HUSQVARNA PRO. PRODS., INC. v. ROBIN AUTOPILOT HOLDINGS, LLC, 2023 NCBC 88

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 5594
HUSQVARNA PROFESSIONAL
PRODUCTS, INC. and
HUSQVARNA BUSINESS
SUPPORT AB,
Plaintiffs,
v.
ROBIN AUTOPILOT HOLDINGS,
LLC; ROBIN TECHNOLOGIES,
INC.; ROBOTIC MOWING
INVESTMENTS, LLC; RLAM
AZALEA, LLC; JEFFREY R.
DUDAN IRREVOCABLE TRUST;
JEFFREY DUDAN; and ANTHONY
HOPP,
Defendants.
ORDER AND OPINION ON
PLAINTIFFS’ MOTION FOR LEAVE
TO AMEND COMPLAINT
1. 	THIS MATTER is before the Court on Plaintiffs Husqvarna Professional
Products, Inc. and Husqvarna Business Support AB’s (together, “Plaintiffs”) Motion
for Leave to Amend Complaint (the “Motion”) in the above-captioned case.1
2. 	Having considered the Motion, the parties’ briefs, affidavits, and materials
offered in support of and in opposition to the Motion, the arguments of counsel at the
hearing on the Motion, and other relevant matters of record, the Court hereby
GRANTS in part and DENIES in part the Motion.
Nelson Mullins Riley & Scarborough, LLP, by Corey E. Manning,
Thomas 	G. 	Hooper, 	Adam 	J. 	Hegler, 	and 	James 	K. 	Lehman, 	for
Plaintiffs/Counterclaim Defendants Husqvarna Professional Products,
Inc. and Husqvarna Business Support AB.
Jackson Walker LLP, by Blake T. Dietrich and Hailey Oestreich, and
Lincoln 	Derr 	PLLC, 	by 	Tricia 	M. 	Derr 	and 	R. 	Jeremy 	Sugg, 	for
1 (ECF No. 99.)
Husqvarna Pro. Prods., Inc. v. Robin Autopilot Holdings, LLC, 2023 NCBC 88.

Defendants/Counterclaim Plaintiffs Robin Autopilot Holdings, LLC,
Robin Technologies, Inc., Robotic Mowing Investments, LLC, RLAM
Azalea, LLC, Jeffrey R. Dudan Irrevocable Trust, Jeffrey Dudan, and
Anthony Hopp.
Bledsoe, Chief Judge.
I.
BACKGROUND
3. 	A summary of the allegations in Plaintiffs’ Complaint2 is set forth in the
Court’s Order and Opinion on Defendants’ Motion to Dismiss Claims Against the
Member Defendants and Robin Technologies, Inc., filed 22 September 2023.3
4. 	Plaintiff seeks leave to file its First Amended Complaint4 pursuant to Rule
15 of the North Carolina Rules of Civil Procedure (the “Rule(s)”) to supplement the
factual allegations contained in the Complaint, add Defendant Robin Autopilot
Holdings, LLC’s (“Robin”) former CEO, Logan Fahey (“Fahey”), as a party defendant,
assert 	additional 	claims, 	and 	reassert 	various 	existing 	claims 	(the 	“Proposed
Amended Complaint”).5
5. 	Defendants oppose the Motion to the extent Plaintiffs seek to reassert claims
for anticipatory breach of contract against Robin and Robin Technologies, Inc.
2 (ECF No. 4.)
3 (ECF No. 77; Husqvarna Prof. Prods., Inc. v. Robin Autopilot Holdings, LLC, 2023 NCBC
LEXIS 120 (N.C. Super. Ct. Sept. 22, 2023).)
4 (Pls.’ Mot. Leave Amend Compl. Ex. A, First Am. Compl. [hereinafter “Proposed Am.
Compl.], ECF No. 88.2.)
5 (Pls.’ Mem. Law Supp. Mot. Leave Amend 2, ECF No. 88.1.)

(Claims One, Six, Seven, and Eight)6 and assert new claims against Fahey for tortious
interference with contract (Claims Eleven and Twelve)7 and breach of fiduciary duty
(Claim Thirteen).8 Defendants contend that these claims are futile because the claim
for breach of fiduciary duty cannot survive a motion to dismiss under Rule 12(b)(1)
and the claims for tortious interference with contract and anticipatory repudiation
cannot survive a motion to dismiss under Rule 12(b)(6).9
6. 	After full briefing, the Court convened a hearing on the Motion on 13
December 2023 (the “Hearing”), at which all parties were represented by counsel.
The Motion is now ripe for resolution.
II.
LEGAL STANDARD
7. 	Rule 15 governs amendments to pleadings and provides in relevant part:
A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has not been placed
6 (Proposed Am. Compl. ¶¶ 124–30, 162–83.)
7 (Proposed Am. Compl. ¶¶ 191–239.)
8 (See Proposed Am. Compl. ¶¶ 240–54; Defs.’ Resp. Opp’n Pls.’ Mot. Leave Am. Compl. 2
[hereinafter, “Defs.’ Br. Opp’n”], ECF No. 98.) Defendants initially opposed the Motion to the
extent Plaintiffs seek to reassert a claim for declaratory judgment against the Member
Defendants (i.e., Robotic Mowing Investments, LLC, RLAM Azalea, LLC, Jeffrey R. Dudan
Irrevocable Trust, Jeffrey Dudan, and Anthony Hopp) concerning the Note Purchase
Agreement and the Supply Agreement that are at issue in this litigation. (Defs.’ Br. Opp’n
27–28). The parties agree, and the proposed Amended Complaint makes plain, however, that
Plaintiffs do not seek to assert this claim against the Member Defendants. 	Accordingly,
Defendants conceded that their opposition to the Motion on this ground is without merit and
withdrew this contention at the hearing on the Motion. (See Proposed Am. Compl. ¶¶ 159–
61.)
9 Defendants do not challenge Plaintiffs’ assertion of Claims Two, Three, Four, Five, Nine,
and Ten in the Proposed Amended Complaint. (See Defs.’ Opp’n Br.)

upon the trial calendar, he may so amend it at any time within 30 days
after it is served. 	Otherwise a party may amend his pleading only by
leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires.
N.C.R. Civ. P. 15(a). The rule “encourages trial courts to permit amendment liberally
and evinces 	our State’s 	‘general 	policy of 	allowing an action 	to 	proceed to 	a
determination on the merits.’ ” Duke Energy Carolinas, LLC v. AG Ins. SA/NV, 2019
NCBC LEXIS 105, at *4 (N.C. Super. Ct. Dec. 10, 2019) (quoting House of Raeford
Farms, Inc. v. Raeford, 104 N.C. App. 280, 282 (1991)).
8. 	“Valid grounds for which a motion to amend may be denied include undue
delay, 	bad 	faith, 	dilatory 	motive, 	repeated 	failure 	to 	cure 	deficiencies, 	undue
prejudice and futility of the amendment.” 	Bartlett Milling Co. v. Walnut Grove
Auction & Realty Co., 192 N.C. App. 74, 89 (2008) (cleaned up). “The futility standard
under Rule 15 is essentially the same standard used in reviewing a motion to dismiss
under Rule 12(b)(6), but provides the [c]ourt liberal discretion to find that an
amendment lacks futility. 	Nevertheless, the court may deny a motion to amend
where the allegations would not be sufficient to survive a motion to dismiss.” Simply
the Best Movers, LLC v. Marrins’ Moving Sys., Ltd., 2016 NCBC LEXIS 28, at **5–6
(N.C. Super. Ct. Apr. 6, 2016) (internal citation omitted).
9. 	Applying these standards, therefore, a motion to amend is not futile when
“the allegations of the [amended pleading], treated as true, are sufficient to state a
claim upon which relief may be granted under some legal theory, whether properly
labeled or not.” 	Harris v. NCNB Nat’l Bank, 85 N.C. App. 669, 670 (1987).
“[D]ismissal 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. Brit. Am. Tobacco
PLC, 371 N.C. 605, 615 (2018) (quoting Wood v. Guilford Cnty., 355 N.C. 161, 166
(2002)).
10. 	“In the end, a ‘motion for leave to amend is addressed to the sound discretion
of the trial judge[.]’ ” Howard v. IOMAXIS, LLC, 2023 NCBC LEXIS 159, at *16 (N.C.
Super. Ct. Nov. 29, 2023) (quoting Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C.
App. 423, 430 (1990)).
11. 	“Standing is a necessary prerequisite to a court’s proper exercise of subject
matter 	jurisdiction,” 	In 	re 	Z.G.J., 	378 	N.C. 	500, 	504 	(2021), 	and 	“[s]tanding
arguments can be presented under both Rule 12(b)(1) and 12(b)(6),” Barefoot v.
Barefoot, 2022 NCBC LEXIS 8, at *3 (N.C. Super. Ct. Feb. 2, 2022). 	“Rule 12(b)(1)
requires the dismissal of any action ‘based upon a trial court’s lack of jurisdiction over
the subject matter of the claim.’ ” Watson v. Joyner-Watson, 263 N.C. App. 393, 394
(2018) (quoting Rule 12(b)(1)).
III.
ANALYSIS
A. 	Breach of Fiduciary Duty
12. 	Plaintiffs seek to assert a derivative claim against Fahey for breach of the
fiduciary duty he owed Robin as its CEO.10 	Defendants contend that this claim is
10 (Proposed Am. Compl. ¶¶ 240–54.)

futile because Plaintiffs failed to make pre-suit demand on Robin, as required under
Ohio law, and therefore lack standing to assert this claim derivatively.11 	Plaintiffs
admit that they failed to make pre-suit demand but contend that derivative demand
was excused as futile under Ohio law.12 The Court agrees with Defendants.
13. 	Robin is an Ohio limited liability company (“LLC”), and Plaintiffs seek to
assert a breach of fiduciary duty claim against Fahey on behalf of Robin.13 N.C.G.S.
§ 57D-8-06 provides that “[i]n any derivative proceeding in the right of a foreign LLC
[such as the case here], the matters covered by [Chapter 57D] will be governed by the
law of the jurisdiction of the foreign LLC’s organization except for the matters
governed by G.S. 57D-8-02 [Stay of Proceedings], 57D-8-04 [Discontinuance or
Settlement], and 57D-8-05 [Payment of Expenses].” As a result, Plaintiffs’ standing
to bring a derivative claim on behalf of Robin is governed by the Ohio Revised Limited
Liability Company Act (the “Ohio Act”). Ohio Rev. Code Ann. §§ 1706.01–.84.
14. 	The Ohio Act repealed and replaced Ohio’s former LLC Act (the “Former
Ohio Act”) in early 2022. The Former Ohio Act permitted a member to commence a
derivative action on behalf of an LLC if a demand on the LLC is refused, or, “if an
effort to cause those managers to commence the action is not likely to succeed.” See
Ohio Rev. Code § 1705.49 (repealed Jan. 2022). 	It is undisputed that no similar
11 (Defs.’ Br. Opp’n 11–13.) 	Plaintiffs admit in the Proposed Amended Complaint that
Plaintiffs did not make written demand upon Robin. (See Proposed Am. Compl. ¶¶ 245–54.)
12 (Pls.’ Reply Further Supp. Mot. Leave Amend Compl. 9–10 [hereinafter, “Pls.’ Reply Br.”],
ECF No. 102.)
13 (Proposed Am. Compl. ¶ 254.)

provision or other futility exception to the Former Ohio Act’s demand requirement
appears in the new statute. See generally Ohio Rev. Code §§ 1706.01–.84.
15. 	To the contrary, the Ohio Act provides, without exception, that a member of
an LLC “may not commence a derivative action in the right of the limited liability
company, or a series thereof, until both of the following occur”:
(A) 	A written demand has been made upon the limited liability
company or the series to take suitable action.
(B) 	Ninety days have expired from the date the demand was made
unless either of the following applies (i) The member has earlier been
notified that the demand has been rejected by the limited liability
company or the series; (ii) Irreparable injury to the limited liability
company or the series would result by waiting for the expiration of the
ninety-day period.
Ohio Rev. Code. Ann. § 1706.612 (LexisNexis 2021).
16. 	Plaintiffs argue that the Court should nonetheless read a demand futility
exception into the Ohio Act, contending first that if the Ohio legislature intended to
eliminate the exception, it would have stated so expressly, and second that the Ohio
legislature did not intend to eliminate the futility exception from the new Ohio LLC
Act because Ohio Rule of Civil Procedure 23.1 contains a procedure for corporate
shareholders to allege demand futility, (see Ohio Civ. R. 23.1). 	The Court finds
neither argument persuasive.
17. 	“In construing a statute [under Ohio law], a court’s paramount concern is
the legislative intent in enacting the statute. 	In determining legislative intent, the
court first looks to the language in the statute and the purpose to be accomplished.
The literal language of the pertinent statutes must be enforced whenever possible.”

State ex rel. Auglaize Mercer Cmty. Action Comm’n., Inc. v. Ohio C.R. Comm’n., 654
N.E.2d 1250, 1253 (Ohio 1995). 	“To construe a statute, [the court] first looks at its
express wording. [The court] must give effect to the words of a statute and may not
modify an unambiguous statute by deleting words used or inserting words not used.”
State v. Teamer, 696 N.E.2d 1049, 1051 (Ohio 1998) (cleaned up); see also Cleveland
Mobile Radio Sales, Inc. v. Verizon Wireless, 865 N.E.2d 1275, 1278 (Ohio 2007) (“A
court is neither to insert words that were not used by the legislature nor to delete
words that were used.”). Indeed, the Ohio legislature “must be presumed to know the
meaning of words, to have used words of a statute advisedly and to have expressed
legislative intent by the use of the words found in the statute.” Diller v. Diller, 182
N.E.3d 370, 387 (Ohio Ct. App. 2021).
18. 	The derivative demand requirements in section 1706.612 of the Ohio Act are
clear and unambiguous and do not contain any exceptions to written demand,
including on grounds of futility. 	As shown above, the Ohio rules of statutory
construction do not permit the Court to read an exception into the Ohio Act that the
Ohio legislature did not include. Similarly, the fact that Ohio law permits a corporate
shareholder to assert demand futility in bringing a derivative action under the Ohio
Rules of Civil Procedure in no way suggests that the Ohio legislature intended to
include such an exception for a member of an LLC.
19. 	As a result, the Court concludes that Plaintiffs are without standing to
assert their proposed breach of fiduciary duty claim against Fahey due to Plaintiffs’

pleaded failure to make written demand on Robin. Accordingly, the Court will deny
Plaintiffs’ Motion to the extent it seeks to assert this derivative claim.14
B. 	Tortious Interference with Contract
20. 	Plaintiffs seek to assert two claims for tortious interference with contract
against Fahey, alleging that Fahey caused Robin to breach its obligations to the
Plaintiffs under a Supply Agreement (Claim Eleven) and under a Note Purchase
Agreement (Claim Twelve) (together, the “Agreements”) for his personal gain.15
21. 	Defendants contend that Plaintiffs’ proposed claims against Fahey for
tortious interference with contract are futile because (i) Fahey did not have the
authority under Robin’s operating agreement (the “Operating Agreement”)16 to cause
14 The Court notes that it would reach the same result applying North Carolina’s rules of
statutory construction, which are nearly identical to those of Ohio. 	See, e.g., State ex rel.
Utils. Comm’n v. Lumbee River Elec. Membership Corp., 275 N.C. 250, 260 (1969) (noting
that when a statutory section “is clear and understandable on its face, it requires no
construction. In such a case, the Court is without power to interpolate or superimpose
conditions and limitations which the [statute] does not of itself[]”) (internal citation omitted);
Home Builders Ass’n of Fayetteville N.C., Inc. v. City of Fayetteville, 170 N.C. App. 625, 627
(2005) (“[C]ourts should not infer additional language when it would have been a simple
matter for the General Assembly to have included that explicit phrase.”) (cleaned up);
Norman v. Nash Johnson & Sons’ Farms, Inc., 140 N.C. App. 390, 410–11 (2000) (“Where the
Legislature has made no exception to the positive terms of a statute, the presumption is that
it intended to make none, and it is a general rule of construction that the courts have no
authority to create, and will not create, exceptions to the provisions of a statute not made by
the act itself.”) (quoting Upchurch v. Hudson Funeral Home, Inc., 263 N.C. 560, 565 (1965));
see generally Allen ex rel. Allen & Brock Constr. Co. v. Ferrera, 141 N.C. App. 284, 288 (2000)
(recognizing that North Carolina’s similar derivative demand statute “abolished the futility
exception under North Carolina law[]”).
15 (Proposed Am. Compl. ¶¶ 191–239.) 	In contrast to the North Carolina law governing
Plaintiffs’ proposed breach of fiduciary duty claim, North Carolina “favors the use of the lex
loci test in cases involving tort or tort-like claims.” SciGrip, Inc. v. Osae, 373 N.C. 409, 420
(2020).
16 (See Pls.’ Opp’n Defs.’ Mot. Dismiss Claims Against the Member Def. and Robin
Technologies Ex. C, ECF No. 17.3 (sealed), ECF No. 41.2 (redacted).)

Robin to breach the Agreements without action of Robin’s Board of Managers (the
“Board”), (ii) Plaintiffs’ allegations are insufficient to establish legal malice, and (iii)
Plaintiffs’ allegations admit a motive other than malice.17 Defendants also contend
that allowing these claims to proceed against Fahey would be contrary to North
Carolina public policy because it would inhibit corporate officers in the performance
of their duties.18
22. 	Plaintiffs argue in response that the allegations of the Proposed Amended
Complaint, taken as true, establish each element of a claim for tortious interference
with contract.19 	Plaintiffs also argue that the North Carolina courts have rejected
Defendants’ public policy arguments and have determined that corporate directors
who act for their own benefit may be held personally liable for tortious interference.20
23. 	“To state a claim for tortious interference with contract, the [pleading] must
allege: (1) a valid contract existed between the [claimant] and a third person
conferring contractual rights to [claimant] against a third person; (2) [the opposing
party] knows of the contract; (3) [the opposing party] intentionally induced the third
person not to perform the contract; (4) in not performing the contract the third person
acted without justification; and (5) [claimant] suffered actual damages.” 	Button v.
Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459, 467 (2022). 	Where, as here,
17 (Defs.’ Br. Opp’n 19–27.)
18 (Defs.’ Br. Opp’n 26–27.)
19 (Pls.’ Reply Br. 4–7.)
20 (Pls.’ Reply Br. 9.)

the 	defendant 	is 	a 	company’s 	officer, 	director, 	or 	other 	fiduciary, 	there 	is 	a
presumption 	that 	the 	defendant 	acted 	with 	justification. 	Id. 	at 	468. 	This
presumption is overcome when a claimant alleges facts showing that the defendant
acted with malice. 	Id. 	“In order to survive dismissal, a complaint alleging tortious
interference must admit of no motive for interference other than malice.” Wells Fargo
Ins. Servs. USA, Inc. v. Link, 372 N.C. 260, 284 (2019) (citation omitted).
24. 	Defendants first contend that Plaintiffs’ allegations are insufficient because
Fahey, as Robin’s CEO, did not have authority under the Operating Agreement to
prevent Robin from fulfilling its contractual obligations. 	This argument is without
merit. 	Although Defendants argue that Plaintiffs have failed to plead that Fahey
needed and obtained the Board’s approval to cause Robin not to pay the money due
under the Agreements,21 Plaintiffs have alleged that “the other managers on the
Board of Managers [ ] passively permitted Mr. Fahey to direct Robin Autopilot . . . to
undertake activity antagonistic and detrimental to the business purposes and best
interest of Robin Autopilot.”22 	Plaintiffs further allege that Fahey “directed and/or
controlled Robin Autopilot’s decision to not repay the [amounts due under the
Agreements].”23 These allegations, taken as true, permit a factfinder to conclude that
Fahey induced Robin to breach the Agreements. As such, Defendants’ first argument
in opposition to the Motion is without merit.
21 (Defs.’ Br. Opp’n 22.)
22 (See Proposed Am. Compl. ¶ 250.)
23 (Proposed Am. Compl. ¶¶ 196, 208.)

25. 	Defendants 	next 	contend 	that 	Plaintiffs’ 	allegations 	of 	malice 	are
insufficient to withstand Rule 12(b)(6) scrutiny because they are made “upon
information 	and 	belief” 	and 	thus 	rest 	upon 	unwarranted 	deductions 	and
unreasonable inferences.24 	Defendants’ second contention, like their first, lacks
merit. Our courts have rejected the notion that allegations made “upon information
and belief” are insufficient to state a claim when challenged under Rule 12(b)(6). See,
e.g., Wilkie v. Stanley, 2011 NCBC LEXIS 11, at **15–16 (N.C. Super. Ct. Apr. 20,
2011) (rejecting contention that “allegations made on information and belief cannot
support a claim attacked by a Rule 12(b)(6) motion made in advance of discovery.”)25
26. 	Plaintiffs’ allegations of malice are sufficient to survive Rule 12(b)(6)
scrutiny here. 	Plaintiffs allege that Fahey “acted for his own personal benefit” in
directing Robin not to pay Plaintiffs’ invoices and “not for the legitimate business
purposes or benefit of Robin Autopilot,” and further that Fahey did so to “secure
recoupment of his own personal investments in Robin” with priority over Robin’s
obligations to Plaintiffs.26 	Since these allegations would permit a factfinder to
conclude that Fahey acted entirely in his personal interest and not in Robin’s interest,
24 (Defs.’ Br. Opp’n 23–24.)
25 In contrast, our courts have made clear that “statements made ‘upon information and
belief’—or comparable language—do not comply with the ‘personal knowledge’ requirement
[on summary judgment],” Asheville Sports Props., LLC v. City of Asheville, 199 N.C. App.
341, 345 (2009) (cleaned up), and further that “allegations based ‘upon information and belief’
are generally insufficient to meet the requirements of Rule 9(b)” for pleading fraud, Perkins
v. HealthMarkets, Inc., 2007 NCBC LEXIS 25, at *13 (N.C. Super. Ct. July 30, 2007).
26 (Proposed Am. Compl. ¶¶ 209–14, 232–37.)

the Court concludes that Plaintiffs’ allegations of legal malice are sufficient to state
a claim under Rule 12(b)(6). 	See, e.g., Embree Constr. Grp., Inc. v. Rafcor, Inc., 330
N.C. 487, 499 (1992) (“[A] plaintiff states the [malice] element of the claim of tortious
interference with contract when he alleges facts supporting the allegation that the
individual defendants’ actions were in their personal interest[.]”).
27. 	Defendants also contend that Plaintiffs’ allegations admit a motive other
than malice, identifying three potential business reasons Fahey might have had for
directing Robin not to pay Plaintiffs’ invoices under the Agreements.27 But because
Plaintiffs need not “negate in its pleadings facts that more properly support a
defense[,]” id. at 499, Defendants’ argument fails under Rule 12(b)(6). See id. at 499–
500 (noting that plaintiff need not plead defendants acted “without justification” for
a tortious interference claim to survive Rule 12(b)(6) dismissal).
28. 	Finally, 	the 	Court 	finds 	Defendants’ 	public 	policy 	concerns 	are
unwarranted. Officers, directors, shareholders, and other corporate fiduciaries have
“a qualified privilege to interfere with contractual relations between the corporation
and a third party.” 	Id. at 498 (citation omitted). 	“The acts of a corporate officer in
inducing his company to sever contractual relations with a third party are presumed
to have been done in the interest of the corporation.” Id. (citation omitted). But where
a plaintiff has alleged “facts supporting the allegation that the individual defendants’
actions were in their personal interest,” the matter of the defendant’s good faith is an
issue of fact to be presented as an affirmative defense. 	Id. at 499. 	As such, North
27 (Defs.’ Br. Opp’n 25–26.)

Carolina law permits Plaintiffs to seek to hold a corporate officer like Fahey
accountable for tortiously interfering with his company’s contracts for his own
personal benefit.
29. 	For each of these reasons, therefore, the Court concludes that Plaintiffs’
tortious interference claims are not futile, and Defendants’ objections to Plaintiffs’
Motion on this ground are without merit.
C. 	Anticipatory Repudiation
30. 	Finally, Plaintiffs seek to reassert four claims for anticipatory breach of
contract that are premised primarily on a memorandum sent by Fahey to Plaintiffs
on 6 March 2023 (the “March 6 Memo”).28 Defendants contend that these claims are
futile because the Court concluded in its Order and Opinion on Plaintiffs’ Motion to
Dismiss Amended Counterclaims (the “November Order”)29 that the March 6 Memo
is not a “distinct, unequivocal, and absolute refusal to perform.”30 	See Profile Invs.
No. 25, LLC v. Ammons E. Corp., 207 N.C. App. 232, 237 (2010) (“For repudiation to
result in a breach of contract, the refusal to perform must be of the whole contract or
of a covenant going to the whole consideration, and must be distinct, unequivocal,
and absolute[.]”) (cleaned up).31
28 (Proposed Am. Compl. ¶¶ 124–30, 162–83.) 	Plaintiffs’ proposed claims for anticipatory
breach of contract are Claims One, Six, Seven, and Eight in the Proposed Amended
Complaint.
29 (ECF No. 96.)
30 (Defs. Br. Opp’n 28.)
31 North Carolina law governs Plaintiffs’ proposed claims for anticipatory repudiation. See
Husqvarna Prof. Prods., Inc. v. Robin Autopilot Holdings, LLC, 2023 NCBC LEXIS 155, **

31. 	The Court’s November Order cannot carry the weight Defendants claim.
First, the Court’s ruling did not resolve issues of fact.32 In addition, the portion of the
Court’s ruling upon which Defendants rely was a part of the Court’s conclusion that
the March 6 Memo was susceptible to two or more reasonable interpretations; it was
not a holding that the Memo could only be read as Defendants contend as a matter of
law.33 	Accordingly, Plaintiffs’ Motion for leave to reassert Plaintiffs’ claims for
anticipatory repudiation shall be granted.
IV.
CONCLUSION
32. 	WHEREFORE, the Court, in the exercise of its discretion, hereby DENIES
the Motion to the extent it seeks to add a claim against Fahey for breach of fiduciary
duty, but otherwise GRANTS the Motion. 	Plaintiffs shall file their Proposed
Amended Complaint, modified to comply with this Order, no later than 29 December
2023.
29–33 (N.C. Super. Ct. Nov. 28, 2023) (applying North Carolina law to Plaintiffs’ anticipatory
repudiation claims); see also, e.g., Fortune Ins. Co. v. Owens, 351 N.C. 424, 428 (2000) (“[T]he
substantive 	law 	of 	the 	state 	where 	the 	last 	act 	to 	make 	a 	binding 	contract
occurred . . . controls the interpretation of the contract.”).
32 (See November Order ¶ 3.)
33 By way of further background, Robin asserted a claim for breach of contract against
Plaintiffs. Plaintiffs moved to dismiss this claim, arguing that Robin extinguished Plaintiffs’
obligations under the contracts by repudiating, and thereby breaching, the contract when it
sent the March 6 Memo. (Mem. Supp. Pls.’ Mot. Dismiss Am. Countercls. 15–16, ECF No.
51.) 	In the November Order, the Court denied Plaintiffs’ motion, holding that Robin’s
allegations “did not establish repudiation as a matter of law” and declining to conclude that
Plaintiffs obligations were excused by Robin’s conduct. (November Order ¶ 66.)

SO ORDERED, this the 22nd day of December, 2023.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge