Krawiec v. Manly

    Krawiec v. Manly, 

.


    STATE OF NORTH CAROLINA                       IN THE GENERAL COURT OF JUSTICE
                                                       SUPERIOR COURT DIVISION
    MECKLENBURG COUNTY                                        15 CVS 1927

    MICHAEL KRAWIEC, JENNIFER
    KRAWIEC, and HAPPY DANCE,
    INC./CMT DANCE, INC. (d/b/a FRED
    ASTAIRE FRANCHISED DANCE
    STUDIOS),

                           Plaintiffs,
                                                         ORDER AND OPINION ON
    v.                                                  DEFENDANTS’ MOTIONS TO
                                                      DISMISS AMENDED COMPLAINT
    JIM MANLY, MONETTE MANLY,
    METROPOLITAN BALLROOM, LLC,
    RANKO BOGOSAVAC, and DARINKA
    DIVLJAK,

                           Defendants.


    {1}     THIS MATTER is before the Court upon (i) Defendants Jim Manly (“Mr.
Manly”), Monette Manly (“Mrs. Manly”) (together, “the Manlys”), and Metropolitan
Ballroom, LLC’s (“Metropolitan”) (collectively with the Manlys, the “Metropolitan
Defendants”) Motion to Dismiss Amended Complaint (the “Metropolitan Defendants’
Motion to Dismiss”) and (ii) Defendants Ranko Bogosavac (“Bogosavac”) and Darinka
Divljak’s (“Divljak”)1 Motion to Dismiss Plaintiffs’ Amended Complaint (the “Dancers’
Motion to Dismiss” and, collectively with the Metropolitan Defendants’ Motion to
Dismiss, the “Motions to Dismiss”) in the above-captioned case.
    {2}     After considering the Motions to Dismiss, the briefs in support of and in
opposition to the Motions, and the arguments of counsel at a hearing on this matter,
the Court hereby GRANTS in part and DENIES in part the Dancers’ Motion to
Dismiss and GRANTS the Metropolitan Defendants’ Motion to Dismiss.
          Hatcher Legal, PLLC, by Nichole M. Hatcher and Erin B. Blackwell, for
          Plaintiffs Michael Krawiec; Jennifer Krawiec; and Happy Dance,
          Inc./DMT Dance, Inc. d/b/a Fred Astaire Franchised Dance Studios.



1Bogosavac and Divljak are hereinafter collectively referred to as “the Dancers,” and Mr. Manly, Mrs.
Manly, Metropolitan, and the Dancers are hereinafter collectively referred to as “Defendants.”
         St. John Law, PLLC, by Renner St. John, for Defendants Ranko
         Bogosavac and Darinka Divljak.

         The Law Offices of H.M. Whitesides, Jr., P.A., by H.M. Whitesides, Jr.,
         for Defendants Jim Manly, Monette Manly, and Metropolitan Ballroom,
         LLC.

Bledsoe, Judge.
                                                  I.
                                    PROCEDURAL HISTORY
   {3}     Plaintiffs Michael Krawiec (“Mr. Krawiec”), Jennifer Krawiec (“Mrs.
Krawiec”), and Happy Dance, Inc./CMT Dance, Inc. d/b/a Fred Astaire Franchised
Dance Studios (“Happy Dance”) (collectively, “Plaintiffs”) filed their original Verified
Complaint (the “Original Complaint”) in this action on February 3, 2015.
   {4}     On May 21, 2015, the Metropolitan Defendants and the Dancers filed
separate motions to dismiss the Original Complaint (the “Original Motions”), seeking
the dismissal of all claims asserted against them in the Original Complaint. On July
22, 2015, the Court held a hearing on the Original Motions, at which all parties were
represented by counsel.
   {5}     On August 14, 2015, Plaintiffs filed a Motion for Leave to Amend Complaint,
which the Court granted on August 24, 2015. Plaintiffs’ Amended Complaint (the
“Amended Complaint”), attached to Plaintiffs’ Motion for Leave to Amend, was
deemed filed, effective upon entry of the Court’s August 24 Order. The Court’s August
24 Order also denied the Original Motions as moot.
   {6}     Thereafter, the Metropolitan Defendants and the Dancers filed their
respective Motions to Dismiss Plaintiffs’ Amended Complaint. The Motions have
been fully briefed, and are now ripe for resolution.2




2 Pursuant to Rule 15.4 of the General Rules of Practice and Procedure for the North Carolina Business

Court, the Court elects to rule on the pending Motions to Dismiss based on the parties’ pleadings,
briefs, and supporting documents, and the July 22, 2015 hearing in this matter.
                                          II.
                              FACTUAL BACKGROUND
   {7}   The Court does not make findings of fact on motions to dismiss under Rule
12(b)(6), but only recites those facts included in the Amended Complaint that are
relevant to the Court’s determination of the Motions. See, e.g., Concrete Serv. Corp.
v. Investors Grp., Inc., 

, 

, 758 (1986).
   {8}   Mr. and Mrs. Krawiec are the owners of Happy Dance, a dance studio located
in Clemmons, North Carolina.      (Am. Compl. ¶¶ 1–2.)      Plaintiffs allege that on
December 15, 2009, Happy Dance entered into an employment agreement with
Bogosavac, a citizen of Bosnia and Herzegovina, whereby Bogosavac was granted an
extension of an O-1B nonimmigrant work visa in exchange for Bogosavac’s promise
to work exclusively for Happy Dance as a dance instructor. (Am. Compl. ¶ 12.)
   {9}   On July 18, 2011, Happy Dance allegedly entered into a second employment
agreement with Bogosavac, whereby Bogosavac was granted a second extension of
his O-1B visa in exchange for his promise to work exclusively for Happy Dance. (Am.
Compl. ¶ 13.)     Plaintiffs contend that this second employment agreement is
memorialized in an I-129 Petition for an O-1B nonimmigrant work visa prepared by
Plaintiffs, a copy of which is attached to Plaintiffs’ Amended Complaint as Exhibit A.
(See Am. Compl. Ex. A.) This I-129 Petition was approved, and Bogosavac was
granted an extension of his O-1B visa on August 8, 2011, which extended the visa
from January 31, 2012 to January 30, 2013. (Am Compl. Ex. A.)
   {10} Plaintiffs allege that also on July 18, 2011, Happy Dance entered into a
similar employment agreement with Divljak, a citizen of Serbia. (Am. Compl. ¶ 14.)
Plaintiffs allege that the employment agreement with Divljak is memorialized in a
separate I-129 petition, a copy of which is attached to Plaintiff’s Amended Complaint
as Exhibit B. (See Am. Compl. Ex. B.) This I-129 Petition was also approved, and
Divljak was granted an O-1B visa on August 17, 2011, with a validity period
extending from September 1, 2011 until August 31, 2014. (Am. Compl. Ex. B.)
   {11} Plaintiffs contend that under Bogosavac’s alleged employment agreement
with Happy Dance, Bogosavac agreed to work exclusively for Happy Dance from
January 31, 2012 until January 3, 2013. (Am. Compl. ¶ 16.) Plaintiffs further allege
that Bogosavac was not permitted to be employed elsewhere for as long as he was
employed under the O-1B visa.      (Am. Compl. ¶ 16.)     Plaintiffs also allege that
Bogosavac agreed to reimburse Plaintiffs for all expenses paid by Plaintiffs to secure
the O-1B visa and to support Bogosavac, in the event that Bogosavac left Happy
Dance’s employ before January 3, 2013. (Am. Compl. ¶ 16.) Plaintiffs attach an
unexecuted document titled “Employment Agreement” as Exhibit C to Plaintiff’s
Amended Complaint as evidence of this alleged agreement. Although neither dated
nor signed, Plaintiffs allege that a copy of this form document was executed by both
Dancers. (See Am. Compl. ¶ 20.)
   {12} Plaintiffs further allege that, pursuant to Divljak’s alleged employment
agreement with Happy Dance, Divljak agreed to work exclusively for Happy Dance
from September 1, 2011 until August 31, 2014, and was not permitted to be employed
elsewhere for as long as she was employed under the O-1B visa. (Am. Compl. ¶ 17.)
Similar to Bogosavac’s alleged agreement, Plaintiffs allege that Divljak agreed to
reimburse Plaintiffs for expenses paid by Plaintiffs to secure the visa and to support
Divljak, should Divljak decide to leave Happy Dance’s employ prior to August 31,
2014. (Am. Compl. ¶ 17.)
   {13} In addition to the above agreements, Plaintiffs allege that both Dancers
entered into written agreements with Happy Dance, whereby both agreed not to: (i)
work for another company offering dance instruction, or compete directly with Happy
Dance in Forsyth County and adjacent counties for one year following the expiration
or termination of their employment with Happy Dance, or (ii) disclose Happy Dance’s
confidential information to any person or entity for any purpose other than for the
benefit of Happy Dance. (Am. Compl. ¶ 18; see Am. Compl. Ex. C.)
   {14} Plaintiffs allege that Bogosavac and Divljak began working as dance
instructors for Metropolitan on February 7, 2012 while still employed under their
respective O-1B visas. (Am. Compl. ¶ 21.) Metropolitan is a dance studio owned by
the Manlys and located in Charlotte, North Carolina. (Am. Compl. ¶¶ 3–4.) Plaintiffs
further allege that both Dancers were also working as dance instructors at other
dance studios in Forsyth County and adjacent counties in North Carolina while still
employed under their respective visas. (Am. Compl. ¶ 21.)
   {15} Plaintiffs contend that after beginning to work for Metropolitan, the
Dancers shared with Metropolitan confidential and trade secret information about
Happy Dance’s ideas and concepts for dance productions, marketing strategies and
tactics, and student, client, and customer information. (Am. Compl. ¶ 25.) Plaintiffs
also allege that, as a result of the Dancers’ disclosure of confidential and trade secret
information, Metropolitan produced and marketed Plaintiffs’ shows as its own
original productions, without Plaintiffs’ permission. (Am. Compl. ¶ 25.)
                                            III.
                                   LEGAL STANDARD
   {16} A motion to dismiss “generally tests the legal sufficiency of the complaint:
Has the pleader given notice of such facts as will, if true, support a claim for relief
under some legal theory?” Concrete Serv. Corp., 

, 

 (citing Sutton v. Duke, 

, 

 (1970)). “The motion does
not present the merits, but only whether the merits may be reached. . . . The policy
behind the Rules of Civil Procedure is to resolve controversies on the merits, not on
technicalities of pleading.” 

 (internal citations omitted). In ruling on a motion to
dismiss, “the allegations of the complaint must be viewed as admitted, and on that
basis the court must determine as a matter of law whether the allegations state a
claim for which relief may be granted.” Stanback v. Stanback, 

, 

 (1979).       Therefore, “a complaint should not be dismissed for
insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under
any state of facts which could be proved in support of the claim.” Sutton, 

, 

 (emphasis omitted).
                                               IV.
                                  FEDERAL PREEMPTION
   {17} The Court first considers whether any of Plaintiffs’ claims are preempted by
the federal Copyright Act, 

 et seq. If so, any such claims fall outside
this Court’s subject-matter jurisdiction.3
   {18} Section 301(a) of the Copyright Act provides:
       [All] legal or equitable rights that are equivalent to any of the exclusive
       rights within the general scope of copyright as specified in Section 106
       in works of authorship that are fixed in a tangible medium of expression
       and come within the subject matter of copyright as specified by sections
       102 and 103 . . . are governed exclusively by [the Copyright Act].

(a) (2012).
   {19} As a general rule, “a state law cause of action is preempted by the Copyright
Act if (1) the cause of action falls within the subject matter of copyright law; and (2)
the rights protected by state law are equivalent to any of the exclusive rights granted
by the Copyright Act.” Out of the Box Developers, LLC v. LogicBit Corp., 

, at *20 (N.C. Super. Ct. Oct. 30, 2012) (citing Rosciszewski v. Arete Assocs.,
Inc., 

, 229 (4th Cir. 1993)).
   {20} Plaintiffs allege that Defendants have misappropriated their “original ideas
and concepts for dance production.”           Section 102 of the Copyright Act provides
copyright protection for “original works of authorship fixed in any tangible medium
of expression, now known or later developed, from which they can be perceived,
reproduced or otherwise communicated,” including “dramatic works.” 

(a). “Works of authorship” include “pantomimes and choreographic works.” 

 §
102(a)(4). “Pantomimes and choreographic works” are not defined in the Copyright
Act, but the Act’s legislative history states that “‘choreographic works’ do not include
social dance steps and simple routines.” H.R. Rep. No. 94-1476, at 54 (1976). Further,
“[i]n no case does copyright protection for an original work of authorship extend to



3 At the July 22, 2015 hearing, the Court raised the issue of federal preemption  sua sponte and
requested submission of supplemental briefs regarding the Court’s subject-matter jurisdiction. The
parties filed supplemental briefs on August 10, 2015.
any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated or
embodied in such work.” 

(b).
   {21} Significantly for this case, “a work is ‘fixed’ in a tangible medium of
expression when its embodiment in a copy . . . , by or under the authority of the
author, is sufficiently permanent and stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of more than transitory duration.” 

 § 101.
“Like other creative works, dances are available for statutory copyright if [they are]
‘fixed in any tangible medium of expression.’” Martha Graham Sch. & Dance Found.,
Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 

, 632 (2d Cir.
2004) (citing 

(a) and holding that seventy original dances were eligible
for copyright protection because they were filmed or videotaped). In contrast, courts
have held that “unrecorded performances per se are not fixed in tangible form.” Balt.
Orioles, Inc. v. MLB Players Ass’n, 

 (7th Cir. 1986); see also H.R.
Rep. No. 94-1476, at 131 (excluding from the Act’s copyright protection “choreography
that has never been filmed or notated, an extemporaneous speech, ‘original works of
authorship’ communicated solely through conversations or live broadcasts, and a
dramatic sketch or musical composition improvised or developed from memory and
without being recorded or written down”).
   {22} Plaintiffs here have not alleged that their “original ideas for dance
productions” have been commemorated or memorialized in any way or exist in any
tangible medium of expression, including through film or videographic means.
Accordingly, the Court concludes that Plaintiffs have simply alleged the
misappropriation of their original ideas and concepts—which the Act makes clear are
not eligible for copyright protection, see 

(b)—and have not otherwise
pleaded that the allegedly misappropriated material constitutes “original works of
authorship fixed in any tangible medium of expression” under the Act. 

 § 102(a).
See generally Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 

 (9th Cir. 2015) (no copyright protection for sequence of yoga poses and breathing
exercises because the sequence was an idea, process, or system designed to improve
health); Horgan v. Macmillan, 

 (2d Cir. 1986) (observing copyright
protection afforded for videotaped choreography of Nutcracker ballet). The Court
therefore concludes that none of Plaintiffs’ claims are preempted by the federal
Copyright Act and thus that the Court has subject-matter jurisdiction over each of
Plaintiffs’ claims.
                                                   V.
                             THE DANCERS’ MOTION TO DISMISS
    {23} Plaintiffs assert various claims in their Amended Complaint, some only
against the Dancers,4 some only against the Metropolitan Defendants,5 and some
against all Defendants.6         The Dancers’ Motion seeks to dismiss all claims asserted
against them, each for failure to state a claim upon which relief can be granted, and
because the relevant statute of limitations for each claim has expired.
    A.      Breach of Contract
    {24}    To assert a valid claim for breach of contract, a plaintiff must allege “(1)
existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill,

, 

 (2000). “[W]here the complaint alleges each
of these elements, it is error to dismiss a breach of contract claim under [Rule
12(b)(6)].” McLamb v. T.P. Inc., 

, 

 (2005).
    {25} Plaintiffs’ operative allegation is that Plaintiffs procured an extension of
each Dancer’s O-1B nonimmigrant work visa in exchange for each Dancer’s express
promise to work exclusively for Plaintiffs at the Happy Dance studio, which each
Dancer allegedly breached by going to work for the Metropolitan Defendants.
    {26} Plaintiffs base their breach of contract claims on the alleged breach of four
separate contract documents: (i) the I-129 Petitions for Bogosavac and Divljak,

4 Plaintiffs assert claims for breach of contract, fraudulent misrepresentation, and equitable estoppel

against the Dancers only.

5 Plaintiffs assert claims for tortious interference with contract, “aiding and abetting,” and unfair and

deceptive trade practices under 

 against the Metropolitan Defendants only.

6 Plaintiffs assert claims for civil conspiracy, misappropriation of trade secrets, intentional infliction

of emotional distress, negligent infliction of emotional distress, and unjust enrichment against all
Defendants.
attached to the Amended Complaint as Exhibits A and B, respectively, and (ii)
identical written employment agreements with Bogosavac and Divljak, an
unexecuted version of which is attached to the Amended Complaint as Exhibit C.
(Am. Compl. ¶¶ 13, 14, 18, 32, 33).7
    {27} Exhibits A and B each contain a cover letter from Mr. Krawiec to the USCIS
Officer at the United States Department of Homeland Security in St. Albans,
Vermont followed by an I-129 Petition on behalf of each Dancer signed by Mr.
Krawiec. Neither Petition is signed by either Dancer, and neither Dancer is copied
on Mr. Krawiec’s cover letters. Nonetheless, Plaintiffs allege that each Petition was
filed based on each Dancer’s agreement to work exclusively for Plaintiffs, which
Plaintiffs argue is evidenced by the language of each Petition. (See Am. Compl. Ex.
A (Bogosavac) (“[t]he foreign worker can work for the petitioner, but only as detailed
in the petition and for the period authorized. Any change in employment requires a
new petition.”)); (Am. Compl. Ex. B (Divljak) (“[c]hanges in employment also require
a new petition.”).)
    {28} Plaintiffs contend that this agreement is further reflected in the document
titled “Employment Agreement” attached to the Amended Complaint as Exhibit C.
Exhibit C is unsigned and undated, and is prepared for Divljak’s signature alone.
Plaintiffs allege that each Dancer signed identical Exhibit C-style Employment
Agreements when they began their employment at Happy Dance and that Divljak
removed the executed originals from Plaintiffs’ files prior to her resignation from
employment. The alleged Employment Agreement incorporates various aspects of
the I-129 Petitions into its terms and purports to restrict each Dancer from “work[ing]
for another company offering dance instruction and/or compet[ing] directly against
[Happy Dance] as a direct competitor of [Happy Dance] in Forsyth County, North



7 The Court may consider these documents to determine whether a contract did, in fact, exist between
the parties. See, e.g., Schlieper v. Johnson, 

, 

 (2009) (“When
documents are attached to and incorporated into a complaint, they become part of the complaint and
may be considered in connection with a Rule 12(b)(6) motion without converting it into a motion for
summary judgment.”). The Court may also “may reject allegations that are contradicted by documents
attached to the [amended] complaint.” 

, 

.
Carolina and adjacent counties for one year following the expiration or termination
of this agreement.” (Am. Compl. Ex. C, ¶ D.) The alleged Employment Agreement
further provides that each Dancer “must reimburse employer [sic] foreseeable and
unforeseeable expenses paid by the employer to secure O1-B [sic] visa and to support
employee” in the event the Dancer “departs or is terminated before conclusion of
initial term of O1-B [sic] visa.” (Am. Compl. Ex. C, ¶ D.)
   {29} As an initial matter, while the Court is satisfied that Plaintiffs have alleged
breach for purposes of Rule 12(b)(6), “claims for breach of contract . . . necessarily
hinge on the threshold issue of whether a valid contract actually existed between [the
parties].” Charlotte Motor Speedway, LLC v. Cnty. of Cabarrus, 

,

 (2013). Moreover, “[a]n allegation that a valid contract exists
between parties is a legal conclusion,” and “[l]egal conclusions . . . are not entitled to
a presumption of validity.” 

 See Guarascio v. New Hanover Health Network, Inc.,
163 N.C. App 160, 165, 

 (2004) (holding that employee's assertion
that valid employment contract existed between employee and defendant was legal
conclusion "not entitled to a presumption of truth") (citation and quotation marks
omitted).
   {30} Under North Carolina law, a valid contract requires (1) assent; (2) mutuality
of obligation; and (3) definite terms. Horton v. Humble Oil & Refining Co., 

, 

 (1961). “It is a well-settled principle of contract law
that a valid contract exists only where there has been a meeting of the minds as to
all essential terms of the agreement." Northington v. Michelotti, 

, 

 (1995).
   {31} Plaintiffs specifically allege here that the I-129 Petitions and the unsigned
Employment Agreements are each separate contracts between Plaintiffs and each
Dancer. Based on its review of these documents and Plaintiffs’ allegations, the Court
concludes that Plaintiffs have adequately pleaded that a contract exists between
Happy Dance and each Dancer for purposes of Rule 12(b)(6). In particular, Plaintiffs
allege that the Employment Agreements were signed by the Dancers, and the Court
concludes that the purported Agreements otherwise evidence mutual assent,
mutuality of obligation, and definite terms. While the Court is not persuaded that
the I-129 Petitions constitute stand-alone contracts, each Petition is referenced and
incorporated in substantial part into each alleged Employment Agreement, and, in
addition, provides factual support for Plaintiffs’ allegation that contracts existed
between the parties. See, e.g., Butterfield v. Williamson, No. COA07-1488, 

, at *9 (Aug. 5, 2008) (unpublished) (holding that representations in
H-1B visa petition provided evidence contract existed).8                   Accordingly, the Court
concludes that Plaintiffs’ allegations, viewed in the light most favorable to Plaintiffs
and when considered with the I-129 Petitions and the Employment Agreements,
sufficiently state that a valid contract existed between Happy Dance and each Dancer
for purposes of Rule 12(b)(6).
     {32} The Dancers separately contend that Exhibit C, as an undated and
unexecuted document, does not meet the requirements of a non-compete agreement
under North Carolina law, and that Plaintiffs’ claims for breach of the non-compete
should therefore be dismissed.9 See New Hanover Rent-A-Car, Inc. v. Martinez, 

, 

 (2000) (“The requirement that an agreement
not to compete be in writing includes a requirement that the writing be signed.”)
(citing 

). Because Plaintiffs allege that a document in the style
of Exhibit C was signed by both Dancers, however, the Court concludes that dismissal
of Plaintiffs’ claim for breach of the non-competition agreement on this basis is not
proper at this stage of the litigation.10
     {33} The Dancers also contend that Plaintiffs’ claims are barred as a matter of
law by the applicable statute of limitations. “A statute of limitations can be the basis



8 Plaintiffs cite Butterfield to support their contention that the I-129 Petitions constituted standalone
contracts; Butterfield, however, simply held that statements in a visa petition may constitute evidence
bearing on the parties’ mutual intent in assessing whether a valid contract existed between the parties.

9 The Dancers have not otherwise challenged the enforceability of the non-compete provision in each

alleged Employment Agreement on this Motion.

10 The Court’s ruling is without prejudice to the Dancers’ right to raise this defense again at summary
judgment and/or at trial.
for dismissal on a Rule 12(b)(6) motion if the face of the complaint discloses that
plaintiff’s claim is so barred.” Reunion Land Co. v. Village of Marvin, 

, 

 (1998) (citation omitted). The statute of limitations for
breach of contract claims is three years, 

, and begins to run
when the alleged breach occurs. See Silver v. N.C. Bd. of Transp., 

, 

, 53–54 (1980).
      {34} Plaintiffs filed their Original Complaint on February 3, 2015, shortly before
the third anniversary of the Dancers’ resignation from employment on February 7,
2012. Although the Dancers seek to introduce affidavit testimony to establish that
the Dancers provided Plaintiffs notice of their resignations on January 30, 2012, thus
triggering the statute of limitations on that date and barring Plaintiffs’ claim, the
Court may not consider such testimony on a Rule 12(b)(6) motion. See N.C. R. Civ.
P. 12(b); see, e.g., Weaver v. St. Joseph of the Pines, Inc., 

, 

 (2007) (“As a general proposition, therefore, matters outside the
complaint are not germane to a Rule 12(b)(6) motion. Indeed, as N.C.R. Civ. P. 12(b)
makes clear, a Rule 12(b)(6) motion is converted to one for summary judgment if
‘matters outside the pleading are presented to and not excluded by the court . . . .’”)
(citation omitted).11
      {35} In addition, although Plaintiffs’ Amended Complaint alleges that “[w]hile
still employed and financially supported by Plaintiffs, [the Dancers] began working
concurrently as dance instructors for [the Metropolitan Defendants], as well as other
companies[,]” the Court cannot conclude, from the allegations on the face of the
Amended Complaint, that this alleged conduct occurred before February 3, 2012.
Thus, the Court cannot conclude that the statute of limitations bars Plaintiffs’ breach
of contract claim at this stage of the litigation.




11   The Court declines to convert the Motion into a motion for summary judgment under Rule 56.
   {36} Accordingly, the Court concludes that Plaintiffs have stated a valid claim
for breach of contract against the Dancers and that the Dancers’ Motion to Dismiss
this claim should be denied.
   B.    Fraudulent Misrepresentation
   {37} To state a claim for fraud, a plaintiff must allege that the defendant made a
“(1) false representation or concealment of material fact, (2) reasonably calculated to
deceive, (3) made with intent to deceive, (4) which does in fact deceive, and (5)
resulting in damage to the injured party.” Harrold v. Dowd, 

,

 (2002) (citing Ragsdale v. Kennedy, 

, 

 (1974)). Additionally, N.C. R. Civ. P. Rule 9(b) requires that all averments
of fraud must be pled with particularity, including as to the “time, place and content
of the fraudulent misrepresentation, [the] identity of the person making the
representation and what was obtained as a result of the fraudulent act or
representation.” Powell v. Wold, 

, 

 (1987).
   {38} Here, Plaintiffs allege that:
        [o]n or about December 2010, in a conversation at Plaintiffs’ dance
        studio, Defendant Bogosavac made an intentional false representation
        of material fact when he represented to Plaintiffs that he would continue
        to work exclusively for Plaintiffs’ dance studio in exchange for the
        Plaintiffs’ procurement of a second extension of his O1-B [sic] work visa.

(Am. Compl. ¶ 59.)
   {39} Plaintiffs also allege that “[o]n or about April 2011, in a conversation via
Skype,” Divljak made the same intentionally false representation. (Am. Compl. ¶ 60.)
Plaintiffs allege that the Dancers “made the foregoing misrepresentations with
knowledge of the fact they had no intention of actually going to work exclusively for
Plaintiffs, but, instead, were going to begin working for [the Metropolitan
Defendants] after Plaintiffs procured their visas” and that the false representations
were “reasonably calculated to deceive Plaintiffs” and were made “with the intention
that Plaintiffs would act upon their misrepresentations by securing an O1-B [sic]
work visa for each of them.” (Am. Compl. ¶¶ 61–62.) Finally, Plaintiffs allege that
“[i]n reliance on Defendant[s] Bogosavac and Divljak’s misrepresentations, Plaintiffs
incurred significant expenses related to the procurement of Defendants’ visas and the
travel accommodations for Defendant Divljak[.]” (Am. Compl. ¶ 63.)
     {40}   The Court concludes that these allegations sufficiently state a claim for
fraud under North Carolina law and are pleaded with sufficient particularity to
satisfy Rule 9(b) in these circumstances.
     {41} The Dancers further contend that Plaintiffs’ fraudulent misrepresentation
claims are barred by the applicable statute of limitations. The three-year statute of
limitations for claims based on fraud “‘begins to run from the discovery of the fraud
or from the time it should have been discovered in the exercise of reasonable
diligence.’” Hyde v. Taylor, 

, 

 (1984) (quoting
B-W Acceptance Corp. v. Spencer, 

, 

 (1966) and 

(9)). Because the Court is unable to conclude from the allegations of
the Amended Complaint that Plaintiffs discovered, or should have discovered in the
exercise of reasonable diligence, the Dancers’ alleged fraudulent misrepresentations
prior to February 3, 2012, the Court cannot conclude that the statute of limitations
bars Plaintiffs’ fraud claims against the Dancers at this stage of the litigation.12 The
Court therefore concludes that the Dancers’ Motion to Dismiss Plaintiffs’ fraudulent
misrepresentation claims should be denied.
     C.     Misappropriation of Trade Secrets
     {42} Plaintiffs allege that their “original ideas and concepts for dance production,
marketing strategies and tactics, as well as student, client and customer lists and
their contact information” constitute protectable trade secrets, and claim that the
Dancers have violated the North Carolina Trade Secrets Protection Act (“TSPA”) by
misappropriating such information. (Am. Compl. ¶ 66.)



12  Because the Court concludes that Plaintiffs’ fraudulent misrepresentation should survive the
Dancers’ 12(b)(6) motion, the Court also concludes that Plaintiffs’ claim for punitive damages under
N.C. Gen. Stat. § 1D-15 should not be dismissed at this time. See N.C. Gen. Stat. § 1D-15 (“Punitive
damages may be awarded only if the claimant proves that the defendant is liable for compensatory
damages and that one of the following aggravating factors was present and was related to the injury
for which compensatory damages were awarded: (1) [f]raud (2) [m]alice (3) [w]illful or wanton
conduct.”).
   {43} To adequately plead a claim for misappropriation of trade secrets, “a
plaintiff must identify a trade secret with sufficient particularity so as to enable a
defendant to delineate that which he is accused of misappropriating and for a court
to determine whether misappropriation has or is threatened to occur.” VisionAir, Inc.
v. James, 

, 510–11, 

 (2004) (citing Analog
Devices, Inc. v. Michalski, 

, 

 (2003)). A
plaintiff must also allege “the acts by which the misappropriation was accomplished.”
Veer Right Mgmt. Group, Inc. v. Czarnowski Display Serv., 

,
at *15 (N.C. Super. Ct. Feb. 4, 2015) (citing Washburn v. Yadkin Valley Bank & Trust
Co., 

, 

, 585–86 (2008)). “[A] complaint that
makes general allegations in sweeping and conclusory statements, without
specifically identifying the trade secrets allegedly misappropriated, is insufficient to
state a claim for misappropriation of trade secrets.” Washburn, 

,
660 S.E.2d at 585–86 (internal quotation marks and citation omitted).
   {44} The TSPA defines a “trade secret” as
      business or technical information . . . that: (a) Derives independent
      actual or potential commercial value from not being generally known or
      readily ascertainable through independent development or reverse
      engineering by persons who can obtain economic value from its
      disclosure or use; and (b) is the subject of efforts that are reasonable
      under the circumstances to maintain its secrecy.”

(3). The TSPA defines “misappropriation” as the “acquisition,
disclosure, or use of a trade secret of another without express or implied authority or
consent, unless such trade secret was arrived at by independent development, reverse
engineering, or was obtained from another person with a right to disclose the trade
secret.” 

(1).
   {45} The Dancers contend that Plaintiffs’ claim for misappropriation of trade
secrets fails because Plaintiffs have not identified their alleged trade secrets with
sufficient particularity or sufficiently alleged their reasonable efforts to protect the
alleged trade secret information. The Court agrees.
   {46} First, Plaintiffs’ identification of its alleged trade secret as “original ideas
and concepts for dance production” is so non-specific and generalized as to be
meaningless. As in Washburn, Plaintiffs’ description here is “broad and vague” as
well as “general and conclusory,” 

, 

, and does
not permit the Dancers “to delineate that which [they are] accused of
misappropriating” or the Court “to determine whether misappropriation has or is
threatened to occur.” VisionAir, 167 N.C. App. at 510–11, 

. This is
particularly true here where Plaintiffs have not alleged that these “ideas and
concepts” have been memorialized in any way or that they are capable of objective
verification of any kind.
   {47} The Court further concludes that the Plaintiffs’ identification of its
remaining trade secrets—“marketing strategies and tactics [and] student, client and
customer lists and their contact information”—is similar to the identifications found
lacking in Washburn, 

, 

 (“business methods;
clients, their specific requirements and needs; . . . other confidential information
pertaining to [plaintiff’s] business . . . confidential client information and confidential
business information”); Aecom Tech. Corp. v. Keating, 

, at *8
(N.C. Super. Ct. Feb. 6, 2012) (“customer lists, customer contract information, pricing
information, and product information”); and Akzo Nobel Coatings, Inc. v. Rogers,

, at *68 (N.C. Super. Ct. Nov. 3, 2011) (“proprietary formulas,
methodologies, customer and pricing data and other confidential information”). At
the same time, Plaintiffs’ identification of its remaining trade secrets contains less
detail    and     context     than     the     descriptions     found     sufficient    in
S. Fastening Sys. v. Grabber Constr. Prods., 

, at *11 (N.C.
Super. Ct. Apr. 28, 2015) (“confidential customer information such as customer
contact information and customer buying preferences and history . . . confidential
freight information, sales reports, prices and terms books, sales memos, sales training
manuals, commission reports, and information concerning [plaintiff’s] relationship
with its vendors”) and the cases upon which Southern Fastening relies.
   {48} Last, and separately, “the requirement of specificity extends beyond
identifying trade secrets to also require specificity as to the acts by which
misappropriation was accomplished.” Velocity Solutions, Inc. v. BSG, LLC, 

, at *23–24 (N.C. Super. Ct. May 26, 2015). The Court concludes
that Plaintiffs’ bare, unsupported allegation that the Dancers “unlawfully disclosed”
Plaintiffs’ alleged trade secrets does not satisfy this mandatory pleading requirement.
See, e.g., Veer Right, 

, at *15.
   {49} Because Plaintiffs have neither identified their alleged trade secrets with
sufficient particularity nor sufficiently alleged the specific acts by which the alleged
misappropriation was accomplished, the Court concludes that Plaintiffs have not
adequately pleaded a claim for misappropriation of trade secrets under the TSPA and
thus that Plaintiffs’ misappropriation claim should be dismissed.
   D.     Intentional Infliction of Emotional Distress
   {50} To state a valid claim for intentional infliction of emotional distress, a
plaintiff must allege that the defendant (1) intentionally or recklessly engaged in
extreme and outrageous conduct, (2) intending to cause or actually causing, (3) severe
emotional distress. Dickens v. Puryear, 

, 452–53, 

(1981). “[L]iability arises under this tort when a defendant’s conduct exceeds all
bounds usually tolerated by a decent society and the conduct causes mental distress
of a very serious kind.” Stanback, 

, 

 (internal
quotation marks and citation omitted).
   {51} Determining “[w]hether or not conduct constitutes extreme and outrageous
behavior is initially a question of law for the court.” Simmons v. Chemol Corp., 

, 

 (2000) (citations omitted). “To establish the
essential element of extreme and outrageous conduct, the conduct must go beyond all
possible bounds of decency and ‘be regarded as atrocious, and utterly intolerable in a
civilized community.’” 

 (quoting Wagoner v. Elkin City Sch. Bd. of Educ., 

, 

 (1994)). “[M]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” do not constitute extreme and
outrageous conduct. Johnson v. Bollinger, 

, 

, 382
(1987). Moreover, “it is extremely rare to find conduct in the employment context
that will rise to the level of outrageousness necessary to support a claim of intentional
infliction of emotional distress.” Thomas v. N. Telecom, Inc., 

 (M.D.N.C. 2000) (applying North Carolina law) (citation omitted).
   {52} Plaintiffs allege that the Dancers’ extreme and outrageous conduct consists
of the Dancers “maliciously and fraudulently inducing Plaintiffs to procure O1-B [sic]
visas for [the Dancers], misappropriating Plaintiffs’ trade secrets, and conspiring to
cripple or eliminate Plaintiffs as a competitor in the dance industry.” (Am. Compl. ¶
80.)    The Court concludes, however, that these conclusory allegations, devoid of
supporting facts, do not allege the sort of “atrocious” conduct that our courts have
found actionable as “utterly intolerable in a civilized community.” Simmons, 

, 

; see generally, e.g., Briggs v. Rosenthal, 

, 

 (1985) (“It must be emphasized . . . that major outrage
is essential to the tort.”) (quoting Restatement of Torts § 46, Comment f); Hogan v.
Forsyth Country Club Co., 

, 

, 122–23 (1986)
(extreme and outrageous behavior not found where the defendant yelled and threw
menus at plaintiff and interfered with her supervision of employees).
   {53} Accordingly, the Court concludes that Plaintiffs have not adequately
pleaded a claim for intentional infliction of emotional distress and that Plaintiffs’
claim should therefore be dismissed.
   E.      Negligent Infliction of Emotional Distress
   {54} The elements of a claim for negligent infliction of emotional distress are: “(1)
the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that
such conduct would cause the plaintiff severe emotional distress . . . , and (3) the
conduct did in fact cause the plaintiff severe emotional distress.” Wilkerson v. Duke
Univ., 

, 

 (2013).
   {55} Plaintiffs allege that the Dancers “negligently engaged in the conduct
described herein, as they had a legal duty to comply with the terms of their contracts
with Plaintiffs; they breached their duty by unlawfully going to work for Plaintiffs’
competitors, soliciting Plaintiffs’ customers, and disclosing Plaintiffs’ trade secrets[.]”
(Am. Compl. ¶ 87.) Although pleaded as a claim sounding in negligence, Plaintiffs’
supporting allegations rest entirely on Dancers’ intentional conduct. It is axiomatic
that “if there is no underlying negligence, there is no claim for [negligent infliction of
emotional distress].” Williams v. Altec Indus., No. 5:10-CV-356-BO, 

, at *11–12 (E.D.N.C. Aug. 3, 2011) (applying North Carolina law)
(citations and quotations omitted). Plaintiffs’ claim should therefore be dismissed on
this basis.
   {56} Moreover, even if Plaintiffs’ Amended Complaint could be read as asserting
negligent conduct in failing to perform under the alleged contract, “[w]hen the
plaintiff's complaint alleges acts . . . that are intentional in nature, and simply
concludes that the acts were committed negligently, [the complaint] is insufficient to
state a claim for negligent infliction of emotional distress.” Sasser v. City of
Whiteville, No. 7:10-CV-95-D, 

, at *6–7 (E.D.N.C. Nov.
18, 2010) (applying North Carolina law) (citations and quotations omitted). Indeed,
“it has long been the law in North Carolina that a tort action cannot lie against a
promisor ‘for his simple failure to perform his contract, even though such failure was
due to negligence or lack of skill.’” Artistic S. v. Lund, 

, at
*22–23 (N.C. Super. Ct. Dec. 9, 2015) (quoting N.C. Ports Auth. v. Lloyd A. Fry
Roofing Co., 

, 

 (1978)). For this additional reason,
therefore, Plaintiffs’ claim for negligent infliction of emotional distress should be
dismissed.
   F.     Unjust Enrichment
   {57} It is well settled under North Carolina law that a claim for unjust
enrichment is “a claim in quasi contract or a contract implied in law” and, therefore,
“[i]f there is a contract between the parties the contract governs the claim and the
law will not imply a contract.” Booe v. Shadrick, 

, 

 (1988). As a result, our courts have recognized that “the doctrine of unjust
enrichment is based on ‘quasi-contract’ or contract ‘implied in law’ and thus will not
apply . . . where a contract exists between two parties.” Atl. & E. Carolina Ry. Co. v.
Wheatly Oil Co., 

, 

 (2004).
     {58} In addition, where, as here, “the state law claim for breach of contract
remains viable, it is unnecessary to address the claim for unjust enrichment [on a
Rule 12(b)(6) motion].” Forest2Market, Inc. v. Am. Forest Mgmt., No. 3:05cv423,

, at *16–17 (W.D.N.C. Apr. 21, 2008); see also Surratt v.
Brown, 

, at *20 (N.C. Super. Ct. July 27, 2015) (declining to
address or dismiss unjust enrichment claim where breach of contract claim survived
motion to dismiss); Shelton v. Duke Univ. Health Sys., 

, 

 (2006) (stating on Rule 12(b)(6) motion: “Because we have not held
the contract to be unenforceable, we do not address [plaintiff’s unjust enrichment]
argument.”).
     {59} Accordingly, based on the above, the Court concludes that Plaintiffs’ claim
for unjust enrichment should not be dismissed at this time.
     G.     Equitable Estoppel
     {60} Plaintiffs purport to assert an independent cause of action for equitable
estoppel. As this Court has recognized, however, the doctrine of equitable estoppel is
not a basis for an affirmative claim for relief. Rather, the doctrine “provides a defense
to bar enforcement of opposing claims or affirmative defenses.” Blue Ridge Pediatric
& Adolescent Med., Inc. v. First Colony Healthcare, LLC, 

, at
*38 (N.C. Super. Ct. Oct. 3, 2012); see, e.g., Duke Univ. v. Stainback, 

, 

 (1987) ("Equitable estoppel may be invoked, in a proper case,
to bar a defendant from relying upon the statute of limitations.").13 Accordingly, the
Court concludes that Plaintiffs’ purported claim for equitable estoppel should be
dismissed.
     H.     Civil Conspiracy
     {61} To state a claim for civil conspiracy, a plaintiff must allege (1) a conspiracy,
(2) wrongful acts by the alleged conspirators in furtherance of the conspiracy, and (3)


13See generally, e.g., Parker v. Westat, Inc., 

 (E.D. Va. 2004) (“‘[E]quitable
estoppel usually operates as a shield, as opposed to a sword, and it does not of itself create a new right
or give a cause of action; rather, it serves to prevent losses otherwise inescapable and to preserve rights
already acquired.’”) (quoting Meriweather Mowing Serv. v. St. Anne's-Belfield, Inc., 

 (Va. Cir. Ct. 2000)) (applying Virginia law).
resulting injury. State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 

, 

 (2008); Strickland v. Hedrick, 

, 

 (2008). North Carolina does not recognize a separate civil action for
civil conspiracy. Dove v. Harvey, 

, 

 (2005).
Rather, civil conspiracy is premised on the underlying wrongful acts. Id.; Piraino
Bros., LLC v. Atl. Fin. Group, 

, 

 (2011). A
civil conspiracy is essentially an action for damages, and no action lies unless one or
more conspirators actually cause damage. See Bradshaw v. Maiden, 

, at *46 (N.C. Super. Ct. Aug. 10, 2015) (citing Henderson v. LeBauer, 

, 

 (1991)); see generally Coleman v. Coleman,

 (N.C. Super. Ct. Dec. 10, 2015). In short, “civil conspiracy is
premised on the underlying wrongful acts,” Dove, 

, 

, and “liability attaches only if one of the conspirators is liable for an underlying
tort.” Riley v. Dow Corning Corp., 

 (M.D.N.C. 1991) (applying
North Carolina law).
   {62} Here, Plaintiffs allege that the Dancers:
      made an agreement with [the Metropolitan Defendants] whereby the
      Dancers would unlawfully leave Plaintiffs’ dance studio to come work
      for [the Metropolitan Defendants], unlawfully solicit Plaintiffs’
      customers, and unlawfully disclose Plaintiffs’ trade secrets to [the
      Metropolitan Defendants] in order to cripple or eliminate Plaintiffs as a
      competitor in the dance industry.

(Am. Compl. ¶ 48.) Plaintiffs further allege that “[a]s a result of the conspiracy
between the Defendants, made pursuant to a common scheme, Plaintiffs’ business
and reputation were significantly damaged.” (Am. Compl. ¶ 49.)
   {63}   Of the claims remaining against the Dancers—breach of contract,
fraudulent misrepresentation, and unjust enrichment—only one, fraudulent
misrepresentation, could potentially serve as the requisite underlying tort. See, e.g.,
Koch Measurement Devices, Inc. v. Armke, 

, (N.C. Super. Ct.
Oct. 14, 2013) (“any civil conspiracy must necessarily be premised on an underlying
tort claim.”). Plaintiffs’ fraudulent misrepresentation claim, however, rests upon
allegations of fraud by the Dancers in 2010 and 2011, which are completely unrelated
to the alleged (and much later) agreement between the Dancers and the Metropolitan
Defendants upon which Plaintiffs’ civil conspiracy claim rests. Accordingly, the Court
concludes that Plaintiffs’ claim for civil conspiracy against the Dancers should be
dismissed.
                                           VI.
             THE METROPOLITAN DEFENDANTS’ MOTION TO DISMISS
   {64} The Court next turns to the Metropolitan Defendants’ Motion to Dismiss.
Like the Dancers’ Motion, the Metropolitan Defendants’ Motion seeks dismissal of all
of Plaintiffs’ claims asserted against them.
   A.     Tortious Interference with Contract
   {65} “To establish a claim for tortious interference with contract, a plaintiff must
show: (1) a valid contract between the plaintiff and a third person which confers upon
the plaintiff a contractual right against a third person; (2) the defendant knows of the
contract; (3) the defendant intentionally induces the third person not to perform the
contract; (4) and in doing so acts without justification; (5) resulting in actual damage
to plaintiff.” White v. Cross Sales & Eng’g Co., 

, 768–69, 

 (2006) (citing United Labs., Inc. v. Kuykendall, 

, 

 (1988)). North Carolina courts have held that “competition in business
constitutes justifiable interference in another’s business relations and is not
actionable so long as it is carried on in furtherance of one’s own interests and by
means that are lawful.” Peoples Sec. Life Ins. Co. v. Hooks, 

, 

 (1988). A claim for tortious interference with contract must “allege
facts demonstrating that defendants’ actions were not prompted by legitimate
business purposes.” Embree Constr. Grp. v. Rafcor, Inc., 

, 

 (1992) (citation and quotation omitted).
   {66} Plaintiffs allege that they “had valid contracts with [the Dancers] whereby
Plaintiffs procured O1-B [sic] nonimmigrant work visas for Defendants in exchange
for Defendants’ promises to work exclusively for Plaintiffs at Plaintiffs’ dance studio,”
(Am. Compl. ¶ 38), and that the Metropolitan Defendants “had knowledge . . . of the
existing contracts pursuant to the O1-B [sic] work visas between Plaintiffs and [the
Dancers].” (Am. Compl. ¶ 39.)       Further, Plaintiffs allege that the Metropolitan
Defendants “intentionally induc[ed the Dancers] not to perform under their contracts
with Plaintiffs.” (Am. Compl. ¶ 40.) Finally, Plaintiffs allege that the Metropolitan
Defendants’ “conduct was malicious and without justification” and, “[a]s a result of
[the Metropolitan Defendants’] unjustified interference . . . , Plaintiffs suffered a
significant loss in business revenue, and incurred significant damages and expenses.”
(Am. Compl. ¶¶ 44–45.)
   {67} The Court has previously concluded that the Employment Agreements and
the I-129 Petitions, read together in light of the incorporation of portions of the
Petitions into the Employment Agreements, constitute the contracts on which
Plaintiffs’ claims for alleged breach of contract rest. Plaintiffs do not allege, however,
that the Metropolitan Defendants had knowledge of either the Employment
Agreements or the I-129 Petitions and instead contend that the Metropolitan
Defendants simply knew that the Dancers had work visas. Plaintiffs have not alleged
that the work visas constituted a contract between Plaintiffs and the Dancers or,
more importantly, that the work visas contained the operative provisions of the
Employment Agreements, including provisions relating to non-competition, nonsolicitation and confidentiality upon which the specific allegations of the tortious
interference claim rely.
   {68} Further, even if the Metropolitan Defendants could be deemed to have had
knowledge of the I-129 Petitions based on the existence of the Dancers’ work visas,
the Petitions do not represent that the Dancers had agreed not to work for the
Metropolitan Defendants or others as Plaintiffs contend. To the contrary, the I-129
Petitions simply represented that the Dancers would be required to obtain new work
visas to work for an employer other than Happy Dance, not that they were precluded
from working for another employer. Indeed, the Employment Agreement with each
Dancer allegedly contained the exclusivity provision that Plaintiffs seek to enforce in
this action, and Plaintiffs have failed to allege that the Metropolitan Defendants had
any knowledge of either Dancer’s Employment Agreement.
     {69} Accordingly, based on the above, the Court concludes that because Plaintiffs
have failed to allege facts showing that the Metropolitan Defendants knew of the
contracts Plaintiffs have alleged existed with the Dancers, Plaintiffs’ claim for
tortious interference should be dismissed.14
     B.     Aiding and Abetting
     {70} In its fourth cause of action labeled “Aiding and Abetting,” Plaintiffs allege
that the Metropolitan Defendants “had knowledge of [the Dancers’] contracts with
Plaintiffs, and provided substantial assistance towards the breach of said contracts.”
(Am. Compl. ¶ 53.) Plaintiffs also allege that the Metropolitan Defendants “acted in
concert with and assisted [the Dancers] with breaching their fiduciary duties to
Plaintiffs by offering to and then subsequently employing them in violation of their
employment contracts with Plaintiffs.” (Am. Compl. ¶ 53.) Accordingly, it appears
that Plaintiffs assert both a claim for aiding and abetting breach of contract and a
claim for aiding and abetting breach of fiduciary duty.
     {71} Plaintiffs have not offered any case support for their purported claim for
aiding and abetting breach of contract. It appears to the Court that such a claim has
only been referenced in a single reported North Carolina decision—Pete Fortner,
PLLC v. Koonce Wooten & Haywood, LLP, No. COA10-1260, 

 (2011) (unpublished)—and the trial court dismissed the claim in that case
without subsequent appellate review.                Id. at *5.      Numerous other states have
expressly declined to recognize such a cause of action. See, e.g., AmTrust N. Am., Inc.
v. Safebuilt Ins. Servs., No. 14 Civ. 09494 (CM), 

, at
*33 (S.D.N.Y. Dec. 1, 2015) (“New York law . . . affords no cause of action for aiding
and abetting breach of contract.”); Zachman v. Vohra, No. 1:15 CV 5293, 

, at *11 (N.D. Ill. Nov. 23, 2015) (“Illinois law does not recognize
a cause of action for aiding and abetting breach of contract.”); Acclaim Sys. v. Infosys,
Ltd., No. 13-7336, 

, at *14–15 (E.D. Pa. July 14, 2015)

14 In light of the Court’s dismissal of this claim, Plaintiffs’ claim for punitive damages under N.C. Gen.
Stat. § 1D-15 based on Defendants’ alleged tortious interference with contract should likewise be
dismissed.
(noting Pennsylvania law does not recognize claim for aiding and abetting breach of
contract); R. Prasad Indus. v. Flat Irons Envtl. Solutions Corp., No. CV 12-8261-PCTJAT, 

, at *24–25 (D. Ariz. May 20, 2013) (applying
Arizona law and observing “[plaintiff] has provided no authority—and the Court has
found none—recognizing a cause of action for aiding and abetting a breach of
contract.”). The Court therefore declines to recognize a cause of action for aiding and
abetting a breach of contract under North Carolina law on the facts pleaded here.15
   {72} As for aiding and abetting breach of fiduciary duty, this Court has previously
recognized that “[w]hether North Carolina recognizes a claim for aiding and abetting
a breach of fiduciary duty remains an open question.” Veer Right, 

, at *6. Such a claim must necessarily fail here, however, because Plaintiffs have
failed to allege a breach of a fiduciary duty by the Dancers and have not brought a
claim based on such an alleged breach. See id. at *8 (“[I]f North Carolina recognizes
a claim for aiding and abetting breach of fiduciary duty, the elements would include:
(1) violation of a fiduciary duty by the primary party . . . .”).
   {73} Accordingly, the Court concludes that Plaintiffs have failed to state a valid
claim for “aiding and abetting” and that Plaintiffs’ purported claim should therefore
be dismissed.
   C.      Misappropriation of Trade Secrets
   {74} Because the Court has previously concluded in its analysis of the Dancers’
Motion that Plaintiffs have neither identified their alleged trade secrets with
sufficient particularity nor sufficiently alleged the acts by which the alleged
misappropriation was accomplished, the Court similarly concludes that the
Metropolitan Defendants’ Motion to Dismiss this claim should be granted on these
same grounds.          Accordingly, the Court concludes that Plaintiffs’ claim for




15 Some courts have noted that “aiding and abetting breach of contract” is akin to a claim for tortious

interference with contract. See, e.g., MacKay v. Donovan, 

 (E.D. Pa. 2010)
(“Although Plaintiffs do not plead Count V as a tort, but rather as ‘aiding and abetting in breach of
contract,’ for the purpose of this Motion the Court will construe this claim as a claim for tortious
interference with contract.”).
misappropriation of trade secrets against the Metropolitan Defendants should be
dismissed.
   D.       Unfair and Deceptive Trade Practices
   {75} To state a claim for unfair and deceptive trade practices (“UDTP”) under

, a plaintiff must allege: “(1) an unfair or deceptive act or
practice, or unfair method of competition, (2) in or affecting commerce, and (3) which
proximately caused actual injury to the plaintiff or his business.” Combs & Assocs.
v. Kennedy, 

, 373–74, 

 (2001). Moreover, “some
type of egregious or aggravating circumstances must be alleged[.]” Dalton v. Camp,

, 

 (2001) (internal quotation marks and citation
omitted).
   {76} Plaintiffs’ UDTP claim is advanced against only the Metropolitan
Defendants and relies on the allegations Plaintiffs have pleaded in support of its nowdismissed tortious interference with contract and misappropriation of trade secrets
claims. Having failed to plead that Plaintiffs have protectable trade secrets that the
Metropolitan Defendants have misappropriated, and having failed to allege facts
showing that the Metropolitan Defendants had knowledge of the alleged contracts
Plaintiffs contend that the Dancers breached, the Court concludes that Plaintiffs’
allegations in support of its UDTP claim fail to assert sufficient egregious or
aggravating circumstances to sustain their UDTP claim.            See, e.g., AmeriGas
Propane, L.P. v. Coffey, 

 (N.C. Super. Ct. Oct. 15, 2015) (holding
that “dismissal of [defendants’] trade secret and tortious interference claims
extinguishes [plaintiff’s] UDTP claim on these grounds”); Combs, 

, 

 (trial court properly dismissed UDTP claim based on tortious
interference with contract when court dismissed tortious interference claim).
Accordingly, the Court concludes that Plaintiffs’ UDTP claim should be dismissed.
   E.       Intentional Infliction of Emotional Distress
   {77} The Court has previously concluded that the Dancers’ alleged extreme and
outrageous conduct does not rise to the level necessary to state a claim for intentional
infliction of emotional distress.      Plaintiffs’ Amended Complaint alleges that the
Metropolitan Defendants engaged in identical conduct.          For the same reasons,
therefore, the Court concludes that Plaintiffs’ intentional infliction of emotional
distress claim against the Metropolitan Defendants should be dismissed.
   F.     Negligent Infliction of Emotional Distress
   {78} As stated above, to state a claim for negligent infliction of emotional distress,
the plaintiff must allege: “(1) the defendant negligently engaged in conduct, (2) it was
reasonably foreseeable that such conduct would cause the plaintiff severe emotional
distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional
distress.” Wilkerson, 

, 

. “The first element of
a [negligent infliction of emotional distress] claim requires allegations that the
‘defendant failed to exercise due care in the performance of some legal duty owed to
[the] plaintiff under the circumstances[.]’” Horne v. Cumberland Cnty. Hosp. Sys.,

, 

 (2013) (quoting Guthrie v. Conroy, 152 N.C.
App 15, 25, 

, 410–11 (2002) (emphasis added) (alterations in original).
   {79} Here, although Plaintiffs allege that the Metropolitan Defendants “had a
legal duty to abide by state [and] federal laws,” and breached that duty, Plaintiffs’
Amended Complaint contains no allegations supporting that the Metropolitan
Defendants owed a duty, legal or otherwise, to Plaintiffs.         (Am. Compl. ¶ 88.)
Accordingly, the Court concludes that Plaintiffs have not stated a valid claim for
negligent infliction of emotional distress against the Metropolitan Defendants and
that Plaintiffs’ claim should therefore be dismissed.
   G.     Unjust Enrichment
   {80} Although the Court declined to reach Plaintiffs’ unjust enrichment claim
against the Dancers, Plaintiffs’ claim against the Metropolitan Defendants is not
pleaded as an alternative claim to a breach of contract claim against the Metropolitan
Defendants. Indeed, Plaintiffs do not allege the existence of any contract between
Plaintiffs and any of the Metropolitan Defendants. Accordingly, the Court properly
considers the dismissal of Plaintiffs’ claim on this Motion.
   {81} “To state a claim for unjust enrichment, a plaintiff must establish ‘(1) a
measureable benefit was conferred on the defendant, (2) the defendant consciously
accepted that benefit, and (3) the benefit was not conferred officiously or
gratuitously.’” S. Fastening, 

, at *27 (citing cases) (internal
quotation omitted). An unjust enrichment claim “is neither in tort nor contract but
is described as a claim in quasi contract or a contract implied in law.” Booe, 

, 

. “The doctrine of unjust enrichment was devised by equity
to exact the return of, or payment for, benefits received under circumstances where
it would be unfair for the recipient to retain them without the contributor being
repaid or compensated.      More must be shown than that one party voluntarily
benefited another or his property.” JPMorgan Chase Bank, N.A. v. Browning, 

, 

, 559–60 (2013) (citation omitted).
   {82} Plaintiffs allege here that the Metropolitan Defendants “received the benefit
of Plaintiffs’ procurement of the O1-B [sic] work visas for [the Dancers], because they
were able to employ [the Dancers], though unlawfully, without paying for their O1-B
[sic] work visas.” (Am. Compl. ¶ 96.) Plaintiffs further allege that the Metropolitan
Defendants “consciously accepted the benefit of employing [the Dancers] without
properly obtaining new visas for them” and that Plaintiffs “did not procure the visas
gratuitously or by an interference in Defendants’ affairs.” (Am. Compl. ¶¶ 96–97.)
   {83} As pleaded here, however, the purported Employment Agreements require
the Dancers to reimburse Plaintiffs for the costs Plaintiffs incurred “for employee’s
benefit” in obtaining the work visas in the event the Dancers did not fulfill their
obligations under the Agreements. Accordingly, Plaintiffs seek through their unjust
enrichment claim against the Metropolitan Defendants to recover the same alleged
damages that they contend they are permitted to recover through their breach of
contract claims against the Dancers. Our Supreme Court has long held that “[i]t is a
well-established principle that an express contract precludes an implied contract with
reference to the same matter.” Vetco Concrete Co. v. Troy Lumber Co., 

, 

 (1962) (dismissing unjust enrichment claim against
defendant where benefit to defendant was furnished under an express contract with
another); see, e.g., Jefferson Standard Ins. Co. v. Guilford Cnty., 

,

 (1945) (“The hallmark rule of equity is that it will not apply in any
case where the party seeking it has a full and complete remedy at law.”) (quotations
and citations omitted).      Application of this principle here requires dismissal of
Plaintiffs’ unjust enrichment claim against the Metropolitan Defendants.
   {84} Separately, our Supreme Court has also made clear that “[n]ot every
enrichment of one by the voluntary act of another is unjust.” Wright v. Wright, 

, 

, (1982). Indeed, “[w]here a person has officiously
conferred a benefit upon another, the other is enriched but is not considered to be
unjustly enriched. The recipient of a benefit voluntarily bestowed without solicitation
or inducement is not liable for their value.” Rhyne v. Sheppard, 

,

 (1944). Here, Plaintiffs have failed to plead that the Metropolitan
Defendants took any action to solicit or induce Plaintiffs to incur the expenses they
now seek to recover through their unjust enrichment claim. For this separate reason,
therefore, Plaintiffs’ unjust enrichment claim against the Metropolitan Defendants
should be dismissed. See, e.g., Homeq v. Watkins, 

, 733–34, 

 (2002) (holding unsolicited payment of a deed of trust does not, by
itself, support an unjust enrichment claim); JP Morgan, 230 N.C. App. at 544, 

 (dismissing unjust enrichment claim for lack of solicitation or
inducement of benefit conferred).
   H.     Civil Conspiracy
   {85} The Court has previously dismissed Plaintiffs’ civil conspiracy claim against
the Dancers, as well as all of the underlying tort claims against the Metropolitan
Defendants. See generally, e.g., Piraino Bros., 

, 

 (“Where this Court has found summary judgment on the underlying tort
claims to be proper, we have held that a plaintiff's claim for civil conspiracy must also
fail.”). For the same reasons, therefore, the Court concludes that Plaintiffs’ claim for
civil conspiracy against the Metropolitan Defendants should also be dismissed.
   I.     Piercing the Corporate Veil
   {86} Plaintiffs purport to assert “piercing the corporate veil” as a separate cause
of action against the Manlys. The North Carolina Supreme Court has made it clear,
however, that “the doctrine of piercing the corporate veil is not a theory of liability.
Rather, it provides an avenue to pursue legal claims against corporate officers or
directors who would otherwise be shielded by the corporate form.” Green v. Freeman,

, 

 (2013). See also Green v. Freeman, 

 (N.C. Ct. App. 2014) (“[P]iercing the corporate veil . . . is not itself a cause of
action.”).
   {87} Moreover, in light of the Court’s dismissal of all of Plaintiffs’ claims against
the Metropolitan Defendants, the necessary predicate to the assertion of Plaintiffs’
piercing the corporate veil theory of relief is extinguished. See, e.g., McKee v. James,

, at *43–44 (N.C. Super. Ct. Dec. 31, 2014) (dismissing
contingent claims based on piercing the corporate veil theory when claims against
principal were dismissed).
   {88} Accordingly, the Court concludes that Plaintiffs’ claims against the Manlys
for, and based on, piercing the corporate veil should be dismissed.
                                            VII.
                                      CONCLUSION
   {89}      Based on the foregoing, the Court hereby GRANTS in part and DENIES in
part the Dancers’ Motion to Dismiss as follows:
             A. The Dancers’ Motion to Dismiss Plaintiffs’ claims for misappropriation
                of trade secrets, intentional infliction of emotional distress, negligent
                infliction of emotional distress, equitable estoppel, and civil conspiracy
                is GRANTED.        These claims against the Dancers are hereby
                DISMISSED with prejudice.
             B. The Dancers’ Motion to Dismiss Plaintiffs’ claims for breach of contract,
                fraudulent   misrepresentation,    unjust   enrichment,     and   punitive
                damages is DENIED.
   {90} The Court hereby GRANTS the Metropolitan Defendants’ Motion to Dismiss
and DISMISSES Plaintiffs’ claims against the Metropolitan Defendants with
prejudice.
SO ORDERED, this the 22nd day of January, 2016.


                                   /s/ Louis A. Bledsoe, III
                                   Louis A. Bledsoe, III
                                   Special Superior Court Judge
                                     for Complex Business Cases