United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
C. KEESLER UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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
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).
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
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,
pending motions have been fully briefed and are ripe for
review and a recommendation to the Honorable Robert J.
STANDARD OF REVIEW
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 ...