Industrial Maintenance Solutions, LLC et al v. BGSE Group, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
INDUSTRIAL MAINTENANCE SOLUTIONS, LLC,
BRYAN S. HENRY,
NOVA 1 PROPERTIES, LLC, and
TAMMY HENRY,
Plaintiffs,
v. 	CIVIL NO. 1:22-CV-12
(KLEEH)
LUCKEY ENTERPRISES, LLC,
BRYAN BULLERDICK, and
ASHLEY S. BULLERDICK,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
Pending 	before 	the 	Court 	is 	a 	motion 	to 	dismiss 	filed 	by
Defendants Luckey Enterprises, LLC and Bryan Bullerdick. 	For the
reasons discussed herein, the motion is GRANTED IN PART and DENIED
IN PART.
I. 	INTRODUCTION AND PROCEDURAL HISTORY
In 	this 	case, 	the 	Plaintiffs, 	Industrial 	Maintenance
Solutions, 	LLC 	(“IMS”), 	Bryan 	S. 	Henry 	(“Bryan 	Henry”), 	Nova 	1
Properties, 	LLC 	(“Nova 	1”), 	and 	Tammy 	Henry 	(“Tammy 	Henry”)
(together, “Plaintiffs”), have alleged that the Defendants, Luckey
Enterprises, 	LLC 	(“Luckey”), 	Bryan 	Bullerdick 	(“Bryan
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 1 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
2
Bullerdick”), 	and 	Ashley 	S. 	Bullerdick 	(“Ashley 	Bullerdick”)
(together, “Defendants”), have breached several contracts, engaged
in 	unfair 	business 	practices, 	misappropriated 	and 	infringed 	upon
IMS’s 	intellectual 	property, 	and 	engaged 	in 	defamation.
Plaintiffs’ allegations relate to BGSE Group, LLC’s acquisition of
the 	manufacturing 	division 	of 	IMS 	for 	aviation 	ground 	support
equipment.
The case was first removed to this Court on February 3, 2022.
See ECF No. 1. 	The named defendants were BGSE Group, LLC (“BGSE”),
Luckey, 	and 	Bryan 	Bullerdick. 	On 	January 	9, 	2023, 	BGSE 	filed 	a
Notice 	of 	Bankruptcy 	and 	Automatic 	Stay 	of 	Proceedings. 	See 	ECF
No. 68. 	On January 10, 2023, the Court stayed the case and vacated
the scheduling order. 	See ECF No. 69. 	On July 24, 2023, the Court
lifted 	the 	stay 	as 	to 	all 	parties 	except 	BGSE. 	See 	ECF 	No. 	76.
On 	November 	15, 	2023, 	after 	obtaining 	leave 	of 	the 	Court,
Plaintiffs filed a first supplemental complaint. 	See ECF No. 88.
The first supplemental complaint alleged claims against only Bryan
Bullerdick and Luckey. 	See id.
On 	April 	26, 	2024, 	Plaintiffs 	filed 	a 	motion 	for 	leave 	to
file 	a 	second 	supplemental 	complaint. 	See 	ECF 	No. 	113. 	The
proposed 	second 	supplemental 	complaint 	named 	Bryan 	Bullerdick,
Luckey, 	and 	Ashley 	Bullerdick 	as 	defendants. 	See 	ECF 	No. 	113-3.
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 2 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
3
In 	July 	2024, 	after 	the 	Court 	was 	notified 	that 	the 	parties 	had
“reached agreement on the amount of settlement of all claims,” the
Court 	terminated 	the 	motion 	for 	leave 	to 	file 	the 	second
supplemental complaint without ruling on the motion. 	See ECF Nos.
120, 121. 	After multiple extensions of Court orders directing the
parties to file a proposed dismissal order, the parties ultimately
opted 	to 	file 	a 	proposed 	schedule. 	See 	ECF 	Nos. 	125, 	129, 	133,
135, 	140. 	On 	January 	23, 	2025, 	the 	Court 	entered 	a 	scheduling
order, which has since been stayed. 	See ECF No. 140.
On 	May 	14, 	2025, 	after 	obtaining 	leave 	of 	the 	Court,
Plaintiffs filed a third supplemental complaint. 	See ECF No. 161.
In 	the 	third 	supplemental 	complaint, 	Plaintiffs 	assert 	claims
against Bryan Bullerdick, Luckey, and Ashley Bullerdick. 	See id.
At 	a 	minimum, 	Plaintiffs 	bring 	claims 	of 	fraudulent 	inducement,
civil conspiracy, defamation, and plundering the BGSE estate. 	Some
of 	the 	claims 	are 	not 	labeled, 	and 	it 	is 	unclear 	what 	additional
claims 	are 	being 	raised 	(and 	against 	whom 	they 	are 	raised). 	Now
pending 	is 	a 	motion 	to 	dismiss 	by 	Bryan 	Bullerdick 	and 	Luckey. 1
It is fully briefed and ripe for review.
1 The Court granted a motion to dismiss by Ashley Bullerdick.
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 3 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
4
II. 	STANDARD OF REVIEW
Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows
the 	Court 	to 	dismiss 	an 	action 	for 	lack 	of 	jurisdiction 	over 	the
subject 	matter. 	“The 	plaintiff 	has 	the 	burden 	of 	proving 	that
subject 	matter 	jurisdiction 	exists.” 	Evans 	v. 	B.F. 	Perkins 	Co.,
166 	F.3d 	642, 	647 	(4th 	Cir. 	1999) 	(citation 	omitted). 	In
considering 	a 	motion 	to 	dismiss 	pursuant 	to 	Rule 	12(b)(1), 	the
court should “regard the pleadings as mere evidence on the issue,
and may consider evidence outside the pleadings without converting
the 	proceeding 	to 	one 	for 	summary 	judgment.” 	Id. 	(citation
omitted). 	The court should grant the motion “only if the material
jurisdictional 	facts 	are 	not 	in 	dispute 	and 	the 	moving 	party 	is
entitled to prevail as a matter of law.” 	Id. (citation omitted).
“[Q]uestions of subject matter jurisdiction must be decided first,
because 	they 	concern 	the 	court’s 	very 	power 	to 	hear 	the 	case.”
Owens-Illinois, 	Inc. 	v. 	Meade, 	186 	F.3d 	435, 	442 	n.4 	(4th 	Cir.
1999) (citation and internal quotation marks omitted).
Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does 	not 	“state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.” 	In
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 4 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
5
ruling 	on 	a 	12(b)(6) 	motion 	to 	dismiss, 	a 	court 	“must 	accept 	as
true 	all 	of 	the 	factual 	allegations 	contained 	in 	the 	complaint.”
Anderson 	v. 	Sara 	Lee 	Corp., 	508 	F.3d 	181, 	188 	(4th 	Cir. 	2007)
(citations 	omitted). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a
legal 	conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v.
Allain, 478 U.S. 265, 286 (1986) (citations omitted).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Factual 	allegations 	must 	“raise 	a 	right 	to 	relief 	above 	the
speculative 	level 	on 	the 	assumption 	that 	all 	of 	the 	complaint’s
allegations are true.” 	Id. at 545. 	Plausibility exists “when the
plaintiff pleads factual content that allows the court to draw the
reasonable 	inference 	that 	the 	defendant 	is 	liable 	for 	the
misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). 	A motion to dismiss “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) (citation omitted).
III. FACTUAL BACKGROUND
IMS 	is 	a 	leading 	manufacturer 	of 	aviation 	ground 	support
equipment 	for 	a 	number 	of 	different 	entities, 	including 	BGSE.
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 5 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
6
Third 	Supp. 	Compl., 	ECF 	No. 	161, 	at 	¶ 	1. 	Bryan 	Henry 	is 	the
founder 	and 	president 	of 	IMS. 	Id. 	¶ 	2. 	He 	also 	founded 	the
company Nova 1, which is affiliated with IMS with respect to real
estate transactions. 	Id. ¶ 3. 	Tammy Henry is an officer of IMS,
a 	contractor, 	and 	Bryan 	Henry’s 	wife. 	Id. 	¶ 	4. 	BGSE 	is 	a 	North
Carolina limited liability company. 	Id. ¶ 5. 	Bryan Bullerdick is
the 	owner 	of 	BGSE, 	and 	he 	founded 	Luckey 	for 	the 	purposes 	of
purchasing and selling real estate. 	Id. ¶¶ 6, 7.
BGSE 	has 	contracted 	with 	IMS 	since 	2017, 	and 	IMS 	was 	its
principal manufacturer for aviation ground support equipment. 	Id.
¶ 	11. 	Although 	BGSE 	represented 	that 	it 	was 	a 	company 	with
extensive 	engineering 	and 	manufacturing 	experience, 	prior 	to 	the
acquisition, 	BGSE 	depended 	entirely 	on 	third-party 	contractors,
including 	IMS, 	for 	engineering, 	design, 	and 	manufacturing
capabilities. 	Id. 	¶ 	12. 	Plaintiffs 	assert 	that 	BGSE 	had
established 	a 	pattern 	of 	using 	other 	entities’ 	engineering,
design, 	or 	manufacturing 	resources 	and 	then 	reselling 	or
distributing such products as its own. 	Id. ¶ 13.
BGSE 	purchased 	and 	owned 	property 	in 	Morgantown, 	West
Virginia; 	leased 	and 	operated 	a 	manufacturing 	facility 	in
Monongalia 	County, 	West 	Virginia; 	and 	did 	business 	in 	West
Virginia. 	Id. 	¶ 	14. 	Plaintiffs 	assert 	that 	in 	or 	around 	2019,
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 6 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
7
BGSE came under increasing pressure to demonstrate that it was the
true 	manufacturer 	of 	products 	and 	that 	it 	had 	manufacturing
facilities 	and 	capabilities. 	Id. 	¶ 	15. 	Plaintiffs 	assert 	that
BGSE and “the Bullerdicks” formulated a scheme whereby BGSE would
purchase 	the 	manufacturing 	division 	of 	IMS 	for 	aviation 	ground
support equipment, including, but not limited to, IMS’s equipment
and 	employees, 	so 	that 	it 	could 	represent 	and 	demonstrate 	to
customers that it was the true manufacturer of its aviation ground
support 	equipment. 	Id. 	¶ 	17. 	Plaintiffs 	assert 	that 	BGSE 	and
“the Bullerdicks” then made such a purchase proposal to IMS. 	Id.
¶ 18.
In 	response 	to 	the 	proposal, 	Bryan 	Henry 	insisted 	that 	BGSE
(1) 	purchase 	certain 	IMS 	equipment, 	(2) 	hire 	IMS 	employees 	at
certain 	hourly 	rates, 	(3) 	rent 	certain 	equipment 	at 	IMS’s
Morgantown 	facility, 	and 	(4) 	hire 	him 	as 	the 	General 	Manager 	of
the new manufacturing division for BGSE at a salary of $100,000.00
per year and for a guaranteed five-year period. 	Id. ¶ 19. 	On May
18, 2020, the parties reached an agreement. 	Id. ¶ 20. 	BGSE agreed
to 	purchase 	certain 	IMS 	assets 	for 	$193,000.00. 	Id. 	¶ 	21. 	BGSE
also agreed to hire all IMS employees and to lease a powder coating
facility 	from 	Nova 	1. 	Id. 	¶¶ 	22, 	23. 	BGSE 	agreed 	to 	hire 	Bryan
Henry as General Manager of the manufacturing division of BGSE for
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 7 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
8
a guaranteed five-year term, with a base salary of $80,000.00 per
year 	and 	a 	guaranteed 	annual 	bonus 	of 	$20,000.00 	per 	year, 	along
with benefits plans and a commission/bonus plan. 	Id. ¶ 24. 	BGSE
agreed 	that 	Bryan 	Henry 	could 	continue 	to 	operate 	IMS 	and 	that
“any 	such 	work, 	invention 	or 	intellectual 	property 	developed
solely by IMS [would] remain the sole property of IMS.” 	Id. ¶ 25.
BGSE 	agreed 	to 	purchase 	certain 	real 	property 	of 	Nova 	1
through 	Luckey, 	which 	was 	intended 	to 	be 	the 	new 	site 	of 	BGSE’s
manufacturing 	division. 	Id. 	¶ 	26. 	As 	part 	of 	that 	sale, 	Luckey
agreed to extend, at its sole cost and expense, certain utilities
and stormwater lines to a mutually agreeable location. 	Id. ¶ 27.
Plaintiffs 	assert 	that 	despite 	the 	promises 	made, 	BGSE, 	Luckey,
Bryan Bullerdick, and Ashley Bullerdick did not have the resources
to 	comply 	with 	their 	obligations. 	Id. 	¶ 	29. 	Plaintiffs 	assert
that 	“they” 	did 	not 	timely 	pay 	for 	IMS 	equipment; 	failed 	to 	pay
salary and bonuses owed to Bryan Henry; unilaterally attempted to
change Bryan Henry’s duties and responsibilities; terminated Bryan
Henry’s 	employment 	with 	BGSE 	in 	bad 	faith; 	made 	defamatory
statements 	concerning 	Bryan 	Henry 	and 	IMS 	to 	third 	parties 	in 	an
attempt 	to 	damage 	their 	character, 	reputation, 	and 	business
relations; failed to pay Tammy Henry $5,000.00 for the use of her
Contractor’s License; misappropriated the intellectual property of
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 8 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
9
IMS and Bryan Henry without compensation; failed to perform agreed-
to 	utility 	extensions; 	failed 	to 	pay 	rents 	due 	and 	owing 	for 	the
powder 	coating 	equipment; 	converted 	personal 	property 	of 	Bryan
Henry and IMS; failed to pay for various equipment rentals; failed
to return certain software developed, designed, and owned by Bryan
Henry 	and/or 	IMS; 	failed 	to 	return 	license 	to 	IMS 	and/or 	Bryan
Henry 	for 	3-D 	SOLID 	WORKS 	software 	that 	IMS 	purchased 	for 	and 	at
the request of BGSE; sold certain equipment obtained from IMS and
personally 	profited; 	took 	excessive 	fees, 	salaries, 	and
compensation that depleted the cash flow of BGSE; continued their
practices 	of 	not 	timely 	paying 	vendors 	and 	creditors; 	misstated
the 	financial 	condition 	of 	BGSE; 	and 	deprived 	IMS 	of 	the 	ability
to 	manufacture 	aviation 	ground 	support 	equipment 	by 	refusing 	to
compensate 	Bryan 	Henry 	as 	promised 	but 	keeping 	the 	equipment,
employees, and intellectual property of IMS. 	Id.
Plaintiffs 	assert 	that 	when 	BGSE, 	Bryan 	Bullerdick, 	and
Ashley 	Bullerdick 	formulated 	their 	fraudulent 	scheme 	to 	induce
Bryan Henry and IMS to sell the manufacturing division, they knew
that 	they 	did 	not 	have 	the 	funds 	and 	resources 	to 	fulfill 	their
obligations. 	Id. 	¶ 	31. 	Immediately 	after 	the 	acquisition, 	BGSE
failed 	to 	pay 	IMS 	for 	its 	equipment 	on 	time. 	Id. 	¶ 	32. 	In
addition, Bryan Bullerdick and BGSE had to use the good credit of
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 9 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
10
IMS 	to 	purchase 	raw 	products 	required 	for 	manufacturing 	because
vendors 	refused 	to 	extend 	credit 	to 	BGSE. 	Id. 	¶ 	33. 	When 	Bryan
Henry reported vendor complaints to Bryan Bullerdick and demanded
that 	BGSE 	and 	Bryan 	Bullerdick 	pay 	IMS 	the 	bonuses, 	commission,
and 	profits 	due, 	Bryan 	Bullerdick 	unilaterally 	changed 	the
organizational 	structure 	of 	BGSE, 	in 	violation 	of 	Bryan 	Henry’s
employment 	agreement, 	but 	kept 	the 	equipment, 	employees, 	and
intellectual property of IMS. 	Id. ¶ 34.
Plaintiffs 	assert 	that 	Bryan 	Bullerdick 	began 	a 	pattern 	of
verbally 	abusing 	Bryan 	Henry. 	Id. 	¶ 	35. 	They 	assert 	that 	“the
Bullerdicks” 	and 	BGSE 	unilaterally 	terminated 	Bryan 	Henry’s
position 	as 	General 	Manager 	and 	terminated 	his 	five-year
employment 	agreement 	without 	cause, 	essentially 	preventing 	IMS
from 	manufacturing 	aviation 	ground 	support 	equipment. 	Id. 	¶ 	36.
Bryan 	Bullerdick 	offered 	Bryan 	Henry 	a 	new 	at-will 	position 	with
BGSE 	for 	$100,000.00, 	with 	no 	bonuses 	or 	commissions. 	Id. 	¶ 	37.
Bryan 	Henry 	pointed 	out 	that 	this 	was 	a 	direct 	violation 	of 	the
five-year employment agreement, and he offered to renegotiate the
employment agreement. 	Id. ¶ 38. 	Plaintiffs assert that BGSE and
“the Bullerdicks” refused to renegotiate. 	Id. ¶ 39.
Plaintiffs assert that Ashley Bullerdick (Bryan Bullerdick’s
wife) 	was 	directly 	and 	actively 	involved 	in 	BGSE’s 	and 	Luckey’s
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 10 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
11
unlawful actions. 	Id. ¶ 9. 	They assert that she was the founder
of 	BGSE 	and 	is 	a 	member 	of 	Luckey. 	Id. 	¶ 	8. 	Plaintiffs 	assert
that 	Ashley 	Bullerdick 	knew 	BGSE 	was 	insolvent 	when 	BGSE 	entered
into the acquisition, that she received advances and distributions
from 	BGSE 	both 	before 	and 	during 	BGSE’s 	bankruptcy, 	that 	she
received 	and 	enjoyed 	the 	benefits 	of 	the 	advances 	and
distributions, and that, along with Bryan Bullerdick, she received
approximately 	$2.7 	million 	from 	BGSE 	without 	telling 	Plaintiffs
that BGSE was insolvent. 	Id. ¶ 9. 	Plaintiffs assert that Ashley
Bullerdick 	traveled 	to 	Morgantown, 	West 	Virginia, 	on 	behalf 	of
BGSE and Luckey, to negotiate claims of vendors. 	Id. ¶ 10.
IV. 	DISCUSSION
Bryan 	Bullerdick 	and 	Luckey 	move 	to 	dismiss 	the 	third
supplemental complaint pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. 	They argue that Plaintiffs’
claim 	that 	they 	plundered 	BGSE’s 	estate 	should 	be 	dismissed 	for
lack of subject matter jurisdiction. 	They assert that Plaintiffs
do not have standing to assert claims for preference or avoidance
under 	the 	Bankruptcy 	Code 	and 	otherwise 	do 	not 	have 	standing 	to
assert claims of other creditors of BGSE. 	Defendants further argue
that 	all 	of 	Plaintiffs’ 	claims 	should 	be 	dismissed 	because 	(1)
there 	is 	no 	recognized 	claim 	for 	“plundering” 	in 	North 	Carolina
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 11 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
12
law 	or 	under 	the 	Bankruptcy 	Code, 	and 	preference 	or 	avoidance
actions 	are 	barred 	by 	a 	two-year 	statute 	of 	limitations; 	(2) 	the
fraudulent 	inducement 	claim 	against 	Bryan 	Bullerdick 	fails 	for
improper 	“group” 	pleading 	and 	for 	failing 	to 	plead 	with
specificity; 	(3) 	the 	civil 	conspiracy 	claim 	against 	Bryan
Bullerdick 	fails 	because 	“plundering” 	(or 	fraudulent 	conveyance,
if so interpreted) is not a tort that can support conspiracy, the
fraud claim against him also fails and cannot support conspiracy,
a 	fraud 	claim 	against 	Ashley 	Bullerdick 	is 	barred 	by 	the 	statute
of limitations and cannot support the tort of conspiracy with Bryan
Bullerdick, 	and 	conspiracy 	is 	only 	alleged 	through 	conclusory
allegations; 	(4) 	Plaintiffs 	use 	improper 	“shotgun” 	pleading 	and
fail to identify or plead facts necessary to state a claim in the
Nova 1 section of the third supplemental complaint; (5) Plaintiffs
fail to meet pleading requirements for a defamation claim against
Bryan 	Bullerdick; 	and 	(6) 	Plaintiffs 	fail 	to 	meet 	pleading
requirements for defamation or an undefined intellectual property
claim against Luckey.
Defendants 	state 	that 	West 	Virginia 	law 	applies 	to 	the
fraudulent 	inducement, 	civil 	conspiracy, 	defamation, 	and
intellectual property claims because the alleged torts took place
in West Virginia. 	They contend, however, that North Carolina law
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 12 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
13
or 	the 	Bankruptcy 	Code 	applies 	to 	any 	claim 	Plaintiffs 	assert 	as
a 	“derivative 	claim” 	of 	BGSE 	against 	Bryan 	Bullerdick, 	including
claims 	relating 	to 	corporate 	governance 	and 	any 	claim 	that 	could
be called “plundering the estate of BGSE.” 	See Manville Personal
Injury Settlement Tr. V. Blankenship, 749 S.E.2d 329, 337 (W. Va.
2013) 	(stating 	that 	shareholder 	derivative 	suits 	are 	governed 	by
the law of the state of incorporation).
For the reasons discussed below, the Court grants in part and
denies 	in 	part 	the 	motion 	to 	dismiss, 	finding 	that 	only 	the
fraudulent inducement claim should survive.
1. 	Plundering
In 	the 	third 	supplemental 	complaint, 	Plaintiffs 	allege 	that
“[p]rior 	to 	BGSE 	filing 	Bankruptcy, 	and 	during 	the 	Bankruptcy,
Bullerdick and Ashley Bullerdick caused BGSE to pay them exorbitant
and unreasonable fees for management, administration, consulting,
salaries, and repayment of ‘loans’ allegedly made to BGSE totaling
approximately $2.7 million.” 	Third Supp. Compl., ECF No. 161, at
¶ 	83. 	Plaintiffs 	further 	allege 	that 	the 	trustee 	in 	the 	BGSE
bankruptcy 	assigned 	to 	Plaintiffs 	the 	rights 	to 	pursue 	claims 	on
behalf of BGSE and that, “as the assignee of the derivative claims
of BGSE against Bullerdick and Ashley Bullerdick, IMS has standing
to 	pursue 	all 	claims 	purchased 	from 	the 	CRO” 	in 	this 	Court. 	See
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 13 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
14
Mot., 	ECF 	No. 	152, 	at 	4. 	Plaintiffs 	assert 	a 	claim 	entitled
“Plundering 	BGSE 	Estate” 	to 	recover 	damages 	to 	“IMS, 	and 	other
creditors, 	and 	BGSE, 	as 	the 	Debtor. 	Third 	Supp. 	Compl., 	ECF 	No.
161, at ¶¶ 82–88.
Defendants 	argue 	that 	the 	settlement 	agreement 	upon 	which
Plaintiffs rely to bring the plundering claim does not recite any
specific claim or set of facts supporting a claim, and it does not
provide 	that 	BGSE 	had 	any 	valid 	claims 	for 	assignment. 	Rather,
they 	assert, 	the 	“sale 	and 	assignment” 	of 	BGSE’s 	claims 	against
Bryan 	Bullerdick 	“shall 	be 	as 	is, 	where 	is, 	with 	all 	faults, 	and
no 	warranties[.]” 2 	See 	Order 	Approving 	Settlement, 	ECF 	No. 	113-
1, 	at 	¶ 	5. 	The 	$30,000.00 	Plaintiffs 	paid 	to 	the 	trustee 	(for 	a
claim against the Bullerdicks that Plaintiffs now allege is worth
$2.7 	million) 	was 	not 	solely 	for 	the 	purchase 	of 	the 	assigned
claims; the settlement agreement also releases claims the trustee
had 	against 	Plaintiffs 	for 	“tortious 	interference 	with 	contract
and violation of the automatic stay.” 	Id. at ¶ 3. 	Thus, Defendants
assert, the nominal assignment of BGSE’s claims in the settlement
2 The Court can consider the settlement agreement between the CRO and Plaintiffs
because Plaintiffs explicitly reference it in the third supplemental complaint.
See Stewart v. Pension Trust of Bethlehem Steel Corp., 12 F. App’x 174, 176
(4th Cir. 2001) (holding that a district court can consider documents explicitly
relied upon in the complaint at the motion to dismiss stage).
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 14 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
15
agreement 	plainly 	does 	not 	mean 	that 	there 	were 	any 	valid 	claims
to assign.
a. 	Subject Matter Jurisdiction
Defendants 	argue 	that 	the 	Bankruptcy 	Court 	has 	exclusive
jurisdiction 	over 	payments 	from 	the 	bankruptcy 	estate 	to
Defendants. 	The bankruptcy is still pending.
Under federal law, “[t]he district court in which a case under
title 	11 	is 	commenced 	or 	is 	pending 	shall 	have 	exclusive
jurisdiction . . . of 	all 	the 	property, 	wherever 	located, 	of 	the
debtor 	as 	of 	the 	commencement 	of 	such 	a 	case, 	and 	of 	property 	of
the estate.” 	28 U.S.C. § 1334(e)(1). 	And “[w]henever there is a
dispute 	regarding 	whether 	property 	is 	property 	of 	the 	bankruptcy
estate, exclusive jurisdiction is in the bankruptcy court.” 	In re
Duval 	Cnty. 	Ranch 	Co., 	167 	B.R. 	848, 	849 	(Bankr. 	S.D. 	Tex. 	1994)
(citations 	omitted). 	Therefore, 	Defendants 	argue 	that 	the 	Court
does 	not 	have 	jurisdiction 	over 	BGSE’s 	transfers 	“during 	the
bankruptcy,” Third Supp. Compl., ECF No. 161, at ¶ 83, which were
approved by the Bankruptcy Court.
Defendants also argue that the Bankruptcy Court has exclusive
jurisdiction 	over 	preference 	payments, 	fraudulent 	transfers, 	and
post-petition 	transfers. 	Defendants 	argue 	that 	this 	Court 	does
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 15 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
16
not have jurisdiction to determine any alleged preference payments
made to company insiders that were made within one year preceding
filing of the BGSE bankruptcy petition, or any alleged fraudulent
transfers 	that 	were 	made 	“within 	2 	years 	before 	the 	date 	of 	the
filing 	of 	the 	[bankruptcy] 	petition.” 	11 	U.S.C. 	§§ 	547, 	548.
These 	sections 	of 	the 	Bankruptcy 	Code 	provide 	for 	return 	of
“property that would have been part of the estate had it not been
transferred 	before 	the 	commencement 	of 	the 	bankruptcy
proceedings.” 	In 	re 	Entringer 	Bakeries, 	Inc., 	548 	F.3d 	344, 	349
(5th Cir. 2008) (citation omitted); see also Begier v. I.R.S., 496
U.S. 	53, 	58 	(1990) 	(“[T]he 	purpose 	of 	the 	avoidance 	provision 	is
to 	preserve 	the 	property 	includable 	within 	the 	bankruptcy
estate[.]”). 	Thus, 	Defendants 	assert, 	because 	the 	determination
of 	whether 	a 	payment 	qualifies 	as 	a 	preference 	under 	11 	U.S.C.
§ 547, 	or 	a 	fraudulent 	conveyance 	under 	11 	U.S.C. 	§ 	548, 	amounts
to a determination of whether certain monies are within or without
the 	bankruptcy 	estate, 	those 	determinations 	are 	also 	exclusively
within the Bankruptcy Court’s jurisdiction.
Defendants 	further 	argue 	that 	the 	Bankruptcy 	Court 	has
exclusive 	jurisdiction 	over 	“derivative” 	claims 	of 	BGSE. 	The
United 	States 	Court 	of 	Appeals 	for 	the 	Fourth 	Circuit 	has 	held
that even if a creditor could assert derivative standing under the
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 16 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
17
Bankruptcy 	Code 	(which 	the 	court 	assumed, 	but 	did 	not 	decide), 	a
creditor 	could 	only 	do 	so 	“under 	strict 	conditions.” 	In 	re
Baltimore Emergency Servs. II, Corp., 432 F.3d 557, 561 (4th Cir.
2005). 	Specifically, 	a 	bankruptcy 	court 	must 	make 	specific
findings 	of 	fact 	that 	a 	derivative 	suit 	was 	either 	“in 	the 	best
interest of the bankruptcy estate” or “necessary and beneficial to
the fair and efficient resolution of the bankruptcy proceedings.”
Id. at 563. 	The Fourth Circuit emphasized that such scrutiny was
required 	because 	a 	bankruptcy 	court 	must 	“ensure 	that 	a 	would-be
derivative 	suit 	would 	not 	simply 	advance 	the 	interests 	of 	a
particular 	plaintiff 	at 	the 	expense 	of 	other 	parties 	to 	the
bankruptcy 	proceeding.” 	Id. 	at 	562. 	Defendants 	argue 	that
Plaintiffs are trying to achieve this exact impermissible result.
Plaintiffs claim for themselves, alone, all damages to BGSE and to
other creditors without regard for the rights of other parties to
the bankruptcy proceeding.
Here, Defendants point out, the Bankruptcy Court did not make
findings of fact sufficient to grant Plaintiffs standing necessary
to 	pursue 	derivative 	claims 	of 	BGSE 	against 	the 	Bullerdicks 	for
Plaintiffs’ 	exclusive 	benefit. 	The 	Bankruptcy 	Court’s 	order
approving 	the 	settlement 	between 	Plaintiffs 	and 	the 	CRO, 	which
also 	addressed 	the 	Trustee’s 	release 	of 	claims 	against 	IMS 	and
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 17 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
18
Bryan 	Henry, 	only 	states 	that 	“[t]he 	proposed 	settlement 	is
reasonable, 	fair, 	and 	equitable, 	was 	negotiated 	at 	arm’s 	length
and in good faith, and is in the best interests of the Bankruptcy
Estate 	and 	creditors.” 	See 	Order 	Approving 	Settlement, 	ECF 	No.
113-1, at ¶ 7. 	The order does not specifically grant, convey, or
even mention derivative standing at all, and merely approving the
settlement 	agreement 	that 	also 	released 	claims 	of 	the 	trustee
against Plaintiffs is not sufficient to give Plaintiffs derivative
standing. 	See Baltimore Emergency, 432 F.3d at 563 (finding that
the required findings of fact could not be “made implicitly”).
Finally, 	even 	if 	the 	Bankruptcy 	Court 	gave 	Plaintiffs
derivative standing to sue, Plaintiffs would have to file suit in
the 	Bankruptcy 	Court 	in 	North 	Carolina, 	not 	in 	District 	Court 	in
West 	Virginia. 	See 	id. 	at 	560 	(stating 	that 	the 	doctrine 	of
derivative 	standing 	allows 	a 	creditor 	“under 	certain 	narrow
conditions 	to 	file 	an 	action 	in 	bankruptcy 	court 	in 	place 	of 	the
debtor-in-possession or trustee”). 	This requirement is consistent
with a bankruptcy court’s responsibility to ensure that creditors
cannot 	advance 	their 	own 	interests 	at 	the 	expense 	of 	other
creditors. 	Id. at 562. 	Therefore, Plaintiffs cannot bring a BGSE
derivative claim in this Court, seeking to recover damages suffered
by “IMS, and other creditors, and BGSE, as the Debtor,” see Third
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 18 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
19
Supp. Compl., ECF No. 161, at ¶ 85, outside of the supervision of
the Bankruptcy Court and in a forum where the other creditors are
not present.
Defendants also argue that Plaintiffs lack standing to assert
claims on behalf of “other creditors.” 	Paragraph 85 of the third
supplemental complaint alleges that “IMS, and other creditors, and
BGSE, 	as 	the 	debtor, 	were 	damaged 	by 	the 	exorbitant 	and
unreasonable 	payments 	made 	to 	Bullerdick 	and 	Ashley 	Bullerdick.”
Neither the trustee in a bankruptcy nor the debtor has standing to
bring 	claims 	of 	any 	creditor 	against 	Bryan 	Bullerdick, 	so 	that
direct claims of other creditors of BGSE against Bryan Bullerdick
could not have been assigned to IMS, regardless of the language in
the 	settlement 	agreement. 	In 	re 	Miller, 	197 	B.R. 	810, 	815
(W.D.N.C. 1996) (holding that the trustee did not have standing to
bring claims on behalf of the creditors). 	Plaintiffs cannot bring
claims 	of 	any 	other 	“creditor” 	against 	Bryan 	Bullerdick. 	Third
Supp. 	Compl., 	ECF 	No. 	161, 	at 	¶ 	85 	(alleging 	that 	their 	claim
encompasses 	damages 	suffered 	by 	“other 	creditors”). 	The 	Court
agrees 	with 	Defendants 	that 	it 	lacks 	subject 	matter 	jurisdiction
over these issues.
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 19 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
20
b. 	Stating a Claim
Defendants 	assert 	that 	to 	the 	extent 	Plaintiff 	pleads 	some
sort 	of 	corporate 	governance 	derivative 	claim, 	North 	Carolina
applies. 	See Manville, 749 S.E.2d at 337 (stating that shareholder
derivative 	suits 	are 	governed 	by 	the 	law 	of 	the 	state 	of
incorporation).
First, Defendants argue that “plundering” is not a cognizable
legal 	claim 	under 	North 	Carolin 	law 	or 	under 	the 	Bankruptcy 	Code
(or even West Virginia law, to the extent it applies). 	Plaintiffs
do 	not 	otherwise 	articulate 	a 	statutory 	or 	common 	law 	claim 	that
would allow BGSE to recover against Bryan Bullerdick on the facts
alleged. 	The 	third 	supplemental 	complaint 	does 	not 	identify 	or
plead 	the 	elements 	of 	any 	claim 	that 	may 	be 	plausible 	from 	the
general circumstances alleged.
Second, 	Defendants 	argue, 	to 	the 	extent 	the 	Court 	finds
standing 	and 	construes 	the 	plundering 	claim 	as 	a 	preference 	or
avoidance action the trustee may have brought under the Bankruptcy
Code based on the alleged payments to Bryan and Ashley Bullerdick,
those claims are barred by the statute of limitations. 	Preference
and avoidance actions must be brought no later than “2 years after
the entry of the order for relief[.]” 	11 U.S.C. § 546(a)(1). 	In
a voluntary bankruptcy, like this one, the “entry of the order of
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 20 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
21
relief” 	is 	the 	filing 	of 	the 	bankruptcy 	petition 	on 	January 	6,
2023. 	See 	Third 	Supp. 	Compl., 	ECF 	No. 	161, 	at 	¶ 	40; 	see 	also 	In
re Mountaineer Bulk Servs., Inc., No. 3-10492, 2013 WL 620419, at
*3 	(Bankr. 	N.D.W. 	Va. 	2013) 	(“The 	Debtor’s 	voluntary 	chapter 	11
petition . . . constitutes 	an 	order 	for 	relief.”) 	(citation
omitted). 	Therefore, even if Plaintiffs could state a preference
or avoidance claim under the Bankruptcy Code — which they have not
articulated — Plaintiffs 	needed 	to 	bring 	those 	claims 	no 	later
than January 6, 2025. 	The Court agrees.
2. 	Fraudulent Inducement
Rule 9(b) of the Federal Rules of Civil Procedure requires a
party to “state with particularity the circumstances constituting
fraud[.]” 	Fed. R. Civ. P. 9(b). 	A plaintiff must, at a minimum,
“describe 	the 	time, 	place, 	and 	contents 	of 	the 	false
representations, as well as the identity of the person making the
misrepresentation 	and 	what 	he 	obtained 	thereby.” 	U.S. 	ex 	rel.
Ahumada 	v. 	NISH, 	756 	F.3d 	268, 	280 	(4th 	Cir. 	2014) 	(internal
quotations 	omitted). 	As 	the 	Fourth 	Circuit 	has 	explained,
“[r]equiring 	such 	particularized 	pleading . . . prevents
frivolous 	suits, 	eliminates 	fraud 	actions 	in 	which 	all 	the 	facts
are learned after discovery, and protects defendants from harm to
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 21 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
22
their 	goodwill 	and 	reputation.” 	Id. 	at 	280–81 	(citations 	and
internal punctuation and quotation marks omitted).
The 	Fourth 	Circuit 	recently 	affirmed 	this 	Court’s 	dismissal
of 	a 	fraud 	claim 	when 	the 	complaint 	“impermissibly 	aggregated
defendants 	without 	specifically 	alleging 	which 	defendant 	as
responsible 	for 	which 	act,” 	noting 	that 	“the 	burden 	rests 	of
plaintiffs to enable a particular defendant to determine with what
it 	is 	charged.” 	Corder 	v. 	Antero 	Res. 	Corp., 	57 	F.4th 	384, 	403
(4th Cir. 2023) (citations and internal punctuation and quotation
marks 	omitted). 	For 	example, 	the 	court 	held 	that 	an 	allegation
that 	the 	“[d]efendants 	failed 	to 	report 	to 	plaintiffs 	that 	they
were extracting and selling liquids from plaintiffs’ natural gas”
was insufficient. 	Id. at 403 (citation omitted). 	The court relied
upon 	case 	law 	from 	the 	Second 	Circuit 	finding 	that 	“[w]here
multiple defendants are asked to respond to allegations of fraud,
the 	complaint 	should 	inform 	each 	defendant 	of 	the 	nature 	of 	his
alleged participation in the fraud.” 	Id. (citation omitted).
As 	Defendants 	have 	pointed 	out, 	the 	Court 	previously 	found
that 	the 	allegations 	directed 	to 	Bryan 	Bullerdick 	alone 	were
sufficient 	to 	state 	a 	claim 	for 	fraudulent 	inducement. 	See 	ECF
No. 	41. 	Defendants 	now 	contend, 	however, 	that 	in 	a 	rush 	to 	add
Ashley 	Bullerdick 	to 	the 	case, 	Plaintiffs 	changed 	their
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 22 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
23
allegations 	to 	impermissible 	group 	allegations 	against 	both
Bullerdicks. 	Defendants argue that the result is that the amended
allegations 	in 	the 	third 	supplemental 	complaint 	fail 	to 	state 	a
claim of fraudulent inducement. 	Given that the Court has already
dismissed 	Ashley 	Bullerdick 	from 	the 	case, 	the 	Court 	believes 	it
is 	clear 	that 	the 	fraud 	allegations 	are 	directed 	solely 	at 	Bryan
Bullerdick. 	Accordingly, 	the 	Court 	continues 	to 	find 	that 	the
fraudulent 	inducement 	allegations 	against 	him 	are 	sufficiently
pled, and the motion to dismiss is denied on this point.
3. 	Civil Conspiracy
The 	third 	supplemental 	complaint 	asserts 	a 	civil 	conspiracy
claim 	against 	Bryan 	Bullerdick. 	It 	alleges 	that 	he 	acted 	in 	“in
concert” with his wife “to fraudulently induce Plaintiffs to enter
into” 	the 	agreement 	and 	that 	the 	Bullerdicks 	paid 	excessive
advances and distributions to themselves prior to BGSE filing for
bankruptcy. 	Third 	Supp. 	Compl., 	ECF 	No. 	161, 	at 	¶¶ 	59-60. 	In
other 	words, 	Plaintiffs 	rely 	upon 	the 	underlying 	fraudulent
inducement and the “plundering” claims as the bases for the civil
conspiracy claim.
Under West Virginia law, a civil conspiracy is “a combination
of 	two 	or 	more 	persons 	by 	concerted 	action 	to 	accomplish 	an
unlawful 	purpose 	or 	to 	accomplish 	some 	purpose, 	not 	in 	itself
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 23 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
24
unlawful, 	by 	unlawful 	means.” 	Syl. 	Pt. 	8, 	Dunn 	v. 	Rockwell, 	689
S.E.2d 	255 	(W. 	Va. 	2009). 	“A 	civil 	conspiracy 	is 	not 	a 	per 	se,
stand-alone cause of action; it is instead a legal doctrine under
which liability for a tort may be imposed upon people who did not
actually commit a tort themselves but who shared a common plan for
its 	commission 	with 	the 	actual 	perpetrator(s).” 	Id. 	at 	Syl. 	Pt.
9. 	In 	addition 	to 	pleading 	an 	underlying 	tort, 	a 	plaintiff
proceeding 	on 	a 	civil 	conspiracy 	claim 	must 	plead 	sufficient
factual 	support 	for 	the 	existence 	of 	a 	shared 	conspiratorial
objective 	and 	mutual 	agreement. 	Jane 	Doe-1 	v. 	Corp. 	of 	Pres. 	of
the 	Church 	of 	Jesus 	Christ 	of 	Latter-day 	Saints, 	801 	S.E.2d 	443,
476 (W. Va. 2017) (citation omitted). 	The “agreement need not be
express but may be based upon evidence of a course of conduct from
which the agreement to act in concert may be implied.” 	Id. at 477
(citations omitted).
The 	Court 	finds 	that 	Plaintiffs 	have 	not 	pled 	the 	existence
of 	a 	civil 	conspiracy 	or 	an 	illicit 	agreement 	between 	Ashley 	and
Bryan 	Bullerdick 	to 	defraud 	Plaintiffs 	as 	to 	the 	agreement 	and
related 	agreements. 	Plaintiffs’ 	allegations 	as 	the 	existence 	of
a conspiracy are conclusory statements such as the following: that
Ashley Bullerdick “actively participated in the fraudulent scheme”
(Third Supp. Compl., ECF No. 161, at ¶ 9) and that the Bullerdicks
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 24 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
25
“acted in concert to fraudulently induce Plaintiffs to enter into”
the 	agreement 	(id. 	at 	¶ 	59). 	These 	are 	threadbare 	recitals 	that
are not sufficient to survive a 12(b)(6) motion. 	Plaintiffs also
assert 	that 	Ashley 	received 	“the 	benefits 	of 	the 	advances 	and
distributions” (id. at ¶ 9). 	This fact, alone, is insufficient to
successfully 	plead 	a 	civil 	conspiracy. 	See 	In 	Town 	Hotels 	Ltd.
P’ship 	v. 	Marriott 	Int’l, 	Inc., 	246 	F. 	Supp. 	2d 	469, 	488 	(S.D.W.
Va. 	2003) 	(finding 	that 	an 	allegation 	that 	a 	party 	received
payments 	“does 	not 	constitute 	fraud, 	as 	no 	representation 	(false
or 	otherwise) 	is 	involved”). 	Accordingly, 	the 	Court 	agrees 	with
Defendants that the civil conspiracy claim must be dismissed.
4. 	Shotgun Pleading
The 	Court 	agrees 	with 	Defendants 	that 	it 	is 	unclear 	what
claim, if any, Plaintiffs are asserting under the header entitled
“Nova 	1.” 	It 	is 	not 	accompanied 	by 	any 	title 	indicating 	a 	cause
of 	action. 	Moreover, 	the 	allegations 	do 	not 	make 	it 	clear 	what
claims Plaintiffs is asserting with respect to Nova 1. 	Plaintiffs
allege that, as part of a real estate purchase, “Luckey agreed to
extend 	utility 	lines 	and 	stormwater 	lines 	at 	its 	sole 	cost 	and
expense,” 	but 	later 	states 	that 	“Luckey 	sold 	the 	subject 	real
estate 	to 	a 	third 	party 	without 	extending 	the 	utility 	and
stormwater liens as agreed.” 	Third Supp. Compl., ECF No. 161, at
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 25 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
26
¶¶ 	65–66. 	Plaintiffs 	then 	state, 	“As 	a 	result 	of 	the 	fraudulent
inducement of Luckey and the Bullerdicks and breaches of the Deed
and Asset Acquisition, IMS and Nova 1 have been damaged, and Luckey
has been unjustly enriched.” 	Id. ¶ 67.
The 	Court 	agrees 	with 	Defendants 	that 	these 	allegations
constitute 	shotgun 	pleadings 	and 	cannot 	survive. 	They 	are
“presented 	in 	such 	a 	conclusory 	form 	that 	it 	is 	virtually
impossible 	to 	ascertain 	what 	claims 	are 	asserted 	against 	which
[d]efendants 	and 	on 	what 	legal 	basis 	the 	respective 	claims 	are
founded.” 	See 	Guynup 	v. 	Christian, 	No. 	3:22-cv-68, 	2024 	WL
4533559, at *4 (N.D.W. Va. Oct. 21, 2024) (citations omitted); see
also Turton v. Va. Dep’t of Educ., No. 3:14cv446, 2014 WL 12539403,
at *2 (E.D. Va. Sept. 23, 2014) (dismissing claims “because it is
almost 	impossible 	to 	ascertain 	precisely 	what 	type 	of 	claim 	is
asserted 	against 	which 	party, 	much 	less 	what 	it 	is 	that 	the
allegedly infringing party has done, or not done, to give rise to
the 	putative 	claims”). 	Accordingly, 	the 	Court 	dismisses 	any
allegations brought under the “Nova 1” header.
5. 	Defamation
To 	establish 	a 	defamation 	claim 	under 	West 	Virginia 	law, 	a
plaintiff 	must 	“show 	that 	false 	and 	defamatory 	statements 	were
made against him, or relating to him, to a third party who did not
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 26 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
27
have a reasonable right to know, and that the statements were made
at 	least 	negligently . . . , and 	resulted 	in 	injury 	to 	the
plaintiff.” 	Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62,
74 (4th Cir. 2016) (citation omitted). 	Furthermore, “for a cause
of action for libel and slander to be correctly pleaded, the exact
words 	charged 	to 	have 	been 	used 	or 	material 	caused 	to 	have 	been
published 	by 	the 	defendant 	must 	be 	alleged 	with 	particularity.”
Susko v. Cox Enters., Inc., No. 5:07cv144, 2008 WL 4279673, at *2
(N.D.W. Va. Sept. 16, 2008) (citation and internal quotation marks
omitted).
Here, 	Plaintiffs 	do 	not 	allege 	a 	defamation 	claim 	with
sufficient particularity. 	Instead, Plaintiffs vaguely allege that
“prior 	to 	and 	after 	the 	filing 	of 	the 	Bankruptcy 	Petition,”
Bullerdick 	“published 	certain 	statements 	concerning 	Bryan 	Henry
and IMS to third parties[.]” 	Third Supp. Compl., ECF No. 161, at
¶ 69. 	Plaintiffs allege that “[s]uch statements include, but are
not 	limited 	to, 	informing 	customers, 	vendors, 	and 	other
competitors 	that 	BGSE’s 	bankruptcy 	was 	caused 	by 	Bryan 	Henry 	and
IMS.” 	Id. 	¶ 	70. 	Plaintiffs 	merely 	allege 	that 	“Luckey, 	through
its owners and officers, has made false and defamatory statements
about IMS to its customers, and third parties in the AGSE industry,
causing damage to IMS’s reputation, integrity, honesty, subjecting
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 27 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
28
IMS 	to 	public 	ridicule 	or 	contempt, 	and 	tortiously 	interfering
with 	IMS’s 	business.” 	Id. 	¶ 	80. 	Plaintiffs 	do 	not 	allege 	the
specific 	words 	Plaintiff 	used, 	and 	they 	do 	not 	identify 	the
person(s) 	to 	whom 	defamatory 	words 	were 	published. 	They 	do 	not
identify 	whether 	the 	words 	were 	written 	or 	spoken. 	They 	do 	not
allege 	a 	specific 	time 	frame 	in 	which 	Bryan 	Bullerdick 	made 	the
allegedly 	defamatory 	statement. 	The 	defamation 	claim 	against
Bryan 	Bullerdick 	and 	against 	Luckey 	(to 	the 	extent 	that 	it 	is
asserted) is dismissed.
6. 	Intellectual Property
Following 	the 	defamation 	claim, 	the 	third 	supplemental
complaint 	contains 	a 	header 	entitled 	“Luckey 	Enterprises, 	LLC,”
which 	is 	not 	denoted 	as 	a 	specific 	claim 	against 	Luckey. 	It 	is
unclear what claim(s) Plaintiffs assert against Luckey within this
section, 	but 	the 	prayer 	for 	relief 	seeks 	“[c]ompensatory 	and
punitive damages against Luckey for the use of IMS’s intellectual
property.”
Plaintiffs 	allege 	that 	“Luckey 	has 	used, 	and 	continues 	to
use, 	certain 	intellectual 	property 	developed 	and 	owned 	by 	IMS 	in
fulfilling 	existing 	and 	new 	purchase 	orders, 	involving 	but 	not
limited 	to, 	Hose 	Management 	Systems, 	utility 	pits, 	installation
aids, 	and 	related 	designs.” 	Id. 	¶ 	76. 	As 	it 	stands, 	Luckey 	has
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 28 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
29
to 	guess 	at 	whether 	Plaintiffs’ 	claims 	arise 	under 	patent, 	trade
secret, 	copyright, 	or 	trademark 	law, 	all 	of 	which 	are 	markedly
different claims with unique defenses. 	A claim for “intellectual
property” 	on 	its 	own 	is 	not 	a 	valid 	legal 	claim. 	Without 	more
specific information, Defendants cannot defend themselves against
this 	claim. 	Accordingly, 	the 	“intellectual 	property” 	claim 	is
dismissed.
V. 	CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
x 	The 	motion 	to 	dismiss 	is 	GRANTED 	IN 	PART
and DENIED IN PART [ECF No. 170];
x 	All 	claims 	except 	the 	claim 	for 	fraudulent
inducement 	against 	Bryan 	Bullerdick 	are
DISMISSED;
x 	Luckey is TERMINATED as a defendant in this
case; and
x 	The parties are DIRECTED to meet and confer
and submit, on or before 	April 14, 2026, 	a
proposed schedule to govern the case moving
forward.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 29 of 30 PageID #:
<pageID>

IMS V. LUCKEY ET AL. 	1:22-CV-12
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS BY DEFENDANTS
LUCKEY ENTERPRISES, LLC AND BRYAN BULLERDICK [ECF NO. 170]
30
DATED: March 31, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
Case 1:22-cv-00012-TSK Document 187 Filed 03/31/26 Page 30 of 30 PageID #:
<pageID>