Env't Holdings Grp., LLC v. Finch

Env’t Holdings Grp., LLC v. Finch, 2022 NCBC 25.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
WAKE COUNTY 21 CVS 14019

ENVIRONMENTAL HOLDINGS
GROUP, LLC,

Plaintiff,
ORDER AND OPINION ON
v. DEFENDANT’S MOTION TO DISMISS
SCOTT FINCH,

Defendant.

THIS MATTER comes before the Court on Defendant Scott Finch’s Motion to

Dismiss. (“Motion to Dismiss” or “Motion,” ECF No. 13.)

THE COURT, having considered the Motion, the briefs of the parties, the

arguments of counsel, and all applicable matters of record, CONCLUDES that the

Motion should be GRANTED, in part, and DENIED, in part, for the reasons set forth

below.

Fox Rothschild LLP, by Jeffrey R. Whitley and George J. Oliver, for
Plaintiff Environmental Holdings Group, LLC.

Hamilton Stephens Steele + Martin, PLLC, by Mark R. Kutny, for
Defendant Scott Finch.

Davis, Judge.

INTRODUCTION

1. In this action, an environmental services company doing business in

multiple states, but principally located in North Carolina, has brought suit against a

former employee, a Virginia resident, alleging an array of tortious conduct by the

former employee relating to his work for the company in Virginia and his subsequent
departure from the company to work for a direct competitor. The present motion

requires the Court to (1) apply choice of law rules to determine whether the

substantive laws of North Carolina or Virginia govern the plaintiff’s claims; and (2)

determine whether the plaintiff has stated valid claims for relief under Rule 12(b)(6)

of the North Carolina Rules of Civil Procedure based on the substantive laws of that

state.

FACTUAL AND PROCEDURAL BACKGROUND

2. The Court does not make findings of fact on motions to dismiss under

Rule 12(b)(6) and instead recites pertinent facts contained in the Complaint

(“Complaint,” ECF No. 3) that are relevant to the Court’s determination of the

Motion.

3. Plaintiff Environmental Holdings Group, LLC (“Plaintiff” or “Alloy”) is

a “specialty environmental services company, providing niche services such as the

abatement of hazardous materials, demolition, and environmental engineering to

protect people from the adverse effects of pollution and improve the environmental

quality of communities.” (Id. at ¶ 6.) Alloy is a North Carolina limited liability

company with its principal office in Morrisville, North Carolina and is registered to

do business in North Carolina. (Id. at ¶ 1.) Alloy also does business and maintains

offices “throughout the United States[.]” (Id. at ¶ 6.)

4. Alloy operates largely as a subcontractor by submitting competitive bids

to contractors for specific contracts. (Id. at ¶ 7.) Alloy alleges that it has “at

significant expense, developed substantial confidential information and trade secrets
over the years that provide it with a competitive advantage in this bidding process.”

(Id. at ¶ 8.) These purported trade secrets include: “client lists and information, client

data and preferences, price points for bids, pricing strategies, supplier information,

operating information [ ] including profits and expenses, business plans, strategic

analysis, processes, and procedures.” (Id.)

5. Alloy further alleges that its trade secrets are not generally available to

the public and that it utilizes various measures designed to safeguard the secrecy of

these trade secrets. (Id. at ¶¶ 9–10.) Such measures include “explicit policies

requiring employees to maintain the secrecy of [Alloy’s] confidential trade secret

information”; requiring “all employees to sign an acknowledgment and receipt of the

Employee Handbook containing these policies”; and “limiting employee access based

on their position and job duties, password-protecting electronically-stored

information, conducting exit interviews for departing employees, and requiring the

immediate return of company property on an employee’s last day of work.” (Id. at

¶ 10.)

6. Defendant Scott Finch (“Defendant” or “Finch”) was employed by Alloy

as a Senior Project Manager for Alloy’s projects in Richmond, Virginia from 10

December 2019 through 9 July 2021. (Id. at ¶¶ 11, 27.) During his employment with

Alloy, Finch—a resident of Virginia—worked out of his “home office” while reporting

to the Branch Manager of the Raleigh, North Carolina office, from which all of his

work for Alloy was “facilitated.” (Id. at ¶¶ 2–3, 11.) More specifically, Finch was

supervised by an employee of the Raleigh office—Jim Smith—and Finch “directed
weekly or daily communications to Raleigh as a result of his employment duties.” (Id.

at ¶¶ 3, 24.)

7. Alloy alleges that “Finch had substantial control and authority over the

entire operation of [Alloy’s] Richmond . . . projects, managing another project

manager/estimator and overseeing all field personnel in Richmond[.]” (Id. at ¶ 12.)

Notably, Finch was responsible for making bids on behalf of Alloy with regard to a

project in Richmond known as the “Mutual Building Project” in early April 2021.

Finch’s bids were submitted to the general contractor of the project, L.F. Jennings.

(Id. at ¶ 19.)

8. Alloy’s internal process associated with submitting a bid on a project is

for its employees to put bid-related information in Alloy’s secure on-line third-party

cloud software filing system—referred to as “Box.” (Id. at ¶¶ 20–21.) “Box” allows

for the storing of bid information in a “shared location so that other Alloy team

members can assess the status of [a] bid, provide input, and ensure a collaborative

process that will result in the most competitive bid.” (Id.)

9. Contrary to the above-referenced practice, Finch failed to upload any

information into “Box” regarding the Mutual Building Project until his last day of

employment with Alloy on 9 July 2021. (Id. at ¶¶ 21, 27.) Instead, after the original

bid of $1,789,098 (which had been reviewed by Alloy’s Raleigh Branch Manager) was

submitted, Finch subsequently submitted three revised bids for the Mutual Building

Project between 10 June 2021 and 25 June 2021—increasing the original bid price by

$140,215. (Id. at ¶¶ 24–25.) Finch did not obtain approval from, or even inform, his
supervisor or the Raleigh Branch Manager about the revised bid proposals or put

information about them into “Box.” (Id.)

10. During this same time period and without the knowledge of Alloy, Finch

was also engaged in negotiations for employment with a direct competitor of Alloy,

Trifecta Services Company (“Trifecta”). 1 (Id. at ¶¶ 14, 22–23.) Trifecta made an offer

of employment to Finch on 2 July 2021, and Finch subsequently gave notice of his

resignation from Alloy three days later—designating 9 July 2021 as his last day of

employment. (Id. at ¶¶ 26–27.) On 6 July 2021, Finch’s supervisor asked Finch

directly if he was leaving to join Trifecta. Finch responded “no” despite having

already accepted the offer from Trifecta. (Id. at ¶ 28.)

11. On Finch’s last day of employment with Alloy, Alloy received notification

from L.F. Jennings that Trifecta had been awarded the Mutual Building Project. It

was only then that Finch finally uploaded the revised bids he had made on behalf of

Alloy into “Box.” (Id. at ¶ 29.) Upon finally learning that Finch had revised Alloy’s

bid amounts without his knowledge, Smith cut approximately $140,000 from Finch’s

last submitted bid on the project and then submitted the new reduced bid to L.F.

Jennings. (Id. at ¶ 30–31.) Smith then met with L.F. Jennings management officials

who informed him that the new revised bid would have been less than Trifecta’s bid,

1 Although Trifecta is not a named party in this lawsuit, Alloy alleges that “[i]n the fall of

2020, Trifecta began a concerted effort to raid key Alloy personnel in an effort to hinder
Alloy’s ability to compete for customers and projects” and that this effort “has allowed
[Trifecta] to successfully obtain projects that Alloy would otherwise could [sic] have been [sic]
obtained.” (ECF No. 3, at ¶¶ 15, 18.)
but that it was too late because L.F. Jennings had already awarded the project to

Trifecta. (Id.)

12. Finch is currently managing the Mutual Building Project for Trifecta.

(Id. at ¶ 32.) Within a short period of time after Finch’s final day of employment with

Alloy (and possibly earlier), Finch began contacting various supervisors of Alloy and

soliciting them to terminate their employment with Alloy and come to work for

Trifecta. (Id. at ¶ 33.)

13. On 15 October 2021, Alloy filed its Complaint in this matter, asserting

four claims for relief against Finch: (1) misappropriation of trade secrets pursuant to

N.C.G.S. § 66-152 et seq.; (2) unfair and deceptive trade practices (“UDTP”) pursuant

to Chapter 75 of the North Carolina General Statutes; (3) breach of fiduciary duty;

and (4) tortious interference with prospective economic relations. (Id. at ¶¶ 34–61.)

14. This matter was designated a mandatory complex business case on 8

December 2021. (ECF Nos. 1–2.)

15. On 19 January 2022, Defendant filed a Motion to Dismiss pursuant to

Rule 12(b)(6). (ECF No. 13.)

16. This matter came before the Court for a hearing on 20 April 2022. The

Motion is now ripe for decision.

LEGAL STANDARD

17. “A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of

the complaint by presenting the question whether, as a matter of law, the allegations

of the complaint, treated as true, are sufficient to state a claim upon which relief can
be granted under some recognized legal theory.” Forsyth Mem’l Hosp., Inc. v.

Armstrong World Indus., Inc., 336 N.C. 438, 442 (1994) (cleaned up).

18. In ruling on a motion to dismiss under Rule 12(b)(6), the Court may only

consider the pleading and “any exhibits attached to the [pleading,]” Krawiec v. Manly,

370 N.C. 602, 606 (2018), and must view the allegations in the complaint “in the light

most favorable to the non-moving party.” Christenbury Eye Ctr., P.A. v. Medflow,

Inc., 370 N.C. 1, 5 (2017) (quoting Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 852

(2016)).

19. “It 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) (cleaned up).

ANALYSIS

20. Defendant’s Motion directly raises choice of law issues—that is, whether

the substantive laws of North Carolina or Virginia apply to Plaintiff’s claims.

Specifically, Defendant argues that Plaintiff’s misappropriation of trade secrets and

UDTP claims—both of which have been asserted by Plaintiff pursuant to specific

North Carolina statutes—should be dismissed because Virginia law applies to these

claims. (ECF No. 13, at ¶¶ 1–2.) In addressing Defendant’s arguments, the Court

deems it appropriate to determine which state’s substantive laws applies to all four

of Plaintiff’s claims.
21. As stated by our Supreme Court,

[North Carolina’s] traditional conflict of laws rule is that
matters affecting the substantial rights of the parties are
determined by lex loci, the law of the situs of the claim, and
remedial or procedural rights are determined by lex fori,
the law of the forum. For actions sounding in tort, the state
where the injury occurred is considered the situs of the
claim. Thus, under North Carolina law, when the injury
giving rise to a negligence or strict liability claim occurs in
another state, the law of that state governs resolution of
the substantive issues in the controversy.

Boudreau v. Baughman, 322 N.C. 331, 335 (1988) (italics added). Our courts have

“consistently adhered to the lex loci rule in tort actions.” Id. (italics added).

22. However, with regard to claims not grounded in tort law, our courts have

on occasion used the “most significant relationship” test. See, e.g., id. at 336 (stating

that actions for breach of implied warranty are “now governed by the Uniform

Commercial Code” and are “determined by the most significant relationship test”).

23. “According to the lex loci test, the substantive law of the state where the

injury or harm was sustained or suffered, which is, ordinarily, the state where the

last event necessary to make the actor liable or the last event required to constitute

the tort takes place, applies.” SciGrip, Inc. v. Osae, 373 N.C. 409, 420 (2020) (cleaned

up). On the other hand, the most significant relationship test “provides for the use of

the substantive law of the state with the most significant relationship to the claim in

question,” determined by an evaluation of “(a) the place where the injury occurred;

(b) the place where the conduct giving rise to the injury occurred; (c) the domicile,

residence, nationality, place of incorporation and place of business of the parties; and
(d) the place where the relationship, if any, between the parties is centered.” Id.

(cleaned up); see Restatement (Second) of Conflict of Laws § 145 (Am. L. Inst. 1971).

24. With these principles in mind, the Court proceeds to determine whether

North Carolina or Virginia law applies to each of the claims asserted by Plaintiff in

the Complaint. 2

i. Misappropriation of Trade Secrets

25. Plaintiff’s first cause of action is brought under the North Carolina

Trade Secrets Protection Act (“NCTSPA”)—N.C.G.S. § 66-152 et seq. (ECF No. 3, at

¶¶ 34–43.) Defendant argues that this claim should be dismissed because Virginia

law applies, and therefore the NCTSPA “does not provide a source of liability.” (ECF

No. 14, at p. 4.)

26. Our Supreme Court has recently provided guidance as to the

appropriate choice of law analysis for misappropriation of trade secrets claims. See

SciGrip, 373 N.C. at 419–22. In SciGrip, our Supreme Court was tasked with

reviewing a decision in which this Court applied the lex loci test—rather than the

most significant relationship test—to a misappropriation of trade secrets claim

brought under the NCTSPA. Id. at 419. At the summary judgment stage, this Court

“deemed the choice of law issue dispositive on the grounds that since ‘the undisputed

evidence demonstrates the alleged misappropriation occurred outside the state of

North Carolina,’ [plaintiff] cannot bring a claim under the [NCTSPA].” Id. at 419 n.3.

2 Although Plaintiff suggests that discovery is necessary before this Court can properly rule

on the choice of law issues, the Court is satisfied that the allegations in the Complaint are
sufficient for the Court to do so at the present time.
27. On appeal to the Supreme Court, the plaintiff argued that this Court

instead should have applied the most significant relationship test. Id. The Supreme

Court rejected this argument, stating that its “jurisprudence favors the use of the lex

loci test in cases involving tort or tort-like claims” and holding that “the weight of

[the] Court’s decisions and those of federal courts predicting how [the Supreme] Court

would address misappropriation of trade secrets claims tends to support the

application of the lex loci test, rather than the most significant relationship test, in

the misappropriation of trade secrets context.” Id. at 421.

28. In light of SciGrip, this Court concludes that the lex loci test is

applicable to Plaintiff’s misappropriation of trade secrets claim. In applying this test,

the Court deems it appropriate to focus on “where the last event necessary to make

the actor liable or the last event required to constitute the tort t[ook] place[.]” Id. at

420. Alloy alleges in the Complaint that Finch is a resident of Virginia; Finch served

as Alloy’s Senior Project Manager on Alloy’s Richmond, Virginia projects; Finch

worked out of his home office in Virginia; Finch bid on the Mutual Building Project,

which is located in Virginia and forms the basis for the bulk of the allegations in the

Complaint; and Finch now manages the Mutual Building Project in Virginia on behalf

of Trifecta. (ECF No. 3, at ¶¶ 2, 11, 13, 19.) Absent from the Complaint are

allegations of any act taken by Finch in North Carolina other than the fact that he

reported to his supervisor in Alloy’s Raleigh office. Based on these allegations, the

“last event required to constitute the tort”—i.e., the alleged misappropriation—could

only have taken place in Virginia.
29. Therefore, the Court concludes that Virginia law applies to Plaintiff’s

misappropriation of trade secrets claim. Accordingly, given that the NCTSPA does

not provide any source of liability for Plaintiff’s claim, Defendant’s Motion to Dismiss

as to Plaintiff’s misappropriation of trade secrets claim—which has been brought

pursuant to the NCTSPA—is GRANTED, and the claim is DISMISSED.

ii. UDTP

30. Alloy’s second cause of action for UDTP is brought under Chapter 75 of

the North Carolina General Statutes. See N.C.G.S. § 75-1 et seq. (ECF No. 3, at ¶¶

44–49.) Defendant argues that this claim should be dismissed because “[u]nder either

the lex loci test or the most significant relationship test, Chapter 75 . . . does not

provide a source of liability” due to the fact that Virginia law applies to this claim.

(ECF No. 14, at p. 7.)

31. It is currently unsettled in North Carolina whether a UDTP claim—a

claim which our courts have described as a “creation of statute . . . neither wholly

tortious nor wholly contractual in nature”—is analyzed under the lex loci test or the

most significant relationship test. Stetser v. TAP Pharm Prods. Inc., 165 N.C. App.

1, 15 (2004) (“The conflict of law rule regarding the substantive law to be applied to

unfair or deceptive trade practices [claims] . . . is subject to a split of authority”); see

also RoundPoint Mortg. Co. v. Florez, 2016 NCBC LEXIS 18, at **57 (N.C. Super. Ct.

Feb. 18, 2016) (acknowledging the “long-standing, unresolved question regarding the

proper conflicts-of-law analysis to apply to a claim brought under North Carolina’s

UDTP statute”).
32. In RoundPoint, this Court addressed whether a plaintiff’s UDTP claim

was properly brought pursuant to Chapter 75 rather than as a claim under Nevada

law. 2016 NCBC LEXIS 18, at **56–59. RoundPoint involved claims brought by a

company—RoundPoint Mortgage Company (“RMC”)—against several of its former

officers and employees “who [were] alleged to have, at various times, taken RMC

documents, recruited RMC employees, and otherwise taken improper action to start

a competing company: Sebonic Financial (‘Sebonic’), a division of Cardinal Financial

Company, Limited Partnership (‘Cardinal’).” Id. at **2. Notably, in their summary

judgment motions, the defendants challenged the viability of RMC’s UDTP claim

brought against the former employees, arguing that “as Nevada residents, North

Carolina’s UDTP statute does not apply to them.” Id. at **56–57.

33. After acknowledging the unresolved issue regarding the proper choice of

law rule applicable to Chapter 75 claims, this Court deemed it unnecessary to “wade

into th[at] debate” given the fact that “either test l[ed] to the application of Nevada

law.” Id. at **57. First, with respect to the lex loci test, this Court stated that

RMC’s allegations against the [former employees] consist solely of
actions taken by them while they worked and resided in Nevada. There
is no issue of material fact that the [former employees] did not
undertake any actions outside of Nevada that were related to RMC’s
claims. As such, Nevada law was the location of the last act giving rise
to RMC’s injury.

Id. at **57–58. Second, with regard to the most significant relationship test, this

Court observed that

[d]uring the relevant times, although both RMC and Cardinal
maintained headquarters in North Carolina and both [former officers]
resided in North Carolina, as to the [former employees], the underlying
facts have a closer nexus to Nevada. The [former employees] were hired
to work in Nevada, spent the entirety of their employment there, and
committed the actions of which RMC complains there. The [former
employees] remained in Nevada after leaving RMC to join Cardinal and
continued to reside there when this action was initiated.

Id. at **58. Accordingly, this Court concluded that “the lex loci test and the most-

significant-relationship test both weigh in favor of the Court’s application of Nevada

law to RMC’s UDTP claim against the [former employees].” Id.

34. In the present case, the Court is likewise satisfied that under either the

lex loci test or the most significant relationship test, Virginia law applies to Plaintiff’s

UDTP claim.

35. As previously discussed, “under the lex loci test, the substantive law of

the state where the injury or harm was sustained or suffered, which is, ordinarily,

the state where the last event necessary to make the actor liable or the last event

required to constitute the tort takes place, applies.” SciGrip, 373 N.C. at

420 (cleaned up). Central to Plaintiff’s UDTP claim are the allegations of “Finch’s

misappropriation of trade secrets”; “Finch’s concealment of the ongoing bid process”

on the Mutual Building Project “at a time that he was [also] negotiating for or had

accepted employment with a competitor”; and “Finch’s use of Alloy’s confidential

information and trade secrets, including but not limited to its specific bid for the

Mutual Building Project, to underbid Alloy on behalf of his new employer and

competitor[.]” (ECF No. 3, at ¶¶ 45–47.) Indeed, as noted above, the only allegation

in the Complaint as to any “act” taken by Finch in North Carolina concerns Finch’s

“weekly or daily communications” with his supervisor in Raleigh. (ECF No. 3, at ¶
3.) All other acts by him—including those alleged to give rise to the UDTP claim—

would have occurred in Virginia. Accordingly, based on the allegations in the

Complaint, the “last act” giving rise to Plaintiff’s UDTP claim could have only taken

place in Virginia.

36. Furthermore, with respect to the most significant relationship test, the

Court must determine whether North Carolina or Virginia has the most significant

relationship to the events giving rise to Plaintiff’s UDTP claim. See SciGrip, 373 N.C.

at 420. Here, although Plaintiff maintained a principal office in North Carolina,

Finch lived in Virginia, worked for Alloy from his home office in Virginia, served as

Alloy’s Senior Project Manager on its Virginia projects, and now works for Trifecta in

Virginia. Moreover, the gravamen of Plaintiff’s UDTP claim is Finch’s alleged actions

relating to the bidding process on the Mutual Building Project, which is located in

Virginia. Based on the allegations in the Complaint, Virginia—not North Carolina—

has the most significant relationship to the events that give rise to Plaintiff’s UDTP

claim.

37. Therefore, the lex loci test and the most significant relationship test both

weigh in favor of the Court’s application of Virginia law to Plaintiff’s UDTP claim.

Accordingly, because Chapter 75 does not provide a source of liability for this claim,

Defendant’s Motion to Dismiss as to Plaintiff’s UDTP claim—which has been brought

pursuant to Chapter 75 of the North Carolina General Statutes—is GRANTED, and

the claim is DISMISSED.
iii. Breach of Fiduciary Duty

38. Plaintiff’s third cause of action is for breach of fiduciary duty. Once

again, our Supreme Court has made clear that the lex loci test is applicable to tort

claims. See Boudreau, 322 N.C. at 335. In contrast to Defendant’s arguments that

Virginia law applies to Plaintiff’s first two causes of action, Defendant contends that

North Carolina law applies to its breach of fiduciary duty claim. 3 (ECF No. 21, at pp.

6–7.)

39. In making this argument, Defendant attempts to rely on the internal

affairs doctrine.

The internal affairs doctrine is a conflict of laws principle
which recognizes that only one State should have the
authority to regulate a corporation’s internal affairs—
matters peculiar to the relationship among or between the
corporation and its current officers, directors, and
shareholders—because otherwise a corporation could be
faced with conflicting demands.

Bluebird Corp. v. Aubin, 188 N.C. App. 671, 680 (2008) (citation omitted).

40. However, the internal affairs doctrine only applies to officers, directors,

and shareholders. See Islet Scis., Inc. v. Brighthaven Ventures, LLC, 2017 LEXIS 4,

at *10–11 (N.C. Super. Ct. Jan. 12, 2017) (declining to apply the internal affairs

3 Defendant presumably takes this position because, as to this claim, North Carolina law is

more favorable to his position than Virginia law. Virginia law recognizes the existence of a
general fiduciary duty owed by an employee to his employer. See Williams v. Dominion Tech.
Partners, L.L.C., 265 Va. 280, 289 (2003) (stating that Virginia courts “have long recognized
that under the common law an employee, including an employee-at-will, owes a fiduciary
duty of loyalty to his employer during his employment”). Conversely, in North Carolina, the
general rule is that no such fiduciary duty exists. See Dalton v. Camp, 353 N.C. 647, 652
(2001) (stating that under the general rule “the relation of employer and employee” does not
give rise to a fiduciary duty).
doctrine to conduct of “third-party corporate outsiders” because the claims did not

involve “matters peculiar to the relationships among or between the corporation and

its current officers, directors, and shareholders”). Here, Finch is alleged to simply

have been an employee of Alloy rather than an officer, director, or shareholder.

Defendant has failed to cite any legal authority in which the internal affairs doctrine

has been extended to mere employees.

41. Therefore, for the same reasons discussed above in the Court’s

application of the lex loci rule as to Plaintiff’s other claims, the Court concludes that

this rule similarly mandates a conclusion that Virginia law applies to Plaintiff’s

breach of fiduciary duty claim. Moreover, Defendant concedes that Plaintiff has

stated a valid claim for breach of fiduciary duty under Virginia law. Accordingly,

Defendant’s Motion to Dismiss as to Plaintiff’s breach of fiduciary duty claim is

DENIED.

iv. Tortious Interference with Prospective Economic Relations

42. Plaintiff’s fourth cause of action is for tortious interference with

prospective economic relations. Because this claim involves yet another common law

tort, the Court must apply the lex loci test. See Boudreau, 322 N.C. at 335. Once

again, the Court concludes that Virginia law is applicable based on the application of

the lex loci test to Plaintiff’s allegations in support of this claim, which the Court has

already summarized.

43. Although Defendant originally argued in the brief in support of his

Motion to Dismiss that dismissal was appropriate as to this claim, Defendant’s
counsel conceded at the 20 April 2022 hearing that the Complaint states a valid

tortious interference claim. 4 Accordingly, the Motion to Dismiss is DENIED as to

this claim.

CONCLUSION

THEREFORE, IT IS ORDERED that Defendant’s Motion to Dismiss is

GRANTED, in part, and DENIED, in part, as follows:

1. The Motion is GRANTED with respect to the following claims, which are

hereby DISMISSED:

a. Plaintiff’s first cause of action for misappropriation of trade secrets

pursuant to the NCTSPA; and

b. Plaintiff’s second cause of action for UDTP under Chapter 75 of the

North Carolina General Statutes.

2. The Motion is DENIED with respect to the following claims:

a. Plaintiff’s third cause of action for breach of fiduciary duty; and

b. Plaintiff’s fourth cause of action for tortious interference with

prospective economic relations.

3. The Court notes that Plaintiff has requested the opportunity to amend its

Complaint in the event the Court rules that Virginia law is applicable.

Therefore, in its discretion, the Court hereby grants leave for Plaintiff to

file an amended complaint in this action within thirty (30) days from the

date of this Order.

4 Defendant does not dispute that this claim is recognized under Virginia law.
SO ORDERED, this the 16th day of May, 2022.

/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge
for Complex Business Cases