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Kamel v. 5Church, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

May 7, 2018

AYMAN KAMEL, Plaintiff,
v.
5CHURCH, INC, PATRICK WHALEN, MAP MANAGEMENT OF CHARLOTTE, LLC, and ALEJANDRO TORIO, Defendants. 5CHURCH INC., and 5CHURCH CHARLESTON, LLC, Plaintiffs,
v.
AYMAN KAMEL, Defendant.

          MEMORANDUM AND RECOMMENDATION

          DAVID C. KEESLER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER IS BEFORE THE COURT on “Plaintiff's Motion To Dismiss Counts One, Two And Three Of 5Church, Inc. And 5Church Charleston's Complaint” (Document No. 23) and “Plaintiff's Motion To Dismiss Defendant Patrick Whalen's Counterclaim Without Prejudice Pursuant To Rules 9(b) And 12(b)(6) Of The Federal Rules Of Civil Procedure” (Document No. 26). These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and are now ripe for disposition. Having carefully considered the arguments, the record, and the applicable authority, the undersigned will respectfully recommend that the motions be denied without prejudice.

         I. BACKGROUND

         On August 22, 2017, Plaintiff Ayman Kamel (“Plaintiff” or “Kamel”) initiated this action with the filing of his “Complaint” (Document No. 1) against 5 Church, Inc. (“5Church Charlotte”), Patrick Whalen (“Whalen”), MAP Management of Charlotte, LLC, (“MAP Management”), and Alejandro Torio (“Torio”) (together, “Defendants”). Plaintiff's Complaint asserts claims for: (1) breach of contract - against all Defendants; (2) breach of fiduciary duty - against Whalen and MAP Management; (3) violation of N.C. Gen.Stat. §75-1.1, et seq., - against Whalen and Torio; and (4) an action for equitable accounting - against 5Church Charlotte. (Document No. 1).

         On August 28, 2017, 5Church Inc. (“5Church Charlotte”) and 5Church Charleston, LLC (“5Church Charleston”) (together (“5Church Entities” or “5Church”) initiated a separate action in this Court with the filing of their “Verified Complaint” (3:17-CV-517-RJC-DCK, Document No. 1). The 5Church Entities assert the following claims against Kamel: (1) violation of the North Carolina Securities Act, N.C. Gen.Stat. § 78A-56; (2) fraud-misrepresentation of employment background; (3) unfair and deceptive trade practices and competition-unauthorized transfer of email domains; (4) computer trespass, N.C. Gen.Stat. § 14-458; (5) Stored Communications Act, 18 U.S.C. §2701, et seq.; (6) conversion - unauthorized transfer of email domains; and (7) injunctive relief. (3:17-CV-517-RJC, Document No. 1).

         On August 31, 2017, the Court consolidated the two cases, with the instant case (No. 3:17-CV-507-RJC-DCK) serving as the lead case. (Document No. 10); see also Local Rule 42.1.

         On September 19, 2017, Defendants filed their “Answer To Complaint And Counterclaim” (Document No. 21) and their “Answer To Complaint And Amended Counterclaim Of Patrick Whalen” (Document No. 22). Defendant Whalen's counterclaim asserts a claim for “Fraud-Misrepresentation of Employment Background.” (Document No. 22, p. 22-24).

         On September 20, 2017, Plaintiff filed his “…Motion To Dismiss Counts One, Two And Three Of 5Church, Inc. And 5Church Charleston's Complaint” (Document No. 23). Plaintiff seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(6); and requests that counts one and two be dismissed without prejudice, and that count three be dismissed with prejudice. (Document No. 23, p. 2). Plaintiff contends that the 5Church Entities' claims for violation of the North Carolina Securities Act and for fraud should be dismissed because their “Verified Complaint” does not sufficiently allege support for such claims. Id. Plaintiff further contends that the 5Church Entities' Unfair and Deceptive Trade Practices Act (“UDTPA”) claim should be dismissed as a matter of law because it involves an intra-company dispute that is not premised in or affecting commerce. Id.

         On October 10, 2017, Plaintiff filed his “…Motion To Dismiss Defendant Patrick Whalen's Counterclaim Without Prejudice Pursuant To Rules 9(b) And 12(b)(6) Of The Federal Rules Of Civil Procedure” (Document No. 26). Similar to his motion to dismiss the 5Church Entities' fraud claims without prejudice, Plaintiff Kamel argues here that “Mr. Whalen has failed to allege the[] required factual details of his fraud claim.” (Document No. 26, p.2).

         The pending motions have been fully briefed and are ripe for review and a recommendation to the Honorable Robert J. Conrad, Jr.

         II. STANDARD OF REVIEW

         A 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 suffice.” Id.

         The 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 the complaint.

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).

         “Although 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 ...


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