Parker Excavating, Inc. v. Highlands at Cullowhee, LLC et al
Filing
9
MEMORANDUM OF DECISION AND ORDER granting Defts' 5 Motion to Dismiss, and dismissing this matter with prejudice; and directing the Clerk of Court to close this civil action. Signed by Chief Judge Martin Reidinger on 3/29/2021. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00165-MR
PARKER EXCAVATING, INC.,
)
)
Plaintiff,
)
)
vs.
)
)
HIGHLANDS AT CULLOWHEE, LLC; )
R&R CULLOWHEE, LLC; JOSEPH
)
RILEY JOHNSON; and RANDAL
)
HOMER,
)
)
Defendants.
)
_______________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Defendants’ Joint Motion to
Dismiss. [Doc. 5].
I.
BACKGROUND
Parker Excavating, Inc. (the “Plaintiff”) is a North Carolina corporation
and a licensed general contractor. [Doc. 1-2 at ¶ 1]. Highlands at Cullowhee,
LLC (“Highlands”) is a Georgia limited liability corporation. [Id. at ¶ 2]. R&R
Cullowhee, LLC (“R&R”) is a Texas limited liability corporation. [Id. at ¶ 3].
Randal Homer (“Homer”) is a citizen of Georgia and serves as a member of
Highlands and R&R. [Id. at ¶ 5]. Joseph Riley Johnson (“Johnson” and
collectively with Highlands, R&R and Homer, the “Defendants”) is a citizen
of Georgia and serves as the registered agent for Highlands. [Id. at ¶ 4].
Johnson also serves as the member manager for JOMCO, Inc. (“JOMCO”),
a Georgia corporation. [Id. at ¶ 11].
In March 2017, Highlands purchased approximately twelve acres of
real property in Jackson County, North Carolina (the “Property”). [Id. at ¶
28]. On March 15, 2017, Highlands entered into an agreement with JOMCO
to build residential apartments on the Property. [Id. at ¶ 40]. In June 2017,
JOMCO entered a subcontracting agreement with the Plaintiff to complete
work on the Property. [Id. at ¶ 38].
On October 19, 2018, the Plaintiff completed the work and submitted
a final invoice. [Id. at ¶ 39]. After JOMCO failed to pay the invoice, the
Plaintiff filed a lien on the Property on October 26, 2018. [Id. at ¶ 41]. The
Plaintiff never pursued its lien against the Property.
On January 19, 2019, the Plaintiff filed a complaint (the “First Action”)
against JOMCO, Highlands, Johnson, and others, asserting several claims
for payment under the agreement between the Plaintiff and JOMCO. See
Parker Excavating, Inc. v. JOMCO Contracting, LLC, et al., No. 1:19-cv00062-MR-WCM, 2019 WL 8012205, at *1 (W.D.N.C. Dec. 17, 2019), report
and recommendation adopted, No. 1:19-cv-00062-MR-WCM, 2020 WL
261758 (W.D.N.C. Jan. 17, 2020) (Reidinger, J.). The Plaintiff attempted to
2
pierce JOMCO’s corporate veil to assert various claims against Highlands
and Johnson. Id.
On July 30, 2019, the Plaintiff sought leave of court to amend its
complaint in the First Action and add new allegations regarding Homer’s
ownership of Highlands. Id. at *1 n.1. On December 17, 2019, Magistrate
Judge W. Carleton Metcalf denied the Plaintiff’s request for leave to amend,
concluding that the Plaintiff’s proposed amendment was futile because the
new allegations against Homer provided an insufficient basis to support
claims against him. Id.
On January 17, 2020, the Court dismissed all of the Plaintiff’s claims
against Highlands and Johnson in the First Action, concluding that the
Plaintiff failed to present sufficient allegations to pierce JOMCO’s corporate
veil.1 Id. The Court explained that many of the Plaintiff’s allegations were
conclusory, and that “[t]he mere allegation that the corporate entities had
some overlapping owners or agents is insufficient to give rise to alter ego
liability.” Id.
Highlands conveyed the Property to R&R via a special warranty deed
after the Court dismissed the Plaintiff’s claims against Highlands. [Doc. 1-2
The Court also dismissed the Plaintiff’s Chapter 75 and civil conspiracy claims against
JOMCO.
1
3
at 100-104]. Although the first page of the deed stated that it was “made as
of the 7th day of July, 2019,” the parties signed the deed on January 24,
2020 and February 1 2020, and the Jackson County Register of Deeds
recorded the deed on February 10, 2020.
[Doc. 1-2 at 100-02].
The
Defendants state that the inclusion of the July 7, 2019 date was a scrivener’s
error. [Doc. 3 at 6 n.2].
JOMCO defaulted in the First Action and the Court entered a default
judgment against JOMCO for $170,237.32 on the breach of contract claim.
Parker Excavating, Inc. v. JOMCO Contracting, LLC, No. 1:19-CV-00062MR, 2020 WL 1821059, at *1 (W.D.N.C. Apr. 10, 2020) (Reidinger, J.).
On May 26, 2020, the Plaintiff filed this action (the “Second Action”)
against Highlands; R&R; Johnson; and Homer in Jackson County Superior
Court, asserting claims for violation of the North Carolina Uniform Fraudulent
Transfers Act, N.C. Gen. Stat. § 39-23.1 et seq. (the “UFTA”); civil
conspiracy; fraud; and unfair and deceptive trade practices under N.C. Gen.
Stat. § 75-1.1 et seq. (“Chapter 75”). [Doc. 1-1]. The Plaintiff also seeks to
pierce the corporate veil of Highlands and R&R to obtain relief from Johnson
and Homer. [Id. at ¶¶ 74-85].
On June 29, 2020, the Defendants removed the Second Action to this
Court. [Doc. 1].
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On July 13, 2020, the Plaintiff filed a motion to vacate and set aside
the Order in the First Action that dismissed the claims against Highlands and
Johnson, arguing that it discovered evidence that Johnson owned JOMCO
and Highlands when the Plaintiff and JOMCO entered into the agreement.
Parker Excavating, Inc. v. JOMCO Contracting, LLC, No. 1:19-CV-00062MR, 2020 WL 4734797, at *1 (W.D.N.C. Aug. 14, 2020) (Reidinger, C.J.).
On August 14, 2020, the Court denied the Plaintiff’s motion, concluding that
there were still “no plausible allegations necessary to support the drastic
remedy of disregarding the corporate existence of JOMCO[.]” Id. at *3.
The Defendants filed a Joint Motion to Dismiss for Failure to State a
Claim in the Second Action. [Doc. 5]. The Plaintiff has responded. [Doc. 7].
The time for the Defendants to reply has passed.
Having been fully briefed, this matter is ripe for disposition.
II.
STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint
must contain 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)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be
“plausible on its face,” a plaintiff must demonstrate more than “a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
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In reviewing the complaint, the Court must accept the truthfulness of
all factual allegations but is not required to assume the truth of “bare legal
conclusions.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). “The
mere recital of elements of a cause of action, supported only by conclusory
statements, is not sufficient to survive a motion made pursuant to Rule
12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012).
Determining whether a complaint states a plausible claim for relief is
“a context-specific task,” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009), which requires the Court to assess whether the factual allegations of
the complaint are sufficient “to raise the right to relief above the speculative
level,” Twombly, 550 U.S. at 555. As the Fourth Circuit has explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the
claim. However, the complaint must allege sufficient
facts to establish those elements. Thus, while a
plaintiff does not need to demonstrate in a complaint
that the right to relief is probable, the complaint must
advance the plaintiff's claim across the line from
conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal quotation marks omitted).
III.
DISCUSSION
A.
UFTA Claims
The Plaintiff asserts that Highlands’ transfer of the Property to R&R
was a fraudulent transfer under the UFTA. [Doc. 1-2 at ¶¶ 49-59]. Under
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the UFTA, “[a] transfer made or obligation incurred by a debtor is fraudulent
as to a creditor, whether the creditor's claim arose before or after the transfer
was made or the obligation was incurred, if the debtor made the transfer or
incurred the obligation . . . [w]ith intent to hinder, delay, or defraud any
creditor of the debtor.” N.C. Gen. Stat. § 39–23.4(a)(1). The UFTA defines
a “debtor” as any person who is liable on a right to payment, “whether or not
the right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured.” N.C. Gen. Stat. § 39–23.1(4),(6).
The Defendants move to dismiss the Plaintiff’s UFTA claim, arguing
that Highlands, R&R, Johnson, and Homer did not owe any debt to the
Plaintiff when the Property was conveyed. [Doc. 6 at 6]. The Defendants
argue that the Property was conveyed after the Court dismissed the Plaintiff’s
claims against Highlands and Johnson and that the Plaintiff never asserted
any claims against R&R or Homer. [Id.].2 The Plaintiff contends that the
Property was conveyed in July 2019 while its claims were still pending
against Highlands and Johnson, and that the Defendants tried to hide the
2
The Plaintiff has presented no allegations to establish that R&R ever owed a debt to the
Plaintiff.
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conveyance by not recording it until after the Court dismissed the claims
against Highlands and Johnson in 2020. [Doc. 1-2 at ¶ 71].
“A conveyance of land can only be by deed.” New Home Bldg. Supply
Co. v. Nations, 259 N.C. 681, 683, 131 S.E.2d 425, 427 (1963) (citation
omitted). “The delivery of a deed is essential to the transfer of the title. It is
the final act, without which all other formalities are ineffectual.” Younge v.
Guilbeau, 70 U.S. 636, 641 (1865). Accordingly, “no title passes from the
grantor, or vests in the grantee, until it is delivered.” Johnston v. Kramer
Bros. & Co., 203 F. 733, 736 (E.D.N.C. 1913). However, the “delivery of a
deed . . . cannot occur until the deed is signed by all of its grantors.” White
v. Farabee, 212 N.C. App. 126, 134, 713 S.E.2d 4, 10 (2011). Therefore,
property cannot be conveyed until a deed is delivered, and a deed cannot be
delivered until it is signed by the grantor. New Home Bldg. Supply, 259 N.C.
at 683, 131 S.E.2d at 427; Younge, 70 U.S. at 641; Johnston, 203 F. at 736;
White, 212 N.C. App. at 134, 713 S.E.2d at 10.
Even assuming that the Plaintiff is correct that Highlands attempted to
convey the Property to R&R in July 2019, such conveyance would have been
without legal effect. New Home Bldg. Supply, 259 N.C. at 683, 131 S.E.2d
at 427; Younge, 70 U.S. at 641; Johnston, 203 F. at 736; White, 212 N.C.
App. at 134, 713 S.E.2d at 10. Highlands did not sign the deed conveying
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the Property to R&R until January 24, 2020. [Doc. 1-2 at 102]. Because the
deed could not have been delivered until after Highlands signed it, Highlands
could not have conveyed the Property to R&R until January 24, 2020 at the
earliest.
The Court dismissed the claims against Highlands and Johnson on
January 17, 2020. See Parker Excavating, Inc. v. JOMCO Contracting, LLC,
et al., No. 1:19-cv-00062-MR-WCM, 2019 WL 8012205, at *1 (W.D.N.C.
Dec. 17, 2019), report and recommendation adopted, No. 1:19-cv-00062MR-WCM, 2020 WL 261758 (W.D.N.C. Jan. 17, 2020) (Reidinger, J.).
Because the Property could not have been conveyed until January 24, 2020
at the earliest, the conveyance necessarily occurred after the Court
dismissed the claims against Highlands and Johnson.
Accordingly, the
Plaintiff’s prior claims against Highlands and Johnson cannot be the basis
for concluding that Highlands or Johnson owed the Plaintiff a debt when the
Property was conveyed.
The Plaintiff presents three additional arguments to contend that
Highlands, Johnson, and Homer were its debtors when the Property was
transferred. [Doc. 7 at 5].
First, the Plaintiffs claims that Highlands, Johnson, and Homer were
liable for JOMCO’s debt at the time of the transfer under a veil piercing theory
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because “Johnson was acting for both [Highlands and JOMCO] at the time
of the contracting.” [Id.]. As discussed in the Court’s prior Order dismissing
the Plaintiff’s claims against Highlands and Johnson, “[t]he mere allegation
that the corporate entities had some overlapping owners or agents is
insufficient to give rise to alter ego liability.” Parker Excavating, Inc. v.
JOMCO Contracting, LLC, No. 1:19-CV-00062-MR-WCM, 2020 WL 261758,
at *1 (W.D.N.C. Jan. 17, 2020) (Reidinger, J.). While the Plaintiff’s complaint
presents some additional allegations regarding the ownership and operation
of the entities, the Court again concludes that the Plaintiff’s allegations are
conclusory and insufficient to show that JOMCO, Highlands, and R&R were
operated in a manner that disregarded their existence as sperate business
entities or that any of those entities served as an alter ego of Johnson or
Homer.
Second, the Plaintiff argues that Highlands was its debtor at the time
of the transfer because the Plaintiff had asserted a lien against the Property
in October 2018. [Id. at 4]. The Defendants argue that the lien had been
discharged when Highlands transferred the Property to R&R. [Doc. 6 at 79]. A lien against real property is discharged if the party failed to enforce the
lien within 180 days after the last furnishing of labor or material at the site.
See N.C. Gen. Stat. §§ 44A-13(a); 44A-16(3). The Plaintiff’s Notice of Claim
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of Lien states that the Plaintiff last furnished labor or materials on October
19, 2018. [Doc. 1-2 at 124]. Accordingly, the Plaintiff had until April 17, 2019
to sue to enforce the lien. Because the Plaintiff never sought to enforce its
lien, the lien has been discharged by operation of law. Accordingly, there
was no lien on the Property at the time of the transfer.
Finally, the Plaintiff argues that the Defendants were its debtors
because “there have been admissions of the debt.” [Id. at 5]. Presumably,
the Plaintiff is referencing its allegation that Homer met with the Plaintiff and
“advised that he was the main owner of Highlands” and acknowledged that
the Plaintiff “had completed work for Highlands and had not been fully
compensated for the work.” [Doc. 7 at 3; Doc. 1-2 at ¶ 46].3 That allegation
falls far short of establishing that Highlands or Homer acknowledged liability
for JOMCO’s debt or assumed responsibility for paying that debt. In short,
Homer did not assume liability for JOMCO’s debt by acknowledging that
JOMCO owed the Plaintiff money.4
3
The Plaintiff presents nothing to suggest that Johnson or R&R ever acknowledged the
debt.
4
Moreover, under North Carolina law, a promise to answer for the debt of another must
be in writing. See N.C. Gen. Stat. § 22-1. The Plaintiff makes no allegation that Highlands
or Homer ever entered into a written contractual agreement to assume liability for
JOMCO’s debt.
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For these reasons, there is no basis from which the Court can conclude
that Highlands, Johnson, or Homer were liable for any debt to the Plaintiff
when the Property was conveyed to R&R. The Plaintiff has also presented
no allegations to establish that R&R owed any debt to the Plaintiff at the time
the Property was transferred.
Accordingly, the Plaintiff fails to state a
plausible claim against the Defendants under the UFTA and those claims will
be dismissed.
B.
Fraud Claims
The Plaintiff next brings claims for fraud. While the Plaintiff’s fraud
claims are not a model of clarity, they seem to assert that Homer set up R&R
“for the sole purpose of conveying the property and any potential revenue
out of reach of the Plaintiff[,]” that Highlands failed to pay the amount that
JOMCO owed to the Plaintiff, and that Johnson and Homer fraudulently
concealed their use of various corporate structures from the Plaintiff.5 [Doc.
1-2 at ¶¶ 72, 76].
To establish a fraud by misrepresentation under North Carolina law, a
plaintiff must show a “(1) false representation or concealment of a material
5
Rule 9 of the Federal Rules of Civil Procedure requires that an allegation of fraud must
be pled with particularity. The Plaintiff’s vague and ambiguous allegations, simply
employing the word “fraud,” leaves the Court to guess what fraud the Plaintiff might be
alleging and falls far short of meeting this requirement. On this basis alone, the Plaintiff’s
fraud claim is subject to dismissal.
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fact, (2) reasonably calculated to deceive, (3) made with intent to deceive,
(4) which does in fact deceive, (5) resulting in damage to the injured party.”
Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)). To
establish fraud based on the concealment of a material fact, a plaintiff must
specifically plead
(1) the relationship or situation giving rise to the duty
to speak, (2) the event or events triggering the duty
to speak, and/or the general time period over which
the relationship arose and the fraudulent conduct
occurred, (3) the general content of the information
that was withheld and the reason for its materiality,
(4) the identity of those under a duty who failed to
make such disclosures, (5) what those defendant(s)
gained by withholding information, (6) why plaintiff's
reliance on the omission was both reasonable and
detrimental, and (7) the damages proximately flowing
from such reliance.
Breeden v. Richmond Cmty. Coll., 171 F.R.D. 189, 195 (M.D.N.C. 1997)
(citations omitted). The party that allegedly failed to speak must have had a
duty to disclose the information, such as when there is a “relationship of trust
and confidence between the parties.” Eli Research, Inc. v. United Commc'ns
Grp., LLC, 312 F.Supp.2d 748, 759 (M.D.N.C. 2004). “Contracting parties in
a commercial transaction are not in a relationship of trust and confidence.”
Rahamankhan Tobacco Enterprises Pvt. Ltd. v. Evans MacTavish Agricraft,
Inc., 989 F. Supp. 2d 471, 477 (E.D.N.C. 2013) (citations omitted).
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To the extent that the Plaintiff bases its fraud claim on Highlands
transferring the Property or owing the Plaintiff any money, those claims fail.
As discussed above, Highlands could only have conveyed the Property to
R&R after the Court dismissed the Plaintiff’s claims against Highlands.
Moreover, Highlands never owed the Plaintiff any money because the
Plaintiff’s contract was with JOMCO, not Highlands. There was nothing
fraudulent about Highlands conveying an unencumbered property or
refusing to pay a debt it did not owe,
To the extent that the Plaintiff bases its fraud claim on the Defendants’
use of various corporate structures, those claims also fail. While the Plaintiff
claims that Johnson and Homer have created numerous corporate entities,
and that lawsuits have been filed against those entities, the Plaintiff presents
no allegations to establish that any of the Defendants had a duty to disclose
information about those corporate entities. The Plaintiff did not enter a
contract with any of the Defendants, and even if it had, the mere fact that the
parties contracted with one another is insufficient to establish a duty to
disclose information.
(citations omitted).
Rahamankhan Tobacco, 989 F. Supp. 2d at 477
The complaint simply provides insufficient factual
allegations, even accepted as true, to state a plausible claim for fraud.
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C.
Chapter 75
The Plaintiff next brings claims under Chapter 75, asserting that the
Defendants “committed a deceptive and unfair trade practice by forming
multiple entities for the purpose of avoiding creditors and avoiding the cost
of construction of their property.” [Doc. 1-2 at ¶¶ 86-102].
A Chapter 75 claim requires (1) an unfair or deceptive act or practice;
(2) in or affecting commerce; which (3) proximately caused actual injury to
the claimant or their business. N.C. Gen. Stat. § 75-1.1. An act is deceptive
“if it has a tendency or capacity to deceive.”
Rahamankhan Tobacco
Enterprises Pvt. Ltd. v. Evans MacTavish Agricraft, Inc., 989 F.Supp.2d 471,
477 (E.D.N.C. 2013). An act is unfair “if it offends established public policy,”
“is immoral, unethical, oppressive, unscrupulous, or substantially injurious to
consumers,” or amounts to an inequitable assertion of . . . power or position.”
Id. “The determination of whether an act is unfair or deceptive is a question
of law for the court.” Bernard v. Cent. Carolina Truck Sales, Inc., 68 N.C.
App. 228, 230, 314 S.E.2d 582, 584 (1984).
To begin, the Court concludes that the Plaintiff’s Chapter 75 claims
against Johnson, Highlands, and Homer are barred by res judicata, which
provides that once a claim has been litigated and resolved, it may not be
reasserted elsewhere. Under res judicata, “a final judgment on the merits of
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an action precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.” Pueschel v. United States,
369 F.3d 345, 354 (4th Cir. 2004) (quoting Federated Dep't Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981)). “In finding that the second suit involves
the same cause of action, the court need not find that the plaintiff in the
second suit is proceeding on the same legal theory he or his privies
advanced in the first suit.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,
556 F.3d 177, 210 (4th Cir. 2009). Rather, the first suit will preclude the
second suit so long as the subsequent suit “arises out of the same
transaction or series of transactions as the claim resolved by the prior
judgment.” Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990).
The Court previously dismissed the Plaintiff’s Chapter 75 claims
against Highlands and Johnson.6 See Parker Excavating, Inc. v. JOMCO
Contracting, LLC, et al., No. 1:19-cv-00062-MR-WCM, 2019 WL 8012205,
at *1 (W.D.N.C. Dec. 17, 2019), report and recommendation adopted, No.
1:19-cv-00062-MR-WCM, 2020 WL 261758 (W.D.N.C. Jan. 17, 2020)
(Reidinger, J.). For similar reasons, the Court denied the Plaintiff ‘s request
While the Court did not specify that the Plaintiff’s claims were dismissed with prejudice,
a dismissal under Rule 12(b)(6) in the Fourth Circuit is with prejudice unless the district
court specifies otherwise. Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th
Cir. 1985) (“A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice
unless it specifically orders dismissal without prejudice.”).
6
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for leave to amend its complaint to assert a Chapter 75 claim against Homer
on futility grounds. See Parker Excavating, Inc. v. JOMCO Contracting, LLC,
et al., No. 1:19-cv-00062-MR-WCM, 2019 WL 8012205, at *1 (W.D.N.C.
Dec. 17, 2019). A dismissal under 12(b)(6) constitutes a final judgment on
the merits that precludes a party from relitigating those issues. Fayetteville
Investors v. Commercial Bldrs., Inc., 936 F.2d 1462, 1471 (4th Cir. 1991).
Likewise, denial of a motion to amend based on futility constitutes a final
judgment on the merits barring the assertion of those claims in a later action.
Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 397 (4th Cir. 2006) (citation
omitted). The Court previously dismissed the Plaintiff’s Chapter 75 claims
against Highlands and Johnson and concluded that the Plaintiff’s Chapter 75
claim against Homer was futile. Accordingly, the Plaintiff is barred from
reasserting those claims against those parties here.
The basis for the Plaintiff’s Chapter 75 claim against R&R is unclear.
Notably, the section of the complaint concerning the Chapter 75 claims does
not even mention R&R. [Doc. 1-2 at ¶¶ 86-102]. Even taking all of the
Plaintiff’s allegations as true, they fail to state a claim against R&R or any of
the other Defendants.
In addition, the Plaintiff’s assertion that the
Defendants’ use of the corporate and business entity laws of the State of
North Carolina somehow constitute deceptive trade practices stands
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corporate law on its head. Individuals and other entities may own multiple
corporate and limited liability entities without running afoul of the law. The
Plaintiff has alleged nothing indicating an abuse of those statutes. While the
Plaintiff clearly takes umbrage with the protections afforded to corporate
entities, the exercise of those protections simply does not constitute an unfair
or deceptive trade practice as a matter of law. Bernard, 68 N.C. App. at 230,
314 S.E.2d at 584.
D.
Civil Conspiracy
The Plaintiff next brings claims for civil conspiracy. [Doc. 1-2 at ¶¶ 6067]. The elements of civil conspiracy under North Carolina law are: “‘(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, 669 S.E.2d 61, 72 (2008)
(citations omitted).
“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.” Sellers v. Morton, 191 N.C. App. 75, 83, 661 S.E.2d 915, 922
(2008) (internal citations and quotations omitted). Because the Court is
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dismissing the Plaintiff’s other claims, the Plaintiff’s claims for civil conspiracy
will also be dismissed.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss.
[Doc. 5] is GRANTED, and this matter is DISMISSED WITH PREJUDICE.
The Clerk of Court is respectfully directed to close this civil action.
IT IS SO ORDERED.
Signed: March 29, 2021
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