FOUND. BLDG. MATERIALS, LLC v. CONKING & CALABRESE, CO., 2024 NCBC 17

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 9285
FOUNDATION BUILDING
MATERIALS, LLC,
Plaintiff / Counterclaim
Defendant,
v.
CONKING & CALABRESE, CO., INC.;
CONKING & CALABRESE SE, INC.;
JEREMY CHAVIS; DOUGLAS
CALABRESE; CHRISTOPHER
CIROCCO; RON GREENE; MAY
ZAMBRANO; and COREY BELL,
Defendants / Counterclaimants /
Third-Party Plaintiffs,
v.
ROBERT HENSHAW, Individually,
Third-Party Defendant.
ORDER AND OPINION ON MOTION
TO DISMISS DEFENDANTS’
AMENDED COUNTERCLAIMS AND
THIRD-PARTY COMPLAINT
1. 	THIS 	MATTER 	is 	before 	the 	Court 	on 	Plaintiff 	/ 	Counterclaim
Defendant Foundation Building Materials, LLC and Third-Party Defendant Robert
Henshaw’s Motion to Dismiss Defendants Conking & Calabrese Co., Inc. and Conking
& 	Calabrese, 	SE’s 	Amended 	Counterclaims 	and 	Third-Party 	Complaint,
(the “Motion”), filed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure (the “Rule(s)”), (ECF No. 88).
Found. Bldg. Materials, LLC v. Conking & Calabrese, Co., 2024 NCBC 17.

2. 	The Court, having considered the Motion, the briefs supporting and
opposing the Motion, and the parties’ arguments at a hearing held 19 December 2023,
concludes for the reasons stated below that the Motion should be GRANTED.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by J. Allen Thomas, Haseeb
Fatmi, and Savannah Trimmer for Plaintiff Foundation Building Materials,
LLC, and Third-Party Defendant Robert Henshaw.
Richard L. Robertson & Associates, P.A., by Ryan T. Vince; and McDermott IP
Law, by Richard Michael McDermott, for Defendants Conking & Calabrese,
Co., Inc., and Conking & Calabrese SE, Inc.
Earp, J.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
3. 	The Court does not make findings of fact when ruling on a motion to
dismiss. It recites below the factual allegations in the Amended Counterclaims and
Amended Third-Party Complaint that are relevant to the Motion before the Court.
4. 	Conking & Calabrese Co., Inc. (“Conking NY”) was formed in or around
1975 in the State of New York. (Defs.’ Mot. to Dismiss, Answer, and Aff. Defs. to Pl.’s
First Am. Ver. Compl., and Countercls., and Third-Party Compl. [“Am. Countercls. /
Am. Third-Party Compl.”], ¶ 4, ECF No. 86.)
5. 	Conking 	NY 	is 	a 	drywall 	and 	building 	material 	distributor 	that
distributes construction materials for commercial and residential projects, primarily
those in or around the State of New York. (Am. Countercls. ¶¶ 4-6; Am. Third-Party
Compl. ¶¶ 4-6.)
6. 	Conking & Calabrese, SE (“Conking SE,” together with Conking NY,
“Conking”) was formed in the State of New York on or about 27 January 2023. On or

about 9 March 2023, Conking SE was formed in the State of North Carolina. 	(Am.
Countercls. ¶¶ 9-10; Am. Third-Party Compl. ¶¶ 9-10.)
7. 	Conking purchases building materials from manufacturers and then
sells and furnishes the materials to customers. 	(Am. Countercls. ¶ 6; Am. Third-
Party Compl. ¶ 6.) 	Conking and Foundation Building Materials, LLC (“FBM”) are
competitors in this industry. 	(Am. Countercls. ¶ 19; Am. Third-Party Compl. ¶ 21.)
Robert Henshaw (“Henshaw”) is a Regional Vice President for FBM. 	(Am. Third-
Party Compl. ¶ 14.)
8. 	Defendants contend that FBM and Henshaw know “information, facts,
and circumstances associated” (1) “with Conking’s previous or historical, and in some
cases, valid and existing (or ongoing), business relations and/or contractual relations
with various manufacturers and customers in the industry” and (2) “with Conking’s
prospective entry into business relations and/or contractual relations with various
manufacturers and customers in the industry.” 	(Am. Countercls. ¶¶ 20-21; Am.
Third-Party Compl. ¶¶ 22-23.)
9. 	Defendants allege that beginning as early as May 2023, FBM and
Henshaw have “induced and attempted to induce, or otherwise pressured and
attempted to pressure, various manufacturers and customers in the industry from
continuing, or to otherwise end valid and existing (or ongoing), contractual relations
with Conking, and/or to cease doing business with Conking[.]” (Am. Countercls. ¶ 22;
Am. Third-Party Compl. ¶ 24.) 	Furthermore, Defendants allege that FBM and
Henshaw have “induced and attempted to induce, or otherwise pressured and

attempted to pressure, various manufacturers and customers in the industry from
entering into contractual relations and/or prospective contractual relations with
Conking, and/or to refrain from doing business with Conking now and/or in the
future[.]” (Am. Countercls. ¶ 23; Am. Third-Party Compl. ¶ 25.)
10. 	In addition, Defendants contend such inducements to manufacturers
and/or customers by FBM and Henshaw “include, but may not be limited to, directing
or pressuring certain parties to discontinue or otherwise end valid and existing (or
ongoing) business or contractual relations with Conking, directing or pressuring
certain parties not to engage or contract or otherwise do business with Conking, as
well as placing or threatening to place certain parties on nationwide ‘holds’ directly
with FBM, should such parties fail or refuse to comply with FBM’s pressures or
demands.” (Am. Countercls. ¶ 24; Am. Third-Party Compl. ¶ 26 (emphasis omitted).)
11. 	With respect to the material supply industry, a “hold” is “commonly
understood to mean a decision by one party in the industry . . . to pause, discontinue,
or 	otherwise 	refrain 	from 	doing 	business 	with 	another 	party 	in 	the
industry . . . typically, but not always, on a temporary basis.” (Am. Countercls. ¶ 25;
Am. Third-Party Compl. ¶ 27.)
12. 	On 15 June 2023, MBA Building Supplies, Inc. (“MBA”) placed a
business “hold” on Conking. 	(Am. Countercls. ¶ 30; Am. Third-Party Compl. ¶ 32.)
MBA informed Conking that it received communications from FBM/Henshaw to
cease 	doing 	business 	with 	Conking. 	(Am. 	Countercls. ¶ 29; 	Am. 	Third-Party
Compl. ¶ 31.) 	At some point, MBA reversed this hold; however, the “hold” was put

back 	in 	place 	in 	August 	2023. 	(Am. 	Countercls. ¶¶ 31-32; 	Am. 	Third-Party
Compl. ¶¶ 33-34.) 	Defendants contend the second “hold” “was a direct result of
continued demands, pressure, and efforts from FBM/Henshaw for it to not do [sic]
business with, to cease doing business with or otherwise end contractual relations
with Conking, and to otherwise not do business with Conking in the future.” 	(Am.
Countercls. ¶ 32; Am. Third-Party Compl. ¶ 34.) 	FBM’s influence is made possible
due to its “respective size and nationwide presence[.]” 	(Am. Countercls. ¶ 26; Am.
Third-Party Compl. ¶ 28.)
13. 	Defendants allege that other manufacturers and/or customers in the
industry (in addition to MBA) have placed similar “hold(s)” on or with Conking, or
have been engaging in “slow openings”1 with respect to Conking. 	(Am. Countercls.
¶ 36; Am. Third-Party Compl. ¶ 38.)
14. 	FBM 	filed 	its 	Verified 	Complaint 	and 	Motion 	for 	Temporary,
Preliminary, and Permanent Injunction on 26 May 2023. 	The Verified Complaint
purports to allege claims for misappropriation of trade secrets, tortious interference
with prospective business relations, unjust enrichment, breach of fiduciary duty,
constructive fraud, fraud, violation of the North Carolina Unfair and Deceptive Trade
Practices Act, and common law unfair competition. 	(See generally Ver. Compl.
[“Compl.”], ECF No. 3.)
1 A “slow open” is commonly understood to mean a decision by one party in the industry to
slowly do business with another party. “[F]or example, a manufacturer agreeing to sell and
deliver material to a material supplier such as Conking, but at or on a delayed or prolonged
schedule,” would be engaging in a slow open. 	(Am. Countercls. ¶ 37; Am. Third-Party
Compl. ¶ 39.)

15. 	The case was designated as a complex business case on 30 May 2023 and
assigned to the undersigned the same day. (ECF Nos. 1, 2.)
16. 	On 10 July 2023, Defendants filed a Motion to Dismiss, Answer, and
Affirmative Defenses to Plaintiff’s Verified Complaint.2 	Included in their pleading
were Conking’s counterclaims against FBM, as well as a third-party complaint
against Henshaw, individually. (See generally ECF No. 32.)
17. 	On 15 September 2023, FBM filed a Motion to Dismiss Defendants’
Counterclaims and Third-Party Complaint (the “Motion to Dismiss”), (ECF No. 46).
On 14 November 2023, FBM filed its First Amended Verified Complaint, adding new
Defendants and claims. 	(See generally Am. Ver. Compl., ECF No. 82.) 	On 14
December 2023, Defendants filed their Answer to the Amended Complaint. 	At the
same time, Defendants amended their Counterclaims and Third-Party Complaint.
18. 	Defendants’ Amended Counterclaims include tortious interference with
business relations or prospective contract, unfair and deceptive trade practices, and
common law unfair competition. 	The same claims are asserted in the Amended
Third-Party Complaint, almost verbatim, against Henshaw.
19. 	The Court held a hearing on the Motion to Dismiss on 19 December
2023. 	(See Not. of Hrg., ECF No. 85.) 	At the hearing, Defendants’ counsel argued
2Although Defendants’ pleading is captioned as Motion to Dismiss and includes a Motion to
Dismiss as its First Defense, pursuant to Business Court Rule 7.2, “[e]ach motion must be
set out in a separate document.” Furthermore, “a Rule 12(b) motion to dismiss for failure to
state a claim must be filed prior to [the filing of] an answer, not contemporaneously with or
minutes after.” 	BIOMILQ, Inc. v. Guiliano, 2023 NCBC LEXIS 142, at **5-6 (N.C. Super.
Ct. Nov. 13, 2023) (quoting Johnston v. Johnston Props., Inc., 2018 NCBC LEXIS 119, at **14
(N.C. Super. Ct. Nov. 15, 2018)) (emphasis in original).

that the filing of the Amended Counterclaims and Amended Third-Party Complaint
mooted the original Motion to Dismiss, which was directed to Defendants’ original
counterclaims and third-party complaint. Accordingly, on 11 January 2024, with the
Court’s permission, Plaintiff refiled the Motion and incorporated its earlier brief.
Plaintiff contends that Defendants’ amended filing did not change anything, and that
Conking’s amended claims “do not address or correct the fundamental failing of [its]
claims.”3 (Motion ¶ 5, ECF No. 88.)
20. 	The Motion is now ripe for disposition.
II. 	LEGAL STANDARD
21. 	Pursuant to Rule 12(b)(6), dismissal of a claim is proper if “(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. Brit. Am. Tobacco, PLC, 371 N.C. 605, 615 (2018). Otherwise, “a complaint
should not be dismissed for insufficiency unless it appears to a certainty that plaintiff
is entitled to no relief under any state of facts which could be proved in support of the
claim.” Sutton v. Duke, 277 N.C. 94, 103 (1970) (emphasis omitted).
22. 	When deciding a motion to dismiss, the Court construes the complaint
liberally and accepts all allegations as true. See Laster v. Francis, 199 N.C. App. 572,
577 (2009). Nevertheless, the Court is not required “to accept as true allegations that
3 Counsel presented their arguments with respect to dismissal of the amended claims at the
hearing on 19 December 2023. The Court determines that a second hearing on the (refiled)
Motion to Dismiss would not assist it in its determination. See BCR 7.4.

are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility Servs., 174 N.C. App. 266, 274
(2005) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)).
III. 	ANALYSIS
A. Wrongful 	or 	Tortious 	Interference 	with 	Business 	Relations 	or
Prospective Contract
23. 	Both Defendants’ first Counterclaim and their first Third-Party Claim
are for wrongful or tortious interference with business relations or prospective
contract.
24. 	“A claim for tortious interference with ‘business relations’ embraces
claims for interference with both existing contracts and prospective future contracts.”
E-Ntech Indep. Testing Servs. v. Air Masters, Inc., 2017 NCBC LEXIS 2, at **14 (N.C.
Super. Ct. Jan. 5, 2017). 	“[A] claim for tortious interference with existing contracts
requires the plaintiff to allege that a valid contract existed between plaintiff and a
third person who was induced by defendant not to perform without justification.” Id.;
see also United Lab., Inc. v. Kuykendall, 322 N.C. 643, 661 (1988). 	“In contrast, a
claim 	for 	tortious 	interference 	with 	future 	contracts 	or 	prospective 	economic
advantage requires the plaintiff to allege that defendants acted without justification
in inducing a third party to refrain from entering into a contract with them which
contract would have ensued but for the interference.” 	Id. (citation and internal
quotation marks omitted).

25. 	FBM and Henshaw contend that the amended claims filed by Conking
should be dismissed because the pleadings do not allege that FBM or Henshaw acted
without justification or for an improper purpose. (See Motion ¶ 5.) The Court agrees.
26. 	FBM and Conking are competitors in the material supply industry, (Am.
Countercls. ¶ 19; Am. Third-Party Compl. ¶ 21). 	“Generally speaking, interference
with contract is justified if it is motivated by a legitimate business purpose, as when
the plaintiff and the defendant . . . are competitors.” 	Embree Constr. Grp., Inc. v.
Rafcor, Inc., 330 N.C. 487, 498 (1992); see also Daniel Grp., Inc. v. Am. Sales & Mktg.,
2016 NCBC LEXIS 112, at *31-32 (N.C. Super. Ct. Dec. 15, 2016) (“In light of the
allegations that Defendants were competitors . . . Plaintiff has not alleged a claim for
tortious interference.”); Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 371 (2001)
(holding that one’s desire to “establish a competing business” was a justification for
interference).
27. 	The privilege to interfere, however, “is lost if exercised for a wrong
purpose.” 	Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216, 220 (1988) (internal
quotation marks and citation omitted). 	“In general, a wrong purpose exists where
the act is done other than as a reasonable and bona fide attempt to protect the
interest of the defendant which is involved.” 	Id. (emphasis in original). 	If the
defendant is motivated by “a malicious wish to injure the plaintiff, his actions are not
justified.” Id. at 221.
28. 	Conking alleges that FBM/Henshaw acted “without justification or an
otherwise legitimate purpose,” and that their actions were not committed “solely

because FBM and Conking are competitors.” (Am. Countercls. ¶ 38; Am. Third-Party
Compl. ¶ 40.) Conking also alleges that FBM/Henshaw “willfully, intentionally, and
maliciously, or otherwise wrongfully” engaged in the purported interference. 	(Am.
Countercls. ¶ 40; Am. Third-Party Compl. ¶ 42.)
29. 	These however, are conclusory allegations, and “general allegations of
malice are insufficient as a matter of pleading.” Lendingtree, LLC v. Intercontinental
Capital Grp., Inc., 2017 NCBC LEXIS 54, at **14 (N.C. Super. Ct. June 23, 2017)
(quoting Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 605 (2007)); see also
Plasman v. Decca Furniture (USA), Inc., 2016 NCBC LEXIS 80, at **42-43 (N.C.
Super. Ct. Oct. 21, 2016) (allegation that defendant “maliciously intended to interfere
with [ ] contracts” is insufficient to allege tortious interference absent supporting
facts).
30. 	Except for its conclusory allegations, Conking does not allege any facts
showing that FBM/Henshaw acted without justification. 	See Med1 NC Servs., LLC
v. Med1 Plus, LLC, 2020 NCBC LEXIS 24, at *29 (N.C. Super. Ct. Feb. 26, 2020)
(stating that the plaintiff must “allege facts showing that the defendants acted
without justification in inducing a third party to refrain from entering into a contract
with them, which contract would have ensued but for the interference” (cleaned up));
Walker v. Sloan, 137 N.C. App. 387, 393 (2000) (holding that to state a claim for
wrongful interference with prospective advantage, the plaintiff must allege facts to
show that the defendants acted without justification); Wells Fargo Ins. Servs. USA,
Inc. v. Link, 372 N.C. 260, 285 (2019) (holding that tortious interference claim must

be dismissed where plaintiff alleged defendants acted “without justification” but did
not “plead facts supporting a claim” that defendants acted “for any improper
purpose”); Daniel Grp., Inc., 2016 NCBC LEXIS 112, at *31 (holding plaintiff failed
to state a claim for tortious interference because plaintiff did not plead facts
demonstrating that defendants’ actions were not prompted by legitimate business
purposes 	and 	explaining 	that 	the 	court 	was 	“not 	compelled 	to 	accept” 	legal
conclusions that defendants acted for a “reason not reasonably related to the
protection of a legitimate business interest”).
31. 	Accordingly, FBM/Henshaw’s Motion to Dismiss as to Conking’s claims
for tortious interference is GRANTED, and the claims are DISMISSED without
prejudice.4
B. Unfair and Deceptive Trade Practices
32. 	Defendants’ second Counterclaim and their second Third-Party Claim
are for unfair and deceptive trade practices. 	The claims are premised on three
grounds. 	First, Defendants contend that FBM’s alleged tortious interference is an
unfair trade practice under N.C.G.S. § 75-1.1. 	Second, Defendants contend that
FBM’s use of “holds” constitutes an unfair trade practice. Third, Defendants contend
that the commencement and prosecution of this Action in and of itself constitutes an
unfair and deceptive trade practice. 	(See Am. Countercls. ¶ 45; Am. Third-Party
Compl. ¶ 47.)
4 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).

33. 	“A violation of unfair and deceptive trade practices under [N.C.]G.S.
§ 75-1.1 occurs when ‘(1) defendant committed an unfair or deceptive act or practice,
(2) the action in question was in or affecting commerce, and (3) the act proximately
caused injury to the plaintiff.’ ” Salon Blu, Inc. v. Salon Lofts Grp., LLC, 2018 NCBC
LEXIS 72, at *18-19 (N.C. Super. Ct. July 16, 2018) (quoting Dalton v. Camp, 353
N.C. 647, 656 (2001)). 	“An act is unfair when a party ‘engages in conduct which
amounts to an inequitable assertion of its power or position,’ and an act is unfair or
deceptive if it is ‘immoral, unethical, oppressive, unscrupulous, or substantially
injurious to customers.’ ” Id. at *19 (quoting S.N.R. Mgmt. Corp. v. Danube Partners
141, LLC, 189 N.C. App. 601, 607 (2008)). 	“The facts surrounding the transaction
and the impact on the marketplace determine whether a particular act is unfair or
deceptive, and this determination is a question of law for the court.” Noble v. Hooters
of Greenville, LLC, 199 N.C. App. 163, 167 (2009).
34. 	To the extent that Conking’s unfair and deceptive trade practices claims
are based on their failed tortious interference claims, these claims also fail. 	See
Charah, LLC v. Sequoia Servs., LLC, 2020 NCBC LEXIS 52, at *19 (N.C. Super. Ct.
Apr. 17, 2020) (“[W]hen the UDTP claim rests solely upon other claims, such as a
claim for tortious interference with contract, which the court determines should be
dismissed, the UDTP claim must fail as well.”); see also Combs, 147 N.C. App. at 374
(“[P]laintiff’s claim that defendants engaged in unfair and deceptive trade practices
rests with its claims for misappropriation of trade secrets, tortious interference with
contracts and civil conspiracy. 	Having determined that the trial court properly

granted summary judgment on each of these claims, we likewise conclude that no
claim for unfair and deceptive trade practices exists.”); Amerigas Propane, L.P. v.
Coffey, 2015 NCBC LEXIS 98, at **40-41 (N.C. Super Ct. Oct. 15, 2015) (dismissing
claim under UDTPA where court had already dismissed underlying claims).
35. 	Moving to Conking’s allegation that FBM exploited its market power
and attempted to stifle Conking’s ability to compete in the North Carolina market by
convincing manufacturers (such as MBA) and customers to place Conking on holds
or slow opens, the Court concludes that Conking has again failed to allege a violation
of the UDTPA. To the extent Conking’s complaint is that FBM has used its market
power inequitably, the conduct alleged does not amount to a violation of Chapter 75.
North Carolina courts have rejected similar arguments based on the principle that,
“[i]n the absence of conspiracy or monopoly, one may deal with whom he pleases.” Tel.
Servs., Inc. v. General Tel. Co. of South, 92 N.C. App. 90, 93 (1988) (quoting United
Artists Records, Inc. v. E. Tape Corp., 19 N.C. App. 207, 214 (1973)).
36. 	Conking has not alleged that either a conspiracy or a monopoly exists.
“To state a claim for civil conspiracy, a plaintiff must allege: ‘(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.’ ” Glob. Textile All., Inc. v. TDI
Worldwide, LLC, 2018 NCBC LEXIS 104, at **18-19 (N.C. Super. Ct. Oct. 9,
2018) (quoting Piraino Bros., LLC v. Atlantic Fin. Grp., Inc., 211 N.C. App. 343, 350
(2011)). Moreover, “[c]ivil conspiracy is not an independent cause of action in North

Carolina. Rather, liability for civil conspiracy must be alleged in conjunction with an
underlying claim for unlawful conduct.” 	Id. at **18 (citing Toomer v. Garrett, 155
N.C. App. 462, 483 (2002)). 	These allegations are absent from the Amended
Counterclaims and Amended Third-Party Complaint.
37. 	In addition, the amended claims lack the essential elements of an
antitrust claim, including an allegation regarding FBM’s “possession of monopoly
power in the relevant market” and its “willful acquisition or maintenance” of that
power. Maxwell Foods, LLC v. Smithfield Foods, Inc., 2021 NCBC LEXIS 71, at **19-
20 (N.C. Super. Ct. Aug. 26, 2021) (citing Sykes v. Health Network Sols., Inc., 2017
NCBC LEXIS 73, at *60 (N.C. Super. Ct. Aug. 18, 2017) (quoting Oksanen v. Page
Mem'l Hosp., 945 F.2d 696, 710 (4th Cir. 1991)), aff'd, 372 N.C. 326 (2019)). “When
a plaintiff alleges monopolistic misconduct as the basis for overlapping antitrust
and section 75-1.1 claims, the failure of the antitrust claim also defeats liability
under section 75-1.1.” 	Maxwell Foods, LLC, 2021 NCBC LEXIS 71, at **20 (citing
SiteLink Software, LLC v. Red Nova Labs, Inc., 2016 NCBC LEXIS 45, at *32 (N.C.
Super. 	Ct. 	June 	14, 	2016) 	(dismissing section 	75-1.1 claim 	based 	on 	deficient
antitrust allegations)); Drs. Making Housecalls-Internal Med., P.A. v. Onsite Care,
PLLC, 2019 NCBC LEXIS 6, at *20 (N.C. Super. Ct. Jan. 16, 2019) (same); R. J.
Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362, 396 (M.D.N.C.
2002) (same), aff'd per curiam, 67 F. App'x 810 (4th Cir. 2003).

38. 	Accordingly, to the extent Conking seeks to bring a UDTPA claim
against FBM for the alleged improper exertion of its market power, the claim shall
be dismissed.
39. 	As for Conking’s contention that the lawsuit itself is an unfair and
deceptive trade practice, the Noerr-Pennington doctrine5 provides that “a party who
seeks redress by filing a lawsuit is immune from claims that are based solely on the
pursuit of that lawsuit.” Velocity Solutions, Inc. v. BSG Fin., LLC, 2016 NCBC LEXIS
19, at **15 (N.C. Super. Ct. Feb. 22, 2016).
40. 	The immunity can be lost, however, if the lawsuit is “a mere sham to
cover what is actually nothing more than an attempt to interfere directly with the
business relationships of a competitor.” Lowder Constr. Inc. v. Phillips, 2020 NCBC
LEXIS 1, at *11 (N.C. Super. Ct. Jan. 8, 2020). 	This “sham litigation” exception
applies “when 1) the claim asserted is ‘objectively meritless’ and 2) the court finds
‘the litigant’s subjective motivation’ was an unlawful intent to ‘interfere directly with
the business relationships of a competitor.’ ” 	Id. (quoting Lorillard Tobacco Co. v.
R.J. Reynolds Tobacco Co., 2011 NCBC LEXIS 31, at **15-16 (N.C. Super. Ct. Aug.
8, 2011). 	Indeed, “[p]roving that the filing of a lawsuit is a mere sham carries an
extremely high burden[.]” Lowder Constr., Inc., 2020 NCBC LEXIS 1, at *11.
41. 	“A plaintiff who files an ‘objectively reasonable’ lawsuit cannot be held
liable for an unfair trade practice under [N.C.G.S.] § 75-1.1 regardless of the
5 The Noerr-Pennington doctrine originated in and derived its name from the U.S. Supreme
Court’s decisions in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

plaintiff’s subjective intent and even if the suit was instituted for ‘no legitimate
purpose.’ ” Lorillard Tobacco Co., 2011 NCBC LEXIS 31, at **1 (quoting Reichhold
Chems., Inc. v. Goel, 146 N.C. App. 137, 157 (2001)). 	“A lawsuit is objectively
reasonable if an objective litigant could conclude that the suit is reasonably calculated
to elicit a favorable outcome.” 	Reichhold Chems., Inc., 146 N.C. App. at 157
(cleaned up).
42. 	In this case, Conking does not present factual allegations that would
support a conclusion that FBM’s claims are not objectively reasonable. Furthermore,
this Court has already granted in part FBM’s Motion for Preliminary Injunction,
thereby determining that Plaintiff has a reasonable likelihood of success on the
merits of its claims. 	(See Order and Opinion on Pl.’s Mot. for Prelim. Inj., ECF No.
34.) Thus, Defendants’ attempt to base its UDTPA claims on Plaintiff’s filing of this
lawsuit lacks merit, and its claims on this basis shall be dismissed.
43. 	Accordingly, FBM/Henshaw’s Motion to Dismiss Conking’s UDTPA
claims is GRANTED, and the claims are DISMISSED without prejudice.
C. Common Law Unfair Competition
44. 	Next, Defendants assert both a Counterclaim and a Third-Party Claim
for common law unfair competition.
45. 	As this Court has observed, “[t]he standard which a plaintiff must meet
to recover on an unfair competition claim under the common law is not appreciably
different from a claim for unfair or deceptive trade practices [pursuant to Chapter
75].” 	Se. Anesthesiology Consultants, PLLC v. Charlotte-Mecklenburg Hosp. Auth.,

2019 NCBC LEXIS 107, at *21-22 (N.C. Super. Ct. Dec. 13, 2019) (quoting Global
Textile Alliance, Inc. v. TDI Worldwide, LLC, 2018 NCBC LEXIS 104, at *23 (N.C.
Super. Ct. Oct. 9, 2018)) (alteration in original); see also BellSouth Corp. v. White
Directory Publrs., Inc., 42 F. Supp. 2d 598, 615 (M.D.N.C. 1999); Cty. of Wake PDF
Elec. & Supply Co., LLC v. Jacobsen, 2020 NCBC LEXIS 103, at *26-27 (N.C. Super.
Ct. Sept. 9, 2020).
46. 	As discussed above, Conking has failed to state a claim for unfair or
deceptive trade practices. 	Therefore, its claims for common law unfair competition
premised on the same allegations also fail.
47. 	Accordingly, FBM/Henshaw’s Motion to Dismiss as to Conking’s claims
for common law unfair competition is GRANTED, and the claims are DISMISSED
without prejudice.
IV. 	CONCLUSION
48. 	WHEREFORE, Plaintiff’s Motion to Dismiss Defendants Conking &
Calabrese, Co., Inc and Conking and Calabrese SE, Inc.’s Amended Counterclaims
and Third-Party Complaint Pursuant to Rule 12(b)(6), ECF No. 88, is GRANTED.
Defendants’ Counterclaims and Third-Party Complaint are DISMISSED without
prejudice.

IT IS SO ORDERED, this the 4th day of March, 2024.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases