Comput. Design & Integration, LLC v. Brown,
2016 NCBC 94.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 16 CVS 11847
COMPUTER DESIGN &
INTEGRATION, LLC and
COMPUTER DESIGN &
INTEGRATION SOUTHEAST, LLC,
Plaintiffs,
v.
DAVID A. BROWN, MARCUS
JACOBY, and ROVE, LLC,
Defendants, ORDER AND OPINION ON
DEFENDANT BROWN’S
DAVID A. BROWN and MARCUS
JACOBY, MOTION TO DISMISS
Third-Party Plaintiffs,
v.
ERIC BAKKER and BRIAN T. REID,
CPA,
Third-Party Defendants.
1. THIS MATTER is before the Court upon Defendant David A. Brown’s
(“Brown” or “Defendant”) Motion to Dismiss the First, Second, Third, Fourth, Fifth,
Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Claims for Relief (the
“Motion”) in the above-captioned case.
2. After considering the Motion, briefs in support of and in opposition to the
Motion, and the arguments of counsel at the hearing on October 26, 2016, the Court
DENIES the Motion.
Bell, Davis & Pitt, P.A., by Edward B. Davis and Joshua B. Durham, for
Plaintiffs Computer Design & Integration, LLC and Computer Design
& Integration Southeast, LLC and Third-Party Defendants Eric Bakker
and Brian T. Reid.
Alexander Ricks, PLLC, by Mary K. Mandeville and Alice C. Richey, for
Defendants David A. Brown, Marcus Jacoby, and Rove, LLC and
Third-Party Plaintiffs David A. Brown and Marcus Jacoby.
Bledsoe, Judge.
I.
PROCEDURAL HISTORY
3. This action arises out of failed buyout negotiations and involves claims by a
former employer/LLC manager relating to allegedly unlawful conduct by two former
employees, one of whom was an equal LLC member with the manager, and their new
company.
4. Computer Design & Integration, LLC (“CDI”) and Computer Design &
Integration Southeast, LLC (“CDISE”) (collectively, “Plaintiffs”) filed their Verified
Complaint (“Complaint”) on June 30, 2016, asserting claims against Brown, Marcus
Jacoby (“Jacoby”), and Rove, LLC (“Rove”) (collectively, “Defendants”). One or both
Plaintiffs assert eleven claims against Brown: breach of operating agreement (“First
Claim”); failure to negotiate in good faith (“Second Claim”); breach of duty of good
faith and fair dealing (“Third Claim”); misappropriation of trade secrets (“Fourth
Claim”); conversion (“Fifth Claim”); breach of fiduciary duty (“Seventh Claim”);
tortious interference with contract (“Eighth Claim”); tortious interference with
prospective economic relations (“Ninth Claim”); unfair and deceptive trade practices
(“Tenth Claim”); preliminary injunction (“Eleventh Claim”); and permanent
injunction (“Twelfth Claim”) (collectively, the “Claims at Issue”).
5. On August 31, 2016, Defendants filed their Answer to the Complaint, and
Brown filed the Motion, which seeks a dismissal of each of the Claims at Issue.
6. The Motion has been fully briefed, and the Court held a hearing on the
Motion on October 26, 2016, at which all parties were represented by counsel. The
Motion is now ripe for resolution.
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 Complaint that are relevant to
the Court’s determination of the Motion.
8. CDI designs, deploys, and manages multiplatform hybrid IT solutions for
businesses and often partners with technology companies in order to address the
needs of CDI’s customers. (Compl. ¶ 6.)
9. Brown was working for a partner of CDI when CDI and Brown discussed an
expansion of CDI into the Southeastern United States. (Compl. ¶¶ 8–9.) Brown
decided to resign from his current position to assist with the expansion. (Compl. ¶
9.) CDI and Brown then organized CDISE as a North Carolina limited liability
company in the fall of 2010. (Compl. ¶¶ 2, 10.) CDI and Brown entered into a written
operating agreement for CDISE, dated November 5, 2010 (“Operating Agreement”).
(Compl. ¶ 10.) The Operating Agreement provided that Brown and CDI each held a
fifty-percent membership interest in CDISE, Brown would serve as President and
handle the day-to-day management of CDISE, and CDI would be the managing
member with “full, complete and exclusive authority, power and discretion to direct,
manage and control the business, affairs and assets of the Company . . . [and] to
perform any and all acts or activities it deems necessary . . . .” (Compl. ¶ 10.)
10. On December 8, 2015, Brown and CDI agreed to terms concerning Brown’s
purchase of the assets of CDISE, but the deadline for closing passed without
consummation of the transaction. (Compl. ¶¶ 13, 15.) The parties subsequently
agreed to a later date for the completion of the transaction, but the transaction still
did not close, and CDI and Brown’s relationship deteriorated. (Compl. ¶¶ 15–18.)
Ultimately, Brown tendered his resignation as President of CDISE on June 16, 2016.
(Compl. ¶ 19.)
11. Plaintiffs allege, among other things, that before his resignation, Brown
hired for employment at Rove some of CDISE’s prospective employees, failed to
include paperwork concerning deals in CDISE’s records, failed to close on CDISE’s
proposals with American Credit Acceptance and Octapharma Plasma to allow Rove
to obtain their business, used CDISE’s confidential financial information to obtain
business credit for Rove, and solicited for Rove some of CDISE’s customers “in an
effort to appropriate [CDISE’s] business for himself and Defendant Rove.” (Compl.
¶¶ 21–29.) Further, Plaintiffs contend that, after his resignation, Brown and Jacoby
solicited and induced at least thirty employees to terminate their employment with
CDISE in order to commence work for Rove, removed sensitive business records and
assets belonging to CDISE from CDISE’s offices, and solicited, and continue to solicit,
CDISE’s customers. (Compl. ¶¶ 30–33.)
III.
LEGAL STANDARD
12. When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure, the Court determines “whether, as a matter of law,
the allegations of the complaint, treated as true, are sufficient to state a claim upon
which relief may be granted under some legal theory, whether properly labeled or
not.” Crouse v. Mineo, 189 N.C. App. 232, 237,
658 S.E.2d 33, 36 (2008) (quoting
Harris v. NCNB,
85 N.C. App. 669, 670,
355 S.E.2d 838, 840 (1987)). The Court
liberally construes the complaint in the light most favorable to the plaintiff and does
not dismiss the complaint “‘unless it appears beyond doubt that [the] plaintiff could
prove no set of facts in support of his claim which would entitle him to relief.’”
Holloman v. Harrelson,
149 N.C. App. 861, 864,
561 S.E.2d 351, 353 (2002) (quoting
Dixon v. Stuart,
85 N.C. App. 338, 340,
354 S.E.2d 757, 758 (1987)).
13. When ruling on a Rule 12(b)(6) motion, the court “may . . . consider
documents which are the subject of a plaintiff's complaint and to which the complaint
specifically refers even though they are presented by the defendant.” Oberlin Capital,
L.P. v. Slavin,
147 N.C. App. 52, 60,
554 S.E.2d 840, 847 (2001); see also Laster v.
Francis,
199 N.C. App. 572, 577,
681 S.E.2d 858, 862 (2009).
14. Dismissal of a complaint under Rule 12(b)(6) is proper: “(1) when the
complaint on its face reveals that no law supports plaintiff's claim; (2) when the
complaint on its face reveals the absence of fact sufficient to make a good claim; [or]
(3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim.”
Jackson v. Bumgardner,
318 N.C. 172, 175,
347 S.E.2d 743, 745 (1986). Otherwise,
“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 v. Duke,
277 N.C. 94, 103,
176 S.E.2d 161, 166 (1970)
(emphasis omitted).
15. Factual allegations are accepted as true, but the Court is not required to
accept as true “allegations that are contradicted by the documents attached,
specifically referred to, or incorporated by reference in the complaint.” Laster,
199
N.C. App. at 577,
681 S.E.2d at 862.
IV.
ANALYSIS
A. Motion to Dismiss the Claims
16. Brown first seeks to dismiss the Claims at Issue by arguing that Plaintiffs
lack authority to file the Claims at Issue as direct claims under Section 6.1.3 (xiv) of
the Operating Agreement and further that Plaintiffs have not met the statutory
demand requirements necessary to assert derivative claims on behalf of CDISE.
(Brown’s Br. Supp. Mot. Dismiss 1.)
17. Sections 6.1.1 of the Operating Agreement provides that CDI shall have
broad authority to act as the Managing Member of CDISE:
6.1.1 The business, affairs and assets of the Company shall be managed by
a managing member who shall act as a manager of the Company pursuant
to the Act (“Managing Member”). Except as otherwise provided in this
Agreement, the Managing Member shall have full, complete and exclusive
authority, power and discretion to direct, manage and control the business,
affairs and assets of the Company, to exercise any and all other acts or
activities it deems necessary, appropriate, proper, advisable or convenient
with respect thereto. The initial Managing Member shall be Computer
Design & Integration, LLC (“CDI”), and shall serve as the same until such
Managing Member resigns or shall be replaced by the affirmative vote or
consent of a Majority in Interest of the Members.
(Brown’s Mot. Dismiss, Ex. A.)
18. Nevertheless, section 6.1.3 of the Operating Agreement makes clear that
certain corporate actions shall require 75% of the Percentage Interest (i.e., 75% of the
membership percentage interests in CDISE) before they may be undertaken,
including, according to Brown, filing this action:
6.1.3 Notwithstanding anything to the contrary set forth in this
Agreement, the consent of at least seventy-five percent (75%) of the
Percentage Interest then held by the Members shall be required to do any
of the following: . . . (xiv) Perform any act that would subject any Member
to personal liability . . .
(Brown’s Mot. Dismiss, Ex. A.) (emphasis added.)
19. Brown contends that the filing of this legal action against him is an “act that
would subject [him] to personal liability” under section 6.1.3. As a result, according
to Brown, because CDI and Brown each have a 50% membership interest in CDISE,
and because Brown did not authorize the filing of this action, the filing of the action
was not authorized by the required 75% of the Percentage Interest and therefore may
not be maintained. Plaintiffs argue in opposition, however, that the filing and
prosecution of this lawsuit does not implicate section 6.1.3(xiv) because Brown’s
alleged misconduct constitutes the “act” or “acts” that subjected him to personal
liability—not the filing of the litigation. (Pls.’ Mem. Opp. Mot. Dismiss 5.)
20. To interpret an operating agreement and its provisions, the Court employs
general rules of contract construction. See N.C. Gen. Stat. § 57D-2-30 (e) (“the law[]
of . . . contracts . . . govern[s] the administration and enforcement of operating
agreements”); N.C. State Bar v. Merrell, 777 S.E.2d 103, 114 (N.C. App. 2015) (citing
Bank of Am., N.A. v. Rice,
230 N.C. App. 450, 455–56,
750 S.E.2d 205, 209 (2013))
(“An Operating Agreement is a contract”); Crouse,
189 N.C. App. at 237,
658 S.E.2d
at 36); Richardson v. Kellar,
2016 NCBC LEXIS 62, at *12 (N.C. Super. Ct. Aug. 2,
2016).
21. Contract construction seeks to determine “the intent of the parties when the
contract was issued” by deriving intent “from the language in the contract.” N.C.
State Bar,
777 S.E.2d at 114 (quoting Rice, 230 N.C. at 455,
750 S.E.2d at 209). The
language in the contract “should be given its natural and ordinary meaning,” see e.g.,
Southpark Mall Ltd. P’ship v. CLT Food Mgmt.,
142 N.C. App. 675, 678,
544 S.E.2d
14, 16 (2001) (citation omitted), and harmoniously construed to give every word and
every provision effect, In re Foreclosure of a Deed of Trust,
210 N.C. App. 409, 415,
708 S.E.2d 174, 178 (2011) (citation omitted). Construction of a contact is a matter
of law for the court if the language of the contract is plain and unambiguous.
Southpark Mall Ltd.,
142 N.C. App. at 679,
544 S.E.2d at 17.
22. After careful review of the specific terms of the Operating Agreement, the
Court concludes that section 6.1.3(xiv) is plain and unambiguous and that the natural
and ordinary meaning of the language “[p]erform any act that would subject any
Member to personal liability” does not encompass the filing of this lawsuit. Indeed,
the filing of a legal action does not create or impose personal liability upon a
defendant. Rather, it is the unlawful conduct of the defendant that creates or imposes
personal liability; a lawsuit is simply the legal mechanism through which a
defendant’s unlawful conduct that gives rise to personal liability may be redressed.
Moreover, section 6.1.3(xiv) is reasonably susceptible to but a single meaning—i.e.,
that the members have agreed to a heightened level of member agreement to permit
CDISE to take action that would result in CDISE’s members facing personal liability
for CDISE’s conduct, not as a measure to limit or eliminate CDISE’s recourse in the
event a member caused legal injury to CDISE. As such, the Court concludes that the
filing of this action against Brown for his allegedly wrongful conduct cannot be
understood as an action that “would subject [Brown] to personal liability” under
section 6.1.3(xiv).
23. Accordingly, the Court concludes that the Operating Agreement does not
require 75% of the Percentage Interest of CDISE to consent to the filing of this action
as argued by Brown. To the contrary, the Operating Agreement makes clear that
CDI, as the Managing Member of CDISE with “exclusive authority, power and
discretion to direct, manage and control the business, affairs and assets of the
Company . . . [and] to perform any and all other acts or activities it deems
necessary . . .”, has full power and authority to cause CDISE to file this suit. See
generally Crouse,
189 N.C. App. at 239, 658 S.E.2d at 37–38 (holding LLC’s initiation
of litigation against co-manager to be “a management decision”).1 As such, CDI need
1 The North Carolina Limited Liability Act applies only “to the extent contrary or inconsistent
provisions are not made in, or are not otherwise supplanted, varied, disclaimed, or nullified
not assert CDISE’s claims against Brown derivatively nor satisfy the demand
requirement under N.C. Gen. Stat. § 57D-8-01 as Brown contends. Brown’s motion
to dismiss the Claims at Issue on this basis should therefore be denied.
B. Motion to Dismiss Breach of Fiduciary Duty Claim
24. Brown also moves to dismiss or clarify CDISE’s claim for breach of fiduciary
duty on the alternative ground that Brown does not owe a fiduciary duty to CDI as a
member of CDISE. (Brown’s Br. Supp. Mot. Dismiss 6.) The breach of fiduciary duty
claim against Brown, however, is not premised on an alleged fiduciary duty to CDI.
To the contrary, CDISE’s breach of fiduciary duty claim is brought solely by CDISE
and is premised on Brown’s fiduciary duty to CDISE arising from his role as
President. (Compl. ¶¶ 74–77.) As Brown recognizes, N.C. Gen. Stat. § 57D-3-23
expressly provides that a company official shall have the same duties and standards
of conduct as a manager under N.C. Gen. Stat. § 57D-3-21, including the obligation
to discharge his duties (i) in good faith, (ii) with the care an ordinary prudent person
in a like position would exercise under similar circumstances, and (iii) subject to the
Operating Agreement, in a manner the company official believes to be in the best
interests of the LLC. Accordingly, Brown’s motion to dismiss CDISE’s breach of
fiduciary duty claim should be denied.
by, the operating agreement.” N.C. Gen. Stat. § 57D-2-30 (a). Under the default statutory
provisions, a “manager” is “any person designated as a manager as provided by the operating
agreement.” N.C. Gen. Stat. § 57D-1-03 (20). “The management of an LLC and its business
is vested in the managers” and “[m]anagement decisions approved by a majority of the
managers are controlling” and can be made “without a meeting and without notice.” N.C.
Gen. Stat. § 57D-3-20 (a), (b).
V.
CONCLUSION
25. Based on the foregoing, the Court hereby DENIES Brown’s Motion to
Dismiss.
SO ORDERED, this the 6th day of December, 2016.
/s/ Louis A. Bledsoe, III l
Louis A. Bledsoe, III
Special Superior Court Judge
for Complex Business Cases
