MB Realty Group, Inc. et al v. Gaston County Board of Education et al
Filing
77
ORDER denying as moot 30 Motion to Dismiss for Lack of Jurisdiction; denying as moot 30 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 39 Motion to Dismiss ; granting 45 Motion to Dismiss Amended Complaint for Failure to State a Claim; granting 45 Motion to Dismiss Amended complaint for Lack of Jurisdiction; granting in part and denying in part 48 Motion to Dismiss for Failure to State a Claim; granting in part and d enying in part 48 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 51 Motion to Dismiss ; granting in part and denying in part 57 Motion to Dismiss ; granting in part and denying in part 61 Motion to Dismis s for Failure to State a Claim; granting in part and denying in part 61 Motion to Dismiss for Lack of Jurisdiction; denying as moot 21 Motion to Dismiss ; denying as moot 23 Motion to Dismiss for Failure to State a Claim; denying as moot 23 Motion to Dismiss for Lack of Jurisdiction; denying as moot 26 Motion to Dismiss. Signed by Chief Judge Frank D. Whitney on 7/10/18. (clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00427-FDW-DCK
MB REALTY GROUP, INC., and MATT )
BECKHAM
)
)
Plaintiffs,
)
)
vs.
)
)
THE GASTON COUNTY BOARD OF )
EDUCATION, GASTON COUNTY, W. )
JEFFREY BOOKER, in his capacity as )
Superintendent of the Gaston County Board )
of
Education
and
individually, )
CARSTAPHEN FAMILY FOUNDATION, )
THE STOWE FOUNDATION, INC., )
CATHERINE ROBERTS, and TRACY )
PHILBECK,
)
)
Defendants.
)
ORDER
THIS MATTER is before the Court on several Motions to Dismiss Plaintiffs’ Amended
Complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), for failure to state
a claim for which relief may be granted under Fed. R. Civ. P. 12(b)(6), and for judgment on the
pleadings under Fed. R. Civ. P. 12(c). (Docs. Nos. 39, 45, 48, 51, 57, & 61). Upon review by the
Court, for the reasons below, the Motions to Dismiss the Complaint (Docs. Nos. 21, 23, 26, & 30)
are DENIED AS MOOT, and the Motions to Dismiss the Amended Complaint (Docs. Nos. 39, 45,
48, 51, 57, & 61) are GRANTED IN PART and DENIED IN PART.
BACKGROUND
According to the Amended Complaint,1 Plaintiffs and Defendants are all residents of North
1
The Court reads the allegations and assertions of the pleadings and supporting affidavits in the light most favorable
to Plaintiff. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
1
Carolina and, in the case of parties that are corporate or government entities, have their principal
places of business in North Carolina. (Doc. No. 32, pp. 2–3). Defendants Gaston County, Gaston
County Board of Education (“GCBOE”), and Booker are collectively referred to as “Purchasing
Defendants.”
Defendants Carstarphen Family Foundation and Stowe Foundation, Inc., are
collectively referred to as “Selling Defendants.” Defendants Roberts and Philbeck are collectively
referred to as “Publishing Defendants.” (Doc. No. 32, pp. 2–3).
Plaintiffs allege they entered into a series of contracts and agreements with Selling
Defendants and Purchasing Defendants concerning a parcel of land in Gaston County, North
Carolina. (Doc. No. 32).
Plaintiffs further allege that Selling Defendants and Purchasing
Defendants conspired to dishonor Plaintiffs’ contracts with Defendants, causing damage to
Plaintiffs’ business.
(Doc. No. 32, pp. 4–8).
Plaintiffs also allege Publishing Defendants
publicized or circulated emails containing false or defamatory statements about Plaintiffs. (Doc.
No. 32, pp. 5–6).
The Amended Complaint asserts ten separate Counts: (1) fraud against Purchasing
Defendants; (2) breach of implied covenant of good faith and fair dealing against Selling
Defendants; (3) violation of the Sherman Antitrust Act (15 U.S.C. § 1) against Purchasing and
Selling Defendants; (4) unjust enrichment against Selling Defendants; (5) relief in quantum meruit
against Selling Defendants; (6) libel against Publishing Defendants; (7) punitive damages for
willful and wanton conduct against all Defendants; (8) violations of North Carolina’s unfair and
deceptive trade practices statutes (N.C. Gen. Stat. § 75-1 et seq.) against all Defendants; (9)
tortious interference with contract right against Defendant Gaston County; and (10) tortious
2
interference with prospective economic advantage against Defendants Gaston County and
GCBOE. (Doc. No. 32, pp. 8–16).
Defendants moved to dismiss Plaintiffs’ original Complaint. (Docs. Nos. 21, 23, 26, &
30). Plaintiff filed an Amended Complaint superseding the original Complaint, thereby rendering
the above-referenced Motions to Dismiss moot. Defendants again filed Motions to Dismiss for
lack of subject matter jurisdiction and failure to state a claim entitled to relief pursuant to Fed. R.
Civ. P. 12(b)(1), 12(b)(6), and 12(c). (Docs. Nos. 39, 45, 48, 51, 57, & 61).
APPLICABLE LEGAL STANDARD
When a court considers a motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1), the burden of proof is on the plaintiff. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). The motion shall be granted “if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg
& Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). If the plaintiff merely fails
to properly plead the elements of a federal claim, it is not a truly threshold jurisdictional question,
and it is analyzed as a Rule 12(b)(6) question. Arbaugh v. Y & H Corp., 546 U.S. 500, 514–15
(2006) (explaining that “jurisdictional” elements of federal claims must be explicitly identified as
such by statute). In this event, the district court retains the discretion to extend supplemental
jurisdiction over pendent state-law claims. See id.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint” but “does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); E. Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). A complaint attacked by a Rule 12(b)(6)
3
motion to dismiss will survive if it “contains ‘enough facts to state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Robinson v. Am. Honda Motor Co., Inc., 551 F.3d 218, 222
(4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. The Supreme Court has also opined:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Specific facts are not
necessary; the statement need only “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” In addition, when ruling on
a defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56) (internal
citations omitted).
A motion for judgment on the pleadings applies much the same standard as a motion to
dismiss under Rule 12(b)(6). Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
The district court considers both the complaint and the answer and accepts all allegations as true
for the purpose of the motion. Id. at 244. The Court will not grant the motion if the complaint and
the answer dispute an issue of material fact.
Upon the filing of an amended complaint, the original complaint is superseded, and
motions to dismiss the original complaint are rendered moot. Young v. City of Mount Ranier, 238
F.3d 567, 573 (4th Cir. 2001).
4
ANALYSIS
A. The Antitrust Claim
Purchasing and Selling Defendants argue for dismissal of the antitrust claim in Count 3
because Plaintiffs fail to allege facts in their Amended Complaint implicating interstate commerce
or the restraint thereof. Plaintiffs contend an agreement amongst Defendants caused economic
harm to them. The Court notes, however, Count 3 (the antitrust claim) contains no allegation of
intention of harm to competition generally. (Doc. No. 32, p. 10).
Local governments are statutorily immune from antitrust claims seeking money damages
brought under Section 4 of the Clayton Act (15 U.S.C. § 15)2 when acting within the authority
granted by the state. 15 U.S.C. §§ 34–36. According to Plaintiffs’ allegations, Gaston County and
GCBOE (“Municipal Defendants”) attempted to purchase land to build a new middle school.
(Doc. No. 32). North Carolina law authorizes local boards of education and county governments
to purchase and develop land for use as public schools. N.C. Gen. Stat. § 115C-426. Assuming
the facts in the Amended Complaint are true, Municipal Defendants acted within their statutory
authority, rendering their acts immune to a federal antitrust suit.
While local governments enjoy immunity from claims for money damages, this immunity
does not extend to petitions for injunctive relief as authorized by 15 U.S.C. § 26. See R. Ernest
Cohn, D.C., D.A.B.C.O. v. Bond, 953 F.2d 154, 158 (4th Cir. 1991). The Amended Complaint
pleas for a preliminary injunction, (Doc. No. 32, p. 10), and that portion of their antitrust claim
survives a claim of immunity under 15 U.S.C. §§ 35–36.
While Plaintiffs’ claim must meet the elements of a restraint on trade under 15 U.S.C. § 1 as described above, their
cause of action as a private party is derived from 15 U.S.C. § 15.
2
5
As to Purchasing and Selling Defendants more broadly (inclusive of Municipal
Defendants), the antitrust claim as a whole is facially insufficient even assuming all facts in the
Amended Complaint are true. The elements of a Section 1 claim under the Sherman Antitrust Act
are “(1) an agreement, conspiracy, or combination among the defendants in restraint of trade; (2)
injury to the plaintiff's business and property as a direct result; (3) damages that are capable of
reasonable ascertainment and are not speculative or conjectural.” Wilder Enters., Inc. v. Allied
Artists Pictures Corp., 632 F.2d 1135, 1139 n.1 (4th Cir. 1980) (citing Admiral Theatre Corp. v.
Douglas Theatre Co., 585 F.2d 877, 883-84 (8th Cir. 1978)). While the plaintiff must be directly
injured to have a cause of action, see 15 U.S.C. § 16, it is not the injury to the plaintiff that satisfies
the requirement that there be a “restraint on trade.” “The antitrust laws . . . were enacted for the
protection of competition not competitors.” Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429
U.S. 477, 488 (1977) (internal quotations omitted) (emphasis added).
In assessing the defendant’s effect on competition, courts apply a “rule of reason” analysis
to most cases, unless the restraint is “so plainly anticompetitive” as to be unreasonable per se.
Texaco, Inc. v. Dahger, 547 U.S. 1, 5 (2006) (quoting Nat’l Soc’y of Prof’l Eng’rs v. United States,
435 U.S. 679, 692 (1978)). The classic example of an unreasonable per se restraint is “horizontal
price-fixing” (an agreement to fix prices between two competitors in the same market). See id.
When using the “rule of reason,” it is not a matter of the reasonableness of the business practice
or agreement, but rather a question of whether it is reasonable to identify the practice as
“anticompetitive.” See Nat’l Soc’y of Prof’l Eng’rs, 435 U.S. at 688–89.
Other district courts have made clear that government actions or agreements that merely
cause lost profits or advantage for one business are not antitrust violations. See Wellwoods Dev.
6
Co. v. City of Aurora, 631 F. Supp. 221 (N.D. Ill. 1986). In Wellwoods, the city government
refused to issue development permits to a real estate developer who owned land next to a municipal
airport. Id. at 222–23. While this action created business advantages for other parties that owned
already developed land, the district court held that this was not sufficiently anticompetitive to stand
as an antitrust injury. Id. at 229. The decision was analogous to any other competitive business
decision in which the only injury is “injury to [the plaintiff’s] bottom line in the form of lost
potential gains.” Id.
The requirement that there be an anticompetitive effect to have an antitrust injury even
extends to cases in which the plaintiff plausibly alleged a conspiracy to drive the plaintiff out of
business. See TheMLSonline.com, Inc. v. Reg’l Multiple Listing Serv. of Minn., Inc., 840 F.
Supp. 2d 1174, 1182 (D. Minn. 2012). In that case, there was no government action, but there was
an alleged agreement amongst members of a realtors’ association to destroy the plaintiff’s business
by filing coordinated ethics complaints with the plaintiff’s professional association. Id. at 1177–
78. Even assuming that a conspiracy existed that intended to harm the plaintiff’s business, the
district court dismissed the antitrust claim because if failed to allege anticompetitive activity that
affected prices or general market access. See id. at 1182; see also Brooke Grp. Ltd. v. Brown &
Williamson Tobacco Corp, 509 U.S. 209, 225 (1993) (“Even an act of pure malice by one business
competitor against another does not, without more, state a claim under the federal antitrust
laws . . . .”).
In this case, Plaintiffs have offered no allegations to support a plausible claim of
anticompetitive behavior on the part of Defendants. There is a conclusory allegation of an
“unreasonable restraint on trade,” (Doc. No. 32, pp. 7 & 10), but this is insufficient. The facts as
7
alleged by the Amended Complaint show an agreement amongst Defendants that caused economic
harm to Plaintiffs by dishonoring prior agreements to buy and sell land. (Doc. No. 32, pp. 4–8).
Specifically, Plaintiffs allege Defendants formed a civil conspiracy (Doc. No. 32, p. 7) with the
aim of removing Plaintiffs from a multi-party transaction and harming Plaintiffs’ business
reputation in the community. (Doc. No. 32, p. 6). Plaintiffs’ claim for relief makes no mention of
any harm or intent to harm competition. (Doc. No. 32, p. 10). Even presuming, without deciding,
this alleged conspiracy constituted fraud, deception, breach of contract, or tortious interference,
the allegations as a whole do not plausibly lead to a claim of an anticompetitive intent or effect on
the relevant market. The allegations merely assert a harm to a competitor, not to competition. See
Brunswick, 429 U.S. at 488. Even if Defendants did not enjoy immunity, Plaintiffs’ have failed
to sufficiently plead the elements of a federal antitrust violation under Section 1 of the Sherman
Act. Thus, Plaintiffs’ antitrust claim fails on its face. Count 3 of the Amended Complaint is
dismissed without prejudice.
Notably, the Amended Complaint contains no other claim sufficient to allege a federal
question. The Court, however, retains the discretion to extend supplemental jurisdiction to pendent
state law claims under 28 U.S.C. § 1367 when the plaintiff’s federal question claim fails on nonjurisdictional elements. Arbaugh v. Y & H Corp., 546 U.S. 500, 514–15 (2006). The Court, in its
discretion, will exercise supplemental jurisdiction over the remaining state law claims in this case
and resolve the pending motions to dismiss as to those claims.
B. Immunity Defenses
1. Plaintiffs’ Claims against Defendant Booker
8
The Amended Complaint names Defendant Booker in both his individual and official
capacities in Counts 1 (fraud), 7 (punitive damages), and 8 (violation of North Carolina unfair and
deceptive trade practices laws). Defendant Booker contends dismissal is proper because: (1) he
acted in his capacity as a government official, (2) Plaintiffs have alleged the same claims against
Booker and Municipal Defendants and are therefore duplicative, and (3) Plaintiffs fail to
sufficiently allege facts indicating Booker acted outside his official capacity with regard to the
above-listed counts. Plaintiffs contend Defendant Booker acted outside his official capacity and
thus can be liable as an individual for the state law claims.
Suits against government officials that assert the same claims against the government entity
which the official serves are duplicative. See Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir.
2004); May v. City of Durham, 525 S.E.2d 223, 229 (N.C. Ct. App. 2000). Redundant claims such
as this should be dismissed. Love-Lane, 355 F.3d at 783. Accordingly, all Counts against
Defendant Booker in his official capacity as Superintendent of Gaston County Schools will be
dismissed.
The Amended Complaint makes no specified allegations against Defendant Booker in his
individual capacity. Defendant Booker is named in some allegations, such as those about a
meeting between Booker and Plaintiffs to discuss purchasing land to build a new school. (Doc.
No. 32, p. 4). These allegations describe activity that can only be plausibly classified as Defendant
Booker acting in his official capacity. The purchase and development of land for public schools
is a statutory authority of boards of education and local governments. See N.C. Gen. Stat. § 115C426. Defendant Booker’s actions, as described by the Amended Complaint, concern actions that
fit this statutory mandate for boards of education and their employees. Plaintiffs have failed to
9
state any claim against Defendant Booker in his individual capacity, and the motion to dismiss will
be granted accordingly. The Court’s dismissal of these claims against Defendant Booker is without
prejudice.
2. Counts 7 and 8 as against Defendants Gaston County and GCBOE
Plaintiffs allege they are entitled to punitive damages from Defendants because Defendants
acted maliciously and Defendants engaged in unfair and deceptive trade practices affecting
commerce. Municipal Defendants contend punitive damages are not appropriate for lack of
intentional violations of law and, as official government entities, they cannot be sued for unfair
and deceptive trade practices under North Carolina law.
Punitive damages cannot be claimed against a municipality unless expressly authorized by
statute. Houpe v. City of Statesville, 497 S.E.2d 82, 93 (N.C. Ct. App. 1998). Similarly, North
Carolina’s unfair and deceptive trade practices laws, as codified in Chapter 75 of the General
Statutes, do not permit actions against the state or against municipalities acting with powers
granted by the state. See Rea Constr. Co. v. City of Charlotte, 465 S.E.2d 342, 343 (N.C. Ct. App.
1996). According to Plaintiffs’ allegations, Municipal Defendants attempted to purchase land to
build a new middle school. (Doc. No. 32). North Carolina law authorizes local boards of education
and county governments to purchase and develop land for use as public schools. N.C. Gen. Stat.
§ 115C-426. Assuming the facts in the Amended Complaint are true, Municipal Defendants acted
within their statutory authority. The Amended Complaint offers no specific statutory authorization
for punitive damages against a municipality under these facts. Plaintiffs’ claims for punitive
damages and violations of Chapter 75 of the North Carolina General Statutes are not permitted
10
against Defendants Gaston County and GCBOE. Counts 7 and 8 as against these Defendants are
dismissed without prejudice.
3. Governmental Immunity
Whereas Defendants Gaston County and GCBOE are immune from certain claims as a
matter of federal antitrust law, it is less clear whether these Defendants enjoy a more general
governmental immunity to suit.
Municipal corporations are immune to tort claims unless
immunity has been expressly waived or a cause of action is provided by statute. See Data General
Corp. v. Cty. of Durham, 545 S.E.2d 243, 246 (N.C. Ct. App. 2001); see also Battle Ridge Cos. v.
N.C. Dep’t of Transp., 587 S.E.2d 426, 427 (N.C. Ct. App. 2003). This immunity only extends to
activity which is governmental, rather than proprietary, in nature. Estate of Williams ex rel.
Overton v. Pasquotank Cty. Parks & Recreation Dep’t, 732 S.E.2d 137, 140–41 (N.C. 2012). A
proprietary action “is one that is ‘commercial or chiefly for the private advantage of the compact
community.’” Id. at 141 (quoting Britt v. City of Wilmington, 73 S.E.2d 289, 293 (N.C. 1952).
While older cases have broadly defined this as any function or service that could have been
provided by private entities, see Britt, 73 S.E.2d at 293–94, courts have more recently refined the
inquiry to account for the broad range of services provided for privately. See Estate of Williams,
732 S.E.2d at 142–43.
The North Carolina Supreme Court in Estate of Williams noted “[w]hen the legislature has
not directly resolved whether a specific activity is governmental or proprietary in nature, other
factors are relevant.” Id. at 142. If the activity can only be undertaken by a governmental entity,
it “is necessarily governmental in nature.” Id. For activities that can be performed privately and
publicly, the court articulated additional, non-dispositive factors for determining whether action
11
should be considered governmental, which include: (1) whether the service is traditionally
governmental, (2) whether the service is provided for a fee, and (3) whether the fee covers
operating costs or generates a profit. Id. at 142-43 (noting the fact-intensive nature of the
governmental-proprietary distinction cautions against the exclusive use of these factors); see also
Peerless Indem. Ins. Co. v. City of Greensboro, No. 1:13CV1104, 2015 BL 135501, at *3
(M.D.N.C. May 7, 2015) (Memorandum Opinion and Recommendation of United States
Magistrate Judge), adopted, No. 1:13CV1104, 2015 BL 449903 (M.D.N.C. June 23, 2015), aff’d,
628 F. App’x 202 (4th Cir. 2016).
Governmental immunity may be waived by the purchase of liability insurance. N.C. Gen.
Stat. § 153A-435 (applying the waiver to counties); N.C. Gen. Stat. § 115C-42 (applying the
waiver to local boards of education). These waivers only extend as far as the coverage provided
by the insurance policy. N.C. Gen. Stat. § 153A-435(b) (“To the extent of the coverage of
insurance . . . governmental immunity may not be a defense to the action. Otherwise, however,
the county has all defenses available to private litigants in any action brought pursuant to this
section without restriction, limitation, or other effect . . . .”); see also Wright v. Gaston Cty., 698
S.E.2d 83, 87 (N.C. Ct. App. 2010). This limitation on waiver includes exclusionary clauses
reserving all rights to assert sovereign immunity. Id. at 89 (admitting that such a limitation was
“circular,” but still upholding the enforceability of the exclusionary clause).
Defendants Gaston County and GCBOE both assert entitlement to general governmental
immunity from all of Plaintiffs’ allegations. (Docs. Nos. 40 & 62). Plaintiffs assert both
Defendants were engaged in proprietary action and waived their immunity by carrying liability
insurance. (Docs. Nos. 41 & 63). Plaintiffs also allege Defendants’ conduct was essentially ultra
12
vires and not entitled to immunity. (Doc. No. 60, p. 6). Defendants claim their liability insurance
contains an exclusionary clause similar to the clause that was held sufficient to sustain a claim of
immunity in Wright v. Gaston Cty. (Doc. 38-1, p. 17).
Plaintiffs have sufficiently alleged proprietary actions by these Defendants to survive a
claim of immunity at this stage. While the purchase and development of land for educational
facilities is a statutory government function of municipal corporations, see N.C. Gen. Stat. § 115C426, Plaintiffs have alleged dealings out of session and non-educational purposes for at least part
of the land to be purchased. (Docs. Nos. 32 & 60). Plaintiffs contend the Municipal Defendants
have admitted to not needing the entire parcel of land for school development intend to sell the
remainder for profit. (Doc. No. 60). Defendants deny these claims, but these disputes of material
fact warrant further discovery and fact-finding before a determination is made as to these
Defendants’ claims of governmental immunity. Defendants Gaston County and GCBOE will not
be dismissed from the case on the basis of general governmental immunity at this time.
C. Plaintiffs’ Other State Law Claims
The Amended Complaint alleges counts under North Carolina state law asserting fraud,
breach of the implied covenant of good faith and fair dealing, unjust enrichment, quantum meruit,
libel, punitive damages, violation of North Carolina unfair and deceptive trade practices laws,
tortious interference with contract, and tortious interference with prospective economic advantage.
(Doc. No. 32, pp. 8–16). The Court has given full review to the facts alleged in the Amended
Complaint and the applicable law concerning the elements of each of these claims. See N.C. Gen.
Stat. § 1D-15 (“Standards for Recovery of Punitive Damages”); N.C. Gen. Stat. § 75-1.1 (unfair
and deceptive trade practices); Walker v. Fleetwood Homes of North Carolina, Inc., 653 S.E.2d
13
393, 399 (N.C. 2007) (unfair and deceptive trade practices); Ragsdale v. Kennedy, 209 S.E.2d 494,
500 (N.C. 1977) (fraud); Spartan Equipment Co. v. Air Placement Equipment Co., 140 S.E.2d 3,
11 (N.C. 1965) (tortious interference with prospective economic advantage); Heron Bay
Acquisition, LLC v. United Metal Finishing, Inc., 781 S.E.2d 889, 894 (N.C. Ct. App. 2016)
(unfair and deceptive trade practices and breach of the implied covenant of good faith and fair
dealing); Boyce & Isley, PLLC v. Cooper, 710 S.E.2d 309, 317 (N.C. Ct. App. 2011) (libel);
Primerica Life Ins. Co. v. James Massengill & Sons Const. Co., 712 S.E.2d 670, 676 (N.C. Ct.
App. 2011) (unjust enrichment); Harty v. Underhill, 710 S.E.2d 327, 333-34 (N.C. Ct. App. 2011)
(tortious interference with contract); Market America, Inc. v. Christman-Orth, 520 S.E.2d 570,
576 (N.C. Ct. App. 1999) (libel); Duffell v. Weeks, 190 S.E.2d 379, 381 (N.C. Ct. App. 1972)
(quantum meruit). Except as explained in the discussion of the antitrust claim and immunity
defenses above, the Court finds Plaintiffs have plausibly alleged the elements of these remaining
state law claims. As regards Counts 1, 2, 4, 5, 6, 7, 8, 9, and 10 as against all Defendants (except
the dismissals ordered above), the Motions to Dismiss (Docs. Nos. 39, 48, 51, 57, 61) are denied
without prejudice to raise the issue again at summary judgment.
D. Judgment on the Pleadings
Defendants Gaston County and Philbeck have moved in the alternative for judgment on
the pleadings under Rule 12(c). (Docs. Nos. 39 & 57). For the reasons stated herein, disputes as
to material facts exist that preclude granting this alternative relief.
CONCLUSION
IT IS THEREFORE ORDERED the Motions to Dismiss the Complaint (Docs. Nos. 21,
23, 26, & 30) are DENIED AS MOOT. Defendant Booker’s Motion to Dismiss the Amended
14
Complaint (Doc. No. 45) is GRANTED. The remaining Motions to Dismiss the Amended
Complaint (Docs. Nos. 39, 48, 51, 57, & 61) are GRANTED IN PART and DENIED IN PART.
Plaintiffs’ federal antitrust claim (Count 3), claims against Defendant Booker, and Counts 7 and 8
as against Defendants Gaston County and GCBOE are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Signed: July 10, 2018
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