Leonard v. Ast, 2022 NCBC 35.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION JOHNSTON COUNTY 21 CVS 3913
JACQUELINE LEONARD,
Plaintiff, ORDER AND OPINION ON v. DEFENDANTS’ MOTIONS TO DISMISS AND MOTION FOR A MORE JASON AST; KATHRYN AST; and DEFINITE STATEMENT BARKS AND RECREATION, INC.,
Defendants.
1. This matter is before the Court on Defendants’ Motions to Dismiss
Under North Carolina Rules (“Rule(s)”) 12(b)(1) and 12(b)(6) (together, the “Motions
to Dismiss”), and their Alternative Motion for More Definite Statement Under Rule
12(e) (the “Motion for a More Definite Statement”; together with the Motions to
Dismiss, the “Motions”). (ECF No. 9.)
2. For the reasons set forth below, Defendants’ Motions to Dismiss are
GRANTED in part and DENIED in part, and their Motion for a More Definite
Statement is DENIED.
Walker Kiger PLLC, by David Stevenson Walker, III, for Plaintiff Jacqueline Leonard.
Vann Attorneys, PLLC, by Jon D. Hensarling and Ian Richardson, for Defendants Barks and Recreation, Inc., Kathryn Ast, and Jason Ast.
Earp, Judge.
I. BACKGROUND
3. With respect to a motion under Rule 12(b)(1), as well as a motion under
Rule 12(b)(6), the Court “must accept as true the plaintiff’s allegations and construe them in the light most favorable to the plaintiff.” Munger v. State, 202 N.C. App. 404,
410 (2010) (“When reviewing a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) . . . if the trial court confines its evaluation to
the pleadings, the court must accept as true the plaintiff’s allegations and construe
them in the light most favorable to the plaintiff.” (citations omitted)); Hyde v. Abbott
Labs., Inc., 123 N.C. App. 572, 575 (1996) (“In ruling on a motion to dismiss [pursuant
to Rule 12(b)(6)], the allegations of the complaint must be treated as true.” (citing
Stanback v. Stanback, 297 N.C. 181, 185 (1979))). Therefore, the following facts,
taken from Plaintiff’s Complaint, (ECF No. 3), are accepted as true for purposes of
deciding the Motions to Dismiss. The Court does not make findings of fact, as the
Motions to Dismiss do “not present the merits, but only [determine] whether the
merits may be reached.” Concrete Serv. Corp. v. Invs. Grp., Inc., 79 N.C. App. 678,
681 (1986).
4. Plaintiff Jaqueline Leonard (“Plaintiff”) is a citizen and resident of
Johnston County, North Carolina. (Compl. ¶ 1.)
5. Defendants Jason Ast (“Jason”) and his wife, Kathryn Ast (“Kathryn”;
together with Jason, the “Asts”), are also citizens and residents of Johnston County,
North Carolina. (Compl. ¶ 2.)
6. Defendant Barks and Recreation, Inc. (“Barks and Recreation,” or the
“Company”; together with the Asts, “Defendants”) is a North Carolina corporation,
with its principal office in Johnston County, North Carolina. (Compl. ¶ 3.) 7. Plaintiff and Kathryn were friends, and for four years, Plaintiff
worked—both as a paid employee and as a volunteer—for “Just Dog People”, a dog
grooming business the Asts owned. (Compl. ¶¶ 6–8.)
8. In 2020, Jason approached Plaintiff with the idea of starting a dog-
training business called Barks and Recreation. (Compl. ¶ 9.) Jason told Plaintiff that
the “three would run the business together.” The Asts were to contribute the business
expertise, and Plaintiff was to contribute the capital. (Compl. ¶ 13.)
9. The Asts believed that Barks and Recreation “would increase the traffic
to Just Dog People because the businesses would be neighboring.” (Compl. ¶ 14.)
10. Articles of incorporation for Barks and Recreation were filed by the
North Carolina Secretary of State on 30 March 2020. (Compl. ¶ 15.)
11. On 18 June 2020, Plaintiff withdrew $50,000 from her retirement
account, and she withdrew an additional $50,000 a week later. The money was
deposited into the Barks and Recreation account. (Compl. ¶¶ 16–17.) The Asts did
not contribute any capital to the business. (Compl. ¶ 18.)
12. Barks and Recreation largely ignored corporate formalities. There was
never an initial corporate meeting, bylaws were never adopted, and shares were
never issued. (Compl. ¶¶ 19–21.) The Asts made every decision for the business and
rarely consulted Plaintiff. (Compl. ¶ 22.)
13. The relationship between Plaintiff and Jason eventually “soured.”
(Compl. ¶ 23.) Nevertheless, Plaintiff continued working daily for Barks and
Recreation until 27 April 2021, when Jason told Plaintiff to “immediately leave the premises and never return,” and that he “could never work with her again.” (Compl.
¶¶ 25–26.)
14. Jason also asked Plaintiff “how much it would cost to buy her out of the
business,” but rejected the number she gave him. (Compl. ¶ 27.)
15. Jason removed Plaintiff from the corporate email, the phone system,
“and other necessities of the business.” He disabled the CPI Security System cameras
as well. (Compl. ¶ 28.)
16. Together the Asts called a special shareholders meeting for 7 October
2021 to consider dissolution of Barks and Recreation. Plaintiff objected to the
meeting because “shares [had] never . . . been issued and bylaws ha[d] never been
adopted.” In response to her objection, the Asts stated that they collectively owned
two-thirds of the shares of Barks and Recreation, and they proceeded with the
meeting. (Compl. ¶¶ 29–30.)
17. At the meeting, the Asts voted to dissolve Barks and Recreation.
(Compl. ¶ 31.)
18. On 28 October 2021, articles of dissolution for Barks and Recreation
were filed. (Compl. ¶ 32.)
19. Plaintiff brought this suit by filing a verified complaint on 5 November
2021, asserting claims for (1) Breach of Fiduciary Duty (against the Asts only), (2) a
“Request that Barks and Recreation, Inc Be Declared a Partnership”, (3) Unjust
Enrichment (against the Asts only), and (4) Unfair or Deceptive Trade Practices in violation of Chapter 75 of the North Carolina General Statutes (against the Asts
only). (ECF No. 3.)
20. On 23 March 2022, Plaintiff voluntarily dismissed her Chapter 75
claim without prejudice. (ECF No. 12.)
21. All three Defendants now move to dismiss the remaining claims. The
Motions have been fully briefed, and the Court held a hearing on the Motions on 20
June 2022. (See ECF No. 16.) All parties were present and heard. The Motions are
ripe for disposition.
II. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
22. 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
some legal theory, whether properly labeled or not.” Harris v. NCBC Nat’l Bank, 85
N.C. App. 669, 670 (1987).
23. The Court must construe the complaint liberally and accept all well-
pleaded allegations as true. Laster v. Francis, 199 N.C. App. 572, 577 (2009). The
Court, however, 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 omitted). 24. “It 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)).
B. Motion to Dismiss Pursuant to Rule 12(b)(1)
25. Defendants assert an additional basis for dismissal of the breach of
fiduciary duty claim. Defendants contend that the claim is derivative, not direct, and
they observe that Plaintiff failed to make the statutorily required demand before
filing suit. See N.C.G.S. § 55-7-42. They contend, therefore, that Plaintiff lacks
standing to bring this derivative claim, and that the Court lacks subject matter
jurisdiction to determine it.
26. “Standing 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).
“Standing is a question of subject matter jurisdiction, which is a prerequisite to the
exercise of any authority by the state courts.” Phillips & Jordan, 2012 NCBC LEXIS
36, at *7 (citing Str. v. Smart Corp., 157 N.C. App. 303, 305 (2003) and Neuse River
Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113 (2002)).
27. “As a general rule regarding derivative suits, ‘a demand that the
directors act is a prerequisite to a shareholder suing upon behalf of the corporation.’” Norman v. Nash Johnson & Sons’ Farms, Inc., 140 N.C. App. 390, 408 (2000) (quoting
Roney v. Joyner, 86 N.C. App. 81, 83 (1987)); see also Petty v. Morris, 2014 NCBC
LEXIS 67, at *4 (N.C. Super. Ct. Dec. 16, 2014) (stating that a party must strictly
comply with the demand requirement to have standing to bring a derivative action
on behalf of corporations).
28. The burden is on Plaintiff to prove the existence of subject matter
jurisdiction. 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).
III. ANALYSIS
A. Breach of Fiduciary Duty
29. Defendants contend that Plaintiff has improperly attempted to bring a
direct claim for breach of fiduciary duty, and that her failure to make the pre-
litigation demand required by statute means she does not have standing to bring the
claim derivatively either. (Defs.’ Mem. Supp. Mots. Dismiss 7, ECF No. 10.)
30. “It is a well-settled principle of North Carolina law that shareholders of
a corporation cannot pursue individual causes of action for wrongs or injuries to the
corporation.” Miller v. Burlington Chem. Co., LLC, 2017 NCBC LEXIS 6, at *13 (N.C.
Super. Ct. Jan. 27, 2017) (citing Barger v. McCoy Hillard & Parks, 346 N.C. 650, 658
(1997)). However, Plaintiff argues that she is asserting a claim for a wrong inflicted on her specifically, the minority shareholder, by the majority shareholders, and not a
wrong done to the corporation.
31. The law permits a shareholder to bring a direct claim: “(1) when there
is a special duty between the wrongdoer and the shareholder; and (2) when the
shareholder suffered an injury separate and distinct from the injury suffered by the
corporation and the other shareholders.” Id. In order to establish a special duty, the
plaintiff must allege facts “showing that defendants owed a duty to plaintiffs that was
personal to plaintiffs as shareholders and separate and distinct from the duty
defendants owed the corporation.” Barger, 346 N.C. at 659.
32. Plaintiff argues that she was owed a special duty by the Asts because
she was a minority shareholder of the closely held corporation they controlled. (Pl.’s
Mem. Opp’n Defs.’ Mots. Dismiss 4, ECF No. 11; Compl. ¶ 35–39.) She has alleged
that the Asts together “purported” to own two-thirds of the shares in Barks and
Recreation, and that the Asts acted in concert to make all major decisions for the
business, including the decision to dissolve it. Consequently, she contends that the
Asts, as the majority interest holders, owed her direct fiduciary duties.
33. “North Carolina courts ha[ve] recognized that individual minority
shareholders of a closely-held corporation who act in concert and collectively own the
majority interest in the corporation may owe fiduciary duties as the controlling
shareholders.” Zagaroli v. Neill, 2018 NCBC LEXIS 25, at *26 (N.C. Super. Ct. Mar.
28, 2018) (citing Norman, 140 N.C. App. at 407); see also Gaines v. Long Mfg. Co., 234
N.C. 340, 344–45 (1951); Flynn v. Pierce, 2020 NCBC LEXIS 149, at *9–11 (N.C. Super. Ct. Dec. 22, 2020). And, under these circumstances, the minority shareholder
may bring a direct claim for breach of those duties against the controlling
shareholder(s), in addition to or instead of a derivative claim. See Norman, 140 N.C.
App. at 405 (“[M]inority shareholders in a closely held corporation who allege
wrongful conduct and corruption against the majority shareholders in the corporation
may bring an individual action against those shareholders, in addition to maintaining
a derivative action on behalf of the corporation.”); see also, e.g., Maurer v. Maurer,
2013 NCBC LEXIS 41, at *10 (N.C. Super. Ct. Aug. 23, 2013) (“North Carolina
appellate courts have recognized that a fiduciary duty is owed by a controlling
shareholder to a minority shareholder in particular circumstances, and have allowed
an individual claim for breach of that duty to proceed even if a derivative action would
otherwise be appropriate.”). Based on the foregoing, the Court concludes that
Plaintiff has standing to bring a direct claim for breach of fiduciary duty against the
Asts and therefore DENIES the Motion to Dismiss pursuant to Rule 12(b)(1).
34. However, Defendants also argue that even if she has standing, Plaintiff
has failed to state a claim for breach of fiduciary duty under Rule 12(b)(6). (Defs.’
Mem. Supp. Mots. Dismiss 7–11.)
35. A claim for breach of fiduciary duty has three elements: (1) existence of
a fiduciary duty; (2) breach of that duty; and (3) damages resulting from the breach.
See Keener Lumber Co. v. Perry, 149 N.C. App. 19, 28 (2002) (“Put simply, a plaintiff
must show (1) the existence of a fiduciary duty, and (2) a breach of that duty.”).
Plaintiff has alleged that (1) the Asts, acting in concert as majority shareholders, owed fiduciary duties to Plaintiff, the minority shareholder; (2) the Asts breached
their fiduciary duties to Plaintiff by making business decisions—including the
decision to dissolve the corporation—without her input, calling special shareholder
meetings over her objections, and by Jason Ast informing her that she had to leave
the premises and then denying her access to the corporate email, phone system, and
security cameras; and (3) Plaintiff has been deprived of her ownership interests and
rights as a result of the Asts’ actions.
36. Defendants argue that Plaintiff’s allegations of breach do not rise to the
level of a legally cognizable injury. They cite Chisum v. Campagna, 376 N.C. 680
(2021), in support of this argument. However, unlike the case before the Court,
Chisum arose in the context of a limited liability company controlled by an operating
agreement. The Supreme Court held that in those circumstances, allegations that
(1) the controlling members attempted to “freeze” a minority member out of an LLC,
(2) the controlling members “conducted ‘sham capital calls,’ ” and (3) the controlling
members “acted as if [plaintiff] was no longer a member of the LLC, and treated him
in a manner that was inconsistent with his status as a member” did not amount to a
legally cognizable injury separate and distinct from the injury suffered by the LLC.
Chisum, 376 N.C. at 724. Here, however, Plaintiff was not a party to an operating
agreement, and the fiduciary relationship she has with the majority interest holders
gives rise to a special duty that runs directly to her. See, e.g., Meiselman v.
Meiselman, 309 N.C. 279, 289, 316 (1983) (explaining that minority shareholders
often lack bargaining power and holding that if “plaintiff’s condition is a result of oppression or bad conduct by the other shareholders[,]” the oppression may support
a claim for breach of fiduciary duty).
37. To be sure, Plaintiff alleges that Jason alone was responsible for some
of the conduct she finds objectionable. But Plaintiff also alleges that the Asts “made
every decision for the business,” (Compl. ¶ 22), and that they called the shareholders’
meeting, proceeded to meet despite Plaintiff’s objection, and voted to dissolve the
business, (Compl. ¶¶ 29–31). It remains to be determined whether these actions
constitute a breach of their fiduciary duties to Plaintiff.
38. Therefore, although the allegations in the Complaint are thin, the
Court finds them minimally sufficient at this stage of the case to survive the Motions.
Accordingly, the Asts’ Motions to Dismiss Plaintiff’s first claim for breach of fiduciary
duty are DENIED.
B. Declaratory Judgment that Entity is a Partnership
39. Defendants move to dismiss Plaintiff’s second claim for relief, through
which she requests a declaration from the Court that Barks and Recreation is a
partnership rather than a corporation, because the Complaint on its face establishes
that both articles of incorporation and articles of dissolution for the business have
been filed with the North Carolina Secretary of State. (Compl. ¶¶ 15, 32; Defs.’ Mem.
Supp. Mots. Dismiss 13–14.)
40. The North Carolina Business Corporation Act (the “Act”) states that
“[c]orporate existence begins when the articles of incorporation become effective[,]”
and that “[t]he Secretary of State’s filing of the articles of incorporation is conclusive proof that the incorporators satisfied all conditions precedent to incorporation[.]”
N.C.G.S. § 55-2-03(a)–(b).
41. Plaintiff concedes that all conditions precedent to incorporation were
satisfied when the Secretary of State filed the articles of incorporation for Barks and
Recreation but argues that “[the filing] is not conclusive proof that the Corporation
was perfected and should be treated as a [c]orporation[.]” (Pl.’s Mem. Opp’n Defs.’
Mots. Dismiss 8.) Because corporate formalities such as adopting bylaws and issuing
shares were ignored by the corporation, Plaintiff argues that Barks and Recreation
should be treated as a partnership. (Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss 9.)
42. However, failure to adopt bylaws or issue shares, while problematic in
other ways, does not convert a corporation to a partnership. See, e.g., Atl. Tobacco
Co. v. Honeycutt, 101 N.C. App. 160, 164–165 (1990) (a court considers four factors
when choosing to disregard the corporate form, one of which is “non-compliance with
corporate formalities[,]” but no factor by itself is determinative).
43. Furthermore, contrary to Plaintiff’s argument, a corporation is not
required to issue shares in order to dissolve. The Act specifically provides that “a
majority of the incorporators of a corporation that has not issued shares may dissolve
the corporation by . . . filing articles of dissolution.” N.C.G.S. § 55-14-01(a) (emphasis
added). Here, the Court takes judicial notice that the incorporator was Kathryn Ast.
Jason Ast executed the articles of dissolution on behalf of Kathryn Ast and himself. 1
Consequently, the requirements of this statute were satisfied.
1This information is found in the Company’s Articles of Incorporation and Articles of Dissolution filed with the North Carolina Secretary of State. See North Carolina Secretary of 44. Because Plaintiff’s own allegations defeat this claim for relief,
Defendants’ Motion to Dismiss Plaintiff’s second claim for relief is GRANTED.
C. Unjust Enrichment
45. The Asts contend that Plaintiff’s claim against them for unjust
enrichment also fails as a matter of law because it is summarily pleaded. They argue
that Plaintiff has not adequately alleged which of them has personally benefitted
from her capital contribution of $100,000 to the Company and how. (Defs.’ Mem.
Supp. Mots. Dismiss 15.)
46. “The general rule of unjust enrichment is that where services are
rendered and expenditures made by one party to or for the benefit of another, without
an express contract to pay, the law will imply a promise to pay a fair compensation
therefore.” Chisum v. Campagna, 2017 NCBC LEXIS 102, at *31 (N.C. Super. Ct.
Nov. 7, 2017) (quoting Atl. C. L. R. Co. v. State Highway Comm’n, 268 N.C. 92, 95–96
(1966)). “The doctrine . . . 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.” Id. at *32
(quoting Collins v. Davis, 68 N.C. App. 588, 591 (1984)).
47. Plaintiff argues that her capital contribution of $100,000 to Barks and
Recreation conferred a benefit on the Asts because it allowed them to start a business
with only “sweat equity” and no personal financial investment. She alleges that the
Asts believed that the new business might increase the traffic to their neighboring
State, https://www.sosnc.gov/online_services/search/Business_Registration_Results (last visited July 12, 2022). dog grooming business. She further alleges that “if” the Asts were to receive any
assets resulting from the Company’s dissolution, “they would be unjustly enriched.”
(Compl. ¶¶ 14, 55, 60; Pl.’s Mem. Opp’n Defs.’ Mots. Dismiss 10.)
48. But alleging only that the Asts might benefit from the business venture
does not state a claim for unjust enrichment. Cf. KNC Techs., LLC v. Tutton, 2019
NCBC LEXIS 72, *36 (N.C. Super. Ct. Oct. 9, 2019) (“Alleging merely that the
Defendants have taken for themselves some benefit to which Plaintiff believes [she]
is rightfully entitled does not state a claim for unjust enrichment.”). 2 Instead, “[a]
claim for unjust enrichment must be based on a contract implied in law in which one
party has provided a benefit to another, such as goods or services, for which the first
party should be rightfully compensated.” Id.
49. Here, Plaintiff alleges that she contributed capital to the Company. She
does not allege that any part of her capital contribution was a loan for which she
expected repayment from the Asts. And, although the parties speculated that
establishing the new business might assist the existing business, that speculation
does not amount to an allegation that Plaintiff has conferred a benefit on the Asts for
which she should be compensated. Likewise, Plaintiff’s worry that “if the Asts
received assets in the dissolution, they would be unjustly enriched” is not an
allegation of fact upon which a claim of unjust enrichment can rest.
2 This Court has observed that allegations of this nature “reflect a continuing and widespread
misunderstanding of the facts necessary to support a claim for unjust enrichment” among members of the Bar. KNC Techs., LLC, 2019 NCBC LEXIS 72, at *35. 50. Accordingly, Plaintiff has failed to allege facts to support a claim for
unjust enrichment and Defendants’ Motions to Dismiss the claim should be
GRANTED.
D. Motion for More Definite Statement Pursuant to Rule 12(e)
51. In ruling on a motion for a more definite statement under Rule 12(e),
the Court considers whether “a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading[.]” N.C. R. Civ. P. 12(e). Motions for a more definite statement
“[are] not favored by the courts and [are] sparingly granted because pleadings may
be brief and lacking in factual detail, and because of the extensive discovery devices
available to the movant.” Ross v. Ross, 33 N.C. App. 447, 454 (1977); see
Redevelopment Comm’n of Washington v. Grimes, 277 N.C. 634, 645 (1971) (stating
that a motion to dismiss addresses vagueness or lack of detail in a pleading). “[T]he
grant or denial of a motion for a more definite statement rests in the sound discretion
of the trial judge, and [her] ruling thereon will not be overturned on appeal absent a
showing of abuse of discretion.” Ross, 33 N.C. App. at 454 (citation omitted).
52. “If the contested pleading meets the standards of North Carolina Rule
of Civil Procedure 8 and the opposing party is adequately notified of the nature of the
claim, a motion for a more definite statement should be denied.” Willard v. Barger,
2019 NCBC LEXIS 31, at *3 (N.C. Super. Ct. May 14, 2019) (citing Ross, 33 N.C. App.
at 454–55; Gatlin v. Bray, 81 N.C. App. 639, 644 (1986) (“Pleadings comply with our
present concept of notice pleading if the allegations in the [pleading] give [the opposing party] sufficient notice of the nature and basis of [the] claim to file an
answer, and the face of the complaint shows no insurmountable bar to recovery.”)).
“Because motions for a more definite statement are ‘the most purely dilatory of all
the motions available under the Rules of Civil Procedure,’ our appellate courts have
instructed that they ‘should be scrutinized with care[.]’ ” Id. at *4 (quoting Ross, 33
N.C. App. at 454; Johnson v. Bollinger, 86 N.C. App. 1., 12 (1987)).
53. Defendants argue that Plaintiff has failed to plead: (1) “sufficient facts
to allege the existence of a fiduciary relationship between the minority shareholders
of [Barks and Recreation]”; (2) “facts sufficient to allege control of [Barks and
Recreation] by the Asts”; (3) a claim under the North Carolina Declaratory
Judgments Act or a cognizable claim asking the Court to recognize [Barks and
Recreation] as a partnership”; (4) “how the Asts were allegedly unjustly enriched”;
and (5) “any facts describing harm or damages she has allegedly suffered.” (Defs.’
Mem. Supp. Mots. Dismiss 19.) Plaintiff argues that the Complaint provides
Defendants with enough information to admit or deny the factual claims made in the
Complaint. (Pl.’s Mem. Opp’n Defs.’ Mots. Dismiss 10–11.)
E. The Court has reviewed the Complaint and concludes that “a request
for additional details is more properly the subject of discovery.” Burgess v. Am.
Express Co., 2007 NCBC LEXIS 15, at *3 (N.C. Super. Ct. May 21, 2007).
Accordingly, the Court, in its discretion, DENIES Defendants’ Motion pursuant to
Rule 12(e).
F. Chapter 75 Claim 54. Finally, first recognizing that Plaintiff has voluntarily dismissed
without prejudice her claim for violations of the North Carolina Unfair and Deceptive
Trade Practices Act, Defendants urge the Court to dismiss the claim with prejudice.
But the Court’s jurisdiction with respect to the claim ends when a dismissal is taken
pursuant to Rule 41(a)(1), unless and until a new action is timely commenced. BB&T
Boli Plan Trust v. Massachusetts Mut. Life Ins. Co., 2016 NCBC LEXIS 36, at *12
(N.C. Super. Ct. April 29, 2016) (“The general rule is that once a plaintiff takes a Rule
41(a)(1) dismissal, there is nothing the defendant can do to fan the ashes of that
action into life[,] and the court has no role to play.” (citations and internal quotation
marks omitted)). Therefore, Defendants’ Motion as to the dismissed Chapter 75 claim
is DENIED.
IV. CONCLUSION
G. WHEREFORE, the Court hereby ORDERS as follows:
a. As to Plaintiff’s First Claim for Breach of Fiduciary Duty by the Asts,
the Motions are DENIED.
b. As to Plaintiff’s Second Claim for Request that Barks and Recreation
be Declared a Partnership, the Motion to Dismiss under Rule 12(b)(6)
is GRANTED, and this claim is DISMISSED with prejudice. c. As to Plaintiff’s Third Claim for Unjust Enrichment against the Asts,
the Motion to Dismiss under Rule 12(b)(6) is GRANTED, and this
claim is DISMISSED without prejudice. 3
d. As to Plaintiff’s Fourth Claim for Unfair or Deceptive Trade Practices,
which has been voluntarily dismissed pursuant to Rule 41(a)(1),
Defendants’ Motion to Dismiss under Rule 12(b)(6) is DENIED.
e. Defendants’ Alternative Motion for More Definite Statement Under
Rule 12(e) is DENIED.
IT IS SO ORDERED, this the 13th day of July, 2022.
/s/ Julianna Theall Earp Julianna Theall Earp Special Superior Court Judge for Complex Business Cases
3 “The decision to dismiss an action [pursuant to Rule 12(b)(6)] with or without prejudice is
in the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013) (citation omitted).