United States District Court, W.D. North Carolina, Statesville Division
THOMAS M. CARUTHERS, JR., Plaintiff,
VITEX, INC., Defendant.
C. Mullen, United States District Judge
MATTER is before the Court on the Motion to Dismiss
Counterclaims (Doc. No. 6) filed by Plaintiff Thomas
Caruthers (“Caruthers”). Defendant Vitex, Inc.
(“Vitex”) has responded, and Plaintiff has filed
a reply. This matter is now ripe for adjudication.
following reasons, Plaintiff's Motion is granted in part,
denied in part.
about January 21, 2014, Caruthers entered into a contract
(the “Master Agreement”) with Vitex to provide
consulting services as an independent contractor. Vitex is in
the business of providing consulting services to banks for
the evaluation and negotiation of contracts for financial
independent contractor, Caruthers was responsible for
generating and pursuing leads, preparing proposals, and
finalizing the sale of Vitex services to client banks. For
each aspect of the sale Caruthers completed (lead, proposal,
and close), he was entitled to receive a five percent (5%)
commission of the gross revenue received by Vitext from the
client. Thus, he could earn up to fifteen percent (15%) of
the revenue from any deal if he completed all three aspects
of the sale. Once a sale was finalized, Vitex assigned an
employee or a contractor to provide the technology consulting
services for the client bank. A consultant performing this
work typically received a forty percent (40%) commission of
the gross revenue received by Vitex for that sale.
13, 2017, Caruthers filed a Complaint against Vitex, alleging
that Vitex failed to provide him the full commission he was
owed on two deals: a sale of services to two Maine-based
banks (the “Maine Deal”), and both a sale and
provision of services to an Alabama-based bank (the
“Alabama Deal”). Caruthers alleges that Vitex
unilaterally terminated the Master Agreement on June 22,
2016, and that Vitex failed to remit the full payment that
Caruthers was owed for the work he previously completed.
Accordingly, his Complaint seeks an award of compensatory
damages, among other relief, under two alternative theories:
(1) breach of contract, or (2) unjust enrichment.
August 18, 2017, Vitex filed an Answer and Counterclaim
against Caruthers. Vitex alleges that while Caruthers was
working as an independent contractor with Vitex, he became an
officer of a competing financial technology services
corporation, Insite Consulting Services Group, LLC
(“Insite”). Vitex further alleges that Caruthers
attended a banking conference and a Fiserv conference at
Vitex's expense, but failed to provide any lead cards or
client information generated from the conferences. Rather,
Vitex claims that Caruthers retained the generated leads for
the benefit of Insite. Further, Caruthers allegedly forwarded
Vitex's confidential proposal templates to his personal
email address and deleted all of his emails on Vitex's
servers. Vitex alleges that Caruthers then requested to
terminate the Master Agreement on June 6, 2016, but refused
to provide his working papers related to the Alabama Deal to
Vitex management. After failed negotiations, Vitex
“confirmed” his request to terminate the
Agreement on June 22, 2016. Thereafter, Caruthers failed to
return Vitex property, including a company phone and
Vitex argues that Caruthers resigned his position and
therefore forfeited any outstanding commission pursuant to
the terms of the Master Agreement. Vitex also argues that it
is entitled to damages stemming from Caruthers' actions
under two counterclaims: (1) breach of contract, and (2) a
violation of the Unfair and Deceptive Trade Practices Act.
Caruthers has moved to dismiss these two counterclaims.
STANDARD OF REVIEW
faced with a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“accept as true all well-pleaded allegations and . . .
view the complaint in a light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The Court “assume[s]
the veracity” of these factual allegations, and
“determine[s] whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). However, the court “need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkts., Inc. v.
J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).
Thus, to survive a motion to dismiss, the complaint or
counterclaim must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Breach of Contract
first alleges that Caruthers breached the terms of the Master
Agreement. Under North Carolina law, “[t]he elements of
a claim for breach of contract are (1) existence of a valid
contract and (2) breach of the terms of that contract.”
Poor v. Hill, 530 S.E.2d 838, 843 ( N.C. Ct. App.
2000). Because it is incorporated into the pleadings and
there is no dispute as to the authenticity of the document,
the Court may consider the ...