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Superior Performers, Inc. v. Family First Life, LLC

United States District Court, M.D. North Carolina

December 22, 2014



JAMES A. BEATY, District Judge.

This matter is currently before the Court on the Motion to Dismiss [Doc. #17] filed by Defendants, Family First Life, LLC ("FFL") and Shawn Meaike ("Meaike"). Plaintiff Superior Performers, Inc. ("Plaintiff" or "NAA") has filed a Response in Opposition to the Motion to Dismiss [Doc. #22], to which, Defendants have filed a Reply [Doc. #24]. For the reasons discussed below, the Court grants in part and denies in part Defendants' Motion to Dismiss.


The factual allegations of Plaintiff's Complaint are taken as true for purposes of Defendants' Motion to Dismiss. Plaintiff is an independent marketing organization and a managing general agent to various insurance companies. Plaintiff recruits and trains agents to sell insurance and assists those agents in becoming qualified representatives of the insurance companies for which Plaintiff acts as an independent marketing organization and managing general agent. Meaike was one such agent employed by Plaintiff. As part of his employment, Meaike was subject to both an Agent Agreement and Management Marketing Agreement with Plaintiff. Meaike's Agent Agreement contained the following provision relating to the termination of his employment with Plaintiff, which required Meaike to:

i. Immediately deliver to NAA all property and materials including but not limited to all business and technical information under this Section, regardless of whether or not it is confidential or proprietary which pertains to or belongs to NAA ®.
ii. Immediately cease holding himself or itself out as being affiliated with NAA® in any way, including without limitation, through use of internet websites, internet addresses, e-mail addresses, business cards, use of NAA®'s name, trademarks and logo, and so forth; and
iii. Immediately transfer to NAA® any URL, domain name or website identification utilizing the intellectual property of NAA®, including without limitation the initials "NAA®."

(Complaint [Doc. #1], at ¶ 12.)

On December 12, 2013, Meaike notified the Plaintiff that he was terminating his employment. Plaintiff asserts that prior to ending his employment with Plaintiff, Meaike formed FFL and actively recruited other agents employed by Plaintiff. FFL is an independent marketing organization that engages in the sale of life insurance. Plaintiff alleges that FFL and Meaike have used the service mark "Family Protection Center" (the "Mark") on their materials to promote the sale of services and insurance products, which is directly competitive with the service and insurance products offered by Plaintiff. Plaintiff, however, asserts that it has used the same Mark since January 1, 2010. Specifically, Plaintiff states that since September 25, 2012, Plaintiff has maintained a website using the Mark. Furthermore, Plaintiff allegedly spent over $260, 000.00 in the production and mailing of pamphlets, brochures, and other printed information using the Mark and Plaintiff has also spent approximately $360, 000.00 operating a call center associated with the Mark. Plaintiff asserts that it registered the Mark as a trade name in 25 states and has a federal trademark application pending for the Mark. Accordingly, Plaintiff initiated this action, arguing that Defendants' use of the Mark after December 12, 2013, was in violation of Meaike's Agent Agreement, and infringed on Plaintiff's trademark. Furthermore, Plaintiff asserts that Defendants' use also constituted unfair competition and false designation of origin, unfair or deceptive business practices, and unfair competition and business conversion.

Defendants now have filed a Motion to Dismiss Plaintiff's Complaint, in which they argue that Plaintiff failed to adequately plead its claims. Defendants also argues that as to Plaintiff's tort claims specifically, such claims should be dismissed because they are not separate or distinct from Plaintiff's breach of contract claims and, thus, Defendants argue the claims are barred by the economic loss rule. The Court will address each of these arguments below as they relate to the Plaintiff's individual claims.


In reviewing a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Fourth Circuit has directed that courts "take the facts in the light most favorable to the plaintiff, ' but [they] need not accept the legal conclusions drawn from the facts, ' and [they] need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.'" Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship , 213 F.3d 175, 180 (4th Cir. 2000)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of "entitlement to relief.'"" Id . (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955) (citations omitted). Thus, dismissal of a complaint is proper where a plaintiff's factual allegations fail to "produce an inference of liability strong enough to nudge the plaintiff's claims across the line from conceivable to plausible.'" Nemet Chevrolet, Ltd. v., Inc. , 591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal , 556 U.S. at 683, 129 S.Ct. 1937).


A. Breach of ...

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