APEX IMAGING SERVICES INC V. JOSEPH SCOTT CAMPBELL ET AL

Filing 27

MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR on 8/7/2013, that Campbell's Motions to Consolidate Case Nos. 12-CV-01365 and 12-CV-01366 and to Stay or Dismiss Case No. 12-CV-01365 (Doc. # 20 in case number 1:12-CV-1365 & (Doc. # 37 ) in case number 1:12-CV-1366] are hereby GRANTED and the present dispute between Campbell and Apex shall proceed in case number 1:12-CV-1366 only. FURTHER, that case number 1:12-CV-1365 is DISMISSED WITHOUT < b>PREJUDICE. FURTHER the Apex's Motion to Transfer Venue to the Southern District of Illinois (Doc. # 28 ) in case number 1:12-CV-1366] is DENIED. FURTHER that Campbell's Motion to Strike Defendant's Reply in Support of its Motion to Transfer (Doc. # 41 ) in case number 1:12-CV-1366] is DENIED AS MOOT. FINALLY, that the Motion to Dismiss the Second Claim for Unfair and Deceptive Acts or Practices (Doc. # 20 ) in case number 1:12-CV-1366] is GRANT ED and Campbell's Unfair and Deceptive Trade Practices Act claim is DISMISSED WITHOUT PREJUDICE to Campbell filing a Motion Seeking Leave to Amend his Complaint within fourteen (14) days of the date of this Memorandum Opinion and Order. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOE CAMPBELL, d/b/a Campbell
Building Services,

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Plaintiff and
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Counterclaim Defendant, )
1:12CV1366
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v.
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APEX IMAGING SERVICES, INC.,
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Defendant and
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Counterclaim Plaintiff.
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________________________________________________________________________
APEX IMAGING SERVICES, INC.,
Plaintiff,
v.
JOE CAMPBELL, d/b/a Campbell,
Building Services,
Defendant.

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1:12CV1365

MEMORANDUM OPINION AND ORDER
BEATY, District Judge.
The above-captioned cases are before the Court on a number of Motions. In both cases
listed above, Joe Campbell, doing business as Campbell Building Services (“Campbell”), has filed
a Motion to Consolidate Case Nos. 12-CV-01365 and 12-CV-01366 and to Stay or Dismiss Case
No. 12-CV-01365 (“Motions to Consolidate”) [Doc. #20 in case number 1:12-CV-1365 & Doc.
#37 in case number 1:12-CV-1366]. In addition, in case number 1:12-CV-1366, Apex Imaging
Services, Inc. (“Apex”) has filed a Motion to Transfer Venue to the Southern District of Illinois

(“Motion to Transfer”) [Doc. #28 in case number 1:12-CV-1366], Campbell has filed a Motion
to Strike Defendant’s Reply in Support of its Motion to Transfer (“Motion to Strike”) [Doc. #41
in case number 1:12-CV-1366], and Apex has filed a Motion to Dismiss the Second Claim for
Unfair and Deceptive Acts or Practices (“Motion to Dismiss”) [Doc. #20 in case number 1:12CV-1366]. All Motions are fully briefed and ready for the Court’s review.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Campbell filed his Complaint [Doc. #14 in case number 1:12-CV-1366] on October 15,

2012, in the Superior Court of Davie County, North Carolina, asserting claims against Apex for
breach of contract and unfair and deceptive trade practices. In his Complaint, Campbell alleges
that in April of 2012, Apex contracted with Campbell to perform construction work on existing
buildings belonging to Home Depot and Pilot Gamerooms in Illinois, Ohio, Indiana, Nebraska,
and Pennsylvania. Campbell further alleges that he performed all work contracted for during
the months of May through September, 2012, but that Apex “failed and refused to make full
payment for the contracted jobs.” (Campbell Compl. [Doc. #14 in case number 1:12-CV-1366],
¶ 6.) Campbell alleges that Apex owes Campbell a total of $96,940.00 for contracted work. In
addition, Campbell alleges that Apex’s conduct in this case is part of a “pattern and practice”
that constitutes unfair and deceptive trade practices in violation of the North Carolina General
Statutes Section § 75-1.1. (Campbell Compl. [Doc. #14 in case number 1:12-CV-1366], ¶¶ 10
& 11.)
On October 24, 2012, Apex filed a Complaint [Doc. #1 in case number 1:12-CV-1365]
against Campbell in the United States District Court for the Central District of California,

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asserting claims for breach of contract and negligence. In its Complaint, Apex alleges that in
June and July of 2012, Apex issued written purchase orders to Campbell for remodeling projects
in various Home Depot and Pilot locations. Apex alleges that for the projects addressed in the
Complaint, “Campbell poorly performed services on [the] project, and/or failed to pay his
subcontractors, who then threatened to place a mechanic’s lien on the project. . . . Apex was
required to expend monies to remedy [Campbell’s] poor performance and satisfactorily complete
the project.” (Apex Compl. [Doc. #1 in case number 1:12-CV-1365], ¶¶ 21, 26, 31, 36, 41, & 46.)
Apex further alleges that it performed all “conditions, convenants, and promises” required under
the written contracts. (Apex Compl. [Doc. #1 in case number 1:12-CV-1365], ¶¶ 22, 27, 32, 37,
42, & 47.) Apex alleges that it incurred a total of $320,155.24 in backcharges due to Campbell’s
allegedly poor performance under the contracts. In addition, Apex alleges that Campbell owed
a duty to Apex to provide adequate construction services and that Campbell breached that duty
by performing poorly on the projects and by failing to pay his subcontractors. Apex further
alleges that Campbell’s breach of duty caused Apex to lose its reputation and goodwill with Pilot
and caused Pilot to terminate its contracts with Apex. As such, Apex alleges consequential
damages in excess of $1,000,000.00.
On November 26, 2012, Apex improperly removed Campbell’s case, as originally filed
in Davie County, North Carolina, to the United States District Court for the Central District of
California.1 On December 26, 2012, based on a stipulation by the parties,2 Apex’s case, as

1

Pursuant to Title 28, United States Code, Section 1441, “any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the district and
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originally filed in the United States District Court for the Central District of California, and
Campbell’s case, as originally filed in the Superior Court of Davie County, North Carolina, both
were transferred to this Court and docketed as case numbers 1:12-CV-1365 and 1:12-CV-1366,
respectively. Thereafter, Apex answered Campbell’s Complaint and filed Counterclaims in case
number 1:12-CV-1366. Apex also filed its present Motion to Dismiss and Motion to Transfer
in case number 1:12-CV-1366. In addition, Campbell filed Motions to Consolidate in both cases
and his present Motion to Strike in case number 1:12-CV-1366. The Court will address each of
the pending Motions in turn.
II.

MOTIONS TO CONSOLIDATE
As noted above, after Apex’s and Campbell’s cases were transferred to this Court, Apex

filed Counterclaims in response to Campbell’s Complaint in case number 1:12-CV-1366. Such
Counterclaims restate, verbatim, the claims and allegations of Apex’s Complaint in case number
1:12-CV-1365. Because Campbell filed his Complaint first in time,3 and because Apex’s

division embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added).
Because Campbell originally filed his Complaint in the Superior Court of Davie County, North
Carolina, the proper District for removal would be the Middle District of North Carolina, which
embraces Davie County, and not the Central District of California.
2

According to Campbell’s Response in Opposition to Apex’s Motion to Transfer,
Campbell initially considered moving to remand his case back to state court and for sanctions
against Apex based on the improper removal. See 28 U.S.C. § 1447(c) (“An order remanding
the case may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.”). In lieu of proceeding with a remand, however, Campbell
agreed to have both cases at issue transferred to the Middle District of North Carolina.
3

The Court notes that although the case number in which Campbell’s Complaint is
filed, that is case number 1:12-CV-1366, has a later sequential number than the case in which
Apex’s Complaint is filed, that is, case number 1:12-CV-1365, Campbell originally filed his
Complaint in Davie County, North Carolina on October 15, 2012. Apex did not file its
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Complaint is identical to its Counterclaims, Campbell moves to consolidate the two cases and
proceed only in case number 1:12-CV-1366. In addition, Campbell moves to dismiss case
number 1:12-CV-1365 in the interests of efficiency and avoiding confusion. Apex consents to
consolidating the two cases and proceeding at this time in case number 1:12-CV-1366.
However, Apex asks that the Court stay, rather than dismiss, case number 1:12-CV-1365 until
after resolution of all matters in case number 1:12-CV-1366.
Given that the two cases at issue, case numbers 1:12-CV-1365 and 1:12-CV-1366, involve
the exact same parties, facts, and claims, and given that both parties consent to consolidation,
the Court will grant Campbell’s Motions to Consolidate [Doc. #20 in case number 1:12-CV1365 & Doc. #37 in case number 1:12-CV-1366] and will consolidate case number 1:12-CV1365 with case number 1:12-CV-1366. As such, the present dispute between Campbell and
Apex shall proceed in case number 1:12-CV-1366 only. Furthermore, the Court finds no reason
to have two cases with identical parties, facts, and claims pending on the docket at this time.
Therefore, the Court will dismiss without prejudice case number 1:12-CV-1365.
III.

MOTION TO TRANSFER
Apex moves to transfer case number 1:12-CV-13664 from the Middle District of North

Carolina to the Southern District of Illinois pursuant to Title 28, United States Code, Section

Complaint in the United States District Court for the Central District of California until
October 24, 2012.
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Given that the Court will consolidate case numbers 1:12-CV-1365 and 1:12-CV-1366,
and will dismiss case number 1:12-CV-1365, the remaining discussion in this Memorandum
Opinion and Order relates only to the motions filed in case number 1:12-CV-1366.
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1404, “[f]or the convenience of parties and witnesses” and “in the interest of justice.”5 28 U.S.C.
§ 1404(a). Section 1404 “‘is intended to place discretion in the district court to adjudicate
motions for transfer according to an individualized, case-by-case consideration of convenience
and fairness.’” Republic Mortg. Ins. Co. v. Brightware, Inc., 35 F. Supp. 2d 482, 484 (M.D.N.C.
1999) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2244, 101 L.
Ed. 2d 22 (1988) (internal quotations omitted)). The exercise of such discretion involves the
weighing and consideration of a number of factors, including:
(1) the plaintiff’s initial choice of forum; (2) relative ease of access to sources of proof;
(3) availability of compulsory process for attendance of unwilling witnesses; (4) possibility
of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is
obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems
that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court
congestion; (9) local interest in having localized controversies settled at home; (10)
appropriateness in having a trial of a diversity case in a forum that is at home with the
state law that must govern the action; and (11) avoidance of unnecessary problems with
conflicts of laws.
IHFC Props., LLC v. APA Mktg., Inc.,850 F. Supp. 2d 604, 622 (M.D.N.C. 2012) (quoting Plant
Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996)). The moving party,
in this case Apex, bears the burden of proving that the balance of these factors favors transfer
of venue. Rebel Debutante LLC v. Forsythe Cosmetic Grp., Ltd., 799 F. Supp. 2d 558, 565
(M.D.N.C. 2011). In addition, “‘[w]hen deciding a motion to transfer, it is important to bear in
mind that such a motion should not be granted if it simply shifts the inconvenience from the

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Apex concedes that the Middle District of North Carolina is a proper venue for the
present case. As such, the Court addresses Apex’s Motion to Transfer in the context of the
convenience of the parties and witnesses and the interest of justice pursuant to 28 U.S.C.
§ 1404(a).
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defendant to the plaintiff.’” Netalog, Inc., v. Tekkeon, Inc., No. 1:05CV980, 2007 WL 534551,
at *5 (M.D.N.C. Feb. 15, 2007) (quoting Plant Genetic Sys., N.V., 933 F. Supp. at 527).
Moreover, in considering a motion to transfer venue based on the convenience of the
parties and witnesses, the plaintiff’s choice of forum “is accorded great weight, particularly where
the plaintiff has brought suit in its home forum.” Netalog, Inc., 2007 WL 534551, at *5. A
defendant seeking to transfer venue away from the plaintiff’s choice of forum “must
demonstrate that the balance of the factors weighs ‘strongly in [his] favor.’” IHFC Props., LLC,
850 F. Supp. 2d at 623 (quoting Mamani v. Bustamante, 547 F. Supp. 2d 465, 469 (D. Md.
2008)). Courts should afford less weight to the plaintiff’s choice of forum, however, if “the suit
is filed in a foreign forum or the cause of action bears little relation to the chosen forum.” Id.
In support of its Motion to Transfer, Apex first contends that Campbell is the only
witness who resides in North Carolina, and that North Carolina otherwise has no relation to the
facts and circumstances of this case. In that regard, Apex contends that six (6) of thirteen (13)
projects relevant to this case took place within the Southern District of Illinois, that none of the
projects took place in North Carolina, and that sixteen (16) of twenty-two (22) witnesses
identified by Apex live closer to the Southern District of Illinois than to the Middle District of
North Carolina. In addition, Apex contends that it will be easier for its eleven (11) partywitnesses to travel to the Southern District of Illinois than to the Middle District of North
Carolina. Specifically, Apex, which is located in California, contends that its employee-witnesses
can travel in less time and at a lower cost from the Los Angeles International Airport (“LAX”)

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to the Lambert-St. Louis International Airport in St. Louis, Missouri,6 as compared to the travel
required from LAX to the Piedmont Triad International Airport in Greensboro, North Carolina.
In contrast, Campbell contends that, in addition to himself, three non-party witnesses
reside in the Middle District of North Carolina. In addition, Campbell contends that although
some of the non-party witnesses identified by Apex may live somewhat closer to the Southern
District of Illinois than to the Middle District of North Carolina, no witnesses currently
identified by either party reside within the Southern District of Illinois. Furthermore, Campbell
contends that both parties will be forced to incur additional costs associated with hiring local
counsel in Illinois should venue be transferred to the Southern District of Illinois, thereby
potentially negating any savings in travel costs for Apex. Moreover, Campbell contends that the
parties already expended a great deal of time and money stipulating to the transfer of the cases
at issue to the Middle District of North Carolina from the Central District of California after
Apex improperly removed Campbell’s Complaint to California from Davie County, North
Carolina.
After considering the appropriate factors in light of the information presented by both
parties, the Court concludes that Apex has failed to meet his burden of showing that the balance
of these factors weighs strongly in favor of transferring venue from the Middle District of North
Carolina to the Southern District of Illinois. In so concluding, the Court notes that Campbell
chose to file this case in Davie County, North Carolina, which is the County of his residence.

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It appears that Apex contends that the Lambert-St. Louis International Airport in St.
Louis, Missouri, would be the most convenient airport for travel between Los Angeles,
California, and the District Court in the Southern District of Illinois.
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Although both parties agree that none of the underlying construction projects took place in
North Carolina, the Court notes that three non-party witnesses, in addition to Campbell, reside
in this District. In addition, the Court notes that only five (5) of the eleven (11) non-party
witnesses identified by Apex live closer to the Southern District of Illinois than to the Middle
District of North Carolina. Therefore, the information presently before the Court indicates that
more non-party witnesses, three (3) for Campbell and six (6) for Apex, for a total of nine (9), live
closer to the Middle District of North Carolina than to the Southern District of Illinois. In
addition, Apex has not identified any witness who lives within the Southern District of Illinois.
Furthermore, the Court notes that both parties likely will face additional costs associated with
hiring local counsel in Illinois if this case is transferred. Such information does not strongly
weigh in favor of a transfer. Rather, the Court finds that, overall, Apex has shown only that the
Southern District of Illinois may prove to be a slightly more convenient forum for Apex’s eleven
(11) employee-witnesses who must travel from California. The Court will not, however, transfer
this case to an alternate venue simply to shift the conveniences in Apex’s favor, particularly
where Campbell filed this action in his home forum. Therefore, the Court concludes that venue
is proper in the Middle District of North Carolina and that considerations of convenience do
not favor transfer of venue to the Southern District of Illinois. As such, the Court will deny
Apex’s Motion to Transfer.7

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The Court notes that Campbell filed a Motion to Strike Apex’s Reply to the Motion
to Transfer, primarily contending that Apex raised new issues and facts in its Reply which were
not raised in Campbell’s Response. Campbell contends that raising new issues violates Local
Rule 7.3(h) and, therefore, the Court should strike Apex’s Reply from the record. See L.R.
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IV.

MOTION TO DISMISS
Based on the Complaint filed by Campbell in case number 1:12-CV-1366, Apex moves

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Campbell’s Second
Claim for Relief, that is, Campbell’s Unfair and Deceptive Trade Practices Act (“UDTPA”)
claim, for failure to state a claim upon which relief can be granted. In reviewing a Motion to
Dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court must “‘take the facts in
the light most favorable to the [non-moving party],’ but ‘[it] need not accept the legal
conclusions drawn from the facts,’ and ‘[it] need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.’” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.
2000)). The Supreme Court, in Ashcroft v. Iqbal, noted that “[t]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007)). In this regard, the Iqbal Court noted that Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires that a complaint contain a “short and plain statement of the claim showing
that the pleader is entitled to relief,” but Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.” Id. at 677-78, 678-79, 129 S. Ct. at 1949,

7.3(h) (“A reply brief is limited to discussion of matters newly raised in the response.”). In
considering Campbell’s Motion to Strike, the Court notes that because the Court will deny
Apex’s Motion to Transfer for the reasons set forth above, Campbell’s Motion to Strike is
rendered moot and will be denied as such.
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1950. Pleadings containing “labels and conclusions,” “a formulaic recitation of the elements of
a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement,’” will not
survive a motion to dismiss. Id. at 678, 129 S. Ct. at 1949. Thus, dismissal of a complaint is
proper where a plaintiff’s factual allegations fail to “produce an inference of liability strong
enough to nudge the plaintiff’s claims ‘across the line from conceivable to plausible.’” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (citing Iqbal, 556
U.S. at 683, 129 S. Ct. at 1952 (internal quotation omitted)).
For purposes of his UDTPA claim, Campbell alleges the following:
Upon information and belief, [Apex] has engaged in a pattern and practice of contracting
with small local contractors such as [Campbell], paying them for only a fraction of the
total work done. When the local contractor refuses to perform work on new jobs until
he is paid for the work done on earlier jobs, [Apex] terminates the local contractor’s
services, and hires another contractor to complete the work left unfinished by the
original contract, or hires yet another to begin work on new jobs.
(Campbell Compl. [Doc. #14 in case number 1:12-CV-1366], ¶ 10.) Campbell further alleges
that such conduct, “constitutes unfair and deceptive trade practices in violation of N.C.G.S. §
75-1.1 et. seq.” (Campbell Compl. [Doc. #14 in case number 1:12-CV-1366], ¶ 11.) Under
North Carolina law, “[a]n act or practice is unfair if it ‘is immoral, unethical, oppressive,
unscrupulous, or substantially injurious to consumers.’” Bob Timberlake Collection, Inc. v.
Edwards, 176 N.C. App. 33, 41, 626 S.E.2d 315, 322-23 (2006) (quoting Marshall v. Miller, 302
N.C. 539, 548, 276 S.E.2d 397, 403 (1981)). Furthermore, “[a]n act or practice is deceptive if it
‘has the capacity or tendency to deceive.’” Id. (quoting Marshall, 302 N.C. at 548, 276 S.E.2d
at 403). However, “[i]t is well recognized . . . that actions for unfair and deceptive trade practices

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are distinct from actions for breach of contract . . . and that a mere breach of contract, even if
intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.G.S. § 75-1-1.”
Hardin v. York Mem’l Park, 730 S.E.2d 768, 778 (N.C. Ct. App. 2012) (internal quotations and
citations omitted) (alterations in original), rev. denied, 738 S.E.2d 376 (N.C. 2013); see also Ellis
v. Louisiana-Pacific Corp., 699 F.3d 778, 787 (4th Cir. 2012) (“‘[I]t is unlikely that an
independent tort could arise in the course of contractual performance, since those sorts of
claims are most appropriately addressed by asking simply whether a party adequately fulfilled its
contractual obligations.’” (quoting Eastover Ridge L.L.C. v. Metric Constructors, Inc., 139 N.C.
App. 360, 368, 533 S.E.2d 827, 833 (2000))). Rather, “[s]ubstantial aggravating circumstances
must attend a breach of contract to permit recovery as an unfair or deceptive trade practice.”
Burrell v. Sparkkles Reconstruction Co., 189 N.C. App. 104, 111, 657 S.E.2d 712, 717 (2008).
In its Motion to Dismiss, Apex contends that Campbell “simply alleges a contract
dispute” between the parties and fails to allege any facts that Apex engaged in unfair or
deceptive practices. (Apex’s Br. in Support of Mot. to Dismiss [Doc. #21 in case number 1:12CV-1366], at 9.) In contrast, Campbell contends that the allegations in his Complaint give rise
to a “reasonable inference” that Apex “had in place a practice where they established contracts
in which [Apex] intentionally deceived and mislead contractors into providing unilateral partial
performance in anticipation of receiving payment for the completed job, and then cancell[ed]
the contract when the contractors demanded that they be paid for the work performed to date.”
(Campbell’s Br. in Opposition to Mot. to Dismiss [Doc. #31 in case number 1:12-CV-1366], at
3.) As such, Campbell contends that he has alleged “more than adequate facts of aggravating

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circumstances in order to maintain a case for unfair or deceptive trade practices.” (Campbell’s
Br. in Opposition to Mot. to Dismiss [Doc. #31 in case number 1:12-CV-1366], at 4.)
Based on the allegations set forth in the Complaint, the Court finds that Campbell has
failed to allege substantial aggravating circumstances that would elevate the breach of contract
claim against Apex to a claim arising under the UDTPA. In so finding, the Court notes that
although Campbell attempts to elaborate on his UDTPA claim within his briefing in opposition
to Apex’s Motion to Dismiss, Campbell’s complaint contains no more than “labels and
conclusions” and, therefore, fails to meet the threshold requirements for surviving a Motion to
Dismiss under Iqbal and Twombly.8 Moreover, to the extent that Campbell has made any
factual allegations at all with respect to his UDTPA claim, such allegations appear to be based
upon information provided by an unnamed source without any apparent connection to the
circumstances at issue in this case. The Court finds such allegations speculative at best and
insufficient to survive Apex’s Motion to Dismiss at this time. For the foregoing reasons, the
Court will grant Apex’s Motion to Dismiss and will dismiss Campbell’s UDTPA claim.
However, to the extent that Campbell may be able to provide additional factual support for his
UDTPA claim, the Court will dismiss such claim without prejudice to Campbell filing a Motion
Seeking Leave to Amend his Complaint within fourteen (14) days of the date of this

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Although the Court acknowledges that Campbell attempts to provide additional
information in his briefing solely for the purpose of responding to Apex’s Motion to Dismiss,
the Court takes no position at this time as to whether such additional information, as provided,
would be sufficient to survive a Motion to Dismiss if included in the present Complaint or an
Amended Complaint.
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Memorandum Opinion and Order.
V.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Campbell’s Motions to Consolidate

Case Nos. 12-CV-01365 and 12-CV-01366 and to Stay or Dismiss Case No. 12-CV-01365 [Doc.
#20 in case number 1:12-CV-1365 & Doc. #37 in case number 1:12-CV-1366] are hereby
GRANTED and the present dispute between Campbell and Apex shall proceed in case number
1:12-CV-1366 only. IT IS FURTHER ORDERED that case number 1:12-CV-1365 is hereby
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED the Apex’s Motion to Transfer Venue to the Southern
District of Illinois [Doc. #28 in case number 1:12-CV-1366] is hereby DENIED. IT IS
FURTHER ORDERED that Campbell’s Motion to Strike Defendant’s Reply in Support of its
Motion to Transfer [Doc. #41 in case number 1:12-CV-1366] is hereby DENIED AS MOOT.
FINALLY, IT IS ORDERED that the Motion to Dismiss the Second Claim for Unfair
and Deceptive Acts or Practices [Doc. #20 in case number 1:12-CV-1366] is hereby
GRANTED and Campbell’s Unfair and Deceptive Trade Practices Act claim is hereby
DISMISSED WITHOUT PREJUDICE to Campbell filing a Motion Seeking Leave to Amend
his Complaint within fourteen (14) days of the date of this Memorandum Opinion and Order.
This, the 7th day of August, 2013.

United States District Judge

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