MARVEL-SCHEBLER AIRCRAFT CARBURETORS LLC v. AVCO CORPORATION
Filing
80
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/22/12, recommending that AVCO's Partial Motion to Dismiss (Docket Entry 46 ) be granted as to Claims Five, Seven, and Eight. FURTHER recommending that AVCO's Partial Motion to Dismiss be denied as to Claim Six. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARVEL-SCHEBLER AIRCRAFT
CARBURETORS LLC, a North
Carolina Limited Liability
Company,
Plaintiff and
Counter Defendant,
v.
AVCO CORPORATION, a Delaware
Corporation,
Defendant and
Counter Plaintiff.
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1:10CV745
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
matter
Magistrate
comes
Judge
before
the
for
undersigned
a
United
States
recommendation
on
Defendant/Counterplaintiff’s Rules 12(b)(1) and 12(b)(6) Partial
Motion to Dismiss (Docket Entry 45).
For the reasons that follow,
Defendant’s Motion should be granted in part and denied in part.
Background
The Second Amended Complaint (“SAC”) identifies Plaintiff
Marvel-Schebler
Aircraft
Carburetors
LLC
(“MSA”)
as
a
North
Carolina aircraft carburetor manufacturer (Docket Entry 42, ¶¶ 1,
7)
and
Defendant
AVCO
Corporation
(“AVCO”)
as
a
Delaware
corporation (id. ¶ 2) that “manufactures, markets, promotes, and
sells aircraft engines” (id. ¶ 15).
MSA brought this suit against
AVCO for trademark infringement and various related state law
claims.
MSA
(Id. ¶¶ 38-66; Docket Entry 51 at 2.)
identifies
itself
as
“the
exclusive
manufacturer
of
Marvel-Schebler® aircraft carburetors” (Docket Entry 42, ¶ 7) and
alleges that it and its “predecessors-in-interest have manufactured
and marketed Marvel-Schebler® Carburetors worldwide continuously
and
for
decades
under
certain
Trademarks”]” (id. ¶ 9).
the
directives
of
trademark
model
numbers
[“the
Further, MSA asserts that, “pursuant to
AVCO,
AVStar
[Fuel
Systems,
Inc.]
began
manufacturing, marketing, and selling aircraft carburetors bearing
the Trademarks in the second half of 2008.”
(Id. ¶ 12.)
According
to MSA, “Defendant AVCO manufactures, markets, promotes, and sells
aircraft
engines
in
interstate
commerce
that
include
AVStar
carburetors bearing the Trademarks, thereby further interjecting
AVStar’s
infringing
goods
into
the
stream
of
commerce
and
increasing the confusion amongst consumers and damage to MSA.”
(Id. ¶ 15.)
In addition, MSA alleges that AVCO possesses “proprietary toplevel drawings of Marvel-Schebler® Carburetors” given to AVCO by
MSA’s predecessors-in-interest (id. ¶ 17) and, despite the fact
that
“MSA
acquired
all
rights
and
interests
in
and
to
the
proprietary drawings and information” (id. ¶ 18) and subsequently
“requested [AVCO] return all of its proprietary top-level drawings
-2-
and other information” (id. ¶ 19), AVCO “has yet to return” said
materials (id.).
MSA claims AVCO has “converted for its own use,
and falsely made claims of ownership to,” the materials.
(Id.
¶ 20.)
In 2008, MSA entered into a Direct Ship Authority contract
with Aero Accessories, Inc. (“Aero”) whereby Aero would manufacture
carburetors bearing the Trademarks under its FAA Parts Manufacturer
Approval (“PMA”).
(Id. ¶ 21.)
MSA alleges that, after the filing
of this suit, AVCO threatened representatives of MSA and Aero
regarding the trademark infringement issue (id. ¶ 22) and then
attempted to influence the FAA to revoke Aero’s manufacturing
approval and to disrupt the relationship between Aero and MSA (id.
¶¶ 23-25).
MSA asserts that “AVCO’s threats to MSA and Aero were
made to harass and intimidate MSA and to interfere with the Direct
Ship Authority contract arrangement between Aero and MSA.”
¶ 22.)
(Id.
Moreover, according to MSA, AVCO’s contact with the FAA
“constitute[d] unfair competition and tortious interference with
MSA’s
existing
opportunities.”
and
prospective
contracts
and
business
(Id. ¶ 24.)
MSA further alleges that AVCO made other false representations
to the FAA in an “effort to prevent MSA from obtaining PMA for a
number of its Marvel-Schebler® Carburetor models sold under various
Trademarks.”
(Id. ¶ 25.)
It contends that AVCO’s “actions have
-3-
caused MSA to incur substantial additional costs during the process
of procuring PMA for various Marvel-Schebler® Carburetors.”
(Id.)
Based on the foregoing allegations, the SAC asserts the
following claims in this Court: (1) “Federal Unfair Competition (15
USC § 1125(a))” (id. ¶¶ 38-40); (2) “False Designation of Origin
(15 USC § 1125(a))” (id. ¶¶ 41-43); (3) “False Description (15 USC
§ 1125(a))” (id. ¶¶ 44-46); (4) “Common Law Unfair Competition”
(id. ¶¶ 47-49); (5) “Common Law Injury to Business Reputation” (id.
¶¶
50-53);
Interference
(6)
“Conversion”
with
Contract”
(id.
(id.
¶¶
54-55);
(7)
“Tortious
¶¶
56-59);
(8)
“Tortious
Interference with Prospective Economic Advantage” (id. ¶¶ 60-63);
(9) “Unfair or Deceptive Trade Practices (NC Gen. Stat. 75-1.1)”
(id. ¶¶ 64-66); (10) “Profits; Damages and Costs; Attorney Fees (15
USC § 1117)” (id. ¶¶ 67-68); and (11) “Permanent Injunctive Relief
(15 USC § 1116)” (id. ¶¶ 69-70).1
AVCO moves to dismiss Claims
Five through Eight pursuant to Federal Rules of Civil Procedure
12(b)(1)
(lack
of
subject-matter
jurisdiction)
and
12(b)(6)
(failure to state a claim upon which relief may be granted).
(Docket Entry 46 at 1.)
1
The initial Complaint alleged federal claims of unfair
competition and false description pursuant to 15 U.S.C. § 1125(a),
and dilution under 15 U.S.C. § 1125(c), as well as state law claims
for unfair competition and injury to business reputation. (Docket
Entry 1, ¶¶ 27-49.)
-4-
Existence of Subject Matter Jurisdiction
Because subject matter jurisdiction constitutes a threshold
question, see Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998), the Court should address that issue first.
United
States District Courts exercise two primary types of subject matter
jurisdiction: federal question jurisdiction under 28 U.S.C. § 1331
and diversity of citizenship jurisdiction under 28 U.S.C. § 1332.
Where federal courts “have original jurisdiction of [] civil
actions arising under the Constitution, laws, or treaties of the
United States,” 28 U.S.C. § 1331, they may also preside over state
law claims in conjunction with the federal law claims if said state
law claims are “so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy[,]” 28 U.S.C. § 1367(a).
Under 28 U.S.C. § 1332, “a
federal district court has original jurisdiction over all civil
actions where the amount in controversy exceeds $75,000, exclusive
of interest and costs, and is between citizens of different
states.” Central W. Va. Energy Co., Inc. v. Mountain State Carbon,
LLC,
§
636
F.3d
1332(a)(1)).
101,
103
“When
a
(4th
Cir.
defendant
2011)
(citing
challenges
28
U.S.C.
subject
matter
jurisdiction pursuant to Rule 12(b)(1), the district court is to
regard the pleadings as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the
-5-
proceedings to one for summary judgment.”
Evans v. B.F. Perkins,
Co., 166 F.3d 642, 647 (4th Cir. 1999).
AVCO argues that “there is nothing in the SAC that even
remotely supports the allegation that the entirety of [MSA’s] state
law claims exceed the sum of $75,000.”
(emphasis added).)
(Docket Entry 46 at 16
MSA responds that it “alleges in good faith
that the amount in controversy in the case exceeds $75,000” (Docket
Entry 51 at 18) and that “[t]here is . . . no basis to conclude to
a legal certainty that any or all of MSA’s claims fall short of
these jurisdictional requirements” (id. at 19).
As an initial matter, the United States Court of Appeals for
the Fourth Circuit has recognized that “even if it is determined
. . . that to a legal certainty [a plaintiff’s state law] claim[s]
[are] really for less than [the diversity dollar requirement], [the
plaintiff]
may
attempt
to
meet
Section
1332(a)’s
[monetary]
jurisdictional requirement by adding to his diversity claim[s]
. . . the amount of the recovery he is seeking under [his federal
claims].” Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 846 (4th
Cir. 1974) (internal quotation marks and footnote omitted); see
also id. at 849 (Widener, J., dissenting) (observing that “the
majority would permit a plaintiff to aggregate his state and
federal claims in order to meet the [monetary] jurisdictional
requirement under 28 U.S.C. § 1332(a)”). In the instant case, AVCO
-6-
does not contend that the aggregate of all the claims falls short
of $75,000 – rather, it focuses only on the aggregate of the state
law claims.
(See Docket Entry 46 at 16.)
Because AVCO makes no
argument as to the insufficiency of the aggregate sum of all
claims, its challenge to diversity jurisdiction fails.
Further,
“[c]ourts
generally
determine
the
amount
controversy by reference to the plaintiff’s complaint.”
in
JTH Tax,
Inc. v. Frashier, 624 F.3d 635, 638 (4th Cir. 2010) (citing Wiggins
v. N. Am. Equitable Life Assurance Co., 644 F.2d 1014, 1016 (4th
Cir. 1981) (“Ordinarily the jurisdictional amount is determined by
the amount of the plaintiff’s original claim, provided that the
claim is made in good faith.”)).
sufficient
sum
to
satisfy
the
If the complaint claims a
jurisdictional
requirement,
a
defendant “seeking dismissal of diversity actions for lack of a
sufficient amount in controversy . . . must show ‘the legal
impossibility of recovery’ to be ‘so certain as virtually to
negative the plaintiff’s good faith in asserting the claim.’” Id.
(quoting Wiggins, 644 F.2d at 1014).
The SAC alleges that “[t]he
matter in controversy exceeds the sum of $75,000.00, exclusive of
interest and costs” (Docket Entry 42, ¶ 4), although without
identifying, as to each claim, the specific amount of damages to
which MSA claims entitlement (id. ¶¶ 40, 43, 46, 49, 53, 59, 63, 66
(asserting MSA has suffered injury and damages “in an amount not
-7-
yet determined”)). A complaint “sufficiently establishes diversity
jurisdiction
if
it
alleges
that
the
parties
are
of
diverse
citizenship and that the matter in controversy exceeds, exclusive
of interest and costs, the sum specified by 28 U.S.C. § 1332
. . . .”
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192,
200 (4th Cir. 2008) (citing Fed. R. Civ. P. 84, Fed. R. Civ. P.
app.
Form
7)
(internal
quotation
marks
omitted).
The
SAC,
therefore, “claims a sum sufficient to satisfy the statutory
requirement.”
JTH Tax, Inc., 624 F.3d at 638.
AVCO has not shown
“‘the legal impossibility of recovery,’” id. (quoting Wiggins, 644
F.2s at 1014), of the requisite amount.
As a result, MSA’s SAC
supports diversity jurisdiction.2
Failure to State a Claim
AVCO next argues that MSA’s counts five through eight fail to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Docket Entry 46 at 6-7.)
A litigant fails to state a claim when
the litigant’s pleading lacks “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
2
In light of this conclusion, the Court need not inquire as
to whether the state law and federal claims “form part of the same
case or controversy under Article III of the United States
Constitution,” 28 U.S.C. § 1367(a), such that the Court would have
supplemental jurisdiction over the state law claims.
-8-
U.S. 544, 570 (2007)).3
This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In
other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Id.
Claim Five: Common Law Injury to Business Reputation
AVCO alleges that MSA’s common law claim for injury to
business reputation “must be dismissed because it is not a cause of
action recognized under North Carolina law.”
7.)
MSA did not respond to this allegation.
51.)
(Docket Entry 46 at
(See Docket Entry
For the reasons detailed in Kinetic Concepts, Inc. v.
ConvaTec, Inc., No. 1:08CV918, 2010 WL 1667285, at *6-8 & nn. 12,
13 (M.D.N.C. Apr. 23, 2010) (unpublished), MSA’s failure to respond
to AVCO’s argument on this point constitutes a concession that
generally warrants granting AVCO’s requested relief under this
Court’s Local Rule 7.3(k).
3
Although the Court looks to North Carolina law when
analyzing Plaintiff’s state law claims, “pleading standards are a
matter of procedural law governed in this Court by federal, not
state, law.” McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 920
(M.D.N.C. 2011) (Beaty, C.J.) (citing Jackson v. Mecklenburg Cnty.,
N.C., No. 3:07-cv-218, 2008 WL 2982468, at *2 (W.D.N.C. July 30,
2008)).
-9-
After due consideration, the undersigned finds no reason to
depart from that general rule in this case because, under North
Carolina law, damage to business reputation represents only a form
of injury.
See, e.g., Carson v. Brodin, 160 N.C. App. 366, 371,
585 S.E.2d 491, 495 (2003); Fran’s Pecans, Inc. v. Greene, 134 N.C.
App. 110, 113, 516 S.E.2d 647, 650 (1999).
The undersigned
Magistrate Judge found no North Carolina cases supporting the
contention
that
injury
to
independent cause of action.
business
reputation
constitutes
an
In such circumstances, “‘[a]bsent a
strong contervailing federal interest, the federal court . . .
should not . . . render what may be an uncertain and ephemeral
interpretation of state law.’” Time Warner Entm’t-Advance/Newhouse
P’ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314
(4th Cir. 2007) (quoting Mitcheson v. Harris, 955 F.2d 235, 238
(4th Cir. 1992)). ACVO’s Motion to Dismiss as to Claim Five should
therefore be granted.
Claim Six: Conversion
AVCO puts forth two arguments against MSA’s conversion claim:
first that “there is no cause of action under North Carolina law
for ‘conversion’ of intangible rights in intellectual property,”
and second that “[AVCO] is required under federal law to maintain
in its records the items which [MSA] claims were converted.”
(Docket Entry 46 at 8.)
As to the first assertion, AVCO argues
-10-
that the conversion claim is “based on the ‘aforesaid acts’ (see
[Docket Entry 42,] ¶ 55), which necessarily include allegations
that [AVCO] unlawfully used MSA’s purported trademarks.”
9.)
(Id. at
MSA responds that its SAC “properly alleges a claim for
conversion . . . of MSA’s proprietary documents and information which clearly support a conversion claim - and not merely for
‘intangible rights in intellectual property’ as AVCO suggests.”
(Docket Entry 51 at 6.)
MSA’s
SAC
contains
an
allegation
of
conversion
of
“any
proprietary information including its drawings . . .” (Docket Entry
42, ¶ 55).
The SAC asserts that “MSA has requested [AVCO] return
all of its proprietary top-level drawings and other information,
including Marvel-Schebler® Carburetor design information and any
other proprietary information related to the Marvel-Schebler®
Carburetor product line owned by MSA. [AVCO has] yet to return any
proprietary drawings or information belonging to MSA.” (Id. ¶ 19.)
These factual assertions support an inference that MSA’s conversion
claim involves more than merely AVCO’s use of “intangibles” like
MSA’s Trademarks.
As to its second argument, AVCO claims that federal law
requires it to maintain possession of the drawings and other
information MSA alleges AVCO unlawfully converted.
Entry 46 at 9-10.)
(See Docket
AVCO contends that “[t]he information in the
-11-
drawings presumably consists of design information related to
carburetors
incorporated
into
[AVCO]
engines
that
[AVCO]
is
authorized by the FAA to sell to the general public.”
(Id. at 9.)
However,
rights
the
SAC
asserts
that
“MSA
acquired
all
and
interests in and to the proprietary drawings and information
regarding
Marvel-Schebler®
Carburetors
when
Marvel-Schebler® Carburetor business . . . .”
it
purchased
the
(Docket Entry 42,
¶ 18.) It further alleges that AVCO only acquired the drawings and
information because MSA’s predecessors-in-interest supplied AVCO
with them “solely for [AVCO’s] use in identifying for purchase
genuine
Marvel-Schebler
predecessors-in-interest.”
Carburetors
(Id. ¶ 17.)
from
MSA
and/or
its
AVCO’s argument to the
contrary is not relevant at this stage as the Court must assume the
facts alleged in the SAC are true, see Eastern Shore Markets, Inc.
v. J.D. Assoc. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
The
Court therefore should allow MSA’s conversion claim to go forward.
Claims Seven and Eight: Tortious Interference with Contract
and Prospective Economic Advantage
AVCO next asserts that MSA’s seventh and eighth claims (for
tortious interference of contract and tortious interference with
prospective economic advantage, respectively) “fail[] to plead the
necessary common law elements . . . .”
In
this
regard,
AVCO
argues
that
(Docket Entry 46 at 10.)
MSA’s
claim
for
tortious
interference with contract fails because MSA “neither alleges that
-12-
a third party failed to perform a contract nor identifies any
actual damages.”
(Id.)
MSA responds that it “unquestionably
alleges a legally cognizable claim for tortious interference with
contract.
AVCO tortiously interfered with, and sought to induce
Aero not to perform, Aero’s Direct Ship Authority Contracts with
MSA, both through direct threats to Aero and false and fraudulent
communications to the FAA designed to harm Aero and MSA.”
Entry 51 at 8-9 (citing Docket Entry 42, ¶¶ 22, 24).)
(Docket
MSA further
argues that it “is neither required to show a breach of contract by
Aero nor obligated to enumerate the specific damages resulting from
AVCO’s
unlawful
interference
tortious interference claim.”
in
order
to
properly
plead
its
(Id. at 9.)
To succeed on a tortious interference with contract claim
under North Carolina law,
a plaintiff must show that: (1) there was a valid
contract between the plaintiff and a third person that
conferred a contractual right to the plaintiff against
the third person; (2) the defendant knew of the contract;
(3) the defendant intentionally induced the third person
not to perform the contract; (4) in doing so, acted
without justification; and (5) caused actual damage to
the plaintiff.
English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., No. 97-2397,
172 F.3d 862 (table), 1999 WL 89125, at *5 (4th Cir. Feb. 23, 1999)
(unpublished) (internal footnotes omitted) (citing United Labs.,
Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375, 387 (1988)). MSA
correctly observes that, to satisfy the third element, “the third
-13-
person need not actually breach the contract.”
Id. at *5 n.12
(citing Lexington Homes, Inc. v. W.E. Tyson Builders, Inc., 75 N.C.
App. 404, 411, 331 S.E.2d 318, 322 (1985)).
The SAC alleges that
AVCO “intentionally and without justification interfered with MSA’s
relationship with Aero by making threats to Aero personnel and
engaging the FAA in an attempt to revoke Aero’s PMA status for
carburetors manufactured by MSA.”
(Docket Entry 42, ¶ 57.)
It
further states that AVCO’s representative, Mr. Kraft, “made verbal
threats to representatives of MSA and Aero” in an attempt “to
harass and intimidate MSA and to interfere with the Direct Ship
Authority contract arrangement between Aero and MSA” (id. ¶ 22) and
that AVCO contacted the FAA “in a fraudulent effort to persuade the
FAA to revoke Aero’s PMA status for carburetors manufactured by
MSA” (id. ¶ 24).
These assertions sufficiently allege the third
element of a tortious interference with contract claim under North
Carolina law.
The SAC does not, however, set forth factual allegations of
actual damages as a result of AVCO’s interference.
A plaintiff is
not “required to specify how it arrived at its measure of damages”
alleged, Elina Adoption Servs., Inc. v. Carolina Adoption Servs.,
Inc., NO. 1:07CV169, 2008 WL 4005738, at *8 (M.D.N.C. Aug. 25,
2008) (unpublished) (Beaty, C.J.), but “[a] defendant is entitled
to know from the complaint the character of the injury for which he
-14-
must answer,” Thacker v. Ward, 263 N.C. 594, 599, 140 S.E.2d 23, 28
(1965).
Although MSA’s SAC contains a boilerplate assertion of
damages in Claim Seven (id. ¶ 59 (“MSA has suffered and will
continue to suffer irreparable injury and damages, in an amount not
yet determined, for which MSA is entitled to relief.”)), it
provides no factual assertions to support the claim.
MSA does not
contend that any part of its contractual relationship with Aero was
actually affected by the alleged threats or FAA correspondence from
AVCO.
(See id. ¶¶ 22-25, 56-59.)
Claim Seven should therefore be
dismissed.
With respect to MSA’s claim for tortious interference with
prospective economic advantage, AVCO asserts that MSA “failed to
even allege or identify a single potential contract that [AVCO]
intentionally destroyed or allege any specific damages resulting
from the alleged interference.”
(Docket Entry 46 at 11-12.)
responds
sufficiently
that
its
“pleading
alleges
MSA
tortious
interference with MSA’s prospective advantages and specifically
describes the damages MSA has sustained and will sustain as a
result.”
(Docket Entry 51 at 12.)
Under North Carolina law,
unlawful interference with the freedom of contract is
actionable, whether it consists in maliciously procuring
breach of a contract, or in preventing the making of a
contract when this is done, not in the legitimate
exercise of defendant’s own right, but with the design to
-15-
injure the plaintiff, or gaining some advantage at his
expense.
Owens v. Pepsi Cola Bottling Co. of Hickory, N.C., Inc., 330 N.C.
666, 680, 412 S.E.2d 636, 644 (1992) (quoting Coleman v. Whisnant,
225 N.C. 494, 506, 35 S.E.2d 647, 656 (1945)).
a
claim
for
tortious
interference
with
In order to state
prospective
economic
advantage under North Carolina law, a complaint must “allege facts
which show that the defendant acted without justification in
‘inducing a third party to refrain from entering into a contract
with [the plaintiff] which contract would have ensued but for the
interference.’”
Kehrer v. Fields, No. 5:11-CV-260-FL, 2011 WL
6965714, at *9 (E.D.N.C. Nov. 21, 2011) (unpublished) (quoting
Walker v. Sloan, 137 N.C. App. 387, 393, 529 S.E.2d 236, 242
(2000)).
The plaintiff must also “assert some measurable damages
resulting from defendant[’s] allegedly tortious activities, i.e.,
what ‘economic advantage’ was lost to plaintiff[] as a consequence
of defendant[’s] conduct.”
Walker, 137 N.C. App. at 394.
MSA appears to put forth two theories of tortious interference
with
prospective
advantage.
First,
it
asserts
that
AVCO’s
interference prevented MSA from obtaining the PMA it sought from
the FAA “without the unnecessary delay and expense AVCO caused.”
(Docket Entry 51 at 13 (citing Docket Entry 42, ¶ 25).)
Second, it
claims “AVCO’s unlawful acts interfered with MSA’s business and its
relationships with current and prospective customers.”
-16-
(Id.)
The first theory necessarily fails because MSA concedes that
it did in fact receive the PMA from the FAA.
(Id.)
In order to
support a theory of tortious interference with economic advantage,
a plaintiff must show the defendant “induc[ed] a third party to
refrain from entering into a contract with [the plaintiff] which
contract would have ensued but for the interference.”
N.C. App. at 393.
Walker, 137
Nothing in North Carolina case law suggests a
claim for tortious interference with economic advantage can be
sustained on the basis of a mere delay.
MSA’s second theory fails because the SAC does not allege more
than a “mere expectation of future contracts with [potential
McElmurry v. Alex Fergusson, Inc., No.
customers] . . . .”
1:04CV389,
2006
(unpublished)
WL
572330,
(Dixon,
M.J.)
at
*17
(citing
(M.D.N.C.
Mar.
DaimlerChrysler
8,
2006)
Corp.
v.
Kirkhart, 148 N.C. App. 572, 585, 561 S.E.2d 276, 286 (2002)). MSA
identifies neither potential contracts nor potential customers it
lost due to AVCO’s actions, but instead simply asserts that AVCO’s
actions “have caused and will continue to cause damage to MSA’s
business reputation, damage to MSA’s ability to conduct business,
and/or damage to MSA’s relationship with current and/or prospective
customers.”
(Docket Entry 42, ¶ 25.)
“It is unclear from this
averment precisely what damages [P]laintiffs contend they have
suffered. [The North Carolina] Supreme Court has stated that ‘[a]
-17-
defendant is entitled to know from the complaint the character of
the injury for which he must answer.’”
Walker, 137 N.C. App. at
394 (quoting Thacker, 263 N.C. at 599)). Because MSA has failed to
sufficiently
dismiss
plead
MSA’s
interference
claim
for
or
tortious
damages,
the
interference
Court
with
should
economic
advantage.
Conclusion
Although this Court has subject matter jurisdiction over MSA’s
state law claims, Claims Five, Seven, and Eight do not meet the
standard to survive a Rule 12(b)(6) motion to dismiss.
IT IS THEREFORE RECOMMENDED that AVCO’s Partial Motion to
Dismiss (Docket Entry 46) be granted as to Claims Five, Seven, and
Eight.
IT IS FURTHER RECOMMENDED that AVCO’s Partial Motion to
Dismiss be denied as to Claim Six.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 22, 2012
-18-
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