BIOMILQ, INC. v. GUILIANO, 2023 NCBC 77

STATE OF NORTH CAROLINA
ORANGE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 255
BIOMILQ, INC.,
Plaintiff and
Counterclaim Defendant,
v.
SHAYNE GUILIANO and 108LABS,
LLC,
Defendants and
Counterclaim Plaintiffs,
v.
LEILA STRICKLAND; MICHELLE
EGGER; BREAKTHROUGH
ENERGY VENTURES, LLC; BEV
JOHN DOES; BIOMILQ JOHN
DOES; and GOODWIN PROCTER
LLP,
Counterclaim Defendants.
ORDER AND OPINION ON
DEFENDANTS’ JOINT PARTIAL
MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT
1. 	THIS 	MATTER 	is 	before 	the 	Court 	on 	the 	24 	May 	2023 filing 	by
Defendants 	108Labs, 	LLC 	(“108Labs”) 	and 	Shayne 	Guiliano 	(“Guiliano,” 	and
together, “Defendants”) of Defendants’ Joint Partial Motion to Dismiss Plaintiff’s
Second Amended Complaint (the “Motion”). 	(ECF No. 145 [“Mot.”].) 	Pursuant to
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure (the “Rule(s)”), the
Motion requests that the Court dismiss Plaintiff BIOMILQ, Inc.’s (“Plaintiff”) first
claim for relief against Guiliano for trade secret misappropriation under the North
Carolina Trade Secrets Protection Act, N.C.G.S. § 66-152 et seq., and third claim for
relief against Defendants for violations of the North Carolina Unfair and Deceptive
BIOMILQ, Inc. v. Guiliano, 2023 NCBC 77.

Trade Practices Act, N.C.G.S. § 75-1.1 et seq. (the “UDTPA”), to the extent that claim
is based on the wrongdoing alleged in the first claim for relief.
2. 	For the reasons set forth herein, the Court DENIES the Motion.
Robinson, Bradshaw & Hinson, P.A., by J. Dickson Phillips and Stephen
D. Feldman, and Goodwin Procter, LLP, by Rachel M. Walsh for Plaintiff
BIOMILQ, Inc.
Bowens & Averhart, PLLC, by Stephon J. Bowens, and Carnes Warwick,
PLLC, by Tara D. Warwick and Jonathan A. Carnes for Defendant
108Labs, LLC.
Carnes Warwick, PLLC, by Tara D. Warwick and Jonathan A. Carnes
for Defendant Shayne Guiliano.
Robinson, Judge.
I. 	PROCEDURAL BACKGROUND
3. 	The factual and procedural background of this matter is set forth in detail
in the Court’s 10 February 2023 Order and Opinion on Defendants’ Joint Motion to
Dismiss or in the Alternative Hold Proceedings in Abeyance. 	See BIOMILQ, Inc. v.
Guiliano, 2023 NCBC LEXIS 24 (N.C. Super. Ct. Feb. 10, 2023).
4. 	The Court sets forth herein only those portions of the procedural history
relevant and necessary to its determination of the Motion.
5. 	Plaintiff initiated this action on 4 March 2022 with the filing of its
Complaint and Motion for Temporary Restraining Order and Preliminary Injunction,
naming only Guiliano as a defendant. 	(ECF Nos. 3 ̶ 4.) 	This matter was designated
by Plaintiff to the North Carolina Business Court on the same day, (ECF No. 7), and
it was assigned to the undersigned on 7 March 2022, (ECF Nos. 1–2).

6. 	On 13 April 2022, Plaintiff filed its First Amended Complaint, adding
108Labs as a defendant. 	(ECF No. 42.) 	Thereafter, on 15 June 2022, Defendants
filed their Joint Motion to Dismiss or in the Alternative Hold Proceedings in
Abeyance. (ECF No. 73.) The Court granted Defendants’ motion in part, dismissing
without prejudice Plaintiff’s claim for trade secret misappropriation and its claim for
violations of the UDTPA, to the extent that claim was based on Guiliano’s alleged
trade secret misappropriation. 	See BIOMILQ, Inc. v. Guiliano, 2023 NCBC LEXIS
24, at **18–19 (N.C. Super. Ct. Feb. 10, 2023). 	The Court also dismissed without
prejudice Plaintiff’s claim for trespass to chattels. Id. at **30–32.
7. 	On 18 April 2023, Plaintiff filed its Consent Motion for Leave to File Second
Amended Complaint. 	(ECF No. 135.) 	The Court granted Plaintiff’s motion on
19 April 2023, (ECF No. 136), and Plaintiff filed its Second Amended Complaint on
21 April 2023, (ECF No. 137).
8. 	Thirty-two days later, on 23 May 2023 at 11:57:35 p.m., Defendants filed
Defendants’ Partial Answer to Plaintiff’s Second Amended Complaint (the “Partial
Answer”). 	(ECF No. 144.) 	Several minutes later, on 24 May 2023 at 12:00:03 a.m.,
Defendants filed the Motion, (ECF No. 145), and shortly thereafter filed the brief in
support of the Motion at 12:02:40 a.m., (ECF No. 146).
9. 	Following 	full 	briefing, 	the 	Court 	held 	a 	hearing 	on 	the 	Motion 	on
7 November 2023 at which all parties were present and represented through counsel.
(See ECF No. 210.)

II. 	LEGAL STANDARD
10. 	A motion to dismiss for failure to state a claim “tests the legal sufficiency of
the complaint.” Isenhour v. Hutto, 350 N.C. 601, 604 (1999) (cleaned up). Dismissal
is proper when “(1) the complaint on its face reveals that no law supports the
plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to
make a good claim; or (3) the complaint discloses some fact that necessarily defeats
the plaintiff’s claim.” 	Corwin v. Brit. Am. Tobacco PLC, 371 N.C. 605, 615 (2018)
(cleaned up). 	In 	deciding 	the 	Motion, the 	Court 	must 	treat 	all well-pleaded
allegations as true and view the facts and permissible inferences in the light most
favorable to the nonmoving party. See, e.g., Sykes v. Health Network Sols., Inc., 372
N.C. 326, 332 (2019). The Court may also consider documents that are the subject of
the complaint. See, e.g., McDonald v. Bank of N.Y. Mellon Tr. Co., 259 N.C. App. 582,
586 (2018).
III. 	ANALYSIS
11. 	Rule 12(b) clearly provides that a motion to dismiss for failure to state a
claim upon which relief may be granted “shall be made before pleading if a further
pleading is permitted.” N.C.G.S. § 1A-1, Rule 12(b) (emphasis added). 	This Court’s
interpretation of Rule 12 is clear and is consistently applied. 	See New Friendship
Used Clothing Collection, LLC v. Katz, 2017 NCBC LEXIS 72, at *24–25 (N.C. Super.
Ct. Aug. 18, 2017); Johnston v. Johnston Props., Inc., 2018 NCBC LEXIS 119,
at **13–14 (N.C. Super. Ct. Nov. 15, 2018); Handi-Clean Prods. v. Momar, Inc., 2021
NCBC LEXIS 35, at *2 (N.C. Super. Ct. Apr. 6, 2021) (denying a motion to dismiss

pursuant to Rule 12(b)(6) where the answer and motion bore the same time stamp of
filing).
12. 	“This Court has held that in the absence of case law from appellate courts
interpreting such language to mean otherwise, a Rule 12(b) motion to dismiss for
failure to state a claim must be filed prior to [the filing of] an answer, not
contemporaneously with or minutes after.” 	Johnston, 2018 NCBC LEXIS 119,
at **14 (emphasis in original) (citing New Friendship, 2017 NCBC LEXIS 72, at *24).
13. 	As evidenced by the time stamps on the filings, Defendants filed their
Partial Answer first. 	(See ECF No. 154.) 	Then, several minutes later, Defendants
filed the Motion. (See Mot.) Accordingly, under well-settled case law from this Court
and our State’s appellate courts, the Motion is untimely. See Jackson v. Duke Univ.
Health Sys., 2021 N.C. App. LEXIS 436, at **10 (2021) (unpublished) (citing
Robertson v. Boyd, 88 N.C. App. 437, 440 (1988)). 	Although it is the unusual
circumstance that a defendant files an answer which does not fully respond to all
allegations in the operative complaint, the Partial Answer constitutes an answer—a
permitted 	further 	pleading—under 	Rule 12(b). 	See 	N.C.G.S. 	§ 1A-1,
Rules 7(a), 12(b).
14. 	Additionally, the Court is unable to treat the Motion as one for judgment
on the pleadings under Rule 12(c). 	In New Friendship, this Court determined that
by reading Rule 12(b)(6) and Rule 12(h) together, a post-answer Rule 12(b)(6) motion
may be properly considered as a Rule 12(c) motion for judgment on the pleadings if
the pleadings are closed. 2017 NCBC LEXIS 72, at *25–26.

15. 	Here, Defendants requested dismissal of Plaintiff’s claims only pursuant to
Rule 12(b)(6), and Defendants did not raise a 12(b)(6) defense in the Partial Answer.1
Accordingly, given the procedural posture of this case and absent a request from
Defendants, the Court declines to consider the Motion as one for judgment on the
pleadings pursuant to Rule 12(c). See Encompass Servs., PLLC v. Maser Consulting
P.A., 2019 NCBC LEXIS 67, at *3 (N.C. Super. Ct. Nov. 5, 2019) (declining to treat
an untimely Rule 12(b)(6) motion as a Rule 12(c) motion when the movant did not
request that the Rule 12(b)(6) motion be considered under Rule 12(c)). Furthermore,
the pleadings in this matter are not closed, as “a reply to a counterclaim” is a
permitted pleading under Rule 7(a). Thus, even if the Court were inclined to consider
the Motion under Rule 12(c), it would be improper to do so at this time.
16. 	THEREFORE, the Court hereby DENIES the Motion because it was not
timely filed.
IT IS SO ORDERED, this the 13th day of November, 2023.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases
1 Neither Plaintiff nor Defendants raised the procedural issues outlined in this Order and
Opinion in their briefing on the Motion. However, the Court, in its discretion, concludes that
the untimeliness of the Motion is an appropriate ground on which to base its ruling herein.