Hartsell v. MindPath Care Ctrs., N.C., PLLC, 2022 NCBC 66.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION GUILFORD COUNTY 21 CVS 4170
MARY HARTSELL,
Plaintiff, ORDER AND OPINION ON v. DEFENDANT’S MOTION FOR PARTIAL DISMISSAL OF MINDPATH CARE CENTERS, PLAINTIFF’S FIRST AMENDED NORTH CAROLINA, PLLC f/k/a COMPLAINT, OR IN THE CAROLINA PARTNERS IN MENTAL ALTERNATIVE, DEFENDANT’S HEALTHCARE, PLLC; MISO, LLC; MOTION FOR PARTIAL JUDGMENT STANLEY MONROE; and YVONNE ON THE PLEADINGS MONROE,
Defendants.
1. THIS MATTER is before the Court on Defendants MindPath Care
Centers, North Carolina, PLLC, MISO, LLC, Stanley Monroe, and Yvonne Monroe’s,
(collectively, “Defendants”), Motion for Partial Dismissal of Plaintiff’s First Amended
Complaint, or in the alternative, Defendants’ Motion For Partial Judgment on the
Pleadings (“Motion”) (ECF No. 40).
2. The Court, having considered the Motion, the briefs supporting and
opposing the Motion, the parties’ arguments at a hearing held on 25 August 2022,
and other relevant matters of record, concludes for the reasons stated below that the
Motion should be GRANTED and that Plaintiff’s Fourth, Fifth and Sixth Claims for
relief in her Amended Complaint should be DISMISSED with prejudice. Connors Morgan, PLLC, by Scott C. Meyers, for Plaintiff Mary Hartsell.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, by Jackson W. Moore Jr. and Amelia Serratt, for Defendants MindPath Care Centers North Carolina, PLLC, MISO, LLC, Stanley Monroe, and Yvonne Monroe.
Earp, Judge.
I. FACTUAL BACKGROUND
3. When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure (“Rule(s)”), the Court does not find facts, but
rather it recites the facts as alleged. The following facts are drawn from Plaintiff’s
First Amended Complaint (“Am Compl.”) (ECF No. 39.)
4. Defendant Mindpath Care Centers, North Carolina, PLLC (“Mindpath”)
is a professional healthcare organization providing mental and behavioral care
services in North Carolina. Until 2019, the company was known as Carolina Partners
in Mental Healthcare, PLLC (“CPMH”). 1 (Am. Compl. ¶¶ 2, 8, 11.)
5. Plaintiff Mary Hartsell is a board-certified Family Nurse Practitioner
and Psychiatric and Mental Health Nurse Practitioner. (Am. Compl. ¶ 1.) Plaintiff
signed both an operating agreement and a participating provider agreement to
become a member, minority interest holder, and employee of Mindpath in April 2001.
(Am. Compl. ¶¶ 11–13.)
6. Defendant MISO, LLC (“MISO”) is a North Carolina limited liability
company. (Am. Compl. ¶ 3.) MISO is owned and controlled by Stanley and Yvonne
1In this Order and Opinion, the Court refers to the entity that was CPMH prior to 2019 and
Mindpath after 2019 as “Mindpath.” Monroe, along with their brother, Steven Monroe. It performs billing and
administrative functions for Mindpath. (Am. Compl. ¶ 9.) Plaintiff was not a member
of MISO. (Am. Comp. ¶ 15.)
7. Defendant Stanley Monroe (“Stanley”) is president of Mindpath but is
not alleged to be a member of that entity. Stanley is a managing member of MISO.
(Am. Compl. ¶ 4.)
8. Defendant Yvonne Monroe (“Yvonne”) is Stanley’s sister. Yvonne is a
member of both Mindpath and MISO. (Am. Compl. ¶ 5.)
9. Plaintiff agreed to join Mindpath after “Defendants” promised that her
take-home pay would be 50% of Mindpath’s monthly gross collections from her clinical
work. The other 50% of her gross collections was to be used by Mindpath to pay
overhead and expenses. (Am. Compl. ¶ 13.)
10. Mindpath paid MISO for billing and overhead. (Am. Comp. ¶ 14.)
According to Plaintiff, Stanley and Yvonne, both of whom owned interests in MISO,
concealed the terms and details of “insider transactions” between Mindpath and
MISO. (Am. Comp. ¶¶ 16–18.)
11. Plaintiff often billed in excess of 200 clinical hours per month, but her
monthly statements showed large deductions in categories described only as “Practice
Management,” “Global,” and “Local,” resulting in Plaintiff’s take-home pay being
“well below the 50% of her gross receipts as she had been promised.” (Am. Comp. ¶¶
19–21.) 12. Plaintiff addressed the matter with Stanley, who did not give her
satisfactory explanations for how the deducted funds were being used and “concealed
information from [Plaintiff] from which she could ascertain the circumstances.” (Am.
Comp. ¶ 22.)
13. Plaintiff was never asked to approve an agreement between Mindpath
and MISO, and she was never given detailed information about “these interested
insider transactions between MISO and Mindpath.” (Am. Comp. ¶ 23.)
14. After 16 years as a “partner” 2 at Mindpath, Plaintiff gave notice of her
resignation, effective 30 November 2017. (Am. Compl. ¶ 24.) She requested that her
ownership interest in the PLLC be redeemed. (Am. Compl. ¶¶ 25–26.)
15. Plaintiff sent Stanley several emails and letters requesting that
Mindpath redeem her “partnership interests.” Stanley promised Plaintiff that she
would eventually be paid, but he never provided specifics. (Am. Compl. ¶¶ 26–27.)
16. Instead, Plaintiff alleges that Stanley “engaged in a pattern of deception
and obfuscation,” first telling Plaintiff that Mindpath was involved in legal
proceedings that prevented the redemption, then falsely accusing Plaintiff of
improperly withdrawing from Mindpath, and finally claiming that Mindpath had
adopted a policy not to redeem the interests of withdrawing partners. (Am. Compl.
¶¶ 27–30.)
17. Stanley also allegedly threatened Plaintiff by accusing her of “cost[ing]
[Mindpath] more than the value of her partnership interest” but said that Mindpath
2 Although she was a member in a PLLC, Plaintiff apparently referred to herself as a “partner” and her interest as a “partnership interest.” would forgive her “debt” if she agreed to give up her right to have her ownership
interest redeemed. (Am. Comp. ¶ 31.)
18. On 4 April 2018, Plaintiff made a demand pursuant to N.C.G.S. § 57D-
3-04 for records from which Plaintiff could determine the value of her ownership
interest. (Am. Comp. ¶ 32.) Mindpath responded that Plaintiff’s interest was worth
over $9,000, but “falsely claim[ed] that Plaintiff had actively solicited Mindpath’s
patients to leave [Mindpath]” in breach of her fiduciary obligations causing damage
to the PLLC. (Am. Comp. ¶¶ 33-34.) As a result, Mindpath refused to provide the
requested records. (Am. Comp. ¶ 35.)
19. Plaintiff responded on 7 May 2018, denying that she had breached any
obligation to Mindpath and again requesting company records to calculate the value
of her interest. Mindpath provided a From K-1 but refused to provide any other
records. (Am. Comp. ¶¶ 36–37.)
II. PROCEDURAL HISTORY
20. Plaintiff initiated this action on 29 March 2021. (ECF No. 1.) On 7
January 2022, she moved to amend her Complaint. (ECF No. 30.) The Court granted
the motion in part by Order entered 8 April 2022. (ECF No. 38.) Plaintiff then filed
her First Amended Complaint on 19 April 2022.
21. In the First Amended Complaint, Plaintiff asserts claims against
Mindpath for failure to respond to her record demand and for breach of the PLLC’s
operating agreement. (Am. Compl. ¶¶ 38–48.) Count Three asserts that Stanley, as
president of Mindpath, breached a fiduciary duty to Plaintiff when he refused to redeem her membership interest in the PLLC. (Am. Compl. ¶¶ 49–55.) Count Four,
asserted against both Stanley and Yvonne, alleges that they breached their fiduciary
duty to Plaintiff when, as an officer and a member of Mindpath, respectively, they
diluted her interest by transferring money from Mindpath to MISO in “self-interested
transactions” and then denied Plaintiff access to the financial records. (Am. Compl.
¶¶ 56–67.) Finally, Count Five of the Amended Complaint alleges that all of the
Defendants, including Mindpath and MISO, engaged in constructive fraud. (Am.
Compl. ¶¶ 68–76.)
22. On 18 May 2022, Defendants filed this Motion seeking to dismiss
Plaintiff’s third, fourth and fifth claims for relief pursuant to Rules 12(b)(1) and
12(b)(6). The Motion was fully briefed, and the Court entertained arguments at a
hearing held on 25 August 2022. (See ECF No. 48.) The Motion is now ripe for
disposition. 3
III. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
23. When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the
Court’s inquiry is “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
3 Prior to the filing of this Motion, in response to the initial Complaint, Defendants filed a
partial motion to dismiss pursuant to Rule 12(b)(6). However, because it was filed after Defendants’ answer, the partial motion to dismiss was denied as untimely. (See Order, ECF No. 38.) Thereafter, however, Plaintiff filed an Amended Complaint, permitting Defendants to plead anew in response. This time Defendants timely filed their motion to dismiss, (ECF No. 40), prior to the filing of their answer, (ECF No. 42.) The Court therefore addresses the Motion pursuant to Rule 12(b)(6), rather than Rule 12(c). some legal theory, whether properly labeled or not.” Harris v. NCNBNat’l Bank, 85
N.C. App. 669, 670 (1987) (citation omitted). “[A] statement of claim is adequate if it
gives sufficient notice of the claim asserted to enable the adverse party to answer and
prepare for trial, to allow for the application of the doctrine of res judicata, and to
show the type of case brought.” Sutton v. Duke, 277 N.C. 94, 102 (1971) (internal
quotation omitted).
24. Conversely, “[i]t is well-established that dismissal pursuant to Rule
12(b)(6) is proper when ‘(1) the complaint on its face reveals that no law supports the
plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to
make a good claim; or (3) the complaint discloses some fact that necessarily defeats
the plaintiff’s claim.’ ” Corwin v. British Am. Tobacco PLC, 371 N.C. 605, 615 (2018)
(quoting Wood v. Guilford Cnty., 355 N.C. 161, 166 (2002)).
25. The Court is not required “to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences.” Good Hope
Hosp., Inc. v. N.C. Dep’t of Health & Human Servs., 174 N.C. App. 266, 274 (2005)
(citation and quotation marks omitted).
B. Motion to Dismiss Pursuant to Rule 12(b)(1)
26. As an additional basis for dismissal of Counts Four and Five,
Defendants argue that Plaintiff does not have standing and, therefore, that the Court
lacks subject matter jurisdiction. They contend that the claims are derivative, not
direct, and they observe that Plaintiff failed to make the statutorily required demand
before filing suit. See N.C.G.S. § 57D-8-01(a)(2). 27. “Standing is a necessary prerequisite to a court’s proper exercise of
subject matter jurisdiction.” Aubin v. Susi, 149 N.C. App. 320, 324 (2002) (citation
omitted). It refers to whether a party has “sufficient stake in an otherwise justiciable
controversy such that he or she may properly seek adjudication of the matter.” Am.
Woodland Indus., Inc. v. Tolson, 155 N.C. App. 624, 626 (2002).
28. Prior to asserting a derivative claim, an LLC member must have:
made written demand on the LLC to take suitable action, and either (i) the LLC notified the member that the member’s demand was rejected, (ii) 90 days have expired from the date the demand was made, or (iii) irreparable injury to the LLC would result by waiting for the expiration of the 90-day period.
N.C.G.S. § 57D-8-01(a)(2).
29. “The challenge to the adequacy of any pre-suit demand is, inter alia, a
challenge to the Court’s subject matter jurisdiction over the derivative claim.
Barefoot v. Barefoot, 2022 NCBC LEXIS 8, at **9 (N.C. Super. Ct. Feb. 2, 2022) (citing
Finley v. Brown, 2017 NCBC LEXIS 79, at **8 (N.C. Super. Ct. Sept. 1, 2017). The
reason for the demand requirement is to “give an LLC the opportunity ‘to remedy the
alleged problem without resort to judicial action, or, if the problem cannot be
remedied without judicial action, to allow the [LLC], as the true beneficial party, the
opportunity to bring suit first against the alleged wrongdoers.’ ” Id. at **20 (quoting
Zoutewelle v. Mathis, 2018 NCBC LEXIS 95, at *18 (N.C. Super. Ct. Sept. 13, 2018)).
30. The burden is on Plaintiff to prove the existence of subject matter
jurisdiction. Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110,
113 (2002). Absent that proof, the Court is required to dismiss the action. See Sarda v. City/Cnty. of Durham Board of Adjustment, 156 N.C. App. 213, 215 (2003) (“If a
court finds at any stage of the proceedings that it lacks jurisdiction over the subject
matter of a case, it must dismiss the case for want of jurisdiction.” (citation omitted));
N.C. R. Civ. P. 12(h)(3).
IV. Analysis
A. Breach of Fiduciary Duty
31. Each of the three claims at issue turns on whether a fiduciary duty is
owed by the implicated Defendant(s) to Plaintiff. Azure Dolphin, LLC v. Barton, 2017
NCBC LEXIS 90, at *23 (N.C. Super. Ct. Oct. 2, 2017) (Although breach of fiduciary
duty and constructive fraud are distinct causes of action, “an essential element of
each claim is the existence of a fiduciary relationship.”).
32. To state a claim for breach of fiduciary duty, Plaintiff must plead the
existence of a fiduciary duty, a breach of that duty, and injury proximately caused by
the breach. See Green v. Freeman, 367 N.C. 136, 141 (2013). Constructive fraud
requires that Plaintiff plead, in addition, that Defendants sought to benefit
themselves through the breach. See White v. Consol. Planning, Inc., 166 N.C. App.
283, 294 (2004).
33. “[A] fiduciary relationship is generally described as arising when ‘there
has been a special confidence reposed in one who in equity and good conscience is
bound to act in good faith and with due regard to the interests of the one reposing
confidence.’ ” Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367 (2014) (quoting Green,
367 N.C. at 141). “North Carolina recognizes two types of fiduciary relationships: de jure, or those imposed by operation of law, and de facto, or those arising from the
particular facts and circumstances constituting and surrounding the relationship.”
Hager v. Smithfield E. Health Holdings, LLC, 264 N.C. App. 350, 355 (2019).
34. LLCs are creatures of contract, and the members may choose to impose
fiduciary duties on one another by agreement. See, e.g., Strategic Mgmt. Decisions,
LLC v. Sales Performance Int’l, LLC, 2017 NCBC LEXIS 69, at *10–11 (N.C. Super.
Ct. Aug. 7, 2017) (“The rights and duties of LLC members are ordinarily governed by
the company’s operating agreement, not by general principles of fiduciary
relationships.”); see also N.C.G.S. § 57D-2-30(a). Absent such an agreement, however,
the general rule is that members of an LLC “do not owe a fiduciary duty to each
other[.]” Kaplan v. O.K. Techs., L.L.C., 196 N.C. App. 469, 473 (2009).
35. Plaintiff conceded at the hearing that she is not pursuing a claim for
breach of a de jure fiduciary duty, and indeed she does not allege the existence of a de
jure fiduciary relationship. Likewise, there is no allegation that a fiduciary duty was
imposed by an operating agreement. Consequently, the Motion turns on whether,
given the facts alleged, a de facto fiduciary duty existed between Plaintiff and any of
the Defendants.
36. “The standard for finding a de facto fiduciary relationship is a
demanding one: Only when one party figuratively holds all the cards—all the
financial power or technical information, for example—have North Carolina courts
found that the special circumstance of a fiduciary relationship has arisen.”
Lockerman v. S. River Elec. Mbrshp. Corp., 250 N.C. App. 631, 636 (2016) (citation and internal quotation marks omitted). Mere influence over another’s affairs is
insufficient. See Id.
37. With respect to Count Three, Plaintiff argues that Stanley “held all the
financial power and technical know-how behind the Mindpath-MISO transactions,
membership redemption, and Plaintiff’s compensation under the Provider
Agreement.” Therefore, she contends, the Lockerman standard has been met. (Pl.’s
Br. Opp’n to Mot. [“Pl.’s Br.”] 7, ECF No. 43.)
38. With respect to Count Four, Plaintiff argues that Stanley, as president
of Mindpath and an owner of MISO, and Yvonne, as an owner of both Mindpath and
MISO, worked together to funnel money from Mindpath to MISO by “orchestrat[ing]
a series of insider transactions between the two companies.” (Pl.’s Br. 7). Plaintiff
contends that she was never asked for input or given insight into the details of these
transactions. (Pl.’s Br. 2.) Instead, Plaintiff contends that Stanley and Yvonne
initiated a “self-perpetuating scheme” in which they denied Plaintiff access to
corporate records, threatened her with a lawsuit, and used MISO to “further insulate
themselves from discovery.” She contends that this scheme, when taken as a whole,
gives rise to fiduciary duties owed by Stanley and Yvonne to Plaintiff. (Pl.’s. Br. 5–
7). In making this argument, Plaintiff asks the Court to broadly define the concept
of a fiduciary relationship, noting that it “need not be legal; it may be moral, social,
domestic or merely personal. ” (Pl.’s Br. 6) (quoting Abbitt v. Gregory, 201 N.C. 577,
598 (1931). 39. Defendants contend that Plaintiff’s argument with respect to Stanley
expands on the allegations in the Complaint, which themselves are too conclusory to
support a conclusion that Stanley had sufficient control over Mindpath to owe
Plaintiff a de facto fiduciary duty. 4 They further argue that MindPath is a member-
managed LLC and, although Stanley is not a member-manager, Plaintiff is. (Defs.’
Reply Mem. Supp. Mot. [“Defs.’ Reply Br.”] 3–4, ECF No. 44.) It follows, according to
Defendants, that Stanley “could not have held all of MindPath’s financial power or
technical information,” and therefore could not have “held all the cards.”
40. As for Stanley and Yvonne acting in concert, Defendants argue that
there is only one allegation in the Amended Complaint that speaks to their combined
control over Mindpath. They contend that allegation—“At all times relevant to this
Complaint, Mindpath and MISO were operated and controlled by Stanley and Yvonne
Monroe,” (Am. Comp. ¶ 10)—is merely conclusory and need not be accepted as true
for purposes of the Motion. (Defs’ Reply Br. 2, fn 1.)
41. The Court agrees that Plaintiff does not sufficiently allege that Stanley,
either alone or in combination with Yvonne, exercised sufficient dominion or control
over Mindpath to owe fiduciary duties to Plaintiff. Stanley may have wielded power
as an officer of Mindpath, but he was not a member-manager, and there is no
allegation that Plaintiff was stripped of her authority as a member-manager by the
4 Defendants correctly observe that, under Rule 12(b)(6), the Court must limit its consideration to the allegations that appear in the Amended Complaint and cannot expand those allegations to encompass the arguments in Plaintiff’s brief. It is established law that the Court must consider the Amended Complaint as plead and not as argued by counsel. See e.g., Loray Master Tenant, LLC v. Foss N.C. Mill Credit 2014 Fund I, LLC, 2021 NCBC LEXIS 15, at *12 (N.C. Super. Ct. Feb. 18, 2021). PLLC’s operating agreement. Using the Lockerman analogy, her status as a member
gave Plaintiff “cards” to play. Furthermore, Plaintiff’s conclusory allegation that
Stanley and Yvonne together controlled Mindpath lacks factual support in her
Amended Complaint. A conclusory allegation, standing alone, cannot stave off a Rule
12(b)(6) challenge. See e.g., Meyer v. Walls, 347 N.C. 97, 114 (1997) (conclusory
allegations are insufficient to withstand a motion to dismiss). 5
42. Finally, citing Richardson v. Utili-Serve, LLC, 2020 NCBC LEXIS 135,
at **11 (N.C. Super. Ct. Nov. 17, 2020), Plaintiff argues that the holder of a majority
interest who exercises control over the LLC owes a fiduciary duty to the minority
interest members. (Pl.’s Br. 6.) Critically, however, while Plaintiff alleges that
Stanley and Yvonne “operated and controlled” both Mindpath and MISO (Am. Compl.
¶ 10), she does not allege that Yvonne, or even Stanley and Yvonne together, held a
majority interest in Mindpath. Rather, Plaintiff acknowledges that Stanley owns no
interest in Mindpath. (Am. Compl. ¶ 17.) Absent allegations of a controlling
ownership interest, Richardson does not support Plaintiff’s claim. See e.g., Vanguard
Pai Lung, LLC v. Moody, 2019 NCBC LEXIS 39, at *17 (N.C. Super Ct. June 19,
2019) (“As a general rule, members of an LLC do not owe a fiduciary duty to one
another, but in some circumstances, ‘a holder of a majority interest who exercises
control over the LLC owes a fiduciary duty to minority interest members.’ ”) (quoting
Fiske v. Kieffer, 2016 NCBC LEXIS 22, at *9 (N.C. Super. Ct. Mar. 9, 2016)).
5 Moreover, Plaintiff can scarcely argue that she reposed “special confidence” in Stanley or
Yvonne Monroe. To the contrary, the allegations reveal a growing dissatisfaction and loss of trust. (See e.g., Am. Comp. ¶¶ 22-23, 62-63.) 43. “Without the existence of a fiduciary relationship there can be no claim
for breach.” Bourgeois v. Lapelusa, 2022 NCBC LEXIS 111, at **15 (N.C. Super. Ct.
2022). Because the Court determines that Plaintiff’s allegations do not give rise to a
de facto fiduciary duty, Plaintiff’s Motion to Dismiss Plaintiff’s Third and Fourth
Claims for Relief is GRANTED, and Plaintiff’s Third and Fourth Claims for Relief
are DISMISSED with prejudice.
B. Constructive Fraud
44. Count Five is a claim for constructive fraud brought against all four
Defendants. To assert such a claim Plaintiff must “allege the facts and circumstances
(1) which created the relation of trust and confidence, and (2) led up to and
surrounded the consummation of the transaction in which defendant is alleged to
have taken advantage of his position of trust to the hurt of plaintiff.” Rhodes v. Jones
232 N.C. 547, 549 (1950). Thus, the existence of a fiduciary relationship is an
essential element of a constructive fraud claim. Brown v. Secor, 2017 NCBC LEXIS
65, at **18 (N.C. Super Ct. 2017).
45. With respect to the claim against Mindpath, a North Carolina limited
liability company does not owe fiduciary duties to its members. Consequently,
Plaintiff cannot assert a claim for constructive fraud against Mindpath. Merrell v.
Smith, 2020 NCBC LEXIS 150, at **22–25 (N.C. Super. Ct. Dec. 22, 2020) (holding
that an LLC does not owe a fiduciary duty to its members and dismissing plaintiffs’
claims against the LLC for breach of fiduciary duty and constructive fraud). As for
MISO, there is no relationship between Plaintiff and that entity that would give rise to a fiduciary duty. The result is that the constructive fraud claim alleged against
the entity Defendants fails.
46. With respect to the claim against the individual Defendants, Plaintiff
alleges that Stanley, as president of Mindpath, and Yvonne, as a member of Mindpath
and an owner of MISO, were in positions “of trust and confidence with respect to other
members of Mindpath, including Dr. Hartsell.” (Am. Comp. ¶¶ 69–70). As stated
above, however, the facts alleged do not support the existence of either a de jure or a
de facto fiduciary relationship between Plaintiff and the individual Defendants.
Without a fiduciary relationship, there is no claim for constructive fraud. See e.g.,
DS&T II, Inc. v. D&E Tax & Accounting, Inc., 2021 NCBC LEXIS 87, at **18 (N.C.
Super. Ct. Oct. 4, 2021) (“A claim for constructive fraud requires the presence of a
confidential or fiduciary relationship between the parties.”). Accordingly, Count Five
fails with respect to the individual Defendants. 6
V. CONCLUSION
47. For the foregoing reasons, the Court hereby GRANTS Defendants’
Motion to Dismiss, and Plaintiff’s Fourth, Fifth and Sixth Claims for relief are
DISMISSED with prejudice.
6 Defendants also contend that Counts Four and Five fail because the claims ae derivative
and Plaintiff has failed to satisfy the requirements for written demand on the LLC. See Al- Hassan v. Salloum, 2020 NCBC LEXIS 22, at *5 (N.C. Super. Ct. 2020). Because the Court concludes that no fiduciary duty exists on the facts as alleged, the Court need not address the merits of this contention. This the 2nd day of November, 2022.
/s/ Julianna Theall Earp Julianna Theall Earp Special Superior Court Judge for Complex Business Cases