United States District Court, W.D. North Carolina, Charlotte Division
GOD'S LITTLE GIFT, INC., doing business as HELIUM & BALLOONS ACROSS AMERICA also known as “HABAA”, and GARY PAGE, Plaintiffs,
AIRGAS, INC. Defendant.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Motion
to Dismiss Plaintiffs' Amended Complaint (Doc. No. 28),
Defendant's Answer to Amended Complaint (Doc. No. 30),
Defendant's Request for a Preliminary Hearing (Doc. No.
31), Plaintiffs' Response to the Motion to Dismiss (Doc.
No. 32), Plaintiffs' Response to Defendant's Request
for a Preliminary Hearing (Doc. No. 35), and Defendant's
Reply (Doc. No. 36). Upon review by the Court, for the
reasons stated below, Defendant's Motion to Dismiss
Plaintiffs Amended Complaint (Doc. No. 28) pursuant to Rule
12(b)(6) is DENIED. Defendant's Request for a Preliminary
Hearing is DENIED.
actions arises from the business dealings between Plaintiffs,
God's Little Gift, Inc., doing business as Helium and
Balloons Across America (“HBAA”) and its founder,
Gary Page, and Defendant, Airgas, Inc. HABAA, who is in the
business of providing helium and balloons to grocery stores
and various retail outlets, began its business relationship
with Airgas, a helium supplier, at an unspecified date
between 1982 and 1983. (Doc. No. 27, p. 6-8). The parties
continued this relationship until 2015. Id. During
the course of their relationship Airgas acted as HABAA's
principle supplier of helium. Id. at 10.
allege that as HABAA grew from humble beginnings to national
success, Airgas began a “systematic plan” to
“take HABAA's business for itself.”
Id. at 9. Between 2009 and 2015 Airgas made several
unsuccessful attempts to purchase HABAA. Id. at 31.
Plaintiffs allege, however, that these purchase attempts were
a sham, and Airgas merely used the negotiations to obtain
HABAA's confidential information. Id. Airgas
then, allegedly, used this confidential information to siphon
off HABAA's business. Id. Additionally,
Plaintiffs allege Airgas engaged in other deceptive conduct,
such as fabricating a “helium shortage” narrative
in order to justify exponentially increasing the rate it
charged HABAA for helium, as part of its systemic plan to put
HABAA out of business. Id. at 18.
filed this present action against Defendant in Mecklenburg
County Superior Court on Nov. 30, 2016. (Doc. No. 1). It was
subsequently removed to this Court on January 4, 2017.
Id. Plaintiffs filed their Amended Complaint on May
11, 2017, arguing Defendant be found liable to Plaintiffs
under the following claims of relief: (1) Misappropriation of
Trade Secrets under N.C. G.S. § 66-152; (2)
Misappropriation of Trade Secrets under 18 U.S.C. §
1836; (3) violation of the North Carolina Unfair and
Deceptive Trade Practices Act (“UDTPA”); (4)
Tortious Interference with Contract; and (5) Tortious
Interference with Prospective Economic Advantage. (Doc. No.
27). On May 25, 2017, Defendant filed a Motion to Dismiss the
Amended Complaint pursuant to Rule 12(b)(6). (Doc. No. 28).
STANDARD OF REVIEW
order to survive a 12(b)(6) motion to dismiss, a complaint
must contain more than mere legal conclusions. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must
plead facts sufficient to “raise a right to relief
above the speculative level” and to demonstrate that
the claim is “plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
claim is facially plausible when the factual content of the
complaint allows the court to “draw the reasonable
inference that the defendant is liable for the
misconduct.” Id. at 556.
Iqbal, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Iqbal,
556 U.S. at 678. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555) (allegation that
government officials adopted challenged policy “because
of” its adverse effects on protected group was
conclusory and not assumed to be true). Although the pleading
requirements stated in “Rule 8 [of the Federal Rules of
Civil Procedure] mark[ ] a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era
. . . it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79.
to the extent there are well-pleaded factual allegations, the
court should assume their truth and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 679. “Determining whether a complaint
contains sufficient facts to state a plausible claim for
relief ‘will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” Id.
“Where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief, '” and therefore it should be dismissed.
Id. (quoting Fed.R.Civ.P. 8(a)(2)). In other words,
if after taking the complaint's well-pleaded factual
allegations as true, a lawful alternative explanation appears
a “more likely” cause of the complained of
behavior, the claim for relief is not plausible. Id.
Misappropriation of Trade Secrets: 18 U.S.C. § 1836
& N.C. G.S. § 66-152
argues that Plaintiffs' state and federal claims for
misappropriation of trade secrets should fail for four
reasons; none of which this Court finds persuasive.
Defendant argues that the federal claim fails because the
Defend Trade Secrets Act (“DTSA”) applies only to
misappropriation occurring on or after its date of enactment,
May 11, 2016. (Doc. No. 29, p. 15). However, while this may
be the case under an “acquisition” theory of
liability, under a “disclosure” theory of
liability a DTSA claim is actionable when the disclosure or
use continued to occur after the effective date. Sleekez,
LLC v. Horton, 2017 WL 1906957 at *5 (D. Mont. Apr. 21,
2017). Here, Plaintiffs allege that Defendant's
misappropriation continued “as part of an ...