3:22-cv-00347•Integris Composites, Inc. v. Barrday Corp.
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO. 3:22-CV-347-RJC-DCK THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion To Dismiss The Amended Complaint Pursuant To Rules 8, 9(b), 12(b)(2), 12(b)(6) [and 12(e)]” (Document No. 33). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully considered the arguments, the record, and applicable authority, the undersigned will respectfully recommend that the motion be granted. I. BACKGROUND A. Factual Plaintiff Integris Composites, Inc., formerly known as TenCate Advanced Armor USA, Inc. (“Plaintiff” or “TenCate” or “Integris”), is a California corporation with its principal place of business in Hebron, Ohio. (Document No. 30, pp. 1-2). Plaintiff is “in the business of manufacturing composite armor solutions.” Id. “Integris entered into a contract with General Dynamics Land Systems (“GDLS”) wherein Integris agreed to create armored components for vehicles (the “GDLS Contract”).” (Document No. 30, p. 3). According to the GDLS Contract, Integris was required “to assemble armor with spall liner” and “provide up to and including 928 INTEGRIS COMPOSITES, INC., ) ) Plaintiff, ) MEMORANDUM AND ) RECOMMENDATION v. ) ) BARRDAY CORP., ) ) Defendant. ) ) Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 1 of 15
2 of these armored components” or “kits.” (Document No. 30, pp. 3-4) (citing Exhibit A, GDLS Contract, Document No. 30-1). Barrday Corp. (“Defendant” or “Barrday”) is a Delaware corporation with a principal place of business in Cambridge, Ontario, Canada. (Document No. 30, p. 2). Defendant Barrday is a fabric manufacturer, including of spall liner, “a type of multi-layered fabric designed to absorb shrapnel and other small, ballistic material.” (Document No. 30, pp. 2-3). The Amended Complaint alleges that 16. Integris turned to Barrday, an established supplier with whom there was already a relationship, and entered into an agreement with Barrday. 17. Under this agreement with Barrday, Barrday agreed to provide Integris with spall liner sufficient to meet the requirements under the GDLS Contract, up to and including 928 kits. 18. The mechanics of the agreement were simple: Integris would reach out to Barrday when it needed spall liner to produce and provide a certain number of kits to GDLS. Integris would issue a purchase order (collectively, the “Purchase Orders,” attached as Exhibit B) to Barrday specifying how many units it would need, and set forth a date for completion, so that Integris could then complete its obligations to GDLS. (Document No. 30, p. 4) (citing Document No. 30-2). Plaintiff Integris contends that its “agreement with Barrday was memorialized in writing in various ways, most notably via the Purchase Orders.”1 (Document No. 30, p. 4). Plaintiff further contends that “Barrday clearly and unambiguously contracted with Integris whereby Barrday would fulfill all purchase orders from Integris that were necessary to satisfy Integris’ 1 The Complaint does not cite any other ways, other than Purchase Orders, that the parties’ agreement was purportedly memorialized in writing. Moreover, the Complaint lacks any factual allegations about where or when the parties’ agreement was negotiated or executed, or by whom. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 2 of 15
3 obligations under the GDLS Contract at Barrday’s Charlotte, North Carolina and Millbury, Massachusetts facilities.” (Document No. 30, p. 15) (emphasis added). “[U]nder this agreement, Barrday would, on behalf of Integris, procure ShieldStrand S- Glass fiber (the “S-Glass fiber”) and store it until Integris issued purchase orders for Barrday to convert the S-Glass fiber into a woven prepreg product required by the GDLS Contract (the “product”).” (Document No. 30, pp. 4-5). Based on a purported limited supply of S-Glass fiber, “Barrday recommended to Integris that it pre-purchase sufficient quantities of S-Glass fiber to ensure adequate supply to meet Integris’s commitment under the GDLS Contract.” (Document No. 30, p. 6). Barrday calculated how much S-Glass fiber it would need to fulfill the requirements under the GLDS Contracts, accounting “for conversion rates, waste, and selvage during the toll converting process,” and communicated these amounts to Plaintiff Integris. Id. “Tony Fiorenzini, President of Barrday, on or about October 2021 confirmed in a letter to Integris that ‘Integris would purchase a specified amount of fiber and Barrday would, on a best effort basis, toll convert that fiber into fabric at our Charlotte, NC facility and then coat the fabric at our Millbury, MA facility.’” (Document No. 30, p. 6) (quoting Document No. 30-3) (emphasis added by Plaintiff). Based on Barrday’s calculations and representations, “Integris made seven payments to Barrday for the pre-purchase of S-Glass fiber for a total amount of $4,948,070.” (Document No. 30, p. 7). “Barrday was required to store the S-Glass fiber for exclusive use on producing the spall liner pursuant to the Purchase Orders issued by Integris to ultimately satisfy the requirements under the GDLS Contract.” Id. Plaintiff Integris issued an eighth Purchase Order on or about August 20, 2019, “to fulfill its ongoing obligations under the GDLS Contracts,” but was informed by Defendant Barrday that all the S-Class fiber had been consumed. (Document No. 30, p 9); see also (Document No. 30-2, Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 3 of 15
4 p. 21).2 The Amended Complaint asserts that “[t]his was problematic because Barrday had not produced sufficient spall liner to sell to Integris to create 928 units as required under the GDLS Contract.” Id. Integris alleges that Barrday used some of the S-Glass fiber on another project unrelated to Plaintiff. (Document No. 30, p. 10). Integris also suggests that Barrday’s work was less efficient than it should have been. (Document No. 30, pp. 10-11). “Barrday disclosed for the first time in February 2022,” that it “did not, as it had previously represented to Integris, toll convert the S-Glass fiber itself at its Charlotte, NC facility” but instead “had subcontracted the toll converting of the S-Glass fiber to a third party.” (Document No. 30, p. 12). Plaintiff contends that “Barrday used an unauthorized third party to toll convert the S-Glass fiber, which resulted in not only excess waste and selvage but also additional costs related to the sourcing and approval of new materials, causing no less than $1,278,000 in damages to Integris.” (Document No. 30, p. 13). B. Procedural Plaintiff Integris initiated this action with the filing of a “Complaint” (Document No. 1) on July 30, 2022. “Defendant’s Motion To Dismiss The Complaint Pursuant To Fed. R. Civ. Proc. 9(B), 12(B)(6) and 12(E)” (Document No. 15) was filed on October 3, 2022. On December 5, 2023, the undersigned issued a “Memorandum And Recommendation” (Document No. 28) (the “M&R”) recommending that “Defendant’s Motion To Dismiss...” (Document No. 15) “be GRANTED in part – to the extent Plaintiff be directed to file an Amended Complaint that includes a more definite statement in support of its breach of contract (and other) claims; and that it be DENIED WITHOUT PREJUDICE in part – to the extent Defendant may 2 It is unclear what, if any, relationship or communications the parties had between August 2019 and October 2021. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 4 of 15
5 wish to re-assert its arguments for dismissal at a later date, if necessary.” (Document No. 28, p. 11). The M&R further stated: In addition, the undersigned suggests that an Amended Complaint should more fully address the jurisdiction of this Court over this matter. Although Defendant does not challenge jurisdiction, the undersigned notes that the Complaint alleges little, if any, connection to support personal jurisdiction over Defendant. (Document No. 28, p. 11) (emphasis added). No objections were filed to the M&R. The Honorable Robert J. Conrad, Jr. adopted the M&R on January 4, 2024, and directed Plaintiff to file an Amended Complaint. Plaintiff’s “Amended Complaint” (Document No. 30) was filed on January 25, 2024. The Amended Complaint asserts claims against Defendant Barrday for: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) fraudulent inducement; (4) negligent misrepresentations; (5) implied contract; (6) unjust enrichment (excessive waste); (7) conversion (excessive waste); (8) conversion (use of Plaintiff’s S-Glass fiber on Non-Integris Projects); (9) unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-Integris Projects); (10) bailment; and (11) violations of North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75- 1.1 et seq. (Document No. 30, pp. 16-25). In response, Defendant filed its “...Motion To Dismiss The Amended Complaint Pursuant To Rules 8, 9(b), 12(b)(2), 12(b)(6) [and 12(e)]” (Document No. 33). Defendant Barrday, again, seeks dismissal of all the claims except the claim for unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-Integris Projects). The pending “...Motion To Dismiss The Amended Complaint...” (Document No. 33) has been fully briefed and is ripe for review and a recommended disposition to the Honorable Robert J. Conrad, Jr. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 5 of 15
6 II. STANDARD OF REVIEW A party invoking federal court jurisdiction has the burden of establishing that personal jurisdiction exists over the defendant. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When a court’s personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of evidence. . . . [W]hen, as here, the court addresses the question on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge. In considering a challenge on such a record, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction. Combs, 886 F.2d at 676. (internal citations omitted). “Mere allegations of in personam jurisdiction are sufficient for a party to make a prima facie showing.” Barclays Leasing, Inc. v. National Business Systems, Inc., 750 F.Supp. 184, 186 (W.D.N.C. 1990). The plaintiff, however, “may not rest on mere allegations where the defendant has countered those allegations with evidence that the requisite minimum contacts do not exist.” IMO Industries, Inc. v. Seim S.R.L., 3:05-CV-420- MU, 2006 WL 3780422 at *1 (W.D.N.C. December 20, 2006). “Rather, in such a case, the plaintiff must come forward with affidavits or other evidence to counter that of the defendant . . . factual conflicts must be resolved in favor of the party asserting jurisdiction....” Id. III. DISCUSSION As noted above, Plaintiff Integris brings eleven (11) claims against Defendant Barrday, all related to an alleged breach of contract regarding Defendant’s production of a fabric product that Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 6 of 15
7 was necessary for Plaintiff to satisfy its obligations under the GDLS Contract. (Document No. 30). Defendant’s arguments for dismissal are again compelling. The undersigned will focus on Defendant’s first argument for dismissal pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction, noting that if this Court lacks jurisdiction over this matter, further analysis is unnecessary. Personal Jurisdiction Questions of jurisdiction are answered by a two-step analysis: (1) the Court must determine whether the North Carolina long-arm statute confers personal jurisdiction; and (2) the Court must determine whether the exercise of that statutory power will violate the due process clause of the U.S. Constitution. Gen. Latex & Chem. Corp. v. Phoenix Med. Tech., 765 F.Supp. 1246, 1248–49 (W.D.N.C. 1991). The statutory inquiry merges with the constitutional inquiry, essentially becoming one. See ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997). There are two varieties of personal jurisdiction, general and specific. General jurisdiction requires “substantial” or “continuous and systematic” contacts or activities in the forum state and is not at issue in the instant case. Specific jurisdiction exists when a court exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum. Helicopterous Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Due process precludes a court from asserting jurisdiction over a defendant unless the defendant has certain minimum contacts with the forum state. The Fourth Circuit has “synthesized the Due Process Clause for asserting specific jurisdiction into a three-part test ... ‘(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiff's claims arise out of those activities directed at the State; and (3) whether Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 7 of 15
8 the exercise of personal jurisdiction would be constitutionally reasonable.’” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (citing Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004)). In support of its “...Motion To Dismiss...,” Defendant Barrday first argues that Plaintiff Integris has failed to adequately allege personal jurisdiction. (Document No. 34, pp. 2-3). Barrday contends that Integris has not alleged the “‘continuous and systematic’ contacts necessary to support general jurisdiction over Barrday in North Carolina.” Id. (citing ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)). Moreover, Barrday argues that Integris has not adequately alleged any of the three (3) elements required to establish specific jurisdiction. Id. (citing Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009)). Barrday contends that all activities key to Integris’ claims occurred outside North Carolina: (a) Integris initiated business contact with the nonresident Barrday; (AC ¶¶ 2, 16); (b) Integris “entered into an agreement with Barrday” (Id. ¶ 16); (c) Integris issued POs to Barrday under “[t]he mechanics of the agreement” (Id. ¶ 18); and (d) Barrday “outsourced” production outside North Carolina (Id. ¶¶ 81-84). (Document No. 34, pp. 2-3). Next, Barrday contends that Plaintiff’s claims do not arise out of activities directed at the state. (Document No. 34, p. 3). Instead, “the opposite is true: the core allegation underlying multiple Integris claims is that Barrday “fail[ed] to fulfill all [POs] at [a] Charlotte, NC facility.” Id. (citing Document No. 30, ¶¶ 144, 181). Finally, Barrday argues that the exercise of personal jurisdiction here would not be “constitutionally reasonable.” Id. Barrday asserts that North Carolina has no discernible interest in adjudicating a dispute over what did not happen in North Carolina, nor any “substantive social Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 8 of 15
9 policies” to be furthered by doing so.” Id. (citing Consulting Eng., 561 F.3d at 279). Defendant Barrday concludes that “Integris has not come close to establishing personal jurisdiction” and that Integris “would have been best served by selecting a forum with jurisdiction over Barrday.” Id. In its “Response In Opposition To Defendant’s Motion To Dismiss” Integris argues that it has adequately alleged personal jurisdiction over Barrday. (Document No. 38, pp. 6-8). Integris first asserts that “[t]his argument is disingenuous at best” because Barrday did not raise the issue in its original “...Motion To Dismiss...” (Document No. 15). Id. Regarding the elements required to establish specific jurisdiction, Integris first suggests that it “alleged plenty of facts” that Barrday purposefully availed itself of the privilege of conducting activities in North Carolina because it has alleged that: “Barrday told Integris that Barrday would toll convert the S-Glass fiber at the Charlotte facility”; Integris relied on those “material” representations by Barrday; and “the toll conversion did not, in fact, occur in Charlotte, resulting in excess selvage or waste.” (Document No. 38, p. 7). Next, Integris seems to argue that its claims arise out of Barrday’s activities directed at North Carolina because “Barrday leveraged its North Carolina connections and business operations to convince Integris to continue carrying out the business relationship.” Id. Finally, Plaintiff argues that “[a]s to factors supporting the appropriateness of the forum and ‘constitutional reasonableness,’ Integris has alleged a plethora of facts implicating conduct in North Carolina, or that should have been undertaken in North Carolina.” (Document No. 38, p. 8) (citing Document No. 30, ¶¶ 35-38, 52-53, 76-78, 82, 84-85, 106, 181). Plaintiff Integris also suggests that this Court should find jurisdiction because it has attached Purchase Orders to the Amended Complaint that identify Barrday as a vendor with a Charlotte, North Carolina address. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 9 of 15
10 Id. (citing (Document No. 30-2). Integris concludes that “there is no meritorious basis to dispute specific personal jurisdiction over Barrday arising out of the allegations in this case.” Id. In reply, Barrday first asserts that “Integris alleges that nothing happened in North Carolina, undermining its allegations regarding jurisdiction and the applicability of North Carolina’s Unfair and Deceptive Trade Practices Act.” (Document No. 41, p. 1). Barrday goes on to note that In its Opposition, Integris doubles down on its assertion that the only connection this lawsuit has with North Carolina is what Integris alleges did not occur at a Charlotte, NC facility. See Opposition, p. 7 (admitting that Integris alleged “that the toll conversion did not, in fact, occur in Charlotte…”). Furthermore, Integris cites to no case whatsoever where allegedly offering to perform work in a given state and then failing to actually perform that work in the state is an adequate basis to confer personal jurisdiction. (Document No. 41, p. 4). In addition, Barrday argues that Integris addressing Purchase Orders to Barrday in North Carolina – describes Integris’ conduct, not purposeful availment by Barrday. (Document No. 41, pp. 4-5). Barrday also argues that this Court should “not consider the Opposition’s unsupported allegation that Barrday ‘leveraged its North Carolina connections,’ as that allegation is found nowhere in the Amended Complaint itself and as such cannot be considered by the Court.” (Document No. 41, p. 5) (citation omitted). Based on the foregoing, and applying the elements set forth by the Fourth Circuit, the undersigned is not persuaded that Plaintiff Integris has adequately established that this Court has specific jurisdiction over Defendant Barrday. See New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005). As an initial matter, the undersigned must first address Plaintiff’s assertion that Defendant’s argument regarding a lack of personal jurisdiction “is disingenuous at best.” See Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 10 of 15
11 (Document No. 38, p. 6). Based on Plaintiff’s statement, and on the Amended Complaint, it appears that Plaintiff missed the following admonition by the Court: In addition, the undersigned suggests that an Amended Complaint should more fully address the jurisdiction of this Court over this matter. Although Defendant does not challenge jurisdiction, the undersigned notes that the Complaint alleges little, if any, connection to support personal jurisdiction over Defendant. (Document No. 28, p. 11) (emphasis added). Plaintiff is correct that Defendant did not previously raise a question about jurisdiction, but the Court did raise such a question – as the undersigned believes it has a responsibility to do when it appears that jurisdiction may be lacking. Id. It appears that Plaintiff missed the undersigned’s suggestion regarding jurisdiction when it amended the Complaint. Compare (Document No. 1, p. 2 and Document No. 30, p. 2). Defendant did address the Court’s concern in its motion to dismiss and brief in support. (Document No. 33 and Document No. 34, pp. 2-3). Next, the undersigned notes that Plaintiff Integris argues that it has “alleged a plethora of facts implicating conduct in North Carolina, or that should have been undertaken North Carolina”; however, most, if not all, of those alleged facts involve the repeated allegation that Barrday represented that it would toll convert S-Glass fiber at a facility in Charlotte, North Carolina. (Document No. 38, p. 8) (citing Document No. 30, ¶¶ 35-38, 52-53, 76-78, 82, 84-85, 106, 181) (emphasis added). Integris makes the same factual allegation multiple times; it does not allege “a plethora of facts” supporting jurisdiction. (Document No. 30). Moreover, the crux of Plaintiff’s lawsuit is that Defendant Barrday did not actually complete any work in North Carolina as it had allegedly represented it would. See (Document No. 38, p. 7) (citing Document No. 30, ¶ 76); see also (Document No. 30, pp. 1, 12-13, 15-17, 20). As Defendant notes, Plaintiff does not cite any legal authority supporting its opposition to Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 11 of 15
12 Defendant’s personal jurisdiction argument, much less any authority suggesting that a representation by a party that it intends to do something in a certain jurisdiction supports a finding that it has purposefully availed itself of the privilege of conducting activities in that jurisdiction. (Document No. 38, pp. 7-8). The undersigned finds the following language from a decision issued by Judge Conrad to be instructive here: “[a]lthough the plaintiff need only prove a prima facie case of personal jurisdiction, he can’t rely on conclusory statements or bare allegations—he must allege “specific acts connecting [the] defendant with the forum.” Julian v. Bank of Am., N.A., 3:16-CV-173- RJC, 2017 WL 3971280, at *2 (W.D.N.C. Sept. 8, 2017) (quoting Second Amend. Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks omitted) (emphasis added). In short, Plaintiff has not alleged any specific acts connecting Defendant with this forum. If anything, Plaintiff has alleged a failure by Defendant to take action in North Carolina. (Document No. 30). As noted above, the Amended Complaint shows that Integris is a citizen of California and Ohio, and that Barrday is a citizen of Delaware and Canada. (Document No. 30, p. 2). The Amended Complaint is silent as to where and when the purported underlying contract was negotiated or signed, or by whom. (Document No. 30). The Amended Complaint does not allege that the contract formation, any communications between the parties, or any actual work or conduct related to the claims in this lawsuit occurred in North Carolina. Id. Contrary to the allegation that “Barrday clearly and unambiguously contracted with Integris” to fulfill all purchase orders from Integris “at Barrday’s Charlotte, North Carolina and Millbury, Massachusetts facilities,” Plaintiff fails to identify any such agreement, much less a clear and unambiguous agreement. (Document No. 30, p. 15) (emphasis added). The closest Plaintiff Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 12 of 15
13 comes to alleging evidence of such an agreement is its reference to a letter written by Barrday’s president, in or about October 2021, stating that “Barrday would, on a best effort basis, toll convert fiber at our Charlotte, NC facility and the coat the fabric at our Millbury, MA facility.” (Document No. 30, p. 6; Document No. 30-3) (emphasis added). The undersigned observes, inter alia, that the letter from the Barrday president in or about October 2021, was provided long after the alleged submission (and completion?) of Plaintiff’s eight (8) Purchase Orders dated from December 2014 through August 2019, that allegedly support Plaintiff’s claims. See (Document No. 30, p. 8; Document No. 30-2). The letter was addressed to Plaintiff’s president in Hebron, Ohio, and had a return address for Barrday in Millbury, Massachusetts. (Document No. 30-3). The letter references discussions by the parties in or about 2014, and states that “we both agreed not to put the toll converting agreement in place as we felt we had a good two-way partnership and agreed to put our best efforts towards supplying the contract.” Id. (emphasis added). The letter seems somewhat vague and ambiguous but suggests that the parties agreed not to execute a toll converting agreement. Id. Therefore, Defendant’s letter attached to the Amended Complaint indicates that there was not an agreement that toll converting had to occur in North Carolina, and in fact, such toll converting did not occur in North Carolina. Id. see also (Document No. 30). The Supreme Court has held that “[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Crum & Forster Spec. Ins. Co. v. Edge Investors, L.P., 3:14-CV-027-RJC-DCK, 2014 WL 12738933, at * 9 (W.D.N.C. Aug. 7, 2914) (quoting Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014)) (emphasis added). The undersigned finds that Defendant Barrday’s suit-related conduct created little, if any, connection with North Carolina. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 13 of 15
14 After careful consideration of the parties’ arguments and relevant legal authority, the undersigned will respectfully recommend that “Defendant’s Motion To Dismiss The Amended Complaint...” be granted for lack of personal jurisdiction. The undersigned finds that the lack of jurisdiction provides an adequate basis for dismissal. See Zhang v. United Health Grp., Inc., 5:23- CV-194-KDB-SCR, 2024 WL 3576456, at *3 (W.D.N.C. June 28, 2024), adopted by 2024 WL 3571740 (W.D.N.C. July 29, 2024) (“Having concluded that the Court lacks personal jurisdiction over both Defendants, as discussed below, the Court need not reach the [other] requests to dismiss”); see also Malone v. Breggin, 2024 WL 1315910, at *7 (W.D.Va. Mar 27, 2024) (finding the Court need not rule on the merits of the case “when it was clear there was no personal jurisdiction over Defendants”). The undersigned notes that wherever jurisdiction is appropriate, it appears that at least Plaintiff’s claim for unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-Integris Projects) should survive since Defendant does not seek dismissal of that claim. Although Defendant has again suggested that Plaintiff, in the alternative to dismissal, should be required to amend and provide a more definite statement, the undersigned is reluctant to recommend further amendment since Plaintiff was unwilling or unable to do so successfully before – and, at least based on the record before the Court, cannot adequately establish personal jurisdiction. Instead, the undersigned will recommend that this action be dismissed, without prejudice to Plaintiff Integris bringing viable claims in another forum that has jurisdiction over Defendant Barrday. IV. RECOMMENDATION FOR THE FOREGOING REASONS, the undersigned respectfully recommends that “Defendant’s Motion To Dismiss The Amended Complaint Pursuant To Rules 8, 9(b), 12(b)(2), 12(b)(6) [and 12(e)]” (Document No. 33) be GRANTED. Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 14 of 15
15 V. TIME FOR OBJECTIONS The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of the Federal Rules of Civil Procedure, written objections to the proposed findings of fact, conclusions of law, and recommendation contained herein may be filed within fourteen (14) days of service of same. Responses to objections may be filed within fourteen (14) days after service of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and Recommendation with the District Court constitutes a waiver of the right to de novo review by the District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). IT IS SO RECOMMENDED. Signed: September 30, 2024 Case 3:22-cv-00347-TJH-DCK Document 42 Filed 09/30/24 Page 15 of 15
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