United States District Court, W.D. North Carolina, Statesville Division
JAMES A. ROBICHAUD, Plaintiffs,
ENGAGE2EXCEL, INC COMVEST INVESTMENT PARTNERS HOLDINGS, LLC U.S. BANK, N.A. E2E HOLDINGS, INC PHILLIP STEWART GC REPRESENTATIVE COMPANY, LLC, Defendants.
Kenneth D. Bell, United States District Judge.
James Robichaud is a shareholder in Defendant Engage2Excel,
Inc. and a former employee and current competitor of the
company. In this action, the parties dispute whether
Robichaud, who left the company in December 2016, is required
to agree to non-competition and non-solicitation restrictions
(and other obligations) as a condition of obtaining the
merger consideration agreed to be paid to Engage2Excel
shareholders related to a 2018 “squeeze out”
merger in which Defendant Comvest Investment Partners
Holdings, LLC acquired all of Engage2Excel's stock,
including Robichaud's shares.
before the Court is Plaintiff's Motion for Judgment on
the Pleadings (Doc. No. 55) and Defendants' Motion for
Summary Judgment (Doc. No. 60). The Court has carefully
considered these motions and the parties' briefs and
exhibits. For the reasons discussed briefly below, the Court
finds that both motions should be DENIED
because there are disputed factual issues and Plaintiff has
not yet had an opportunity to obtain discovery from the
STANDARD OF REVIEW
motion for judgment on the pleadings is governed by the
standard applicable to a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. A motion to
dismiss under Rule 12(b)(6) tests only the legal sufficiency
of the complaint. It cannot resolve conflicts of fact or
decide the merits of the action. Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).
Accordingly, in considering a motion for judgment on the
pleadings, the court assumes the truth of all facts alleged
in the complaint and the denial of those allegations in the
answer. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (setting the standard for considering the similar
motion to dismiss). “The issue is not [which party]
will ultimately prevail but whether [the parties are]
entitled to offer evidence to support [their] claims.”
Revene v. Charles County Comm'rs, 882 F.2d 870,
872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)).
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. A factual dispute is considered genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A fact is material if it might affect the outcome of
the suit under the governing law.” Vannoy v.
Federal Reserve Bank of Richmond, 827 F.3d 296, 300 (4th
Cir. 2016) (quoting Libertarian Party of Va. v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013)).
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Tolan v.
Cotton, 572 U.S. 650, 657 (2014); see also
Anderson, 477 U.S. at 255. “Summary judgment
cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the
merits.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568-69 (4th Cir. 2015) (quoting
10A Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 2728 (3d ed.1998)).
“The court therefore cannot weigh the evidence or make
credibility determinations.” Id. at 569
(citing Mercantile Peninsula Bank v. French (In
re French), 499 F.3d 345, 352 (4th Cir. 2007)).
end, the question posed by a summary judgment motion is
whether the evidence as applied to the governing legal rules
“is so one-sided that one party must prevail as a
matter of law.” Id. at 252.
the parties' briefs - particularly the briefs each party
has filed in response to the opposing party's motion -
the Court readily concludes that there are numerous genuinely
disputed material factual issues. These disputed factual
issues include, but are not limited to, even such fundamental
issues as identifying the form of the final, completed merger
agreement and determining what versions of the agreement and
exhibits were sent to the various shareholders prior to the
vote on the merger. Therefore, none of the parties are
entitled to prevail at this time on their dispositive
motions, which require that the Court accept the opposing
party's evidence as true or in the most favorable light
and prohibit the Court from making factual determinations.
Rule 56(d) of the Federal Rules of Civil Procedure permits
the Court to allow a party opposing summary judgment to take
relevant discovery if it has not yet had an opportunity to do
so. In this action, Plaintiff has served written discovery on
Defendants, but has not yet received responses. Also, Plaintiff
seeks to take depositions that it alleges may develop
evidence that is relevant to the merits of Defendants'
motion. Therefore, the Court finds that Defendants'
motion should be denied pursuant to Rule 56(d), without
prejudice to it being renewed if there are no longer disputed
factual issues after Plaintiff has had a reasonable
opportunity to obtain discovery.
THEREFORE IT ...