and (2) a wrongful conversion by
the defendant.” 	Steele v. Bowden, 238 N.C. App. 566, 574 (2014) (cleaned up). 	In
cases where a defendant comes into possession of plaintiff’s property lawfully,
plaintiff must show that it made a demand for the return of the property that was
refused by defendant. 	Hoch v. Young, 63 N.C. App. 480, 483 (1983) (citations
omitted). 	Further, “ ‘there is no conversion until some act is done which is a denial
or violation of the plaintiff's dominion over or rights in the property.’ ” 	Bartlett
Milling Co. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 86 (2008)
(quoting Lake Mart Ltd. P’ship v. Johnston, 145 N.C. App. 525, 532, rev. denied, 354
N.C. 363 (2001)).
121. 	Defendants allege that BIOMILQ and Egger took and exerted control over
(1) the patents and trademarks at issue, (Countercls. ¶ 326); and (2) 108Labs’s
“[n]otebooks, sample cells created from the proof of concept experiment with FiberCell
. . . and data/results generated from testing[,]” (Countercls. ¶ 328). Defendants also
allege that Strickland gained access to 108Labs’s secure storage facility and lab space
on 	21 	May 	2020 	that 	resulted 	in 	her 	wrongfully 	taking 	the 	sample 	cells.
(Countercls. ¶¶ 333–35.) 	Defendants allege that the wrongful possession of this
property was to the exclusion of 108Labs. (Countercls. ¶ 341.)
122. 	Egger contends that the conversion claim fails (1) to the extent it concerns
intellectual property, and (2) because Defendants allege that Egger converted

property that Defendants also allege Strickland took actual possession of. (Egger Br.
Supp. 13 (citing Countercls. ¶¶ 166–68, 326, 328).) 	In response, Defendants argue
without citation to the Counterclaims, “that Egger participated in the plan to convert
the physical property of 108Labs and then remained in possession of it after its
conversion, along with Strickland.” (Br. Opp. Egger Mot. 16.)
123. 	BIOMILQ similarly argues that the conversion claim fails as to intangible
property, like patents and intellectual property, but does not address the notebooks,
sample cells, and data. (BIOMILQ Br. Supp. 22–23.) Defendants do not respond to
the merits of BIOMILQ’s arguments, instead contending generally that they “have
clearly set out defined tangible property as part of its claim for conversion, including,
inter alia, technology, methods, trade secrets, discoveries, inventions, data, lab
notebooks, lab samples, cell samples, documents, and recorded data.” 	(Br. Opp.
BIOMILQ Mot. 19.)
124. 	North Carolina does not recognize a claim for conversion of intangible
interests, and our courts have determined that this includes trademark rights. HCW
Ret. & Fin. Servs., LLC v. HCW Emp. Benefit Servs., LLC, 2015 NCBC LEXIS 73,
at *57–58 	(N.C. 	Super. 	Ct. 	July 	14, 	2015) 	(dismissing 	conversion 	claim 	as 	to
trademark rights as intangible property). 	Therefore, to the extent the claim for
conversion concerns the trademark at issue, the claim fails.
125. 	As 	to 	Egger 	and 	BIOMILQ’s 	arguments 	regarding 	other 	intellectual
property, the Court agrees that “[i]ntellectual property rights are indeed intangible
interests[,]” and that a claim for conversion of the intellectual property itself,

including the patents at issue, rather than physical products protected by intellectual
property, fails. McFee v. Presley, 2022 NCBC LEXIS 74, at **13–14 (N.C. Super. Ct.
July 11, 2022) (citations omitted). Defendants have not directed the Court to caselaw
suggesting otherwise.
126. 	Finally, regarding the notebooks, sample cells, and data, the Counterclaims
specifically allege that Strickland took possession of those materials. (See Countercls.
¶¶ 333–35.) 	Defendants then allege in a conclusory fashion that Egger wrongfully
possessed or converted the property to Defendants’ exclusion. 	(Countercls. ¶ 341.)
“The 	allegation is 	conclusory, 	contradicted by 	other allegations, 	and therefore
insufficient to save the claim.” Vanfleet v. City of Hickory, 2020 NCBC LEXIS 40, at
*16 (N.C. Super. Ct. Mar. 30, 2020) (citation omitted).
127. 	Therefore, Egger’s Motion is GRANTED in part, and Count Seven is
DISMISSED with prejudice as to her. 	BIOMILQ’s Motion is similarly GRANTED
in part, and Count Seven is DISMISSED with prejudice to the extent it concerns
intellectual property rights, including the trademarks and patents at issue in this
litigation, because 	those 	are 	intangible interests. 	The Motions 	are 	otherwise
DENIED as to Count Seven.
4. 	Second Count Eleven: Slander of Title
128. 	“ ‘The elements of slander of title are: (1) the uttering of slanderous words
in regard to the title of someone’s property; (2) the falsity of the words; (3) malice; and
(4) special damages.’ ” 	Maynard v. Crook, 289 N.C. App. 357, 361 (2023) (quoting
Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 30 (2003)).

129. 	BIOMILQ and Egger argue that a claim for slander of title applies only to
derogatory matter published with respect to real property. (BIOMILQ Br. Supp. 27;
see Egger Br. Supp. 16.) The Court agrees. See Whyburn v. Norwood, 47 N.C. App.
310, 315 (1980) (citation omitted) (“Slander of title occurs when one publishes matter
derogatory to the title to real property with the malicious intent to injure the owner
thereof and which in fact does cause injury.” (emphasis added)). 	While it should go
without saying, a patent or trademark right is not real property. See Property, Black’s
Law Dictionary (11th ed. 2019) (“Land and anything growing on, attached to, or
erected on it, excluding anything that may be severed without injury to the land.”).
130. 	Therefore, the Court hereby GRANTS in part BIOMILQ’s Motion and
Egger’s Motion, and Second Count Eleven for slander of title is hereby DISMISSED
with prejudice.
5. 	Count Fifteen: Defamation
131. 	“Under North Carolina law, slander per se and slander per quod are the
two actionable classes of oral defamation.” Izydore v. Alade, 242 N.C. App. 434, 445
(2015). 	The statute of limitations in an action for libel or slander is one year,
regardless of the date of discovery. N.C.G.S. § 1-54(3); Philips v. Pitt Cty. Mem. Hosp.,
Inc., 222 N.C. App. 511, 526 (2012).
132. 	Both Egger and BIOMILQ contend that Count Fifteen is time-barred
because the defamatory statements at issue allegedly occurred on 6 February 2020,
27 February 2020, and 21 March 2021. (Egger Mot. 4; Egger Br. Supp. 21–22 (citing
Countercls. ¶ 435); BIOMILQ Br. Supp. 27.) 	Defendants do not respond to the

argument directly, instead erroneously contending that any dismissal of claims for
statute of limitations reasons would be improper at this stage. 	(See Br. Opp. Egger
Mot. 12–13; Br. Opp. BIOMILQ Mot. 8–10.)
133. 	Defendants cite no authority to support their assertion that the defamation
claims against Egger are not barred by the applicable limitations period. 	Further,
the Counterclaims are clear that, for purposes of this defamation claim, Defendants
take issue with statements from February 2020 and 21 March 2021. (See Countercls.
¶¶ 432, 435.) As already discussed, this action was not initiated as to Egger until the
issuance of summonses on 20 April 2023. Even assuming, arguendo, that this action
was 	deemed 	initiated 	on 	the 	date 	of 	the 	filing 	of 	the 	first 	iteration 	of 	the
Counterclaims on 6 February 2023, the defamation claim would still be untimely.
Accordingly, the claim against Egger is time-barred.
134. 	As to BIOMILQ, the analysis is slightly different. 	Under Upchurch,
2024 N.C. 	LEXIS 	144, 	at 	*8, 	*12–13, 	for 	statute 	of 	limitations 	purposes, 	the
Counterclaims may be deemed filed as of 4 March 2022—the date BIOMILQ initiated
this action by filing its Complaint, (ECF No. 3). Therefore, statements allegedly made
by BIOMILQ in February 2020 are time-barred. (See Countercls. ¶¶ 432–34.)
135. 	However, the 21 March 2021 statement, which Defendants allege was made
by Egger on behalf of BIOMILQ, is not time-barred under the Supreme Court’s
holding in Upchurch. Rather, Defendants get the benefit of the date the action was
initiated by BIOMILQ for statute of limitations purposes. 	Upchurch, 2024 N.C.

LEXIS 	144, 	at 	*11–12. 	Therefore, 	the 	defamation 	claim 	is 	deemed 	filed 	on
4 March 2022, just a few weeks before the one-year statute of limitations expired.
136. 	Therefore, the Court hereby GRANTS in part Egger’s Motion, and Count
Fifteen is DISMISSED with prejudice as to her because the claim is time-barred.
The Court GRANTS in part and DENIES in part BIOMILQ’s Motion as set forth in
this section.
D. 	Defendants’ Claims Against Movants
137. 	Defendants allege thirteen claims for relief against Movants, and the Court
addresses each in turn.
1. 	Count Five: Constructive Trust
138. 	BIOMILQ and BEV argue that constructive trust is a remedy, not a claim,
making Count Five ripe for dismissal. (BIOMILQ Br. Supp. 21; BEV Br. Supp. 10.)
Egger also argues that the remedy is unavailable here because Defendants have not
sufficiently alleged a fiduciary relationship with Egger. (Egger Br. Supp. 11.)
139. 	“[A] constructive trust is not a standalone claim for relief or cause of action.”
See LLG-NRMH, LLC v. N. Riverfront Marina & Hotel, LLLP, 2018 NCBC LEXIS
105, at *14 (N.C. Super. Ct. Oct. 9, 2018) (citing Weatherford v. Keenan, 128 N.C. App.
178, 179 (1997)); see also Flynn v. Pierce, 2020 NCBC LEXIS 149, at *15 (N.C. Super.
Ct. Dec. 22, 2020) (dismissing a claim for constructive trust because it is a remedy
rather than a standalone claim).

140. 	Accordingly, the Court GRANTS in part the Motions, and Count Five for
constructive trust is hereby DISMISSED without prejudice to Defendants’ right to
pursue this remedy on any surviving claims as warranted and permitted by law.
2. 	Count Six: Fraudulent Conveyance
141. 	Count Six concerns Strickland’s assignment of “her entire right, title and
interest” in the ’407 Provisional to BIOMILQ. (Countercls. ¶¶ 316, 318.) The claim
appears to be based upon N.C.G.S. § 39-23.4, which each Movant argues cannot
support Defendants’ claim because neither BIOMILQ, Egger, nor BEV are debtors of
Defendants, and Defendants have not pleaded facts that could support a creditor-
debtor relationship. 	(BEV Br. Supp. 11–12; Egger Br. Supp. 12–13; BIOMILQ Br.
Supp. 22.) The Court agrees.
142. 	A claim for fraudulent conveyance or transfer under the Uniform Voidable
Transactions Act (“UVTA”), N.C.G.S. § 39-23.1 et seq., must be based upon allegations
that a transfer or obligation was incurred by a debtor and that “the debtor made the
transfer or incurred the obligation: (1) [w]ith intent to hinder, delay, or defraud any
creditor of the debtor[.]” 	N.C.G.S. § 39-23.4(a)(1). 	A creditor is “[a] person that has
a claim[,]” and a debtor “[a] person that is liable on a claim.” 	Id. §§ 39-23.1(4), (6).
Claims for fraudulent conveyance must also comply with the heightened pleading
standard set by Rule 9(b). See Azure Dolphin, LLC v. Barton, 2017 NCBC LEXIS 90,
at *26 (N.C. Super. Ct. Oct. 2, 2017) (citing Doby v. Lowder, 72 N.C. App. 22, 27
(1984)).

143. 	Here, the claim makes no mention of Egger and BEV at all, and there are
no allegations regarding how BEV or Egger stand in a creditor-debtor relationship
with Defendants. (See Countercls. ¶¶ 316–24.) BIOMILQ argues that an obligation
to assign intellectual property is not a duty to make a payment, and the person
allegedly obligated to assign that interest is not a debtor. 	(BIOMILQ Br. Supp. 22
(citing Maloney v. Alliance Dev. Grp., LLC, 2006 NCBC LEXIS 14, at **19–20 (N.C.
Super. Ct. Sept. 18, 2006)).) This is reason alone to grant the Motions.
144. 	Further, the allegations are insufficient because, as BIOMILQ points out,
they are conclusory in violation of Rule 9(b). 	(BIOMILQ Br. Supp. 22.) 	As is true
with respect to BEV and Egger, there is no allegation regarding how Defendants and
BIOMILQ stand in a debtor-creditor relationship. 	Moreover, the allegations are
unclear regarding how Strickland’s assignment to BIOMILQ would give rise to a
“claim” under the UVTA. See Estate of Chambers v. Vision Two Hosp. Mgmt., LLC,
2013 NCBC LEXIS 49, at **14–15 (N.C. Super. Ct. Nov. 21, 2013) (noting that one
must have a “claim” or a “right to payment” in order to be a creditor such that that
the wrong causing injury “creates an enforceable obligation” that “generates a right
to payment”).
145. 	The Court therefore GRANTS in part the Motions, and Count Six for
fraudulent conveyance is hereby DISMISSED with prejudice.
3. 	Count Ten: Misappropriation of Trade Secrets
146. 	At the motion to dismiss stage, Defendants must “identify a trade secret
with sufficient particularity so as to enable [Movants] to delineate that which he is

accused of misappropriating and a court to determine whether misappropriation has
or is threatened to occur.” Washburn v. Yadkin Valley Bank & Tr. Co., 190 N.C. App.
315, 326 (2008) (citations omitted). “[G]eneral allegations in sweeping and conclusory
statements, 	without 	specifically 	identifying 	the 	trade 	secrets 	allegedly
misappropriated, [are] insufficient to state a claim for misappropriation of trade
secrets.” Krawiec, 370 N.C. at 610 (cleaned up).
147. 	As an initial matter, Egger and BEV contend that Count Ten is barred by
the applicable statute of limitations. (Egger Br. Supp. 9–10; Egger Reply 4; BEV Br.
Supp. 9–10.) The Court agrees.
148. 	“An action for misappropriation of a trade secret must be commenced within
three years after the misappropriation complained of is or reasonably should have
been discovered.” N.C.G.S. § 66-157.
149. 	Defendants allege that Egger and BIOMILQ shared “high-level results”
from 2020 testing and trade secret patent-related information with investors and
third parties not affiliated with 108Labs. 	(Countercls. ¶ 382.) 	Defendants further
allege that Egger and Strickland shared these specified secrets in a 6 February 2020
blog post and on the 20 March 2020 investor call. 	(See Countercls. ¶¶ 97, 110–18.)
As stated already herein, Guiliano observed the 20 March 2020 call and complained
after the call about the disclosures made therein. The allegations establish that he
was 	on 	notice 	of 	the 	disclosures. 	(See 	Countercls. 	¶¶ 112–14.) 	Thus, 	on
20 March 2020, at the latest, Guiliano was aware of the purported misappropriation
at issue here.

150. 	Count Ten is time-barred as to Egger and BEV. Egger’s Motion and BEV’s
Motion 	are 	therefore 	GRANTED 	in 	part, 	and 	Count 	Ten 	for 	trade 	secret
misappropriation is DISMISSED with prejudice as to them.
151. 	The Court next considers BIOMILQ’s Motion. 	BIOMILQ argues that
Defendants fail to allege each element necessary to state a claim for misappropriation
under the TSPA. (BIOMILQ Br. Supp. 24–26.)
152. 	The TSPA 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” both:
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); 	see 	also 	United 	Therapeutics 	Corp. 	v. 	Liquidia 	Techs.,
2022 NCBC LEXIS 120, at **8–9 (N.C. Super. Ct. Oct. 13, 2022) (citing Sterling Title
Co. v. Martin, 266 N.C. App. 593, 601 (2019)).
153. 	Defendants allege that the following constitutes a trade secret: “108Labs
Notebooks, the pre-published ’407 Provisional, 108Labs’ research and development
plans, 	108Labs’ 	commercial 	development 	plans, 	108Labs’ 	confidential 	business
information, and disclosures within the pre-published NSF Grant Application[.]”
(Countercls. ¶ 374.)

154. 	The Court is mindful that, at this stage, Defendants’ “only obligation is to
provide notice sufficient to enable [BIOMILQ] to understand the trade secrets it is
accused of misappropriating and the Court to determine whether misappropriation
has occurred.” Bldg. Ctr., Inc. v. Carter Lumber, Inc., 2016 NCBC LEXIS 79, at *11
(N.C. Super. Ct. Oct. 21, 2016) (cleaned up). 	While Defendants’ identification of its
purported trade secrets is threadbare and further development may reveal that the
identified information does not constitute a trade secret, a liberal reading of the
allegations demonstrates that they are sufficient to put BIOMILQ on notice of the
trade secrets it is accused of misappropriating. 	See id. at *11–12 (collecting cases
where allegations were sufficient to state trade secrets claim).
155. 	The lone exception is 108Labs’s “confidential business information.” 	This
category could include any number of documents which, without a more specific
description, would make it nearly impossible for BIOMILQ to understand exactly
what it is accused of misappropriating. 	See id. at *12 (citing in relevant part
Washburn, 190 N.C. App. at 327). 	BIOMILQ’s Motion is therefore GRANTED in
part to this extent, and Count Ten is DISMISSED with prejudice in part.
156. 	As to Defendants’ efforts to maintain secrecy, Defendants allege that they
made reasonable efforts to maintain the secrecy of the trade secrets by: “requiring
execution of relevant nondisclosure agreements, using secure facilities for the storage
and testing of samples and products, giving express instructions regarding use of the
trade secrets including updated information, including applying multiple encryption

and obfuscation measures, restricting and tracking access, and requiring authorized
users to maintain confidentiality.” (Countercls. ¶ 378.)
157. 	These 	allegations 	are 	sufficient 	at 	this 	stage. 	See 	Bldg. 	Ctr., 	Inc.,
2016 NCBC LEXIS 79, at *14 (“Generally, only where efforts to maintain secrecy of
the allegedly misappropriated trade secrets were completely absent have North
Carolina courts dismissed claims at the 12(b)(6) stage.”).
158. 	BIOMILQ’s 	Motion 	is 	therefore 	DENIED 	in 	part 	as 	to 	Count 	Ten.
Defendants have, at this early stage, adequately pleaded a cause of action for trade
secret misappropriation against BIOMILQ.
4. 	Count Eleven: Federal Misappropriation of Trade Secrets
159. 	Defendants’ Count Eleven is brought pursuant to the Defend Trade Secrets
Act (“DTSA”), 18 U.S.C. § 1836.13 The DTSA provides that civil causes of action for
misappropriation have a three-year statute of limitations. 	18 U.S.C. § 1836(d).
“[T]he first discovered (or discoverable) misappropriation of a trade secret commences
the limitation period[.]” 	Azima v. Del Rosso, 2021 U.S. Dist. LEXIS 236611, at *19
(M.D.N.C. 2021) (citation omitted).
160. 	Count Eleven fails as to Egger and BEV for the same reason the TSPA claim
fails: the claim is time-barred. 	Therefore, Egger’s Motion and BEV’s Motion is
13 The Court notes that “Congress has granted state courts concurrent jurisdiction over
federal claims for misappropriation of trade secrets under the DTSA[.]” Cultural Experiences
Abroad, LLC v. Colon, 2024 U.S. Dist. LEXIS 23229, at *18 n.9 (D. Del. 2024) (citing
18 U.S.C. § 1836(c) (granting district courts original, but not exclusive, jurisdiction over civil
actions brought under the DTSA)).

GRANTED in part, and Count Eleven for misappropriation of trade secrets under
the DTSA is DISMISSED with prejudice as to them.
161. 	As for BIOMILQ, the elements for properly stating a claim under the DTSA
largely overlap with the elements required for stating a claim under the TSPA. See
Sysco Mach. Corp. v. DCS USA Corp., 2023 U.S. Dist. LEXIS 204845, at *5
(E.D.N.C 2023) (“To plead a claim for misappropriation of trade secrets under either
the DTSA or North Carolina law, ‘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.’ ” (quoting Krawiec, 370 N.C. at 609)).
162. 	Defendants also “must allege: (1) [they] own[ ] a trade secret; (2) the trade
secret was misappropriated; and (3) the trade secret implicates interstate or foreign
commerce.” JTH Tax LLC v. Cortorreal, 2024 U.S. Dist. LEXIS 36499, at *15 (E.D.
Va. 2024) (citation omitted). A conclusory allegation as to the third element will not
suffice. 	Id. at *19 (discussing Lithero, LLC v. Astrazeneca Pharms. LP, 2020 U.S.
Dist. LEXIS 145592, at *1–2 (D. Del. 2020)). The pleader must allege facts supporting
an assertion that the trade secret implicates interstate or foreign commerce. 	Id. at
*20–21. It is insufficient to state simply that a party “owns numerous [t]rade [s]ecrets
that implicate interstate commerce” because the statement “lacks any supporting
evidence to allege a nexus between interstate or foreign commerce.” Id. at *20.
163. 	Here, Defendants allege that 108Labs’s “trade secrets are 	related to
products and/or services used in, and/or intended for use in, interstate commerce.”

(Countercls. ¶ 387.) 	This conclusory allegation, standing alone, is not sufficient to
survive a motion to dismiss.
164. 	Therefore, BIOMILQ’s Motion is GRANTED in part as to Count Eleven
because Defendants have failed adequately to allege a nexus between its purported
trade secrets and interstate or foreign commerce. 	Count Eleven is therefore
DISMISSED with prejudice.
5. 	Count Twelve: False Designation of Origin
165. 	A reverse passing off claim pursuant to 15 U.S.C. § 1125(a)(1)(A) of the
Lanham Act, styled here as a claim for false designation of origin, requires a plaintiff
to allege:
(1) that the work at issue originated with [the plaintiff]; (2) that origin
of the work was falsely designated by [a defendant]; (3) that the false
designation of origin was likely to cause consumer confusion; and
(4) that [the plaintiff was] harmed [or likely to be harmed] by [a
defendant’s] false designation of origin.
Vitaform, Inc. v. Aeroflow, Inc., 2022 NCBC LEXIS 128, at **45–46 (N.C. Super. Ct.
Oct. 27, 2022) (modifications in original) (cleaned up); Dynatemp Int’l, Inc. v. R421A,
LLC, 2021 U.S. Dist. LEXIS 142363, at *15 (E.D.N.C. 2021).
166. 	The origin of the work, or “origin of goods,” as the phrase has evolved,
“refers to the producer of the tangible goods that are offered for sale, and not to the
author of any idea, concept, or communication embodied in those goods.” 	Dastar
Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003) (citation omitted).
The Supreme Court has held that, to conclude otherwise would result in Congress
having created “a species of perpetual patent and copyright,” which it cannot do. Id.

“[U]nlike copyright and patent laws, the Lanham Act was not designed to protect
originality or creativity.” Mannella Grp., Inc. v. Cornerstone Chiropractic Mktg., 2015
U.S. Dist. LEXIS 66598, at *9 (W.D.N.C. 2015) (citing Dastar, 539 U.S. at 37).
167. 	Here, 	there 	is 	no 	allegation 	regarding 	the 	goods 	or 	work 	at 	issue.
Defendants 	allege 	that 	they 	“originated 	one-of-a-kind 	property–including 	the
[r]elevant 	[s]ubject 	[m]atter, 	the 	’407 	Provisional 	and 	subsequently 	derived
applications for patent–and the exclusive, unique rights extending therefrom[.]”
(Countercls. ¶ 409.) 	None of this, even taken as true, amounts to a tangible good
being offered for sale. Instead, Defendants appear to seek what the Supreme Court
in Dastar explicitly prohibited: a claim for reverse passing off to protect ideas and
concepts that may one day amount to a good for sale.
168. 	Simply put, Defendants have failed to allege that the ideas in question have
been reduced to actual production and sale of a product or good, a failing that is fatal
to their claim. Therefore, the Court GRANTS in part the Motions, and Count Twelve
for reverse passing off is DISMISSED with prejudice.
6. 	Count Thirteen: False Advertising
169. 	A party asserting a claim for false advertising under the Lanham Act must
allege that:
(i) the defendant made a false or misleading statement of fact about a
product, (ii) the statement either deceived, or had the capacity to deceive
a substantial segment of potential consumers, (iii) the deception is
material, in that it is likely to influence the consumer’s purchasing
decision, (iv) the product is in interstate commerce, and (v) the claimant
has been or is likely to be injured as result of the statement at issue.

Dillon v. Stafford, 2020 NCBC LEXIS 153, at **35 (N.C. Super. Ct. Dec. 30, 2020)
(cleaned up) (citing Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495 (5th
Cir. 2000), cert. denied, 532 U.S. 920 (2001)). Defendants must allege “either that an
advertisement is false on its face or that the advertisement is literally true or
ambiguous but likely to mislead and confuse consumers.” Id. (citing Clorox Co. P.R.
v. P&G Comm. Co., 228 F.3d 24, 33 (1st Cir. 2000)).
170. 	Determining whether a statement is a commercial advertisement under the
Lanham Act requires the Court to consider whether the statement is: “(1) commercial
speech; (2) by a defendant in commercial competition with plaintiff; (3) for the
purpose 	of 	influencing 	consumers 	to 	buy 	defendant’s 	goods 	or 	services; 	and
(4) . . . disseminated sufficiently to the relevant purchasing public” to constitute
advertising or promotion. 	Applied Med. Res, Corp. v. Steuer, 527 F. Supp. 2d 489,
493 (E.D. Va. 2007); see Reynolds Consumer Prods. v. Handi-Foil Corp., 2014 U.S.
Dist. LEXIS 26932, at *14–15 (E.D. Va. 2014).
171. 	A careful review of the allegations in the Counterclaims demonstrates that
Defendants have failed to identify a statement made by one or more of the Movants
that amounts to a commercial advertisement and have similarly failed to identify
with any specificity a commercial, physical product. 	The Motions are therefore
GRANTED in part, and Count Thirteen for false advertising is DISMISSED with
prejudice.

7. 	Count Seventeen: Fraud
172. 	Movants each contend that the fraud claim fails because the allegations do
not comport with the particularity requirements in Rule 9(b). (BIOMILQ Br. Supp.
31–32 (citing Countercls. ¶¶ 444(a)–(e), (j)–(k), (m)–(n)); Egger Br. Supp. 23 (citing
Countercls. ¶¶ 444(f), 448(b)); BEV Br. Supp. 17–19 (citing Countercls. ¶¶ 444(j)–
(k), (n).)
173. 	To survive a motion to dismiss, Defendants must allege the five essential
elements of a fraud claim: “(1) [f]alse representation or concealment of a material fact,
(2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does
in fact deceive, (5) resulting in damage to the injured party.” 	Ragsdale v. Kennedy,
286 N.C. 130, 138 (1974) (citations omitted). 	In addition, a defendant’s reliance on
the fraudulent misrepresentation “must be reasonable.” Forbis v. Neal, 361 N.C. 519,
527 (2007) (citing Johnson v. Owens, 263 N.C. 754, 757 (1965)). 	Reliance is not
reasonable if a party exercising reasonable diligence fails to make any independent
investigation as to the truth of the assertion. 	See Calloway v. Wyatt, 246 N.C. 129,
134–35 (1957).
174. 	In addition, Rule 9 requires that fraud claims be pleaded with particularity.
N.C.G.S. § 1A-1, Rule 9(b); Value Health Sols. Inc. v. Pharm. Research Assocs.,
385 N.C. 250, 265–66 (2023). 	“A pleader meets the requirements of Rule 9(c) when
its fraud claim alleges the ‘time, place, and content of the fraudulent representation,
identity of the person making the representation and what was obtained as a result
of 	the 	fraudulent 	acts 	or 	representations.’ ” 	Lawrence 	v. 	UMLIC-Five 	Corp.,

2007 NCBC 	LEXIS 	20, 	at 	**6 	(N.C. 	Super. 	Ct. 	June 	18, 	2007) 	(quoting 	Bob
Timberlake Collection, Inc. v. Edwards, 176 N.C. App. 33, 39 (2006)). 	“Mere
generalities and conclusory allegations of fraud will not suffice.” 	Sharp v. Teague,
113 N.C. App. 589, 597 (1994).
175. 	Defendants’ allegations as to Egger fail to satisfy the particularity required
by Rule 9. Defendants allege that Egger stated, “to interviewers regarding Biomilq,
‘we were preparing to close the round and hadn’t yet re-opened our lab space or hired
anyone.’ ”14 (Countercls. ¶ 444(f).) This allegation fails to specify the time and place
of the alleged fraudulent representation, and it similarly fails to specify what Egger
obtained as a result of the representation. 	Egger’s Motion is therefore GRANTED
in part, and Defendants’ Count Seventeen is DISMISSED with prejudice as to Egger.
176. 	Defendants’ allegations as to BEV similarly fail. 	Defendants allege that
(1) Chris Rivest (“Rivest”) at BEV emailed Strickland on 25 March 2020 stating: “the
[Intellectual Property Right of First Refusal] will really need to be included between
Biomilq and 108 labs [sic] (rather than between Biomilq and new investors),”
(Countercls. ¶ 444(g) (modification in original)); (2) that on 4 April 2024, Strickland
emailed Guiliano that “Rivest ‘wants me to tell you that he is sympathetic to your
position[,]’ ” 	(Countercls. 	¶ 444(j)); 	and 	(3) 	that 	Strickland, 	on 	behalf 	of 	BEV,
represented that “therapeutic falls outside the scope of BEVs [sic] fund but it is
"willing 	to 	support 	108Labs’s 	efforts 	by 	leveraging 	other 	resources[,]”
(Countercls. ¶ 444(k)).
14 This is the only alleged misrepresentation by Egger.

177. 	Each allegation fails to comport with Rule 9(b) because none of them
includes any identification of what was obtained as a result of the allegedly
fraudulent representation. The third allegation fails for the additional reason that it
does not specify the time or place of the representation. 	BEV’s Motion is therefore
GRANTED in part as to the allegations of fraud against it, and Defendants’ Count
Seventeen is DISMISSED with prejudice as to BEV.
178. 	Finally, the Court considers Defendants’ fraud claim as to BIOMILQ. (See
Countercls. ¶¶ 444(h).) 	The Court first observes that Defendants do not allege that
Strickland’s statements were made on behalf of BIOMILQ. (See Countercls. ¶¶ 444–
50.) Thus, the only fraudulent representation that Defendants contend was made by
BIOMILQ is that “[i]n the 3 April 2020 Biomilq, Inc. offer letter from Strickland and
Egger to 108Labs . . . the Parties represented that if Biomilq, Inc. was unable to
obtain the assignment of the [’]407 application by the 6 April 2020 deadline ‘all
scientific development on this project would cease.’ ” 	(Countercls. ¶ 444(h).) 	This
allegation does not satisfy Rule 9(b) because Defendants do not allege what it was
that BIOMILQ received as a result of the representation. 	In fact, the allegations
seem to demonstrate that BIOMILQ received nothing, since Guiliano, on behalf of
108Labs, alleges that he declined the offer. (Countercls. ¶¶ 143–44, 154–55.)
179. 	The Court therefore GRANTS in part BIOMILQ’s Motion, and Defendants’
Count Seventeen is DISMISSED with prejudice as to BIOMILQ, as well.

8. 	Count Eighteen: Civil Conspiracy
180. 	Defendants’ Count Eighteen is based upon their numerous and varied
allegations regarding Movants’ “wrongful overt acts.” (Countercls. ¶¶ 455–69 (listing
Movants’ various alleged wrongful acts).) 	Movants argue that the claim is ripe for
dismissal because Defendants fail to allege that there was an agreement to do an
unlawful act. 	(BEV Br. Supp. 20; Egger Br. Supp. 24–25; BIOMILQ Br. Supp. 34–
35.) Again, the Court agrees.
181. 	Civil 	conspiracy 	requires 	“(1) 	an 	agreement 	between 	two 	or 	more
individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way;
(3) resulting in injury to plaintiff inflicted by one or more of the conspirators; and
(4) pursuant to a common scheme.” Strickland v. Hedrick, 194 N.C. App. 1, 19 (2008)
(quotation omitted). The failure to allege an agreement among defendants to commit
the alleged wrongful overt act is fatal to the conspiracy claim. 	See S.N.R. Mgmt.
Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 609 (2008).
182. 	Defendants do not allege that Movants had an agreement to do an unlawful
act. 	Instead, Defendants allege that Movants’ various wrongdoings listed in the
Counterclaims “were a combined effort” to “deprive” 108Labs of its rights and
interests in its intellectual property. 	(Countercls. ¶ 474.) 	Stating that Movants
undertook allegedly unlawful acts in a “combined effort” is not the same as the
required allegation that they had an agreement. Rather, such statement goes to the
fourth required element that Defendants must allege the acts were undertaken
pursuant to a common scheme.

183. 	Defendants have failed to allege that there was an agreement among
Movants. 	The Court therefore GRANTS in part the Motions, and Count Eighteen
for civil conspiracy is DISMISSED with prejudice.
9. 	Count Nineteen: Unjust Enrichment
184. 	To sufficiently state a claim for unjust enrichment, a party must allege that:
“(1) it conferred a benefit on another party; (2) the other party consciously accepted
the benefit; and (3) the benefit was not conferred gratuitously or by an interference
in the affairs of the other party.” 	Worley v. Moore, 2018 NCBC LEXIS 114, at *25
(N.C. Super. Ct. Nov. 2, 2018) (citing Se. Shelter Corp. v. BTU, Inc., 154 N.C. App.
321, 330 (2002)). 	“A claim for unjust enrichment ‘is neither in tort nor contract but
is described as a claim in quasi contract or a contract implied in law.’ ” Cty. of Wake
PDF Elec. & Supply Co., LLC v. Jacobsen, 2020 NCBC LEXIS 103, at *28 (N.C. Super.
Ct. Sept. 9, 2020) (quoting Booe v. Shadrick, 322 N.C. 567, 570 (1988)).
185. 	“There is no claim for unjust enrichment if the benefit was ‘voluntarily
bestowed without solicitation or inducement.’ ” 	Herrera v. Charlotte Sch. of Law,
LLC, 2018 NCBC LEXIS 35, at *49 (N.C. Super. Ct. Apr. 20, 2018) (quoting HOMEQ
v. Watkins, 154 N.C. App. 731, 733 (2002)).
186. 	Movants contend that this claim fails because Defendants have not alleged
that Defendants conferred a benefit upon Movants. 	(See Egger Br. Supp. 25–26;
Egger Reply 9; BEV Br. Supp. 20–21; BIOMILQ Br. Supp. 35.)
187. 	Defendants allege that Movants “received various benefits,” including
Defendants’ 	rights 	in 	certain 	intellectual 	property 	and 	the 	’407 	Provisional.

(Countercls. ¶ 477.) Notably, Defendants do not allege that they conferred a benefit
on Movants, just that Movants received various benefits. 	(See Countercls. ¶¶ 477–
82.)
188. 	Because Defendants have failed to allege that one or both of them conferred
a benefit upon Movants, the Motions are GRANTED in part, and Count Nineteen for
unjust enrichment is DISMISSED with prejudice.
10. 	Count Twenty-Three: Loss of Consortium
189. 	Movants each seek dismissal of Defendants’ Count Twenty-Three for loss of
consortium.
190. 	“[T]he essence of consortium today has become the mutual right of a
husband and wife to the society, companionship, comfort and affection of one
another.” 	Nicholson v. Hugh Chatham Mem’l Hosp., Inc., 300 N.C. 295, 297 (1980)
(citations omitted). “[A] spouse may maintain a cause of action for loss of consortium
due to the negligent actions of third parties so long as that action for loss of
consortium is joined with any suit the other spouse may have instituted to recover for
his or her personal injuries.” Id. at 304; see also Vaughn v. Clarkson, 324 N.C. 108,
110 (1989) (“[C]laims for loss of consortium should be limited to the spousal
relationship[.]”).
191. 	As an initial matter, to the extent Count Twenty-Three was alleged by
108Labs against Movants, the claim fails. To state the obvious, 108Labs is an entity
and cannot be a spouse or otherwise party to a marriage. 	See Nicholson, 300 N.C.

at 303 (holding that “[s]trangers to the marriage partnership cannot maintain such
an action”).
192. 	Movants argue that this claim fails because the Counterclaims do not allege
an underlying personal injury claim by Strickland. (BIOMILQ Mot. 5; Egger Mot. 5.)
BEV also contends that the Counterclaims fail to plead negligence by BEV that
caused a marital rift between Strickland and Guiliano. 	(BEV Br. Supp. 23–24.) 	In
response, Defendants have not directed the Court to an underlying personal injury
claim that could have been maintained by Strickland. 	(See Br. Opp. BEV Mot. 25–
26; Br. Opp. BIOMILQ Mot. 30; Br. Opp. Egger Mot. 29–30.)
193. 	A thorough review of the Counterclaims demonstrates that Guiliano has
not alleged an underlying personal injury claim that Strickland could have instituted.
(See Countercls. ¶¶ 516–18.) The allegations clearly demonstrate that Strickland has
not suffered any personal injuries that would support Guiliano’s claim for loss of
consortium.
194. 	Therefore, the Motions are GRANTED in part, and Count Twenty-Three
for loss of consortium is DISMISSED with prejudice.
11. 	Count Twenty-Four: Punitive Damages
195. 	Movants each seek dismissal of Defendants’ claim for punitive damages.
(BIOMILQ Br. Supp. 21; BEV Br. Supp. 24–25; Egger Br. Supp. 28.)
196. 	“North Carolina courts have repeatedly held that ‘a claim for punitive
damages is not a stand-alone claim.’ ” 	Aldridge v. Metro. Life Ins. Co., 2019 NCBC
LEXIS 116, at *146 (N.C. Super. Ct. Dec. 31, 2019) (quoting Funderburk v. JPMorgan

Chase Bank, N.A., 241 N.C. App. 415, 425 (2015)); see also Collier v. Bryant, 216 N.C.
App. 419, 434 (2011); Iadanza v. Harper, 169 N.C. App. 776, 783 (2006). 	Punitive
damages are appropriate “to punish a defendant for egregiously wrongful acts and to
deter 	the 	defendant 	and 	others 	from 	committing 	similar 	wrongful 	acts.”
N.C.G.S. § 1D-1.
197. 	The Motions are therefore GRANTED in part, and Count Twenty-Four is
hereby DISMISSED without prejudice to Defendants’ ability to seek this relief later
in the litigation as a remedy to an appropriate underlying claim for relief.
12. 	Count Twenty-Five: Property Interference
198. 	North Carolina has a private cause of action for a property owner against
someone who possesses personal property known to be stolen. See N.C.G.S. § 99A-1.
The statute provides, in relevant part, that:
[W]hen personal property is wrongfully taken and carried away from the
owner or person in lawful possession of such property without his
consent and with the intent to permanently deprive him of the use,
possession and enjoyment of said property, a right of action arises for
recovery of actual and punitive damages from any person who has or has
had, possession of said property knowing the property to be stolen.
N.C.G.S. § 99A-1. 	Recovery under the statute is available only “from one who is
criminally guilty of receiving the stolen property.” 	Russell v. Taylor, 37 N.C.
App. 520, 527 (1978).
199. 	Egger contends that Defendants have failed to allege that she is “criminally
guilty of receiving any stolen property.” 	(See Egger Br. Supp. 29.) 	BEV makes a
similar argument, and it is an argument that Defendants fail to address on the merits
in their response briefs. 	(See BEV Br. Supp. 25–26; Br. Opp. BEV Mot. 26.)

BIOMILQ argues that Defendants failed to plead that the property at issue was
carried away without the owner’s consent and with an intent to permanently deprive
him of its use. (BIOMILQ Reply 13–14.)
200. 	Defendants’ responses to these arguments are blasé, stating, for example,
only that “[e]ach element of the claim of Property Interference, with supporting
factual basis, has been sufficiently and particularly pleaded,” without citation to the
Counterclaims or to any legal authority, persuasive or otherwise. 	(Br. Opp. Egger
Mot. 30; see also Br. Opp. BEV Mot. 26; Br. Opp. BIOMILQ Mot. 19–20.)
201. 	Despite Defendants’ complete failure to respond to Movants’ arguments
with citation for the Court’s consideration, even a review of the Counterclaims in the
light most favorable to Defendants demonstrates that they have failed to allege that
Movants received stolen property, a required element to sufficiently state a claim
under § 99A-1. (See Countercls. ¶ 521.)
202. 	Therefore, 	the 	Motions 	are 	GRANTED, 	and 	Count 	Twenty-Five 	for
property interference is hereby DISMISSED with prejudice.
13. 	Count Twenty: Violations of the UDTPA
203. 	In North Carolina, “[t]o successfully state a claim under [the UDTPA] . . . a
plaintiff must allege (1) an unfair or deceptive act or practice, or an unfair method of
competition, (2) in or affecting commerce, (3) which proximately caused actual injury
to the plaintiff or to his business.” 	Spartan Leasing v. Pollard, 101 N.C. App. 450,
460–61 (1991) (citing Marshall v. Miller, 302 N.C. 539 (1981)).

204. 	Defendants’ UDTPA claim appears to be based upon their claims for
misappropriation of trade secrets, conversion, tortious interference with contract, and
fraud. (Countercls. ¶ 484.)
205. 	As an initial matter, none of these underlying torts remains as to Egger or
BEV. Because the Court has determined that those claims must be dismissed, they
cannot provide the basis for Defendants’ UDTPA claim against Egger and BEV.
Loray Master Tenant, LLC v. Foss N.C. Mill Credit 2014 Fund I, LLC, 2022 NCBC
LEXIS 1, at *38 (N.C. Super. Ct. Jan. 11, 2022) (citing Craven v. SEIU COPE,
188 N.C. App. 814, 819 (2008)).
206. 	However, because the Court has dismissed the claim for misappropriation
of trade secrets on the basis that the claim is time-barred, the Court determines that
the conduct underlying that claim may still support a claim for violation of the
UDTPA as to Egger because a UDTPA claim has a four-year statute of limitations.
See Strata Solar, LLC v. Naftel, 2020 NCBC LEXIS 129, at **14–15 (N.C. Super. Ct.
Oct. 29, 2020) (the basis for plaintiff’s UDTPA claim was unlawful utilization of
plaintiff’s trade secret); N.C.G.S. § 75-16.2 (providing limitations period for a UDTPA
claim).
207. 	The Court therefore GRANTS in part Egger’s Motion and BEV’s Motion,
and Count Twenty for violations of the UDTPA is DISMISSED with prejudice as to
BEV, and in part as to Egger. Count Twenty remains as to Egger to the limited extent
that Defendants contend that her disclosure of alleged trade secret information

during the 20 March 2020 virtual meetings may serve as a basis for the UDTPA
claim.
208. 	BIOMILQ’s 	Motion 	is 	GRANTED 	in 	part 	and 	DENIED 	in 	part.
Defendants’ claim for BIOMILQ’s alleged violations of the UDTPA remains to the
extent that Defendants’ claims for tortious interference with contract, conversion,
and violations of the TSPA survive. In other respects, Defendants’ claim for violations
of the UDTPA is DISMISSED with prejudice.
VI. 	CONCLUSION
209. 	THEREFORE, for the foregoing reasons, the Court hereby GRANTS in
part and DENIES in part the Motions as follows:
a. 	The Motions are GRANTED in part as to: Count Three for breach of
fiduciary duty; Count Four for constructive fraud; Count Six for fraudulent
conveyance; Count Seven for conversion, as to Egger, and as to BIOMILQ
to the extent the claim concerns the intellectual property at issue; Count
Ten for violation of the TSPA as against BEV and Egger; Count Eleven for
misappropriation of trade secrets under the DTSA; Second Count Eleven
for slander of title; Count Twelve for reverse passing off; Count Thirteen for
false advertising; Count Fourteen for tortious interference with contract;
Count 	Fifteen 	for 	defamation 	as 	to 	Egger, 	and 	as 	to 	BIOMILQ 	for
statements made in February 2020; Count Sixteen for breach of contract;
Count Seventeen for fraud; Count Eighteen for civil conspiracy; Count
Nineteen for unjust enrichment; Count Twenty for violations of the UDTPA

as to BEV and Egger in part, as set forth more fully above; Count Twenty-
Two for alienation of affections; Count Twenty-Three for loss of consortium;
and Count 	Twenty-Five 	for property 	interference. 	Those 	claims are
DISMISSED with prejudice;
b. 	The Motions are GRANTED in part as to: Count One for injunctive
relief; 	Count 	Two 	for declaratory 	relief 	as 	to 	Egger; 	Count 	Five 	for
constructive trust; and Count Twenty-Four for punitive damages. 	Those
claims are DISMISSED without prejudice; and
c. 	The Motions are otherwise DENIED.
d. 	As a result of the Court’s rulings herein, the surviving claims in the
Counterclaims are: 	Count Two for declaratory relief against BIOMILQ;
Count 	Seven 	for 	conversion 	against 	BIOMILQ 	regarding 	108Labs’s
notebooks, sample cells, and data; Count Eight for trespass to chattels
against 	BIOMILQ; 	Count 	Nine 	for 	civil 	liability 	for 	larceny 	against
BIOMILQ;15 Count Ten for trade secret misappropriation under the TSPA
against BIOMILQ; Count Fourteen for tortious interference with contract
against BIOMILQ; Count Twenty for violations of the UDTPA against
BIOMILQ, to the extent that claim is based upon Counts Seven, Ten, or
Fourteen, and against Egger to the limited extent that her conduct during
the 20 March 2020 virtual meetings may serve as a basis for the UDTPA
claim.
15 Counts Eight and Nine remain only as to BIOMILQ, and it did not seek dismissal of those
claims in its motion to dismiss.

210. 	The Court further ORDERS that the stay of discovery in this action
remains in place, (see ECF No. 265), but that the parties shall confer, as previously
ordered in the Court’s 31 October 2023 Order regarding the Case Management Order
in this matter, (ECF No. 218). 	Within fourteen (14) days of the entry of this Order
and Opinion, the parties are directed to file proposed revised discovery and post-
discovery dispositive motions deadlines for the Court’s consideration.16 Following the
filing of those proposed deadlines, the Court will enter a revised case management
schedule and lift the stay on discovery in this matter.
IT IS SO ORDERED, this the 19th day of April, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases
16 The Court is aware of the Guiliano Motion to Amend Case Management Order, (ECF
No. 256), and intends to handle all proposes amendments to the Case Management Order
together.