Integris Composites, Inc. v. Barrday Corp.

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
Complaint Pursuant To Fed. R. Civ. Proc. 9(B), 12(B)(6) and 12(E)” (Document No. 15). 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 in part and
denied without prejudice in part.
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 Ohio. (Document No. 1, p. 2). Plaintiff is “in the business of manufacturing composite
armor solutions.” Id. “TenCate entered into contracts with General Dynamics Land Systems
(“GDLS”) wherein TenCate agreed to create armored components for vehicles (the “GDLS
Contracts”).” (Document No. 1, p. 3).
TenCate turned to Barrday, an established supplier with whom there
was already a relationship, and entered into an arrangement with
INTEGRIS COMPOSITES, INC., )
)
Plaintiff, )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
BARRDAY CORP., )
)
Defendant. )
)
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 1 of 12

2
Barrday whereby Barrday would, on behalf of TenCate, procure
ShieldStrand S-Glass fiber (the “S-Glass fiber”) and store it until
TenCate issued purchase orders for Barrday to toll convert the S-
Glass fiber into a woven and prepreg product required by the GDLS
Contracts (the “product”).
(Document No. 1, pp. 3-4).
Barrday Corp. (“Defendant” or “Barrday”) is a Delaware corporation with a principal place
of business in Ontario, Canada. (Document No. 1, p. 2). Defendant 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. 1, pp. 2-3).
Based on a purported limited supply of S-Glass fiber, “Barrday recommended to TenCate
that it pre-purchase sufficient quantities of S-Glass fiber to ensure adequate supply to meet
TenCate’s commitment under the GDLS Contracts.” (Document No. 1, p. 4). Defendant
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. Id.
“Tony Fiorenzini, President of Barrday, confirmed in a letter to TenCate that ‘Tencate
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. 1, p. 5). Based on Defendant’s calculations, Plaintiff “made seven
payments to Barrday for the pre-purchase of S-Glass fiber for a total amount of $4,948,070.” Id.
Plaintiff then, “as and when required by GDLS,” issued Purchase Orders to Defendant for specified
quantities of woven fabric to be delivered by a certain date. (Document No. 1, p. 6).
Plaintiff “issued another purchase order dated August 20, 2019 to fulfill its ongoing
obligations under the GDLS Contracts,” but was informed by Defendant that all the S-Class fiber
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 2 of 12

3
had been consumed. (Document No. 1, p. 7). However, “TenCate had not yet fulfilled all of its
obligations under the GDLS Contracts.” Id. Plaintiff alleges that Defendant used some of the S-
Glass fiber on another project unrelated to Plaintiff. Id.
Allegedly, Defendant informed Plaintiff for the first time in February 2022, that it “did not,
as it had previously represented to TenCate, 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. 1, p. 8). Plaintiff contends that Defendant’s misrepresentations have damaged
Plaintiff “in an amount no less than $1,278,000.” (Document No. 1, p. 9).
B. Procedural
Plaintiff initiated this action with the filing of a “Complaint” (Document No. 1) on July 30,
2022. The 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-TenCate Projects); (9)
unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-TenCate Projects); (10) bailment; (11)
violations of North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1
et seq.; and (12) punitive damages. (Document No. 1, pp. 11-20).
“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. Defendant seeks dismissal
of most of Plaintiff’s claims pursuant to Fed.R.Civ.P. 12(b)(6), but also seeks dismissal of the
fraudulent inducement claim pursuant to Fed.R.Civ.P. 9(b) and suggests, in the alternative, that
Plaintiff be directed to make a more definite statement of its grounds for the breach of contract
claim pursuant to Fed.R.Civ.P. 12(e). (Document Nos. 15 and 16). Defendant does not seek
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 3 of 12

4
dismissal of claim nine for unjust enrichment (use of Plaintiff’s S-Glass fiber on Non-TenCate
Projects). Id.
Plaintiff’s “Response” (Document No. 22) was filed on October 24, 2022; and
“Defendant’s Reply Brief…” (Document No. 25) was filed on November 8, 2022.
“Plaintiff’s Motion To Amend Case Caption” (Document No. 26) was filed on November
20, 2023, and reports that Plaintiff changed its name through a Certificate of Amendment filed
with the California Secretary of State’s Office, to Integris Composites, Inc., effective September
1, 2023. The Court granted “Plaintiff’s Motion To Amend Case Caption” on November 21, 2023.
(Document No. 27)
The pending motion to dismiss has been fully briefed and is ripe for review and a
recommended disposition to the Honorable Robert J. Conrad, Jr.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 4 of 12

5
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).
“Although for the purposes of this motion to dismiss we must take all the factual allegations
in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint
in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993).
Pursuant to Fed.R.Civ.P. 12(e) “[a] party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.”
[t]he class of pleadings that are appropriate subjects for a motion
under Rule 12(e) is quite small. As the cases make clear, the
pleading must be sufficiently intelligible for the district court to be
able to make out one or more potentially viable legal theories on
which the claimant might proceed; in other words the pleading must
be sufficient to survive a Rule 12(b)(6) motion to dismiss. At the
same time, the pleading also must be so vague or ambiguous that the
opposing party cannot respond to it, even with a simple denial as
permitted by Rule 8(b), with a pleading that can be interposed in
good faith or without prejudice to himself.
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 5 of 12

6
Turner v. Shaw Constructors, Inc., No. 1:11-CV-097-MR-DLH, 2011 WL 3156332, at *1
(W.D.N.C. July 26, 2011) (quoting 5C Charles Alan Wright, Arthur R. Miller, Mary Kay Kane &
Richard L. Marcus, Federal Practice and Procedure § 1376 (3d ed.2004)); see also Evans v.
Sam’s East, 3:16-CV-671-FDW-DCK, 2016 WL 11646027 (W.D.N.C. Oct. 13, 2016).
III. DISCUSSION
As noted above, Plaintiff brings twelve (12) claims against Defendant, all related to an
alleged breach of contract regarding Defendant’s production of a fabric product that was necessary
for Plaintiff to satisfy its obligations under the GDLS Contracts. Defendant’s arguments for
dismissal, or in the alternative, for a more definite statement, are compelling. Although the delay
in issuing this Memorandum And Recommendation is regrettable, the undersigned respectfully
observes that Plaintiff failed to avail itself of the opportunity to promptly file an Amended
Complaint that might have provided more support for the alleged breach as well as the other related
claims.
Breach of Contract
In support of dismissal, Defendant first notes that a “valid contract requires offer,
acceptance, consideration, and mutuality of assent of terms that are sufficiently definite to enable
a court to enforce them.” (Document No. 16, p. 2) (citing MedShift, LLC v. Charles W. Morgan
Pelle, LLC, No. 3:20-CV-034-RJC-DSC, 2022 WL 392507, at *5 (W.D.N.C. Feb. 8, 2022)).
Defendant then argues that the breach of contract claim “should be dismissed because the
Complaint does not ‘adequately allege a meeting of the minds as to all essential terms of an
agreement.’” Pres. Pro. Servs., LLC v. M2 Pictures, LLC, No. 3:14-CV-589-RJC-DCK, 2015 WL
3659506, at *5 (W.D.N.C. May 5, 2015), adopted by 2015 WL 3657463 (W.D.N.C. June 12,
2015)).
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 6 of 12

7
Defendant further asserts that:
The Complaint does not allege any single written agreement
governing the parties’ relationship and does not set forth the
requisite terms of whatever agreement (or agreements) allegedly
existed. The closest the Complaint comes to alleging terms of a
contract is alleging that “Barrday agreed to fulfill all purchase orders
from TenCate that were necessary and satisfy TenCate’s obligations
under the GDLS Contracts at Barrday’s Charlotte, NC and Millbury,
Massachusetts facilities based on the amount of pre-purchased S-
Glass fiber.” Id., ¶ 73. This alleged agreement is beyond vague as
to specific material terms agreed upon by the parties. As in Pres.
Pro. Servs,
[T]he Complaint lacks any explanation of when or
where any contract was formed, or the terms of such
contract(s). . . Moreover, the allegations do not state
whether the purported contracts were oral or written,
how many there were, or who negotiated them . . .
The Complaint does not include copies of any
purported contracts, invoices, emails, letters, or other
documents; nor does it address the apparent absence
of such documentation. Id. at *3.
(Document No. 16, p. 3).
Defendant also notes that the Complaint does not allege: how many purchase orders were
placed, or when, or by whom; when performance was due; whether the purchase order(s) included
the contract terms; what consideration was provided Defendant for its alleged obligations; the
price of the finished products; how the price was calculated; which, if any, purchase order(s)
Defendant failed to fulfill; or any specifics of the GDLS contracts. (Document No. 16, pp. 3-4).
Defendant concludes that Plaintiff’s allegations, provide little, if any, information about
the alleged terms of the parties’ agreement, and therefore, are insufficient to support the claim and
should be dismissed. In the alternative, Defendant suggests that Plaintiff be directed to provide a
more definite statement because “the Complaint [is] so devoid of clarity as to the factual bases for
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 7 of 12

8
its claims that Barrday cannot adequately respond.” (Document No. 16, p. 9). Defendant argues
that a more definite statement should at least include:
 Were there one or more written documents and/or oral
statements that formed the alleged agreement upon which the
breach occurred?
 When were each of these documents or oral agreements entered
into? (The Complaint suggests an agreement prior to the Aug.
20, 2019 purchase order.)
 If written, identify the document or documents, and if oral, state
who made and accepted each oral statement or agreement for
each side and provide the material terms.
 What were the terms of the agreement or agreements referenced
above? And what was the nature and date of each breach alleged
to have occurred?
Id.
In response, Plaintiff contends it has adequately alleged the existence of a valid,
enforceable contract and a breach of that contract. (Document No. 22, pp. 6-7). In addition,
Plaintiff repeatedly argues that Defendant’s request for a more definite statement including the
form, material terms, and date(s) of the purported contract is a “premature discovery request.”
(Document No. 22, pp. 1, 6, 7, 8, 11, 12).
In reply, Defendant argues that Plaintiff has failed to allege the basic elements of the
alleged contract, and that Plaintiff’s response “does little to clarify the vague allegations of its
Complaint.” (Document No. 25, p. 1). Defendant then notes that the response does not even
attempt to distinguish Pres. Pro. Servs., LLC v. M2 Pictures, LLC, a decision by this Court that
“dismissed a breach of contract claim for failure to include specific allegations regarding the
purported contract’s negotiation, formation, terms, or any writing that might patch these factual
holes.” (Document No. 25, pp. 1-2).
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 8 of 12

9
Defendant notes that Plaintiff alleges that it “paid Barrday’s actual cost to purchase S-Glass
fiber, allegedly done on TenCate’s behalf, and to store and transport that fiber,” but does not allege
“a promise, supported by consideration, to provide a specified quantity of finished fabric.”
(Document No. 25, p. 3). “At most, TenCate vaguely alleges that there were intermittent purchase
orders issued to Barrday, but TenCate does not allege a breach of any accepted purchase order, nor
does it allege any consideration whatsoever that would elevate Barrday’s fiber calculations from
estimates to guaranteed contractual obligations.” (Document No. 25, p. 4).
Defendant further notes that “the only specific written statement alleged by TenCate is that
Barrday’s president wrote in a letter that ‘Tencate 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. 25, p. 5) (quoting
Document No. 1, ¶24). However, Defendant argues that Plaintiff “has cited no case where ‘best
efforts’ equates to an unqualified guarantee as to unalleged essential elements of time and
cost/price.” Id.
The undersigned finds Defendant’s arguments most persuasive. However, it is a close call
as to whether the Court should grant dismissal or allow for amendment pursuant to Rule 12(e).
After careful consideration of the Complaint and the briefing on the motion to dismiss, the
undersigned finds that this is a case where “the pleading is sufficiently intelligible for the district
court to make out one or more potentially viable legal theories on which the claimant might
proceed” but sufficiently “vague or ambiguous” to preclude an adequate response from Defendant.
Turner, 2011 WL 3156332, at *1 (quoting 5C Charles Alan Wright, Arthur R. Miller, Mary Kay
Kane & Richard L. Marcus, Federal Practice and Procedure § 1376 (3d ed.2004)).
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 9 of 12

10
The undersigned respectfully disagrees that Defendant is making premature discovery
requests by seeking clarification on the existence and/or terms of the parties’ purported contract.
Plaintiff’s response acknowledges that “a valid contract exists where there is an offer, acceptance
of that offer, consideration, and mutuality of assent to terms,” and “that an enforceable contract
may be oral, written, or manifested by conduct.” (Document No. 22, p. 6) (citations omitted).
However, Plaintiff’s pleading and response provide little information about the foregoing elements
of a breach of contract. To date, Plaintiff has not even indicated if the purported contract was oral
or written.
Based on the foregoing, the undersigned will recommend that Defendant’s alternative
request for a more definite statement be granted, and that Plaintiff be directed to promptly file an
Amended Complaint. Because all of Plaintiff’s claims are related to the same underlying facts,
the undersigned finds that it would be prudent to delay a more thorough analysis of Plaintiff’s
additional claims until after it has filed an Amended Complaint. Defendant presents several
persuasive arguments for dismissal; however, if an Amended Complaint includes additional
factual support for a breach of contract claim (and/or other claims), it may impact the Court’s
analysis of the other claims. Simply put, judicial economy and a decision of the merits of this case
favor foregoing analysis of all the claims until an Amended Complaint is filed.
The undersigned notes that Plaintiff does not oppose dismissal of its punitive damages
claim, but contends it has adequately and properly requested punitive damages in its prayer for
relief. (Document No. 22, p. 30)(citing Document No. 1, p. 20). Also, as noted above, Defendant
does not seek dismissal of claim nine for unjust enrichment (use of Plaintiff’s S-Glass fiber on
Non-TenCate Projects). See (Document Nos. 15 and 16).
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 10 of 12

11
Based on the foregoing, the undersigned respectfully recommends that Plaintiff be directed
to promptly file an Amended Complaint that takes into consideration the concerns identified herein
about the existing Complaint, as well as additional arguments made by Defendant. 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.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant’s Motion To Dismiss The Complaint Pursuant To Fed. R. Civ. Proc. 9(B), 12(B)(6)
and 12(E)” (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 wish to re-assert its arguments for dismissal at a later date, if necessary.
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
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 11 of 12

12
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: December 5, 2023
Case 3:22-cv-00347-TJH-DCK Document 28 Filed 12/05/23 Page 12 of 12