Integris Composites, Inc. v. Barrday Corp.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:22-CV-347-RJC-DCK
THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion To Dismiss The
Amended Complaint Pursuant To Rules 8, 9(b), 12(b)(2), 12(b)(6) [and 12(e)]” (Document No.
33). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§636(b), and is now ripe for disposition. Having carefully considered the arguments, the record,
and applicable authority, the undersigned will respectfully recommend that the motion be granted.
I. BACKGROUND
A. Factual
Plaintiff Integris Composites, Inc., formerly known as TenCate Advanced Armor USA,
Inc. (“Plaintiff” or “TenCate” or “Integris”), is a California corporation with its principal place of
business in Hebron, Ohio. (Document No. 30, pp. 1-2). Plaintiff is “in the business of
manufacturing composite armor solutions.” Id. “Integris entered into a contract with General
Dynamics Land Systems (“GDLS”) wherein Integris agreed to create armored components for
vehicles (the “GDLS Contract”).” (Document No. 30, p. 3). According to the GDLS Contract,
Integris was required “to assemble armor with spall liner” and “provide up to and including 928
INTEGRIS COMPOSITES, INC., )
)
Plaintiff, ) MEMORANDUM AND
) RECOMMENDATION
v. )
)
BARRDAY CORP., )
)
Defendant. )
)
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of these armored components” or “kits.” (Document No. 30, pp. 3-4) (citing Exhibit A, GDLS
Contract, Document No. 30-1).
Barrday Corp. (“Defendant” or “Barrday”) is a Delaware corporation with a principal place
of business in Cambridge, Ontario, Canada. (Document No. 30, p. 2). Defendant Barrday is a
fabric manufacturer, including of spall liner, “a type of multi-layered fabric designed to absorb
shrapnel and other small, ballistic material.” (Document No. 30, pp. 2-3).
The Amended Complaint alleges that
16. Integris turned to Barrday, an established supplier with
whom there was already a relationship, and entered into an
agreement with Barrday.
17. Under this agreement with Barrday, Barrday agreed to
provide Integris with spall liner sufficient to meet the
requirements under the GDLS Contract, up to and including
928 kits.
18. The mechanics of the agreement were simple: Integris
would reach out to Barrday when it needed spall liner to
produce and provide a certain number of kits to GDLS.
Integris would issue a purchase order (collectively, the
“Purchase Orders,” attached as Exhibit B) to Barrday
specifying how many units it would need, and set forth a date
for completion, so that Integris could then complete its
obligations to GDLS.
(Document No. 30, p. 4) (citing Document No. 30-2).
Plaintiff Integris contends that its “agreement with Barrday was memorialized in writing
in various ways, most notably via the Purchase Orders.”1 (Document No. 30, p. 4). Plaintiff
further contends that “Barrday clearly and unambiguously contracted with Integris whereby
Barrday would fulfill all purchase orders from Integris that were necessary to satisfy Integris’
1 The Complaint does not cite any other ways, other than Purchase Orders, that the parties’ agreement was
purportedly memorialized in writing. Moreover, the Complaint lacks any factual allegations about where
or when the parties’ agreement was negotiated or executed, or by whom.
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obligations under the GDLS Contract at Barrday’s Charlotte, North Carolina and Millbury,
Massachusetts facilities.” (Document No. 30, p. 15) (emphasis added).
“[U]nder this agreement, Barrday would, on behalf of Integris, procure ShieldStrand S-
Glass fiber (the “S-Glass fiber”) and store it until Integris issued purchase orders for Barrday to
convert the S-Glass fiber into a woven prepreg product required by the GDLS Contract (the
“product”).” (Document No. 30, pp. 4-5). Based on a purported limited supply of S-Glass fiber,
“Barrday recommended to Integris that it pre-purchase sufficient quantities of S-Glass fiber to
ensure adequate supply to meet Integris’s commitment under the GDLS Contract.” (Document
No. 30, p. 6). Barrday calculated how much S-Glass fiber it would need to fulfill the requirements
under the GLDS Contracts, accounting “for conversion rates, waste, and selvage during the toll
converting process,” and communicated these amounts to Plaintiff Integris. Id.
“Tony Fiorenzini, President of Barrday, on or about October 2021 confirmed in a letter to
Integris that ‘Integris would purchase a specified amount of fiber and Barrday would, on a best
effort basis, toll convert that fiber into fabric at our Charlotte, NC facility and then coat the fabric
at our Millbury, MA facility.’” (Document No. 30, p. 6) (quoting Document No. 30-3) (emphasis
added by Plaintiff). Based on Barrday’s calculations and representations, “Integris made seven
payments to Barrday for the pre-purchase of S-Glass fiber for a total amount of $4,948,070.”
(Document No. 30, p. 7). “Barrday was required to store the S-Glass fiber for exclusive use on
producing the spall liner pursuant to the Purchase Orders issued by Integris to ultimately satisfy
the requirements under the GDLS Contract.” Id.
Plaintiff Integris issued an eighth Purchase Order on or about August 20, 2019, “to fulfill
its ongoing obligations under the GDLS Contracts,” but was informed by Defendant Barrday that
all the S-Class fiber had been consumed. (Document No. 30, p 9); see also (Document No. 30-2,
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p. 21).2 The Amended Complaint asserts that “[t]his was problematic because Barrday had not
produced sufficient spall liner to sell to Integris to create 928 units as required under the GDLS
Contract.” Id. Integris alleges that Barrday used some of the S-Glass fiber on another project
unrelated to Plaintiff. (Document No. 30, p. 10). Integris also suggests that Barrday’s work was
less efficient than it should have been. (Document No. 30, pp. 10-11).
“Barrday disclosed for the first time in February 2022,” that it “did not, as it had previously
represented to Integris, toll convert the S-Glass fiber itself at its Charlotte, NC facility” but instead
“had subcontracted the toll converting of the S-Glass fiber to a third party.” (Document No. 30,
p. 12). Plaintiff contends that “Barrday used an unauthorized third party to toll convert the S-Glass
fiber, which resulted in not only excess waste and selvage but also additional costs related to the
sourcing and approval of new materials, causing no less than $1,278,000 in damages to Integris.”
(Document No. 30, p. 13).
B. Procedural
Plaintiff Integris initiated this action with the filing of a “Complaint” (Document No. 1) on
July 30, 2022. “Defendant’s Motion To Dismiss The Complaint Pursuant To Fed. R. Civ. Proc.
9(B), 12(B)(6) and 12(E)” (Document No. 15) was filed on October 3, 2022.
On December 5, 2023, the undersigned issued a “Memorandum And Recommendation”
(Document No. 28) (the “M&R”) recommending that “Defendant’s Motion To Dismiss...”
(Document No. 15) “be GRANTED in part – to the extent Plaintiff be directed to file an Amended
Complaint that includes a more definite statement in support of its breach of contract (and other)
claims; and that it be DENIED WITHOUT PREJUDICE in part – to the extent Defendant may
2 It is unclear what, if any, relationship or communications the parties had between August 2019 and
October 2021.
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wish to re-assert its arguments for dismissal at a later date, if necessary.” (Document No. 28, p.
11). The M&R further stated:
In addition, the undersigned suggests that an Amended Complaint
should more fully address the jurisdiction of this Court over this
matter. Although Defendant does not challenge jurisdiction, the
undersigned notes that the Complaint alleges little, if any,
connection to support personal jurisdiction over Defendant.
(Document No. 28, p. 11) (emphasis added).
No objections were filed to the M&R. The Honorable Robert J. Conrad, Jr. adopted the
M&R on January 4, 2024, and directed Plaintiff to file an Amended Complaint.
Plaintiff’s “Amended Complaint” (Document No. 30) was filed on January 25, 2024. The
Amended Complaint asserts claims against Defendant Barrday for: (1) breach of contract; (2)
breach of implied covenant of good faith and fair dealing; (3) fraudulent inducement; (4) negligent
misrepresentations; (5) implied contract; (6) unjust enrichment (excessive waste); (7) conversion
(excessive waste); (8) conversion (use of Plaintiff’s S-Glass fiber on Non-Integris Projects); (9)
unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-Integris Projects); (10) bailment; and
(11) violations of North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-
1.1 et seq. (Document No. 30, pp. 16-25).
In response, Defendant filed its “...Motion To Dismiss The Amended Complaint Pursuant
To Rules 8, 9(b), 12(b)(2), 12(b)(6) [and 12(e)]” (Document No. 33). Defendant Barrday, again,
seeks dismissal of all the claims except the claim for unjust enrichment (use of Plaintiff’s S-Glass
fiber on Non-Integris Projects).
The pending “...Motion To Dismiss The Amended Complaint...” (Document No. 33) has
been fully briefed and is ripe for review and a recommended disposition to the Honorable Robert
J. Conrad, Jr.
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II. STANDARD OF REVIEW
A party invoking federal court jurisdiction has the burden of establishing that personal
jurisdiction exists over the defendant. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp.,
416 F.3d 290, 294 (4th Cir. 2005); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
When a court’s personal jurisdiction is properly challenged by a
Rule 12(b)(2) motion, the jurisdictional question thus raised is one
for the judge, with the burden on the plaintiff ultimately to prove the
existence of a ground for jurisdiction by a preponderance of
evidence. . . . [W]hen, as here, the court addresses the question on
the basis only of motion papers, supporting legal memoranda and
the relevant allegations of a complaint, the burden on the plaintiff is
simply to make a prima facie showing of a sufficient jurisdictional
basis in order to survive the jurisdictional challenge. In considering
a challenge on such a record, the court must construe all relevant
pleading allegations in the light most favorable to the plaintiff,
assume credibility, and draw the most favorable inferences for the
existence of jurisdiction.
Combs, 886 F.2d at 676. (internal citations omitted). “Mere allegations of in personam jurisdiction
are sufficient for a party to make a prima facie showing.” Barclays Leasing, Inc. v. National
Business Systems, Inc., 750 F.Supp. 184, 186 (W.D.N.C. 1990). The plaintiff, however, “may not
rest on mere allegations where the defendant has countered those allegations with evidence that
the requisite minimum contacts do not exist.” IMO Industries, Inc. v. Seim S.R.L., 3:05-CV-420-
MU, 2006 WL 3780422 at *1 (W.D.N.C. December 20, 2006). “Rather, in such a case, the plaintiff
must come forward with affidavits or other evidence to counter that of the defendant . . . factual
conflicts must be resolved in favor of the party asserting jurisdiction....” Id.
III. DISCUSSION
As noted above, Plaintiff Integris brings eleven (11) claims against Defendant Barrday, all
related to an alleged breach of contract regarding Defendant’s production of a fabric product that
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was necessary for Plaintiff to satisfy its obligations under the GDLS Contract. (Document No.
30). Defendant’s arguments for dismissal are again compelling.
The undersigned will focus on Defendant’s first argument for dismissal pursuant to
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction, noting that if this Court lacks jurisdiction
over this matter, further analysis is unnecessary.
Personal Jurisdiction
Questions of jurisdiction are answered by a two-step analysis: (1) the Court must
determine whether the North Carolina long-arm statute confers personal jurisdiction; and (2) the
Court must determine whether the exercise of that statutory power will violate the due process
clause of the U.S. Constitution. Gen. Latex & Chem. Corp. v. Phoenix Med. Tech., 765 F.Supp.
1246, 1248–49 (W.D.N.C. 1991). The statutory inquiry merges with the constitutional inquiry,
essentially becoming one. See ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.
1997).
There are two varieties of personal jurisdiction, general and specific. General jurisdiction
requires “substantial” or “continuous and systematic” contacts or activities in the forum state and
is not at issue in the instant case. Specific jurisdiction exists when a court exercises personal
jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the
forum. Helicopterous Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
Due process precludes a court from asserting jurisdiction over a defendant unless the
defendant has certain minimum contacts with the forum state. The Fourth Circuit has “synthesized
the Due Process Clause for asserting specific jurisdiction into a three-part test ... ‘(1) the extent to
which the defendant purposefully availed itself of the privilege of conducting activities in the State;
(2) whether the plaintiff's claims arise out of those activities directed at the State; and (3) whether
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the exercise of personal jurisdiction would be constitutionally reasonable.’” New Wellington Fin.
Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (citing Mitrano v. Hawes,
377 F.3d 402, 407 (4th Cir. 2004)).
In support of its “...Motion To Dismiss...,” Defendant Barrday first argues that Plaintiff
Integris has failed to adequately allege personal jurisdiction. (Document No. 34, pp. 2-3). Barrday
contends that Integris has not alleged the “‘continuous and systematic’ contacts necessary to
support general jurisdiction over Barrday in North Carolina.” Id. (citing ALS Scan, Inc. v. Digital
Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)). Moreover, Barrday argues that
Integris has not adequately alleged any of the three (3) elements required to establish specific
jurisdiction. Id. (citing Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir.
2009)).
Barrday contends that all activities key to Integris’ claims occurred outside North Carolina:
(a) Integris initiated business contact with the nonresident Barrday;
(AC ¶¶ 2, 16); (b) Integris “entered into an agreement with Barrday”
(Id. ¶ 16); (c) Integris issued POs to Barrday under “[t]he mechanics
of the agreement” (Id. ¶ 18); and (d) Barrday “outsourced”
production outside North Carolina (Id. ¶¶ 81-84).
(Document No. 34, pp. 2-3).
Next, Barrday contends that Plaintiff’s claims do not arise out of activities directed at the
state. (Document No. 34, p. 3). Instead, “the opposite is true: the core allegation underlying
multiple Integris claims is that Barrday “fail[ed] to fulfill all [POs] at [a] Charlotte, NC facility.”
Id. (citing Document No. 30, ¶¶ 144, 181).
Finally, Barrday argues that the exercise of personal jurisdiction here would not be
“constitutionally reasonable.” Id. Barrday asserts that North Carolina has no discernible interest
in adjudicating a dispute over what did not happen in North Carolina, nor any “substantive social
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policies” to be furthered by doing so.” Id. (citing Consulting Eng., 561 F.3d at 279). Defendant
Barrday concludes that “Integris has not come close to establishing personal jurisdiction” and that
Integris “would have been best served by selecting a forum with jurisdiction over Barrday.” Id.
In its “Response In Opposition To Defendant’s Motion To Dismiss” Integris argues that it
has adequately alleged personal jurisdiction over Barrday. (Document No. 38, pp. 6-8). Integris
first asserts that “[t]his argument is disingenuous at best” because Barrday did not raise the issue
in its original “...Motion To Dismiss...” (Document No. 15). Id.
Regarding the elements required to establish specific jurisdiction, Integris first suggests
that it “alleged plenty of facts” that Barrday purposefully availed itself of the privilege of
conducting activities in North Carolina because it has alleged that: “Barrday told Integris that
Barrday would toll convert the S-Glass fiber at the Charlotte facility”; Integris relied on those
“material” representations by Barrday; and “the toll conversion did not, in fact, occur in Charlotte,
resulting in excess selvage or waste.” (Document No. 38, p. 7).
Next, Integris seems to argue that its claims arise out of Barrday’s activities directed at
North Carolina because “Barrday leveraged its North Carolina connections and business
operations to convince Integris to continue carrying out the business relationship.” Id.
Finally, Plaintiff argues that “[a]s to factors supporting the appropriateness of the forum
and ‘constitutional reasonableness,’ Integris has alleged a plethora of facts implicating conduct in
North Carolina, or that should have been undertaken in North Carolina.” (Document No. 38, p. 8)
(citing Document No. 30, ¶¶ 35-38, 52-53, 76-78, 82, 84-85, 106, 181). Plaintiff Integris also
suggests that this Court should find jurisdiction because it has attached Purchase Orders to the
Amended Complaint that identify Barrday as a vendor with a Charlotte, North Carolina address.
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Id. (citing (Document No. 30-2). Integris concludes that “there is no meritorious basis to dispute
specific personal jurisdiction over Barrday arising out of the allegations in this case.” Id.
In reply, Barrday first asserts that “Integris alleges that nothing happened in North
Carolina, undermining its allegations regarding jurisdiction and the applicability of North
Carolina’s Unfair and Deceptive Trade Practices Act.” (Document No. 41, p. 1). Barrday goes
on to note that
In its Opposition, Integris doubles down on its assertion that the only
connection this lawsuit has with North Carolina is what Integris
alleges did not occur at a Charlotte, NC facility. See Opposition, p.
7 (admitting that Integris alleged “that the toll conversion did not, in
fact, occur in Charlotte…”). Furthermore, Integris cites to no case
whatsoever where allegedly offering to perform work in a given
state and then failing to actually perform that work in the state is an
adequate basis to confer personal jurisdiction.
(Document No. 41, p. 4).
In addition, Barrday argues that Integris addressing Purchase Orders to Barrday in North
Carolina – describes Integris’ conduct, not purposeful availment by Barrday. (Document No. 41,
pp. 4-5). Barrday also argues that this Court should “not consider the Opposition’s unsupported
allegation that Barrday ‘leveraged its North Carolina connections,’ as that allegation is found
nowhere in the Amended Complaint itself and as such cannot be considered by the Court.”
(Document No. 41, p. 5) (citation omitted).
Based on the foregoing, and applying the elements set forth by the Fourth Circuit, the
undersigned is not persuaded that Plaintiff Integris has adequately established that this Court has
specific jurisdiction over Defendant Barrday. See New Wellington Fin. Corp. v. Flagship Resort
Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005).
As an initial matter, the undersigned must first address Plaintiff’s assertion that
Defendant’s argument regarding a lack of personal jurisdiction “is disingenuous at best.” See
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(Document No. 38, p. 6). Based on Plaintiff’s statement, and on the Amended Complaint, it
appears that Plaintiff missed the following admonition by the Court:
In addition, the undersigned suggests that an Amended Complaint
should more fully address the jurisdiction of this Court over this
matter. Although Defendant does not challenge jurisdiction, the
undersigned notes that the Complaint alleges little, if any,
connection to support personal jurisdiction over Defendant.
(Document No. 28, p. 11) (emphasis added).
Plaintiff is correct that Defendant did not previously raise a question about jurisdiction, but
the Court did raise such a question – as the undersigned believes it has a responsibility to do when
it appears that jurisdiction may be lacking. Id. It appears that Plaintiff missed the undersigned’s
suggestion regarding jurisdiction when it amended the Complaint. Compare (Document No. 1, p.
2 and Document No. 30, p. 2). Defendant did address the Court’s concern in its motion to dismiss
and brief in support. (Document No. 33 and Document No. 34, pp. 2-3).
Next, the undersigned notes that Plaintiff Integris argues that it has “alleged a plethora of
facts implicating conduct in North Carolina, or that should have been undertaken North Carolina”;
however, most, if not all, of those alleged facts involve the repeated allegation that Barrday
represented that it would toll convert S-Glass fiber at a facility in Charlotte, North Carolina.
(Document No. 38, p. 8) (citing Document No. 30, ¶¶ 35-38, 52-53, 76-78, 82, 84-85, 106, 181)
(emphasis added). Integris makes the same factual allegation multiple times; it does not allege “a
plethora of facts” supporting jurisdiction. (Document No. 30).
Moreover, the crux of Plaintiff’s lawsuit is that Defendant Barrday did not actually
complete any work in North Carolina as it had allegedly represented it would. See (Document No.
38, p. 7) (citing Document No. 30, ¶ 76); see also (Document No. 30, pp. 1, 12-13, 15-17, 20).
As Defendant notes, Plaintiff does not cite any legal authority supporting its opposition to
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Defendant’s personal jurisdiction argument, much less any authority suggesting that a
representation by a party that it intends to do something in a certain jurisdiction supports a finding
that it has purposefully availed itself of the privilege of conducting activities in that jurisdiction.
(Document No. 38, pp. 7-8).
The undersigned finds the following language from a decision issued by Judge Conrad to
be instructive here: “[a]lthough the plaintiff need only prove a prima facie case of personal
jurisdiction, he can’t rely on conclusory statements or bare allegations—he must allege “specific
acts connecting [the] defendant with the forum.” Julian v. Bank of Am., N.A., 3:16-CV-173-
RJC, 2017 WL 3971280, at *2 (W.D.N.C. Sept. 8, 2017) (quoting Second Amend. Found. v. U.S.
Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks omitted) (emphasis
added). In short, Plaintiff has not alleged any specific acts connecting Defendant with this forum.
If anything, Plaintiff has alleged a failure by Defendant to take action in North Carolina.
(Document No. 30).
As noted above, the Amended Complaint shows that Integris is a citizen of California and
Ohio, and that Barrday is a citizen of Delaware and Canada. (Document No. 30, p. 2). The
Amended Complaint is silent as to where and when the purported underlying contract was
negotiated or signed, or by whom. (Document No. 30). The Amended Complaint does not allege
that the contract formation, any communications between the parties, or any actual work or conduct
related to the claims in this lawsuit occurred in North Carolina. Id.
Contrary to the allegation that “Barrday clearly and unambiguously contracted with
Integris” to fulfill all purchase orders from Integris “at Barrday’s Charlotte, North Carolina and
Millbury, Massachusetts facilities,” Plaintiff fails to identify any such agreement, much less a clear
and unambiguous agreement. (Document No. 30, p. 15) (emphasis added). The closest Plaintiff
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comes to alleging evidence of such an agreement is its reference to a letter written by Barrday’s
president, in or about October 2021, stating that “Barrday would, on a best effort basis, toll
convert fiber at our Charlotte, NC facility and the coat the fabric at our Millbury, MA facility.”
(Document No. 30, p. 6; Document No. 30-3) (emphasis added).
The undersigned observes, inter alia, that the letter from the Barrday president in or about
October 2021, was provided long after the alleged submission (and completion?) of Plaintiff’s
eight (8) Purchase Orders dated from December 2014 through August 2019, that allegedly support
Plaintiff’s claims. See (Document No. 30, p. 8; Document No. 30-2). The letter was addressed
to Plaintiff’s president in Hebron, Ohio, and had a return address for Barrday in Millbury,
Massachusetts. (Document No. 30-3). The letter references discussions by the parties in or about
2014, and states that “we both agreed not to put the toll converting agreement in place as we felt
we had a good two-way partnership and agreed to put our best efforts towards supplying the
contract.” Id. (emphasis added). The letter seems somewhat vague and ambiguous but suggests
that the parties agreed not to execute a toll converting agreement. Id. Therefore, Defendant’s
letter attached to the Amended Complaint indicates that there was not an agreement that toll
converting had to occur in North Carolina, and in fact, such toll converting did not occur in North
Carolina. Id. see also (Document No. 30).
The Supreme Court has held that “[f]or a State to exercise jurisdiction consistent with due
process, the defendant’s suit-related conduct must create a substantial connection with the forum
State.” Crum & Forster Spec. Ins. Co. v. Edge Investors, L.P., 3:14-CV-027-RJC-DCK, 2014 WL
12738933, at * 9 (W.D.N.C. Aug. 7, 2914) (quoting Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014))
(emphasis added). The undersigned finds that Defendant Barrday’s suit-related conduct created
little, if any, connection with North Carolina.
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After careful consideration of the parties’ arguments and relevant legal authority, the
undersigned will respectfully recommend that “Defendant’s Motion To Dismiss The Amended
Complaint...” be granted for lack of personal jurisdiction. The undersigned finds that the lack of
jurisdiction provides an adequate basis for dismissal. See Zhang v. United Health Grp., Inc., 5:23-
CV-194-KDB-SCR, 2024 WL 3576456, at *3 (W.D.N.C. June 28, 2024), adopted by 2024 WL
3571740 (W.D.N.C. July 29, 2024) (“Having concluded that the Court lacks personal jurisdiction
over both Defendants, as discussed below, the Court need not reach the [other] requests to
dismiss”); see also Malone v. Breggin, 2024 WL 1315910, at *7 (W.D.Va. Mar 27, 2024) (finding
the Court need not rule on the merits of the case “when it was clear there was no personal
jurisdiction over Defendants”).
The undersigned notes that wherever jurisdiction is appropriate, it appears that at least
Plaintiff’s claim for unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-Integris Projects)
should survive since Defendant does not seek dismissal of that claim. Although Defendant has
again suggested that Plaintiff, in the alternative to dismissal, should be required to amend and
provide a more definite statement, the undersigned is reluctant to recommend further amendment
since Plaintiff was unwilling or unable to do so successfully before – and, at least based on the
record before the Court, cannot adequately establish personal jurisdiction. Instead, the
undersigned will recommend that this action be dismissed, without prejudice to Plaintiff Integris
bringing viable claims in another forum that has jurisdiction over Defendant Barrday.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant’s Motion To Dismiss The Amended Complaint Pursuant To Rules 8, 9(b), 12(b)(2),
12(b)(6) [and 12(e)]” (Document No. 33) be GRANTED.
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V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.
Signed: September 30, 2024
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