United States District Court, E.D. North Carolina, Southern Division
C. DEVER, III UNITED STATES DISTRICT JUDGE.
February 26, 2018, BlackRock Engineers, Inc.
("BlackRock" or ''plaintiff") filed a
complaint against Duke Energy Progress, LLC ("Duke
Energy'') and Amee Foster Wheeler Environment and
Infrastructure, Inc. ("Amee"; collectively
"defendants"), alleging copyright infringement,
fraud, and negligent misrepresentation [D.E. 1]. On June 1,
2018, Duke Energy moved for sanctions against BlackRock [D.E.
26], moved to dismiss the complaint for failure to state a
claim [D.E. 28], moved for a hearing concerning its motions
[D.E. 30], and filed memoranda in support [D.E. 27, 29]. On
the same date, Amee moved to dismiss the complaint for
failure to state a claim [D.E. 31] and filed a memorandum in
support [D.E. 32]. On July 23, 2018, BlackRock responded in
opposition to defendants' motions to dismiss [D.E. 37,
39], responded in opposition to Duke Energy's motion for
sanctions [D.E. 40], and stated that it did not object to
Duke Energy's motion for a hearing [D.E. 38]. On August
27, 2018, defendants replied [D.E. 42-44]. On December 18,
2018, BlackRock voluntarily dismissed Amee [D.E. 46]. As
explained below, the court grants in part and denies in part
Duke Energy's motion to dismiss, denies Duke Energy's
motion to dismiss, denies Duke Energy's motion for
sanctions, denies Duke Energy's motion for a hearing, and
denies as moot Amec's motion to dismiss, motion for
sanctions, denies Duke Energy's motion for a hearing, and
denies as moot Amec's motion to dismiss.
provides "engineering services, including services
related to civil and environmental engineering and waste
management consulting." Compl. [D.E. 1] ¶ 3. In
1999, North Carolina and the United States promulgated
regulations concerning the storage of coal ash waste in
landfills. See M. ¶ 4. In response to these
regulations, Carolina Power & Light, Inc.
("CP&L") contracted with BlackRock from 1999
until 2011 to design and provide engineering and support
services for improvements to a landfill at the Roxboro Steam
Electric Plant (the "Roxboro Landfill") to enable
the landfill to store coal ash waste. See
Id. ¶¶ 5-8, 52-61. BlackRock's plan to
improve the Roxboro Landfill had five phases. See
Id. ¶¶ 8, 56, 59-60, 63. In 2003, CP&L
began operating as Progress Energy Service Company, LLC
("Progress Energy"). See Id.
¶¶ 7, 57. In July 2011, BlackRock initiated
discussions with Progress Energy to expand the Roxboro
Landfill. See Id. ¶9, 64.
BlackRock's proposal involved four new phases and would
increase the Roxboro Landfill's capacity to store coal
ash waste for twenty years. See Id. As part
of these discussions, BlackRock "prepared planning memos
and technical documents relating to the engineering work on
the expansion project" and submitted the materials to
Progress Energy. Id. ¶ 11.
September 19, 2011, Gary Ahlberg ("Ahlberg"), the
president of BlackRock, met with Progress Energy executives
to discuss a long-term agreement for the project See
Id. ¶ 14. On October 27, 2011, BlackRock
'tendered the first draft of the proposed agreement with
Progress Energy for the new project" Id. ¶
15; Ex. D [D.E. 1-5]. On February 5, 2012, Progress Energy
"proposed a five-year contract including a Master
Service Agreement that would allow BlackRock to bid on new
engineering work as the 'Owner's Engineer' for
coal ash projects." Compl. [D.E. 1] ¶ 16. On March
4, 20l2, Progress Energy tendered a draft Master
Contract to BlackRock for review. See id.
¶ 17; Ex. E [D.E. 1-6]. BlackRock alleges that "no
provision in the draft Master Contract prepared by Progress
Energy... granted Progress Energy ownership of any
intellectual property rights in any technical documents,
technical drawings, or CAD files created by BlackRock."
Compl. [D.E. 1] ¶ 17.
March 2012, BlackRock and Progress Energy negotiated an
extension of BlackRock's existing contract (Amendment 30
of the Individual Project Contract No. 14574). See
Id. ¶¶ 18-22, 112; Ex. F [D.E. 1-7].
During the same time, Duke Energy was attempting to purchase
Progress Energy. See Compl. [D.E. 1] ¶ 18. The
amended agreement contained a "termination for
owner's convenience" clause. Id.
¶¶ 19-20. BlackRock alleges that Progress Energy
said that the provision was non-negotiable at Duke
Energy's request, represented that Progress Energy had
never exercised a provision of that nature, and assured
BlackRock that it would not exercise the termination clause.
See Id. ¶ 20, 113. On March 19, 2012,
Progress Energy approved and incorporated the amendment into
BlackRock's contract See Id. ¶ 22,
115. The amended contract provided for a minimum
five-year term ending on January 31, 2017. See
Id. ¶ 22.
2012, Duke Energy acquired Progress Energy and began managing
the Roxboro Landfill. See Id. ¶ 62. m
January 2013, Duke Energy and BlackRock signed the Master
Contract "with a retroactive effective date of April 1,
2012." Id. ¶ 23. On August 7, 2013,
BlackRock and Duke Energy agreed to terminate their prior
individual project contract and replaced it with Work
Authorization No. 1 ("WA1"). See id
¶¶ 24, 29; Ex. I [D.E. 1-10]. During this time,
BlackRock continued to perform its obligations under the
Master Contract and ''furnished Duke Energy with
numerous BlackRock technical documents, technical drawings
and CAD files." Compl. [D.E. 1] ¶ 31. However, as
early as February 2013, Duke Energy "made inquiries
[concerning] the steps required to replace BlackRock" as
the Engineer of Record for the Roxboro Landfill. Id.
the fall of 2014, Duke Energy terminated all contracts with
BlackRock. See Id. ¶ 30. BlackRock
alleges that, after Duke Energy did so, Duke Energy
contracted with Amec to continue the Roxboro Landfill
project, "copied the BlackRock technical documents,
technical drawings and CAD files[, ]" and "sent
those copies to Amec." Id. ¶ 37;
see id ¶¶ 35-36, 83-87. BlackRock alleges
that Duke Energy thereby violated its copyrights.
See Id. ¶¶ 149-56. BlackRock
"has registered a total of nineteen purported copyrights
for work it completed at the Roxboro Landfill while under
contract with Duke Energy." [D.E. 27] 10. In August
2015, BlackRock applied for twelve of the copyrights. See
Id. In August 2017, BlackRock applied for seven
additional copyright registrations. See Id.
November 25, 2015, BlackRock filed a complaint against Duke
Energy, Amec, and Charah, Inc. ("Charah").
See Compl., BlackRock Eng'rs. Inc. v. Duke
Energy Progress. LLC, No. 7:15-CV-250-D [D.E. 5] (E.D.
N.C. Nov. 25, 2015) ("BlackRock D. BlackRock alleged
copyright infringement against all defendants concerning two
of BlackRock's copyrights. See id
¶¶ 1, 129-38. On September 11, 2017, BlackRock
moved to amend its complaint to assert a fraud claim and
negligent misrepresentation claim against Duke Energy and to
add copyright registration certificates and applications.
See id [D.E. 61] (E.D. N.C. Sept. 11,
2017). On December 14, 2017, the court denied BlackRock's
motion to amend as untimely and unfairly prejudicial.
See id [D.E. 75] (E.D. N.C. Dec. 14, 2017).
February 21, 2018, Duke Energy and BlackRock engaged in an
unsuccessful mediation. See [D.E. 27] 11. On
February 26, 2018, BlackRock filed a complaint against Duke
Energy and Amec alleging copyright infringement concerning
sixteen copyrights against both defendants, fraud against
Duke Energy, and negligent misrepresentation against Duke
Energy. See Compl. [D.E. 1] ("BlackRock
II'). On May 30, 2018, "in response to [Duke
Energy's] safe-harbor letter under Rule 11 of the Federal
Rules of Civil Procedure," BlackRock withdrew its
negligent misrepresentation claim against Duke Energy. [D.E.
37] 10. On July 23, 2018, BlackRock withdrew its fraud claim
against Duke Energy and withdrew its copyright claim as to
one of BlackRock's copyrights. See Id.
at 7, 10 (withdrawing copyright infringement claim concerning
copyright TX8-159-249). On December 18, 2018, BlackRock
voluntarily dismissed Amec with prejudice as part of a
settlement agreement See [D.E. 46].
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S, 544, 554-63 (2007);
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d
250, 255 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "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
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano. 521 F.3d at 302. In considering the motion, the
court must construe the facts and reasonable inferences
"in the light most favorable to the [nonmoving
party]." Massey v. Ojanii't, 759
F.3d 343, 352 (4th Cir. 2014); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013),
abrogated on other grounds by Reed v. Town of
Gilbert, 135 S.Ct. 2218 (2015). A court need not accept
as true a complaint's legal conclusions,
"unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302; see
Iqbal. 556 U.S. at 678-79. Rather, a plaintiffs allegations
must "nudge[ ] [his] claims," Twombly, 550
U.S. at 570, beyond the realm of "mere possibility"
into ''plausibility." Iqbal. 556 U.S. at 678-79.
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint." E.I. du Pont de Nemours &
Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
2011); see Fed.R.Civ.P. 10(c); Goines v. Vallev
Cmty, Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016);
Thompson v. Greene, 427 F.3d 263, 268 (4th Cir.
2005). A court also may consider a document submitted by a
moving party if it is "integral to the complaint and
there is no dispute about the document's
authenticity" without converting the motion into one for
summary judgment. Goines. 822 F.3d at 166. A court also may
take judicial notice of public records. See, e.g.
Fed.R.Evid. 201: Tellabs, Inc. v. Makor Issues &
Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v.
Pitt Cty, Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.
the doctrine of res judicata, "[a] final judgment on the
merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised
in that action." Federated Dep't Stores. Inc. v.
Moitie,452 U.S. 394, 398 (1981); Pueschel v. United
States,369 F.3d 345, 354 (4th Cir. 2004); see
Parklane Hosiery Co. v. Shore,439 U.S. 322, 326 n.5
(1979); Laurel Sand & Gravel. Inc. v. Wilson,519 F.3d 156, 161-62 (4th Cir. 2008); Parks v.
Petsmart, No. 5:13-CV-777-D, 2014 WL 11996387, at *2
(E.D. N.C. Feb. 12, 2014) (unpublished), aff'd, 577
Fed.Appx. 210 (4th Cir. 2014) (per curiam) (unpublished).
Similarly, the related rule against claim" splitting
"prohibits a plaintiff from prosecuting its case
piecemeal and requires that all claims arising out of a
single wrong be presented in one action."
Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp.,
273 Fed.Appx. 256, 265 (4th Cir. 2008) (per curiam)
(unpublished) (quotation omitted); see The Havtian
Republic. 154 U.S. 118, 124-25 (1894); Katz v.
Gerardi,655 F.3d 1212, 1217-18 (10th Cir. 2011);
Pueschel. 369 F.3d at 355; Nash Cty, Bd. of Educ. v.
Biltmore Co., 640 F.2d 484, 490 (4th Cir. 1981);
Dorsey v. Jacobson HolmanPLLC, 764
F.Supp.2d 209, 212-13 (D.D.C. 2011), aff'd. 476 App'x
861 (D.C. Cir. 2012) (per curiam) (unpublished). A court may
dismiss a second suit "if the claim involves the same
parties and arises out of the same transaction or series of
transactions as the first claim." Sensormatic Sec.
Corp.. 273 Fed.Appx. at 265 (quotation omitted). That is,
"[w]hen one suit is pending in federal court, a
plaintiff has no right to assert another ...