United States District Court, W.D. North Carolina, Charlotte Division
ORDER AND RECOMMENDATION
C. Keesler United States Magistrate Judge.
MATTER IS BEFORE THE COURT on “Defendants' Motion
To Dismiss Plaintiff's Complaint” (Document No. 5).
This motion has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. §636(b), and is now ripe for
disposition. Having carefully considered the arguments, the
record, and the applicable authority, the undersigned will
direct Plaintiff to file an Amended Complaint, and thus,
respectfully recommend that the motion to dismiss be
Technologies, Inc. (“Plaintiff” or
“Meridian”) initiated this action with the filing
of a “Verified Complaint” (Document No. 1-1,
pp.9-19) (the “Complaint”) in the Superior Court
Division of Mecklenburg County, North Carolina, Case No.
16-CVS-19038, on or about October 17, 2016. The Complaint
asserts claims for (1) breach of contract, (2) tortious
interference with contract, and (3) unfair and deceptive
trade practices, against Brianna Kerr (“Kerr”)
and Yoh Services, LLC (“Yoh”) (together,
“Defendants”). (Document No. 1-1, pp.16-18). The
crux of Plaintiff's claims are that Kerr has violated the
terms of the “Meridian Technologies Recruiter
Employment and Ancillary Covenants Agreement” (the
“Agreement”) she executed on August 12, 2013, as
“an express requirement and in consideration of her
employment with Meridian.” (Document No. 1-1, p. 12)
(citing Document No. 1-1, pp.21-27). Moreover, Plaintiff
contends that Yoh intentionally induced Kerr to breach the
Agreement, beginning in or about September 2016, by hiring
and employing her as a technical recruiter. (Document No.
“Notice Of Removal” (Document No. 1) was filed
with this Court on November 21, 2016, asserting diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).
(Document No. 1, p.2). Two (2) days after removing the
lawsuit to this Court, on November 23, 2016, Defendants filed
the pending motion to dismiss alleging that the Complaint
fails to state a claim upon which relief may be granted.
(Document No. 5). Defendants contend that the Complaint
“fails to set forth ‘enough facts to state a
claim [for breach of contract] that is plausible on its
face.'” (Document No. 5-1, p.5) (quoting
Twombly, 550 U.S. at 570).
Response To Defendants' Motion To Dismiss”
(Document No. 6) was filed on December 9 2016; and
“Defendant's Reply Brief In Support…”
(Document No. 7) was filed on December 16, 2016. As such, the
pending motion is now ripe for review and a recommendation to
the Honorable Robert J. Conrad, Jr.
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also, Robinson v. American Honda
Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009).
“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.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “‘give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'” In addition, when
ruling on a defendant's motion to dismiss, a judge must
accept as true all of the factual allegations contained in
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56).
for the purposes of this motion to dismiss we must take all
the factual allegations in the complaint as true, we are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). The court “should view the
complaint in the light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d
1130, 1134 (4th Cir. 1993).
contend that all of Plaintiff's claims in this lawsuit
are based on Kerr's alleged violation of a non-compete
provision of the Agreement, Section 4.4. (Document No. 5-1,
p.2) (citing Document No. 1-1, p.23). Defendants further
contend that “the only allegation Plaintiff made that
Kerr violated the Agreement is contained in the conclusory
statement, ‘Kerr's duties as a technical recruiter
for Yoh constitute ‘Conflicting Services' as