AIRTRON, INC. v. HEINRICH, 2024 NCBC 18

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22CVS009465-590
AIRTRON, INC.,
Plaintiff,
v.
BRADLEY ALLEN HEINRICH,
Defendant.
ORDER AND OPINION
ON MOTION FOR SANCTIONS
1. 	For the second time, Plaintiff Airtron, Inc. has moved to sanction Defendant
Bradley Allen Heinrich for disobeying the Court’s discovery orders and related
litigation misconduct. 	(Pl.’s Mot. Sanctions, ECF No. 73.) 	As discussed below, the
Court GRANTS the motion.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Paul S. Holscher
and Charlotte C. Smith, for Plaintiff Airtron, Inc.
Defendant Bradley Allen Heinrich appeared pro se.
Conrad, Judge.
I.
FINDINGS OF FACT
2. 	Airtron sued Heinrich in June 2022, along with several others who have
since settled or otherwise been dismissed. 	The amended complaint asserts claims
against Heinrich for misappropriation of trade secrets and unfair or deceptive trade
practices under N.C.G.S. § 75-1.1.
3. 	Discovery 	quickly went 	off 	track. 	Airtron 	served interrogatories 	and
requests 	for 	production 	of 	documents 	in 	October 	2022. 	Heinrich, 	who 	was
represented by counsel at the time, responded to one of the requests for production
Airtron, Inc. v. Heinrich, 2024 NCBC 18.

but not the other twenty-seven or the interrogatories. Shortly afterward, Heinrich’s
counsel withdrew. Heinrich did not retain new counsel. Nor did he serve responses
to the rest of Airtron’s discovery requests.
4. 	This prompted Airtron to submit a Business Court Rule (“BCR”) 10.9
discovery dispute summary in January 2023. 	Heinrich did not respond to that
submission. The Court convened a conference, which Airtron’s counsel attended and
which Heinrich attended without counsel. 	Because Heinrich conceded that he had
responded to just one of Airtron’s discovery requests, the Court ordered him to “serve
full and complete responses.” (Order Following BCR 10.9 Conference, ECF No. 52.)
5. 	Following that order, Heinrich sent a document containing his interrogatory
responses to Airtron’s counsel. 	The document was unsigned and included no
responses to the requests for production. (See Pl.’s Ex. 6, ECF No. 59.6.) Citing these
and other deficiencies, Airtron submitted a second BCR 10.9 discovery dispute.
Again, Heinrich did not respond to the submission. 	Rather than hold another
conference, the Court authorized Airtron “to file a discovery motion as permitted by
BCR 10.9(c).” (Order on Airtron’s BCR 10.9 Submission, ECF No. 54.)
6. 	Airtron did so. Its motion, though styled as a motion to compel, was chiefly
a motion for sanctions. Airtron sought not only complete discovery responses but also
an order shifting some of its attorney’s fees to Heinrich, striking his answer, and
entering a default judgment against him. 	(See Pl.’s Mot. Compel, ECF No. 59.)
Having earlier chosen not to respond to either of Airtron’s BCR 10.9 submissions,
Heinrich also chose not to file a brief opposing its motion.

7. 	Following a hearing attended by Heinrich and counsel for Airtron, the Court
granted the motion to compel in part. 	It was plain that Heinrich had not fully and
completely responded to the discovery requests as ordered. 	Indeed, he had not
responded to the requests for production at all. And his responses to interrogatories
1–4, 7–11, 14, 16, 18, 24, and 27 were deficient. 	But the Court stopped short of
striking Heinrich’s answer and entering a default judgment, instead giving him a
second chance to complete his responses and requiring him to pay some of the
attorney’s fees that Airtron incurred in pursuing its motion. The Court also warned
Heinrich that he would face more severe sanctions for future violations. (See Order
on Motion to Compel, ECF No. 69.)
8. 	In response to that order, Heinrich filed his amended responses on the
Court’s electronic docket (rather than serving them on Airtron). 	He partially
supplemented the responses to Airtron’s interrogatories but once more neglected to
respond to the unanswered requests for production in any way. 	(See Responses to
Pl.’s Interrogatories and Requests for Production, ECF No. 72.)
9. 	Dissatisfied, Airtron moved for sanctions under North Carolina Rule of Civil
Procedure 37(b)(2), repeating its earlier request to strike Heinrich’s answer and enter
a default judgment. (See Pl.’s Mot. Sanctions.) Heinrich did not respond to the motion
for sanctions, which means it is deemed uncontested. See BCR 7.6. The Court held
a hearing on 14 February 2024, at which Heinrich and counsel for Airtron appeared.
10. 	In the weeks after the hearing, the Court ordered Heinrich to pay $3,974.40
to Airtron in connection with the earlier motion to compel and to certify compliance

on or before 1 March 2024. (See Order on Pl.’s Fee Pet., ECF No. 78.) Heinrich did
not certify compliance, and Airtron’s counsel has represented (via e-mail to the
Court’s law clerk and copying Heinrich) that it has not received payment.
II.
CONCLUSIONS OF LAW
11. 	It is undisputed that Heinrich has not complied with the Court’s order on
Airtron’s motion to compel. 	The Court directed Heinrich to respond fully and
completely to Airtron’s requests for production, to produce responsive documents in
his possession, and to identify any requests for which no responsive documents exist.
But he has not responded to the requests for production at all.
12. 	Many of his interrogatory responses also remain deficient. As examples, he
has given only generalities in response to interrogatories 1 and 3 (which ask for
information 	related 	to 	communications 	involving 	Airtron, 	its 	confidential
information, its customers, and similar matters), interrogatory 14 (which asks for
information concerning his separation from a past employer), and interrogatory 16
(which asks for information related to communications involving two of Airtron’s
confidential documents). 	In addition, Heinrich’s response to interrogatory 27 is
nearly identical to the response the Court found deficient in the order on the motion
to compel.
13. 	When a party fails to comply with a discovery order, the Court “may make
such orders in regard to the failure as are just.” N.C. R. Civ. P. 37(b)(2). “The sanction
imposed should be proportionate to the gravity of the offense.” 	Kixsports, LLC v.
Munn, 2019 NCBC LEXIS 62, at *26 (N.C. Super. Ct. Sept. 30, 2019) (quoting

Montaño v. City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008)). 	Thus, the Court
should impose severe sanctions—such as “striking out pleadings” and “rendering a
judgment by default against the disobedient party,” N.C. R. Civ. P. 37(b)(2)(c)—only
after considering lesser sanctions and finding them inadequate. See Few v. Hammack
Enters., Inc., 132 N.C. App. 291, 299 (1999). The choice of sanctions is a decision lying
within the sound discretion of the trial judge. 	See Feeassco, LLC v. Steel Network,
Inc., 264 N.C. App. 327, 337 (2019).
14. 	Here, Heinrich’s repeated failures to comply with the Court’s discovery
orders merit severe sanctions, including striking his answer and entering default
judgment against him.
15. 	The Court has considered lesser sanctions and finds them to be insufficient.
This is Heinrich’s second failure to obey a discovery order, and the relatively light
sanctions imposed after the first failure seem to have had no effect. That Heinrich is
representing himself is no excuse. 	In its previous order, the Court gave him the
benefit of the doubt that his incomplete responses had more to do with his lack of
familiarity with civil litigation than a willful disregard for the judicial process. The
same cannot be said now. Heinrich defaulted on his discovery obligations even after
receiving clear instructions to cure the deficient responses and a clear warning that
severe sanctions could follow if he did not.* His utter indifference to the requests for
production goes beyond noncompliance. It is dereliction. And there is little reason to
believe that he would fulfill his obligations if given yet another chance.
* It bears noting, too, that the Court took pains to explain the discovery process and the
consequences of noncompliance at several in-person hearings and conferences.

16. 	Moreover, the prejudice to Airtron is undeniable. 	Its discovery requests
have been pending well over a year. 	By not responding or responding with
generalities, 	Heinrich 	has 	stymied 	Airtron’s 	efforts 	to 	investigate 	its 	claims.
Likewise, his failure to meet his discovery obligations has frozen this litigation in
place, forced Airtron to waste time and money to compel responses, and foreclosed a
resolution on the merits.
17. 	A few aggravating factors also favor severe sanctions. 	First, Heinrich has
disobeyed other orders, including the recent order to reimburse Airtron for nearly
$4,000 in attorney’s fees incurred in connection with its motion to compel. (See Order
on Pl.’s Fee Pet.) 	Second, Airtron has offered unrebutted evidence that Heinrich
made false statements in his interrogatory responses. 	(See Bentley Dep. 109:12–
112:17, ECF No. 73.3; Poccia Aff. ¶¶ 12, 31, ECF No. 73.1.) 	Third, Airtron has also
offered unrebutted evidence that Heinrich mistreated the court reporter during his
deposition. (See Ruiz-Uribe Aff. ¶¶ 2–3, ECF No. 67.1; Holscher Aff. ¶¶ 4–5, ECF No.
67.2.)
18. 	In summary, Heinrich has stalled the progress of this case, prejudiced
Airtron, and wasted judicial resources. 	The Court concludes that severe sanctions
are warranted and will therefore strike his answer and enter default judgment
against him.
19. 	A default judgment is appropriate only if the allegations of the amended
complaint are adequate to state a claim. The Court has carefully reviewed Airtron’s
allegations and concludes that they suffice to support a default judgment on its claims

for misappropriation of trade secrets and unfair or deceptive trade practices under
section 75-1.1, which are the only claims pleaded against Heinrich. 	See Brown v.
Cavit Scis., Inc., 230 N.C. App. 460, 467 (2013) (holding that, for purposes of default
judgment, “if any portion of the complaint presents facts sufficient to constitute a
cause of action, or if facts sufficient for that purpose fairly can be gathered from it,
the pleading will stand” (cleaned up)).
20. 	A 	trade 	secret 	is 	“business 	or 	technical 	information” 	that 	“[d]erives
independent actual or potential commercial value from not being generally known or
readily ascertainable through independent development or reverse engineering” and
“[i]s the subject of efforts that are reasonable under the circumstances to maintain
its 	secrecy.” 	N.C.G.S. 	§ 66-152(3). 	Misappropriation 	means 	the 	“acquisition,
disclosure, or use of a trade secret of another without express or implied authority or
consent, unless such trade secret was arrived at by independent development, reverse
engineering, or was obtained from another person with a right to disclose the trade
secret.” 	Id. § 66-152(1). 	To plead a claim for misappropriation of trade secrets, a
plaintiff must identify with particularity the trade secrets allegedly misappropriated.
Krawiec v. Manly, 370 N.C. 602, 609–10 (2018).
21. 	Here, Airtron alleges that it took precautions to maintain the secrecy of
specific information that it produced and that derived commercial value from not
being known to Airtron’s competitors, including heating and cooling load calculations
for customers’ residences, a template used to prepare load calculations, HVAC design
layouts based on those calculations, and price information. 	Further, it alleges that

Heinrich acquired this information from one of Airtron’s employees and then used it,
all without Airtron’s consent. (See, e.g., Am. Compl. ¶¶ 41–68, 100–11, 145–50, 179–
84, 	241–48, 	ECF 	No. 	18.) 	These 	allegations 	adequately 	state 	a 	claim 	for
misappropriation of trade secrets.
22. 	It follows that Airtron has also stated a claim under section 75-1.1. To plead
a claim under this section, a plaintiff must allege that the defendant engaged in an
unfair or deceptive act or practice in or affecting commerce that injured the plaintiff.
See GE Betz, Inc. v. Conrad, 231 N.C. App. 214, 236 (2013). 	These elements are
satisfied by Airtron’s allegations of misappropriation of trade secrets. See id.
23. 	Accordingly, 	the 	Court 	concludes 	that 	Airtron 	has 	stated 	claims 	for
misappropriation of trade secrets and unfair or deceptive trade practices under
section 75-1.1. 	The Court will therefore enter a default judgment as to liability,
leaving a determination of Airtron’s damages—including whether it is entitled to the
punitive damages and attorney’s fees that it seeks—to a future proceeding.
III.
CONCLUSION
24. 	For all these reasons, the Court GRANTS Airtron’s motion and ORDERS
as follows:
a. 	Heinrich’s answer, including all affirmative defenses asserted therein,
is STRICKEN.
b. 	Default judgment is ENTERED as to liability on Airtron’s claims
against Heinrich, and this matter shall proceed to a determination of
Airtron’s damages.

SO ORDERED, this the 12th day of March, 2024.
/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases