BLUSKY RESTORATION CONTRACTORS, LLC v. SASSER COS., 2024 NCBC 50

STATE OF NORTH CAROLINA
GUILFORD COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23CVS004844-400
BLUSKY RESTORATION
CONTRACTORS, LLC, and BLUSKY
HOLDCO, LLC,
Plaintiffs,
v.
SASSER COMPANIES, LLC,
Defendant.
ORDER AND OPINION ON MOTION
OF DEFENDANT SASSER
COMPANIES, LLC FOR PARTIAL
JUDGMENT ON THE PLEADINGS
1. 	THIS MATTER is before the Court on the 1 March 2024 filing of the
Motion of Defendant Sasser Companies, LLC for Partial Judgment on the Pleadings
(the “Motion”). (ECF No. 23 [“Mot.”].) Pursuant to Rule 12(c) of the North Carolina
Rules of Civil Procedure (the “Rule(s)”), Defendant Sasser Companies, LLC (“Sasser”)
requests dismissal of seven of Plaintiffs’ eight claims alleged in the First Amended
Complaint. (See Mot.; First Am. Compl., ECF No. 11 [“Am. Compl.”].)
2. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motion.
Akerman, LLP, by Bryan G. Scott, Adam L. Massaro, and Jasmine M.
Pitt, for Plaintiffs BluSky Restoration Contractors, LLC and BluSky
HoldCo, LLC.
Wagner Hicks, PLLC, by Sean C. Wagner, Jonathon D. Townsend, and
Meagan L. Allen for Defendant Sasser Companies, LLC.
Robinson, Judge.
BluSky Restoration Contractors, LLC v. Sasser Cos., 2024 NCBC 50.

I. 	INTRODUCTION
3. 	This action arises out of Plaintiffs’ contention that Steven W. Brown
(“Brown”), a former employee, left BluSky Restoration Contractors, LLC (“BluSky
Restoration”) for Sasser, a local competitor. 	Plaintiffs are presently engaged in
related litigation with Brown and now seek to hold Sasser accountable for what
Plaintiffs contend amounts to impermissible interference with contracts and a
conspiracy. 	The Court now considers the pleadings before it to determine whether
Sasser is entitled to judgment as a matter of law.
II. 	FACTUAL BACKGROUND
4. 	The Court does not make findings of fact on a Rule 12(c) motion for
judgment on the pleadings and draws the following factual background from a review
of the pleadings.
A. 	The Parties
5. 	Plaintiffs BluSky Restoration and BluSky HoldCo, LLC (“BluSky HoldCo”;
with BluSky Restoration, “Plaintiffs”) are Delaware limited liability companies, both
with their principal place of business in Colorado. 	(Am. Compl. ¶¶ 2–3.) 	BluSky
Restoration is registered to do business in North Carolina and is a subsidiary of
BluSky HoldCo. (Am. Compl. ¶ 2.) BluSky Restoration is a national restoration firm
with “over forty corporate and regional office locations in nineteen states across the
United States” including four offices in North Carolina. (Am. Compl. ¶¶ 7–8.)
6. 	Sasser is a North Carolina limited liability company with its principal place
of business in Whitsett, North Carolina. 	(Am. Compl. ¶ 4; Defenses & Answer of

Sasser 	¶ 4, 	ECF 	No. 	12 	[“Answer”].) 	Sasser 	also 	performs 	restoration 	and
remediation work, (Answer ¶ 15), with an office roughly twenty miles from BluSky
Restoration’s Greensboro, North Carolina location, (Am. Compl. ¶ 15). 	Plaintiffs
allege that “Sasser is a direct, national competitor of BluSky Restoration[,]” (Am.
Compl. ¶ 15), which Sasser denies, (see Answer ¶¶ 15, 55, 74, 84).
B. 	Sasser’s Alleged Recruitment of Plaintiffs’ Employees
7. 	Plaintiffs allege that Sasser began “recruiting and soliciting” Plaintiffs’
current 	and former 	employees 	around 2019, resulting in Sasser hiring 	six of
Plaintiffs’ former employees including, in no particular order, Brown, Paul Miller
(“Miller”), David Duta, Jerry Arevalo, Miguel Figueroa (“Figueroa”), and Wenceslao
Salas. (Am. Compl. ¶¶ 20–21; Answer ¶ 21.) Of particular relevance to this action is
Sasser’s hiring of Brown in 2021 and its subsequent hiring of Miller. (See Am. Compl.
¶¶ 27, 114–15.)
8. 	At BluSky Restoration, Brown was the National Director of Restoration,
meaning he managed the national team and engaged in restoration work. 	(Am.
Compl. ¶¶ 25, 98.) 	In March 2021, “Brown was a Series B Common Unit limited
partner and owner of BluSky Management Incentive, LP [(“BMI”)], a limited liability
partnership [among] BluSky HoldCo, LLC, BluSky Management Incentive GP, LLC
and various individuals[.]” 	(Am. Compl. ¶ 30.) 	As a limited partner in BMI and an
alleged member in BluSky HoldCo, Plaintiffs aver that Brown was bound by both the
Limited Partnership Agreement of BMI (the “LP Agreement”) and the Amended and

Restated 	Limited 	Liability 	Company 	Agreement 	of 	BluSky 	HoldCo 	(the 	“LLC
Agreement”). (Am. Compl. ¶¶ 30–31.)
9. 	Plaintiffs allege that the LP Agreement imposed duties of loyalty and care
on Brown and the other limited partners, which duties they owed to both BMI and
the subsidiaries of BluSky HoldCo, including BluSky Restoration. (Am. Compl. ¶ 41.)
Plaintiffs allege that (1) Sasser was “aware” that Brown was subject to restrictive
covenants and owed Plaintiffs fiduciary duties; (2) Figueroa, Sasser’s Chief Operating
Officer (“COO”), was aware of these facts from his own experience working for
Plaintiffs; and (3) Sasser actually reviewed the LP Agreement and continued
recruiting Brown despite its knowledge of Brown’s contractual obligations. (See Am.
Compl. ¶¶ 41–43; Answer ¶¶ 41–42.)
1. 	Background on Agreements Between Plaintiffs and Brown
10. 	Plaintiffs allege that Brown was party to three contracts that contain
confidentiality, non-solicitation, and noncompete provisions: the LP Agreement; the
LLC 	Agreement; 	and 	the 	Confidentiality, 	Noncompetition 	and 	Nonsolicitation
Agreement (“2017 Agreement”). 	(Am. Compl. ¶¶ 30–31, 34, 36.) They contend that
the restrictive covenants in these contracts are “substantially similar” as to their
terms. (See Am. Compl. ¶ 37.)
11. 	Plaintiffs allege that, under these agreements, Brown agreed “to keep
confidential all non-public information, including but not limited to, business or trade
secrets . . . , price lists, methods, formulas, know-how, customer and supplier lists,

distributor lists, product costs, marketing plans, research and development and
financial information . . . .” (Am. Compl. ¶ 118; see Answer ¶ 118.)
12. 	As discussed above, Plaintiffs also allege that the LP Agreement and LLC
Agreement provide that Brown, as an employee of BluSky Restoration, owed the
company fiduciary duties of loyalty and care in the performance of his duties. 	(Am.
Compl. ¶ 39.)
2. 	Sasser’s Recruitment and Hiring of Brown
13. 	Plaintiffs allege that in the Spring of 2021, Figueroa “began communicating
with Brown about . . . coming to work for Sasser.” (Am. Compl. ¶ 27.) In March 2021,
Brown had dinner with Figueroa and Sasser partners Houston Summers and
Sebastian Williams. (Am. Compl. ¶ 29.)
14. 	Plaintiffs further allege that, in July 2021, Sasser provided Brown with a
proposed compensation plan if he came to work for Sasser, and that the proposal
“included an artificially high salary increase and other benefits[.]” (Am. Compl. ¶ 44.)
The compensation package was allegedly Sasser’s attempt to “entice Brown” to
violate the described restrictive covenants and to breach his fiduciary duties owed to
Plaintiffs. (Am. Compl. ¶¶ 45–46.)
15. 	Sasser’s proposal included an offer of “equity and net revenue sharing,” that
“was contingent on Brown’s dealings with Sasser occurring without detection.” (Am.
Compl. ¶ 49.) 	According to Plaintiffs, Sasser “expressed to Brown [that] it would
indemnify him for liability related to BluSky that might arise from his wrongful
conduct.” (Am. Compl. ¶ 48.)

16. 	Plaintiffs allege that “Sasser did not just extend fair offers of employment
in the ordinary course of legitimate business competition[,]” but rather used non-
public 	information 	received 	from 	Brown 	to 	induce 	other 	individuals 	to 	leave
Plaintiffs. (See Am. Compl. ¶ 117.)
17. 	On 8 July 2021, Sasser offered Brown the position of Vice President of
Operations. 	(Am. Compl. ¶ 50; Answer ¶ 50.) 	Brown accepted that offer and
“executed an agreement with Sasser in July 2021.” 	(Am. Compl. ¶ 50.) 	Plaintiffs
allege that Brown drafted a resignation notice around this time, but “deliberately did
not tender his resignation” because “he intended and planned to gather key files and
documents of BluSky to bring with him to Sasser, as well as to scout out key
employees to be poached by Sasser before his departure.” 	(See Am. Compl. ¶¶ 51–
52.)
18. 	Of particular relevance to this litigation, Plaintiffs allege that (1) on
19 May 2021, 	Brown 	emailed 	Figueroa 	a 	copy 	of 	the 	LP 	Agreement, 	(Am.
Compl. ¶ 41; Answer ¶ 41 (“Admitted that, on May 19, 2021, Brown emailed Figueroa
the LP Agreement”)), and (2) at some point, Brown shared with Sasser “a confidential
merger agreement” that set forth terms indicating that Brown was going to receive a
payout from Plaintiffs, (Am. Compl. ¶ 59; Answer ¶ 59 (“Admitted that, at some point
in time, Brown shared with Sasser a merger agreement.”)).
19. 	On 14 October 2021, Brown signed merger documents to receive a six-figure
payout from Plaintiffs for his units in BMI. 	(See Am. Compl. ¶¶ 53, 60, 66, 104.)
Brown received those funds some time before 25 October 2021. 	(Am. Compl. ¶ 79.)

The First Amended Complaint does not contain further detail regarding the BMI
merger or why Brown was entitled to receive “a six-figure payout from BluSky.” (See
Am. Compl. ¶ 60.)
3. 	Sasser’s 	Recruitment 	of 	Other 	BluSky 	Restoration
Employees
20. 	Plaintiffs also allege that Sasser recruited Miller from BluSky Restoration
in 2021. (See Am. Compl. ¶¶ 109–10.) Throughout November 2021, while Brown was
still working at BluSky Restoration, Figueroa communicated by text message with
Brown about Miller. 	(Am. Compl. ¶¶ 109, 111.) 	According to Plaintiffs, “poaching”
Miller would help Sasser build its asbestos remediation team to compete with
Plaintiffs. (Am. Compl. ¶ 110.)
21. 	Brown 	ultimately 	resigned 	from 	BluSky 	Restoration 	later 	in
November 2021, but he allegedly solicited information and employees from Plaintiffs
while working for Sasser. (Am. Compl. ¶ 112.) On 22 November 2021, for example,
Figueroa asked Brown, “where was Paul with [s]alary,” while at BluSky Restoration.
(Am. Compl. ¶ 113.) According to Plaintiffs, as a result of information Sasser got from
Brown, Sasser was able to offer Miller compensation for employment in an amount
higher than the amount he was making at BluSky Restoration. (Am. Compl. ¶ 113.)
22. 	Miller left BluSky Restoration, and on or about 3 January 2022 began
working at Sasser. (Am. Compl. ¶ 115.)
23. 	Plaintiffs allege that “Sasser tried to solicit other current and former
BluSky employees[,]” and it used “non-public information that Brown was uniquely

positioned to have because of his employment with BluSky Restoration” to induce at
least Brown and Miller to go to Sasser. (Am. Compl. ¶¶ 116–17.)
C. 	The Alleged Conspiracy Between Brown and Sasser
24. 	According to Plaintiffs, during the Summer of 2021, “Sasser and Brown
began a concerted and secretive effort to conceal that Brown . . . accepted the offer to
move from BluSky Restoration to Sasser.” 	(Am. Compl. ¶ 56.) 	This effort allegedly
allowed Brown to “serve as an embedded confederate” to identify and take Plaintiffs’
files 	and 	information, 	as 	well 	as 	identify 	which 	employees 	to 	poach. 	(Am.
Compl. ¶ 56.) In this way Plaintiffs allege that Brown was able to avoid termination
for cause, which would have resulted in Brown forfeiting the merger payout, salary,
and other benefits. (Am. Compl. ¶¶ 58, 104.)
25. 	Plaintiffs allege that Brown and Sasser’s conduct during this period
evidences their intent to conceal their activities, pointing to text messages between
them “where they even conferred over ‘distractions’ Brown planned” in order to
deceive 	Plaintiffs, 	including 	misrepresenting 	his 	reason 	for 	leaving 	BluSky
Restoration. (Am. Compl. ¶ 57.)
26. 	Plaintiffs 	allege 	that on 14 October 2021, 	Brown signed the 	merger
documents to receive his “payout.” 	(See Am. Compl. ¶ 60; supra ¶ 19.) 	Brown also
signed Letters of Transmittal for the LP Agreement and LLC Agreement. 	(Am.
Compl. ¶ 66.) 	In Plaintiffs’ view, by signing the Letters of Transmittal Brown
represented that he complied, and would continue to comply, with the obligations set
forth in the LP Agreement and LLC Agreement. (Am. Compl. ¶ 72.) Plaintiffs allege

that this was “a material fact that directly impacted [Brown’s] entitlement to receive
the merger payout.” (Am. Compl. ¶ 73.)
27. 	Plaintiffs 	allege 	that 	Brown 	remained 	at 	BluSky 	Restoration 	for
approximately one month after the merger payout, “consistent with the plan he had
made with Sasser” to avoid suspicion. (Am. Compl. ¶ 77.)
28. 	On 25 October 2021, Brown presented his resignation notice to BluSky
Restoration. 	(Am. Compl. ¶ 79.) 	He informed Mike Erekson that he was resigning
to spend more time with family, and that he was unsure what he was going to do
next.1 	(Am. Compl. ¶ 79.) 	Plaintiffs allege that on the same day, Brown “drafted
talking points to aid him in his effort to conceal his plans[.]” (Am. Compl. ¶ 81.) One
such talking point was, “I am not a threat,” intended to convince Plaintiffs to release
Brown from the restrictive covenants in his agreements with BluSky Restoration.
(Am. 	Compl. 	¶¶ 81–82.) 	Brown 	and 	Figueroa 	communicated 	about 	Brown’s
“departure strategy and plan to deceive” Plaintiffs. (Am. Compl. ¶ 83.)
29. 	Plaintiffs allege that Sasser induced Brown to consult with it about
Plaintiffs’ profit margins and to provide information on at least one Sasser client
before Brown’s last day at BluSky Restoration. (Am. Compl. ¶ 84.)
30. 	Brown signed a new offer letter with Sasser on 5 November 2021, an act
Plaintiffs allege was “to make it appear as though Brown had not actually accepted
employment with Sasser months before[.]” 	(Am. Compl. ¶ 85; see Answer ¶ 85.)
1 Mike Erekson’s role at BluSky Restoration is not alleged in the pleadings. (See Am. Compl.;
Answer.)

Plaintiffs allege, in some detail, efforts Sasser and Brown purportedly used to conceal
“their plans and Brown’s hiring[.]” (See Am. Compl. ¶¶ 87–89; Answer ¶¶ 87–88.)
31. 	Brown’s last day at BluSky Restoration was 19 November 2021. 	(Am.
Compl. ¶¶ 92, 112.)
D. 	Brown’s Last Day with BluSky Restoration and After His Start at
Sasser
32. 	Prior to leaving BluSky Restoration, Brown allegedly (1) deleted text
messages with Figueroa on his BluSky Restoration issued phone, (Am. Compl. ¶ 90);
(2) tampered with metadata on, and deleted files from, his company computer, (Am.
Compl. ¶¶ 90, 132); and (3) downloaded or otherwise copied files from the laptop
issued to him by Plaintiffs onto USB storage devices, (Am. Compl. ¶¶ 130–31, 143).
Plaintiffs also allege that Brown made “a mobile backup” of his BluSky Restoration
computer on 25 October 2021, (Am. Compl. ¶ 123), and that he transferred everything
from his company phone to a personal cellphone, (Am. Compl. ¶¶ 124, 126).
33. 	The 	documents 	Brown 	accessed, 	downloaded, 	and 	transferred 	were
allegedly “documents that he believed would be helpful to Sasser in competing
against BluSky[.]” 	(Am. Compl. ¶ 134.) 	Plaintiffs allege that, during his final days
of work, “Brown was engaged in mining BluSky’s computers for sensitive financial
data for the purpose of downloading the documents to one or more external hard
drives and USB devices[.]” (Am. Compl. ¶ 142.)
34. 	On his last day at BluSky Restoration, Brown signed a Termination
Certification, acknowledging his resignation from BluSky Restoration and certifying
that he had returned all confidential information, trade secrets, copies of that

information, and any documents which evidence, refer, or relate to confidential or
trade secret information. (Am. Compl. ¶ 135.) Plaintiffs allege these representations
were false because Brown misappropriated BluSky Restoration’s documents and
information prior to turning in company devices. (Am. Compl. ¶¶ 136–38.)
35. 	Prior 	to 	and 	following 	his 	last 	day, 	Brown 	and 	BluSky 	Restoration
discussed 	the 	possibility 	of 	him 	continuing 	part-time 	employment. 	(See 	Am.
Compl. ¶¶ 157–73.) 	Plaintiffs allege that, in order “to have an orderly transition,”
they negotiated with Brown to allow BluSky Restoration “time to find adequate
replacement 	license 	holders 	and 	qualifying 	agents 	[to 	succeed 	Brown], 	where
necessary, without experiencing a lapse in licensure.” (Am. Compl. ¶ 159.)
36. 	Plaintiffs sent Brown a proposed part-time employment agreement on
16 November 2021. 	(Am. Compl. ¶ 160.) 	Plaintiffs offered Brown continuing part-
time work with the companies until they successfully transferred or assigned all
licenses Brown held and used in his employment for BluSky Restoration, and until
any litigation in which Brown was assisting had concluded. 	(Am. Compl. ¶ 161.)
Plaintiffs allege that Brown forwarded the proposal to Sasser and Figueroa the same
day. (Am. Compl. ¶¶ 164–65.)
37. 	Plaintiffs allege that they believed Brown was negotiating in good faith, but
that Sasser instructed Brown not to sign the proposed part-time employment
agreement or to otherwise enter into an agreement with Plaintiffs. 	(See Am.
Compl. ¶¶ 168, 171, 173.) 	Plaintiffs allege that Brown ultimately declined the

proposal 	for continued part-time 	employment 	with 	BluSky Restoration. 	(Am.
Compl. ¶ 172.)
38. 	Brown’s first day at Sasser was on or about 6 December 2021. 	(Am.
Compl. ¶ 92; Answer ¶ 92.) 	Brown became Sasser’s COO, a position that required
Brown to engage in “substantially the same type of restoration work” that was
required of him in his role at BluSky Restoration. 	(Am. Compl. ¶¶ 99–100; Answer
¶ 99.)
39. 	Plaintiffs allege that after Brown began work at Sasser he “opened and
accessed” Plaintiffs’ confidential and trade secret information on his Sasser-issued
computer. 	(Am. Compl. ¶ 146.) 	Plaintiffs allege that Brown had no authority to
retain, access, or use that information. 	(Am. Compl. ¶ 149.) 	Plaintiffs also allege
that Sasser refused to provide Brown with the equity and revenue sharing it initially
offered him. 	(See Am. Compl. ¶¶ 49, 133; Answer ¶ 133 (“Admitted that Brown did
not receive equity or revenue sharing in Sasser.”).)
E. 	Subsequent Litigation Between Plaintiffs and Brown
40. 	On 22 December 2021, BluSky Restoration initiated a lawsuit against
Brown seeking, in relevant part, enforcement of the restrictive covenants to which it
contends he was bound and to hold Brown accountable for misappropriation of trade
secrets. (See Am. Compl. ¶¶ 97, 101; Answer ¶ 97.) That action is captioned BluSky
Restoration Contractors LLC v. Brown (2021 CVS 10032; Guilford Cty.), (the “Brown
Litigation”), and remains pending in this Court.

41. 	Plaintiffs allege that they sent Sasser a copy of the above-described lawsuit
on or about 30 December 2021. (Am. Compl. ¶ 101.)
III. 	PROCEDURAL BACKGROUND
42. 	The Court sets forth herein only those portions of the procedural history
relevant to its determination of the Motion.
43. 	This action was initiated on the 2 May 2023 filing of Plaintiffs’ Complaint.
(ECF No. 3.) 	It was thereafter designated and assigned to the undersigned on
6 June 2023. (ECF Nos. 1–2.)
44. 	On 29 June 2023, Plaintiffs filed their First Amended Complaint (the
“Amended Complaint”) as a matter of right. (See Am. Compl.)
45. 	Plaintiffs allege eight claims for relief against Sasser, including: (1) BluSky
Restoration’s claims for (i) tortious interference with contract (“Count One”), (Am.
Compl. ¶¶ 174–92), (ii) tortious interference with prospective economic advantage
(“Count Two”), (Am. Compl. ¶¶ 193–206), (iii) misappropriation of trade secrets
(“Count Seven”), (Am. Compl. ¶¶ 286–306), and (iv) permanent injunctive relief
(“Count Eight”), (Am. Compl. ¶¶ 307–20); (2) BluSky HoldCo’s claim for tortious
interference 	with 	contract 	(“Count 	Three”), 	(Am. 	Compl. 	¶¶ 207–26); 	and
(3) Plaintiffs’ joint claims for (i) conspiracy to breach fiduciary duty (“Count Four”),
(Am. Compl. ¶¶ 227–33), (ii) conspiracy to commit fraudulent concealment and/or
omission (“Count Five”), (Am. Compl. ¶¶ 234–62), and (iii) conspiracy to commit fraud
(“Count Six”), (Am. Compl. ¶¶ 263–85).

46. 	Sasser filed its Defenses and Answer to the Amended Complaint on
31 July 2023. (See Answer.) These documents complete the pleadings in this matter.
47. 	Sasser filed the Motion, which has been fully briefed. On 24 May 2024, the
Court held a hearing on the Motion at which all parties were represented by counsel
(the “Hearing”). (See ECF No. 37.)
48. 	Having considered the Motion, briefing, and arguments of counsel at the
Hearing, the Motion is now ripe for resolution.
IV. 	LEGAL STANDARD
49. 	On a Rule 12(c) motion, “[t]he movant is held to a strict standard and must
show that no material issue of facts exists and that he is clearly entitled to judgment.”
Ragsdale v. Kennedy, 286 N.C. 130, 137 (1974); see also Carpenter v. Carpenter, 189
N.C. App. 755, 761 (2008). 	“[T]he court cannot select some of the alleged facts as a
basis for granting the motion on the pleadings if other allegations, together with the
selected facts, establish material issues of fact.” 	J. F. Wilkerson Contracting Co. v.
Rowland, 29 N.C. App. 722, 725 (1976).
50. 	In deciding a Rule 12(c) motion, the Court must read the pleadings in the
light most favorable to the nonmoving party, and
[a]ll well pleaded factual allegations in the nonmoving party’s pleadings
are taken as true and all contravening assertions in the movant’s
pleadings are taken as false. 	All allegations in the nonmovant’s
pleadings, 	except 	conclusions 	of 	law, 	legally 	impossible 	facts, 	and
matters not admissible in evidence at the trial, are deemed admitted by
the movant for purposes of the motion.
Ragsdale, 286 N.C. at 137 (citations omitted).

51. 	“Judgment on the pleadings is not favored by the law . . . .” Huss v. Huss,
31 N.C. App. 463, 466 (1976). 	The function of Rule 12(c) “is to dispose of baseless
claims or defenses when the formal pleadings reveal their lack of merit.” Ragsdale,
286 N.C. at 137. “[J]udgment on the pleadings is not appropriate merely because the
claimant’s case is weak and he is unlikely to prevail on the merits.” 	Huss, 31 N.C.
App. at 469. Rather, it “is allowable only where the pleading of the opposite party is
so fatally deficient in substance as to present no material issue of fact . . . .” George
Shinn Sports, Inc. v. Bahakel Sports, Inc., 99 N.C. App. 481, 486 (1990).
V. 	ANALYSIS
52. 	Through the filing of the Motion, Sasser seeks dismissal of all Plaintiffs’
claims except for Count Seven, misappropriation of trade secrets. 	(See Mot.) 	The
Court addresses the claims in order beginning with the tortious interference claims,
turning next to the conspiracy claims, and concluding with Plaintiffs’ claim for
permanent injunctive relief.
53. 	As part of the Motion, Sasser requests that the Court take judicial notice of
(1) all documents filed in the Brown Litigation, and (2) two of the contracts referenced
in the Amended Complaint. (Mot. 3–4.)
54. 	The Court’s consideration of a contract which is the subject matter of an
action does not expand the scope of a Rule 12 hearing. Oberlin Capital, L.P. v. Slavin,
147 N.C. App. 52, 60 (2001) (citations omitted). 	Consideration of the contracts does
not convert a motion for judgment on the pleadings into one for summary judgment.
Bank of Am., N.A. v. Rice, 244 N.C. App. 358, 370 (2015).

55. 	With these standards in mind, the Court reviews and considers the LP
Agreement and LLC Agreement, (ECF Nos. 23.2–.3), each of which are the subject of
Plaintiffs’ tortious interference claims and are referenced throughout the Amended
Complaint. “ ‘[P]laintiffs cannot complain of surprise when the trial court desires to
familiarize itself with the instrument upon which the plaintiffs are suing because the
plaintiffs 	have 	failed 	to 	reproduce 	or 	incorporate 	by 	reference 	the 	particular
instrument in its entirety in the complaint.’ ” 	Rice, 244 N.C. App. at 371 (quoting
Coley v. N.C. Nat. Bank, 41 N.C. App. 121, 126 (1979)). Accordingly, the Court takes
judicial notice of the contracts at issue.
56. 	However, the Court declines to take judicial notice of all filings in the Brown
Litigation at this juncture. 	See id. at 371–72 (discussing when it is appropriate for
the Court to consider matters outside the pleadings without converting a motion to
dismiss into one for summary judgment). The Motion is therefore DENIED to that
extent.
A. 	Counts One, Two, and Three: The Tortious Interference Claims
1. 	Counts One and Three: Tortious Interference with Contract
57. 	In Count One, BluSky Restoration alleges that Brown was bound by the
restrictive covenants in the LP Agreement, LLC Agreement, and 2017 Agreement,
and that Sasser, through Figueroa, induced Brown to breach those restrictive
covenants and his contractually imposed fiduciary duties. 	(See Am. Compl. ¶¶ 175,
184–87.) 	BluSky HoldCo alleges the same in Count Three, excluding only the 2017

Agreement. (See Am. Compl. ¶¶ 208–09, 218–21.) The Court therefore addresses the
claims together.
58. 	To state a claim for tortious interference with contract, a claimant must
allege the following: (1) a valid contract exists between the claimant and a third
person; (2) the opponent knows of the contract between claimant and the third party;
(3) the opponent intentionally induces the third person not to perform the contract
with claimant; (4) the opponent in doing so acts without justification; and (5) the
interference results in actual damage to claimant. United Labs., Inc. v. Kuykendall,
322 N.C. 643, 661 (1988) (citing Childress v. Abeles, 240 N.C. 667, 674 (1954)). This
Court has stated that “ ‘[t]he pleading standards for a tortious interference with
contract claim are strict.’ ” Charah, LLC v. Sequoia Servs., LLC, 2020 NCBC LEXIS
52, at *13 (N.C. Super. Ct. Apr. 17, 2020) (quoting Kerry Bodenhamer Farms, LLC v.
Nature’s Pearl Corp., 2017 NCBC LEXIS 27, at *16 (N.C. Super. Ct. Mar. 27, 2017)).
59. 	Sasser argues that Counts One and Three fail because it “acted with
legitimate business justifications” and Plaintiffs failed to allege that Sasser’s sole
motivation was legal malice. 	(Mot. 2; Br. Supp. Mot. 2, 8–12, ECF No. 24 [“Br.
Supp.”].) Sasser also contends that Plaintiffs failed to allege that Sasser knew about
the restrictive covenants at issue. (Br. Supp. 11–12.)
60. 	As to whether the interference was justified, Plaintiffs argue that Sasser
denies that it is a competitor, making whether Sasser acted with legitimate business
justification a disputed fact improper for resolution at this juncture. 	(Br. Opp’n
Mot. 2–3, ECF No. 31 [“Br. Opp.”].) 	Plaintiffs continue that, even if Sasser and

Plaintiffs are considered competitors for purposes of the Motion, Sasser does not have
an “unfettered license to interfere merely because it is a competitor.” 	(Br. Opp. 3
(referencing without citation Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216 (1988).)
61. 	“Claims for tortious interference with contract and prospective economic
advantage are properly dismissed under Rule 12(c) where the complaint shows that
the interference was justified or privileged.” 	K&M Collision, LLC v. N.C. Farm
Bureau Mut. Ins. Co., 2017 NCBC LEXIS 109, at *20 (N.C. Super. Ct. Nov. 21, 2017)
(citing Hooks, 322 N.C. at 220). That said,
there are a number of cases from this Court in which the Court has
declined to dismiss a tortious interference claim notwithstanding the
fact that defendant arguably had a legitimate business interest in
plaintiff’s contract with a third party where there was a question as to
whether defendant’s actions were related to defendant’s legitimate
interest or were done to harm the plaintiff.
Id. at *22 (citations omitted).
62. 	Here, the Court’s review of the pleadings confirms Plaintiffs’ assertion
regarding Sasser’s repeated denials that it is Plaintiffs’ competitor. 	(Compare Am.
Compl. ¶¶ 1, 15–16, 25, 74, 84, 107, 189, 205, with Answer ¶¶ 1, 15–16, 25, 74, 84,
107, 189, 205.) Nevertheless, the Court considers the companies to be competitors as
alleged by Plaintiffs, given the standard it must employ on a Rule 12(c) motion. Thus,
the Court next considers whether Sasser’s alleged interference was justified or
excused because it acted with a legitimate business justification. 	(See Br. Supp. 8–
10.) Plaintiffs direct the Court to Lunsford v. Viaone Servs., LLC, 2020 NCBC LEXIS
111 (N.C. Super. Ct. Sept. 28, 2020), which the Court finds instructive. (Br. Opp. 4.)

63. 	In Lunsford, the plaintiff alleged that the defendant, its competitor, knew
about the contract at issue but solicited the customers anyway, while also attempting
to conceal that action. 2020 NCBC LEXIS 111, at *15. The plaintiff alleged that the
defendant attempted to undermine the plaintiff’s business by taking documents and
business information and poaching both employees and customers. 	Id. 	The Court
permitted the tortious interference with contract claim to proceed past the motion to
dismiss stage because these allegations, when taken as true, adequately alleged that
defendant acted without justification. Id.
64. 	Plaintiffs’ allegations in this case are markedly similar. 	Plaintiffs allege
that Sasser knew about the three contracts at issue, and Sasser admits that it
received a copy of the LP Agreement. (Am. Compl. ¶¶ 41–43, 179–82, 214–16; Answer
¶¶ 33, 41, 43.) 	Following its receipt of the LP Agreement in May 2021, Sasser
recruited Brown and Miller. (Am. Compl. ¶¶ 44, 109–10.) Plaintiffs allege that this
activity went beyond normal competition because Sasser: (1) offered Brown an
“artificially 	high 	compensation 	package,” 	(Am. 	Compl. 	¶¶ 44–46); 	(2) 	began 	a
secretive 	effort 	to 	keep 	Plaintiffs 	“in 	the 	dark” 	about 	Brown’s 	acceptance 	of
employment with Sasser, (Am. Compl. ¶¶ 55–58); (3) concealed its conduct and
Brown’s plan to work for it, asking “Brown to gather information about which BluSky
Restoration employees Brown believed he and Sasser could persuade to leave their
employment,” (Am. Compl. ¶ 105; see also Am. Compl. ¶ 117 (“Sasser used non-public
information that Brown was uniquely positioned to have because of his employment
with BluSky Restoration to induce at least one BluSky employee other than Brown

to move. 	Sasser did so knowing that Brown’s actions were unlawful . . . .”)); and
(4) otherwise acted with the intent to harm and disadvantage Plaintiffs, (Am. Compl.
¶¶ 56, 110, 189, 205).
65. 	Reading these allegations in the light most favorable to Plaintiffs, there is
at least a question this stage as to whether Sasser’s actions were related to its
legitimate interest in competition or were done to harm Plaintiffs. 	See K&M
Collision, 2017 NCBC LEXIS 109, at *22. 	The Court cannot conclude that the
Amended Complaint admits facts that would justify a dismissal of Counts One and
Three at this stage. Therefore, the Court DENIES the Motion as to Count One and
Count Three for tortious interference with contract.
2. 	Count 	Two: 	Tortious 	Interference 	with 	Prospective
Economic Advantage
66. 	BluSky Restoration alleges that Sasser, through Figueroa as its COO,
instructed Brown not to sign the proposed part-time employment agreement with
BluSky Restoration. 	(Am. Compl. ¶¶ 195–98.) 	BluSky Restoration further alleges,
on information and belief, that Brown did not enter into the proposed agreement
because of that instruction. 	(Am. Compl. ¶¶ 201–02.) 	Plaintiffs allege that Sasser
did so “in a deliberate effort to impair, if not prevent, BluSky from performing
regulated work without BluSky having adequate time to find replacement license
holders and qualifiers and to delay and impede BluSky from transitioning licenses
for its operations.” (Am. Compl. ¶ 204.)
67. 	Sasser argues, in relevant part, that Count Two fails because BluSky
Restoration has not alleged that Sasser was the “but-for” cause of Brown deciding not

to sign the part-time employment agreement, and because BluSky Restoration failed
to adequately allege that it was damaged by Sasser’s interference.2 (Mot. 2–3; see Br.
Supp. 2–3, 13–14.) 	In response, Plaintiffs contend that BluSky Restoration is not
required to allege that Sasser was the but-for cause of its harm and that it has
adequately alleged at least nominal damages. (Br. Opp. 11–12.)
68. 	“[A] 	fundamental 	element 	of 	a 	claim 	for 	tortious 	interference 	with
prospective economic advantage is that ‘a contract would have resulted but for
defendant’s malicious intervention.’ ” 	AYM Techs., LLC. v. Rodgers, 2018 NCBC
LEXIS 14, at *51 (N.C. Super. Ct. Feb. 9, 2018) (quoting Beverage Sys. of the
Carolinas, LLC v. Assocs. Bev. Repair, LLC, 368 N.C. 693, 701 (2016)). “[A] plaintiff’s
mere expectation of a continuing business relationship is insufficient to establish
such a claim.” 	Beverage Sys., 368 N.C. at 701. 	And, “[c]onclusory allegations that
track the elements of a tortious interference claim alone are insufficient to state a
legally sufficient claim for tortious interference.” 	Se. Anesthesiology Consultants,
PLLC v. Rose, 2019 NCBC LEXIS 52, at *33 (N.C. Super. Ct. Aug. 20, 2019) (cleaned
up).
69. 	Here, BluSky Restoration alleges, “[o]n information and belief, [that] but
for 	Sasser’s 	interference, 	including 	its 	instructions 	on 	November 16, 2021 	and
November 22, 2021, BluSky [Restoration] and Brown would have entered into the
Proposed 	Agreement 	for 	Brown 	to 	continue 	limited 	employment 	with 	BluSky
2 The Court notes that nominal damages will suffice. 	See rFactr, Inc. v. McDowell, 2023
NCBC LEXIS 18, at *16 (N.C. Super. Ct. Jan. 27, 2023) (“North Carolina law recognizes that
nominal damages may be awarded on tortious interference claims.”).

[Restoration] for purposes of transitioning the licenses.” (Am. Compl. ¶ 203.) These
allegations are sufficient to state a claim.
70. 	In Building Center, Inc. v. Carter Lumber, Inc., the Court determined that
alleging that plaintiff “reasonably expected that, but for Defendants’ conduct, its
business relationships with its customers would have continued and grown[,]” was
insufficient at the Rule 12 stage to allege that a contract would have ensued. 	2016
NCBC LEXIS 79, at *29 (N.C. Super. Ct. Oct. 21, 2016) (cleaned up) (emphasis
added). 	The Court dismissed the claim because an expectation of a continued
relationship was not sufficient to plead that a contract would have resulted but for
defendant’s malicious intervention. Id.
71. 	But 	here, 	viewing 	the 	pleadings 	in 	the 	light 	most 	favorable 	to 	the
nonmovants, BluSky Restoration alleges more than a mere expectation. 	It has
sufficiently identified the contract at issue and alleges that Sasser’s conduct was the
but-for cause of Brown declining to enter into the proposed part-time employment
agreement.3 At this stage, the Court determines that BluSky Restoration’s pleading
in Count Two is minimally sufficient.
3 While BluSky Restoration’s pleading of this claim is less than ideal given that causation is
alleged “on information and belief,” the Court is mindful that “[o]ur 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).” 	Husqvarna Pro. Prods., Inc. v. Robin Autopilot
Holdings, LLC, 2023 NCBC LEXIS 172, at **11–12 (N.C. Super. Ct. Dec. 22, 2023); see also
Governor’s Club Inc. v. Governors Club Ltd. P’ship, 152 N.C. App. 240, 247–48 (2002)
(considering allegations of a fiduciary duty made on information and belief and determining
that the breach of fiduciary duty claim was sufficiently pled to survive a motion for judgment
on the pleadings).

72. 	Therefore, the Court DENIES the Motion as to Count Two for tortious
interference with prospective economic advantage.
B. 	Counts Four, Five, and Six: The Conspiracy Claims
73. 	Sasser argues that Plaintiffs’ Counts Four, Five, and Six fail because
“Plaintiffs allege no underlying tort claims for breach of fiduciary duty, fraudulent
concealment, or fraud against Sasser or Brown,” either in this case or in the Brown
Litigation. 	(Mot. 3; Br. Supp. 3, 18–20.) 	Plaintiffs take the position that pleading
predicate torts as standalone claims is not required. (Br. Opp. 1, 16.) Thus, the issue
presented is whether Plaintiffs were required to plead standalone claims for breach
of fiduciary duty, fraudulent concealment, and fraud against Sasser and/or Brown for
the conspiracy claims to survive the Motion.
74. 	Civil 	conspiracy 	requires 	“(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.” Strickland v. Hedrick, 194 N.C. App. 1, 19 (2008)
(quotation omitted). 	It is well established that there “is no independent cause of
action for civil conspiracy. 	Only where there is an underlying claim for unlawful
conduct can a plaintiff state a claim for civil conspiracy by also alleging the agreement
of two or more parties to carry out the conduct and injury resulting from that
agreement.” 	Toomer v. Garrett, 155 N.C. App. 462, 483 (2002) (citations omitted).
Put 	differently, 	civil 	conspiracy 	“requires 	a 	separate, 	underlying 	tort.” 	New
Restoration & Recovery Servs., LLC v. Dragonfly Pond Works, LLC, 2023 NCBC

LEXIS 80, at **23 (N.C. Super. Ct. June 15, 2023). This is “[b]ecause conspiracy is a
mode of liability rather than a cause of action,” and as a result, “it is derivative of the
other claims against a party, and if the other claims fail, so does the conspiracy claim.”
Fox v. Fox, 283 N.C. App. 336, 347 (2022).
75. 	In sum, “[c]ivil conspiracy is a dependent claim.” BDM Invs. v. Lenhil, Inc.,
264 N.C. App. 282, 300 (2019) (citing Toomer, 155 N.C. App. at 483).
76. 	However, our State’s caselaw also provides that “[i]n order to maintain a
civil conspiracy claim, the underlying unlawful conduct need not be separately stated;
this Court reviews all sections of a complaint as to allegations to support such a
claim.” 	BDM Invs., 264 N.C. App. at 300. 	This is not, however, a widely cited
proposition. See Bradshaw v. Maiden, 2022 N.C. App. LEXIS 950, at **64–65 (2022)
(Murphy, J. dissenting) (unpublished) (citing this proposition only in the dissenting
opinion).
77. 	Rather, the bulk of our caselaw appears to deal with conspiracy claims that
rely on a separately stated claim for wrongful conduct. For instance, Plaintiffs might
allege fraud by Figueroa as an agent of Sasser and then allege conspiracy to commit
fraud against Sasser for Figueroa’s wrongful conduct, if there was an agreement
between Figueroa and Brown to commit the wrongful act of fraud. As further support
for Defendant’s interpretation, this Court recently held that “to the extent Plaintiff
attempts a conspiracy claim based on fraud, it must be dismissed because no fraud
claim has yet been pled.” Hartsell v. Mindpath Care Ctrs., 2022 NCBC LEXIS 27, at
*16 (N.C. Super. Ct. Apr. 8, 2022) (emphasis added).

78. 	Further, it has long been the practice of this Court and our State’s higher
courts to dismiss conspiracy claims where the claim for underlying wrongful conduct
is dismissed, suggesting that where there is no standalone tort claim to accompany
the conspiracy claim, the conspiracy claim must fail. See, e.g., Krawiec v. Manly, 370
N.C. 602, 615 (2018) (affirming the trial court’s dismissal of the conspiracy “claim”
because plaintiffs did not plead any wrongful acts done in furtherance of the
conspiracy because they failed to plead a successful underlying claim); Fox, 283 N.C.
App. at 347 (determining that the trial court did not err in dismissing the conspiracy
claim because the underlying claims against that defendant failed and were therefore
dismissed); USA Trouser, S.A. de C.V. v. Williams, 258 N.C. App. 192, 201 (2018) (“A
civil conspiracy claim must be based on an adequately pled underlying claim.”
(emphasis added)); Rockingham Cty. v. NTE Energy, LLC, 2024 NCBC LEXIS 55, at
**23–24 (N.C. Super. Ct. Apr. 15, 2024) (stating that “civil conspiracy must be alleged
in conjunction with an underlying claim for unlawful conduct” and the complaint was
devoid of allegations beyond conclusory assertions of wrongdoing); Worley v. Moore,
2017 NCBC LEXIS 15, at *78 (N.C. Super. Ct. Feb. 28, 2017) (dismissing civil
conspiracy claim because allegation that defendants “agreed, colluded and conspired
among themselves . . . to defraud Plaintiffs, which scheme or artifice included
fraudulent inducement, constructive fraud, and common law fraud” was merely a
legal conclusion); Barefoot v. Barefoot, 2022 NCBC LEXIS 8, at *34 (N.C. Super. Ct.
Feb. 2, 2022) (“Because the Court has determined that all of [the] underlying claims
must be dismissed, those claims cannot provide a basis for [the] civil conspiracy

claim.”); but see, e.g., New Restoration, 2023 NCBC LEXIS 80, at **23 (where the
misappropriation of trade secrets claim survived dismissal, the Court permitted the
civil conspiracy claim to go forward as well).
79. 	Here, Plaintiffs allege three standalone claims for conspiracy against
Sasser. Plaintiffs have not pled standalone claims for breach of fiduciary duty against
Brown, who the Court notes is not a party here; fraudulent concealment or omission
against Brown and/or Sasser; or fraud against Brown and/or Sasser. As described in
this section, conspiracy is not an independent cause of action and will fail when not
supported by an adequately pled standalone tort claim against a party. 	Therefore,
the Court hereby GRANTS in part the Motion and DISMISSES Counts Four, Five,
and Six for conspiracy without prejudice.4
C. 	Count Eight: Injunctive Relief
80. 	Plaintiffs’ Count Eight requests permanent injunctive relief enjoining
Sasser 	from 	(1) 	any 	future 	misappropriation 	of 	Plaintiffs’ 	trade 	secrets, 	and
(2) engaging in or encouraging Brown to violate the restrictive covenants at issue.
(See Am. Compl. ¶¶ 311–12, 317.)
81. 	Injunctive relief “is an ancillary remedy, not an independent cause of
action.” 	Revelle v. Chamblee, 168 N.C. App. 227, 230 (2005). 	It is well-settled that
“injunctive relief is not a standalone claim[.]” 	Window World of St. Louis, Inc. v.
4 Notwithstanding the Court’s conclusions that this claim should be dismissed, “[t]he 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). The Court concludes, in the exercise
of its discretion, that dismissal of Plaintiffs’ Counts Four, Five, and Six should be without
prejudice to Plaintiffs’ right to attempt to reassert such claims through proper allegations by
way of a motion to amend.

Window World of Bloomington, Inc., 2021 NCBC LEXIS 88, at **15 (N.C. Super. Ct.
Oct. 6, 2021).
82. 	The Court therefore GRANTS the Motion as to Count Eight for permanent
injunctive relief, and it is hereby DISMISSED without prejudice to Plaintiffs’ right
to seek appropriate injunctive relief later. 	Lendingtree, LLC v. Intercontinental
Capital Grp., Inc., 2017 NCBC LEXIS 54, at **16–17 (N.C. Super. Ct. June 23,
2017) (granting defendants’ motion to dismiss and construing the claim as a request
to file an appropriate motion during the litigation).
VI. 	CONCLUSION
83. 	THEREFORE, for the foregoing reasons, the Court hereby GRANTS in
part and DENIES in part the Motion as follows:
a. 	The Motion is GRANTED as to Counts Four, Five, Six, and Eight
and those claims are hereby DISMISSED without prejudice; and
b. 	The Motion is otherwise DENIED.
IT IS SO ORDERED, this the 9th day of August, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases