CTS METROLINA, LLC v. BERASTAIN, 2025 NCBC 3

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 039534-590
MASTER FILE
CRH EASTERN, LLC, formerly known
as CTS METROLINA, LLC,
Plaintiff,
v.
DUSTIN BERASTAIN, TIMOTHY
MOREAU, INKWELL EMERGENCY
RESPONSE, LLC, S&P CAP
PARTNERS, LLC, ZACHARY VANEK,
CHAKYRA CHERRY, and VICTOR
PENA,
Defendants.
ORDER AND OPINION ON
DEFENDANTS INKWELL
EMERGENCY RESPONSE, LLC, S&P
CAP PARTNERS, LLC, CHAKYRA
CHERRY, AND VICTOR PENA’S
MOTION TO DISMISS
CABARRUS COUNTY
METROLINA RESTORATION, LLC,
TIM MOREAU, and DUSTIN
BERASTAIN,
Plaintiffs,
v.
CTS METROLINA, LLC,
CONTINUUM RESTORATION
HOLDINGS, LLC, CONTINUUM
RESTORATION SERVICES, LLC,
CONTINUUM TOTAL SOLUTIONS,
LLC, and ROBCAP CTS OPERATING,
LLC,
Defendants.
23 CVS 2124
CTS Metrolina, LLC v. Berastain, 2025 NCBC 3.

1. 	THIS MATTER is before the Court on Defendants Inkwell Emergency
Response, LLC, S&P Cap Partners, LLC, Chakyra Cherry, and Victor Pena’s (the
“Moving Defendants”) Motion to Dismiss (the “Motion”) pursuant to Rules 12(b)(1)
and 12(b)(6) of the North Carolina Rules of Civil Procedure (the “Rule(s)”), (ECF No.
102).
2. 	The Court, having considered the Motion, the related briefing, and the
arguments of counsel at a hearing on the Motion held 10 December 2024, concludes
for the reasons stated below that the Motion should be GRANTED in part and
DENIED in part.
Williams Mullen, by Camden R. Webb, Alexander M. Gormley, and
Killian Wyatt, for Plaintiff / Counterclaim-Defendants CRH Eastern,
LLC formerly known as CTS Metrolina, LLC, Continuum Restoration
Holdings, LLC, Continuum Restoration Services, LLC, Continuum Total
Solutions, LLC, and RobCap CTS Operating, LLC.
TLG Law, by David G. Redding and Sean McLeod, for Defendants /
Counterclaim-Plaintiffs Metrolina Restoration, LLC, Dustin Berastain,
and Timothy Moreau.
Villmer Caudill, PLLC, by Bo Caudill and Tomi Suzuki, for Defendants
Inkwell Emergency Response, LLC, S&P Cap Partners, LLC, Chakyra
Cherry, and Victor Pena.
Copeland Richards, PLLC, by Drew A. Richards, for Defendant Zachary
Vanek.
Earp, Judge.
I. 	FACTUAL BACKGROUND
3. 	The Court does not make findings of fact when ruling on a motion to
dismiss. It recites below the factual allegations in the Amended Complaint that are
relevant to the Motion before the Court.

4. 	Plaintiff CRH Eastern, LLC, formerly known as CTS Metrolina, LLC
(“CTS Metrolina” or “Plaintiff”) is a Louisiana limited liability company that provides
emergency property restoration and repair services to owners of commercial and
residential properties. 	(Am. Compl. ¶¶ 5, 20, ECF No. 87.) 	It is an indirect wholly
owned subsidiary of Continuum Restoration Holdings, LLC (“CRH”), also a Louisiana
company. (Am. Compl. ¶ 5.)
5. 	CTS 	Metrolina 	manages 	its 	jobs 	through 	a 	project 	management
platform called iRestore. 	“When CTS Metrolina receives a job from a customer, it
posts 	the 	project 	information 	on 	iRestore—including 	any 	specific 	notices 	or
instructions for the subcontractor—designates a subcontractor to perform the work
for that job, and has iRestore generate a job confirmation email and send it to the
designated subcontractor.” (Am. Compl. ¶ 21.)
6. 	In March 2022, CTS Metrolina purchased the assets of Metrolina
Restoration, LLC (“Restoration”), a North Carolina limited liability company owned
by Defendants Dustin Berastain (“Berastain”) and Timothy Moreau (“Moreau”). (Am.
Compl. ¶¶ 2, 22.) 	Berastain and Moreau retained the services of Greg Ponder
(“Ponder”) and Josh Stamey (“Stamey”) of Viking Acquisitions, LLC (“Viking”) to
broker the deal. (Am. Compl. ¶¶ 28−29.)
7. 	In exchange for Restoration’s assets, including its intellectual property
and trade secrets, accounts, relationships, and employment contracts, Berastain and
Moreau received $3.6 million and were granted minority, non-voting interests in CTS
Metrolina. (Am. Compl. ¶¶ 23, 27.) In addition, Berastain and Moreau were offered

positions as co-presidents of CTS Metrolina. Both accepted the positions and signed
employment agreements with CTS Metrolina. (Am. Compl. ¶¶ 2, 24.)
8. 	As a condition of the acquisition, both Berastain and Moreau were
required 	to 	agree 	to 	the 	terms 	of 	a 	Confidentiality 	and 	Protective 	Covenant
Agreement (the “Restrictive Covenant Agreement”) that includes non-competition,
non-solicitation, and confidentiality provisions. 	(Am. Compl. ¶ 25, Exs. 4 & 5, ECF
Nos. 88.4, 88.5.) Both Berastain and Moreau also entered into a “Non-Competition,
Non-Solicitation 	and 	Confidentiality 	Agreement” 	(the 	“Employment 	Covenant
Agreement”; together with the Restrictive Covenant Agreement, “the Restrictive
Covenants”) 	that 	includes 	non-disclosure, 	non-solicitation, 	and 	non-competition
provisions. (Am. Compl. ¶ 26, Exs. 7 & 8, ECF Nos. 88.7, 88.8.)
9. 	Berastain and Moreau managed and operated CTS Metrolina on a day-
to-day 	basis, 	entered 	into 	agreements 	on 	behalf 	of 	CTS 	Metrolina, 	managed
relationships with subcontractors and vendors, expanded CTS Metrolina’s business,
and awarded commissions to CTS Metrolina employees who brought in new accounts.
(Am. Compl. ¶ 45.)
10. 	CTS Metrolina alleges that about a year after the acquisition, Berastain
and Moreau developed “seller’s remorse” and “disengaged from their work.” 	(Am.
Compl. ¶ 65.) 	The strained relationship between the parties culminated in CTS
Metrolina terminating Berastain for cause on 10 October 2023. Following Berastain’s
termination, Moreau resigned. (Am. Compl. ¶¶ 73, 75.)

11. 	On 	26 	October 	2023, 	sixteen 	days 	after 	leaving 	CTS 	Metrolina,
Berastain and Moreau formed IER Holdings, LLC (“IER”), a Wyoming limited
liability company. Berastain and Moreau are the sole members of IER, each owning
a 50% interest. 	(Am. Compl. ¶¶ 9, 99.) 	The same day, another Wyoming LLC was
formed—Inkwell Emergency Response, LLC (“Inkwell”). (Am. Compl. ¶ 10.) Inkwell
is a wholly owned subsidiary of IER, (Am. Compl. ¶ 100), and, like CTS Metrolina, it
provides emergency restoration and repair services for commercial and residential
properties. (Am. Compl. ¶ 102.)
12. 	In 	the 	days 	after 	Berastain 	and 	Moreau’s 	departure 	from 	CTS
Metrolina, a number of CTS Metrolina’s jobs were deleted from iRestore. 	On 11
October 2023, CTS Metrolina discovered that its Director of Operations, Chakyra
Cherry (“Cherry”), had deleted at least twelve of those jobs. 	(Am. Compl. ¶¶ 13,
77−78.)
13. 	Cherry resigned from CTS Metrolina on 13 October 2023 to take a
position as the Director of Operations for Inkwell. (Am. Compl. ¶¶ 13, 78.) Despite
CTS Metrolina’s request that Cherry return her company-issued laptop, Cherry
refused to return it until 4 March 2024. 	(Am. Compl. ¶¶ 93−96.) 	When CTS
Metrolina finally received the laptop in March 2024, it had been subjected to a factory
reset, and all previously existing information on the laptop had been erased. 	(Am.
Compl. ¶ 97.)
14. 	Similarly, on 12 October 2024, CTS Metrolina discovered that another
employee, Victor Pena (“Pena”) had deleted at least 60 jobs on iRestore. 	After this

discovery, CTS Metrolina summoned Pena to its office to explain why he had deleted
the jobs and told him to bring his laptop with him. 	When Pena produced his CTS
Metrolina-issued laptop, it “was covered with a cleaning fluid and was so thoroughly
soaked that it was shooting out sparks and no longer worked.” 	(Am. Compl. ¶ 79.)
Ultimately, Pena was terminated for cause and is now working for Inkwell. 	(Am.
Compl. ¶¶ 15, 79.)
15. 	Despite its condition, CTS Metrolina was able to take an image of the
hard drive on the laptop assigned to Pena, but it was unable to access or view any
information because Pena had encrypted the information before returning the laptop.
(Am. Compl. ¶ 80.)
16. 	Plaintiff alleges that on 1 December 2023, CTS Metrolina confirmed that
Berastain and Moreau were using Inkwell to compete against it. (Am. Compl. ¶ 103.)
Rytech Restoration (“Rytech”)—one of CTS Metrolina’s subcontractors—forwarded a
job confirmation email it received from iRestore to CTS Metrolina. 	The email
indicated that the job was for American Homes 4 Rent (“AH4R”)—one of CTS
Metrolina’s largest clients—and that it was created by Ryan Brandon, a former CTS
Metrolina employee who resigned shortly after Berastain was terminated. 	(Am.
Compl. ¶¶ 104−07.) 	Rytech forwarded the email to CTS Metrolina because it was
unable to locate the job in CTS Metrolina’s iRestore portal. (Am. Compl. ¶ 108.)
17. 	After contacting iRestore to investigate the incident, CTS Metrolina
discovered that the job was generated by Mr. Brandon on behalf of Inkwell. 	(Am.

Compl. ¶¶ 108−10.) 	CTS Metrolina alleges that, thereafter, Inkwell continued to
solicit business from AH4R. (Am. Compl. ¶¶ 120−22.)
18. 	CTS Metrolina contends that under the circumstances (e.g., working for
a competitor), “it is inevitable that Mr. Berastain and Mr. Moreau have used or
disclosed 	to 	unauthorized 	persons 	CTS 	Metrolina’s 	trade 	secrets 	and 	other
proprietary information on behalf of Inkwell.” 	(Am. Compl. ¶ 112.) 	CTS Metrolina
asserts that it owns the following trade secrets:
a. Lists of customers, along with detailed information about each
such as contact information, preferences and requirements for the work
performed for them, terms of the contracts with these customers, pricing
and discounts offered to these customers, and other information that
enables CTS Metrolina to provide the right services at the right prices
to these customers.
b. 	Lists 	of 	subcontractors 	and 	vendors, 	along 	with 	detailed
information about each such as contact information, preferences and
requirements 	for 	them 	to 	perform 	services 	for 	CTS 	Metrolina’s
customers, terms of the contracts with the subcontractors and vendors,
pricing 	and 	discounts, 	and 	other 	information 	that 	enables 	CTS
Metrolina to engage its subcontractors and vendors under the right
conditions in order to serve its customers.
c. 	Business 	operation 	information, 	which 	includes 	how 	CTS
Metrolina sells and markets its services to customers, how it staffs jobs
to serve customers effectively and efficiently, its operational structure,
business opportunities it intends to pursue, and similar information.
(Am. Compl. ¶ 39.) CTS Metrolina further asserts that “a person with access to [its]
trade secrets could approach existing or potential customers with full knowledge of
exactly how CTS Metrolina would sell its services and serve the customers, allowing
that person to undercut CTS Metrolina and obtain the work.” 	(Am. Compl. ¶ 40.)
Accordingly, CTS Metrolina alleges that “[g]aining Mr. Berastain’s and Mr. Moreau’s

intimate knowledge of CTS Metrolina’s offerings, services, clients, subcontractors,
vendors, and strategy by being involved with Mr. Berastain and Mr. Moreau gives
Inkwell an invaluable and unfair advantage in the market where these businesses
compete.” (Am. Compl. ¶ 115.)
19. 	On 24 April 2024, Berastain and Moreau sold IER and Inkwell to S&P
Cap Partners, LLC (“S&P Cap”) for $300,000. (Am. Compl. ¶ 135.) S&P Cap intends
for Inkwell to “continue operating just as it did prior to the sale.” (Am. Compl. ¶ 136.)
20. 	S&P Cap was formed on 27 December 2023, and its purchase of Inkwell
“was its first and only investment in another company.” (Am. Compl. ¶ 144.) Stamey
and Ponders, the brokers who facilitated the acquisition between Restoration and
CTS Metrolina, are partners at S&P Cap. (Am. Compl. ¶¶ 143−44.) CTS Metrolina
alleges that Berastain and Moreau’s use of the same brokers was not merely
coincidence but rather “was part of a coordinated scheme . . . to perpetuate the
unlawful competition against CTS Metrolina.” (Am. Compl. ¶ 145.)
II. 	PROCEDURAL BACKGROUND
21. 	On 	23 	June 	2023, 	prior 	to 	Berastain’s 	termination 	and 	Moreau’s
resignation, Berastain, Moreau, and Restoration filed suit in Cabarrus County
Superior 	Court 	against 	CTS 	Metrolina 	and 	some 	of 	its 	affiliated 	companies
(Continuum Restoration Holdings, LLC, Continuum Restoration Services, LLC,
Continuum Total Solutions, LLC, and RobCap CTS Operating, LLC). (23-CVS-2124
[“Cabarrus County Action”].)

22. 	On 15 December 2023, CTS Metrolina returned fire by filing suit in
Mecklenburg County Superior Court against Berastain, Moreau, and Inkwell. 	(23-
CVS-39534 [“Mecklenburg County Action”].)1
23. 	By Order dated 23 May 2024, the Court consolidated the Cabarrus
County and Mecklenburg County Actions and permitted the parties to amend their
pleadings in the Mecklenburg County Action “to include any allegation, claim, and
defense that relates to the disputes between the current parties[.]” 	(Consolidation
Order ¶ 14, ECF No. 78.)
24. 	CTS Metrolina filed its Amended Complaint on 12 June 2024. 	(Am.
Compl., ECF No. 87.) Among the claims it asserts are (a) tortious interference with
both existing contract and prospective economic advantage and (b) misappropriation
of trade secrets against Inkwell, Cherry, and S&P Cap; (c) violation of the Computer
Trespass Statute (N.C.G.S. § 14-458) against Inkwell and Pena;2 (d) violation of the
1 On 19 December 2023, Plaintiff filed a Motion for Temporary Restraining Order and
Preliminary Injunction, requesting that the Court enjoin Berastain, Moreau, and Inkwell
from competing against CTS Metrolina, (ECF No. 6). 	The Court entered a temporary
restraining order on 24 December 2023, (ECF No. 11), followed by a preliminary injunction
on 19 January 2024. 	The PI Order prohibited Berastain, Moreau, “and those persons in
active concert or participation with them” from competing against CTS Metrolina in dozens
of metropolitan areas. (PI Order, ECF No. 37.)
On 14 March 2024, Plaintiff filed a Motion for Order to Show Cause, (ECF No. 54), contending
that Berastain, Moreau, and Inkwell were competing in violation of the PI Order. The Court
entered an Order to Show Cause on 4 April 2024 and held a hearing on 7 May 2024. (Order
to Show Cause and Not. Hr’g, ECF No. 67.) 	Following the hearing, the Court entered an
order clarifying the terms of the injunction and cautioning Defendants that further violation
of the PI Order may constitute criminal contempt. (Order Following Show Cause Hr’g, ECF
No. 84.)
2 While Plaintiff also asserts a claim for Violation of Computer Trespass Statute against
Cherry, Cherry does not seek dismissal of that claim.

Unfair and Deceptive Trade Practices Act (N.C.G.S. § 75-1.1 et seq.) against Cherry,
Inkwell, and Pena; and (e) civil conspiracy against Cherry, Pena, and S&P Cap.
Plaintiff also seeks (f) an accounting and the imposition of a constructive trust on
Inkwell for all the money it earned from customers in violation of the Restrictive
Covenants; (g) an accounting and the imposition of a constructive trust on Berastain
and Moreau for the money they received when they sold Inkwell’s assets to S&P Cap;
and (h) a declaratory judgment establishing that the sale of Inkwell to S&P Cap was
invalid.
25. 	The Moving Defendants responded by filing the Motion on 3 September
2024. 	After full briefing, the Court held a hearing on the Motion on 10 December
2024. (Not. of Hr’g, ECF No. 127.) The Motion is now ripe for disposition.
III. 	LEGAL STANDARD
26. 	The Moving Defendants seek dismissal pursuant to both Rule 12(b)(1)
and Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. 	“Rule 12(b)(1)
requires the dismissal of any action ‘based upon a trial court’s lack of jurisdiction over
the subject matter of the claim.’ ” Watson v. Joyner-Watson, 263 N.C. App. 393, 394
(2018) (quoting N.C. R. Civ. P. 12(b)(1)). 	Plaintiff bears the burden of establishing
that jurisdiction exists. Lau v. Constable, 2022 NCBC LEXIS 75, at **10 (N.C. Super.
Ct. July 11, 2022).
27. 	Pursuant to Rule 12(b)(6), dismissal of a claim is proper if “(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). Otherwise, “a complaint
should not be dismissed for insufficiency unless it appears to a certainty that plaintiff
is entitled to no relief under any state of facts which could be proved in support of the
claim.” Sutton v. Duke, 277 N.C. 94, 103 (1970) (emphasis omitted).
28. 	When deciding a motion to dismiss under Rule 12(b)(6), the Court
construes the complaint liberally and accepts all allegations as true. 	See Laster v.
Francis, 199 N.C. App. 572, 577 (2009). 	Nevertheless, the Court is not required “to
accept as true allegations that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” 	Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility
Servs., 174 N.C. App. 266, 274 (2005) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th
Cir. 2002)).
IV. 	ANALYSIS
29. 	Rather than address the Motion by moving party, the Court addresses
the Motion by claim, identifying the moving parties with respect to each.
A. Tortious 	Interference 	with 	Contract 	and 	with 	Prospective
Economic Advantage (Inkwell, Cherry, S&P Cap)
30. 	To plead tortious interference with an existing contract, Plaintiff must
include five elements:
(1) a valid contract between the plaintiff and a third person which
confers upon the plaintiff a contractual right against a third person; (2)
the defendant knows of the contract; (3) the defendant intentionally
induces the third person not to perform the contract; (4) and in doing so
acts without justification; (5) resulting in actual damage to the plaintiff.

United Labs., Inc. v. Kuykendall, 322 N.C. 643, 661 (1988). “In contrast, a claim for
tortious 	interference 	with 	future 	contracts 	or 	prospective 	economic 	advantage
requires the plaintiff to allege that ‘defendants acted without justification in inducing
a third party to refrain from entering into a contract with them which contract would
have ensued but for the interference.’ ” E-Ntech Indep. Testing Servs. v. Air Masters.,
Inc., 2017 NCBC LEXIS 2, at **14 (N.C. Super. Ct. Jan. 5, 2017) (quoting Walker v.
Sloan, 137 N.C. App. 387, 393 (2000)).
31. 	A claim for tortious interference with contract is not subject to a
heightened pleading requirement.3 	Miller v. Redgoose, L.L.C., 2024 NCBC LEXIS
148, at **15 (N.C. Super. Ct. Nov. 26, 2024); see also Greentouch USA Inc. v. Lowe’s
Co., Inc., 2024 NCBC LEXIS 132, at **20 (N.C. Super. Ct. Oct. 2, 2024) (“[C]laims of
tortious interference with existing contract are not held to a heightened pleading
standard but rather must only satisfy the relatively low bar of notice pleading.”).
Therefore, Plaintiff’s allegations “need only give sufficient notice of the events on
which the claim is based to enable defendants to respond and prepare for trial[.]”
Miller, 2024 NCBC LEXIS 148, at **15 (citing Embree Constr. Grp., Inc. v. Rafcor,
Inc., 330 N.C. 487, 501 (1992)); see also N.C. R. Civ. P. 8(a)(1) (“A pleading which sets
forth a claim for relief shall contain a short and plain statement of the claim
sufficiently particular to give the court and the parties notice of the transactions,
3 Nevertheless, given the potential for restraint on legitimate competition, the pleading must
include allegations that the defendant acted with legal malice. 	Filmar Racing, Inc. v.
Stewart, 141 N.C. App. 668, 674 (2001) (“[T]he complaint must admit of no motive for
interference other than malice.”).

occurrences, or series of transactions or occurrences, intended to be proved showing
that the pleader is entitled to relief.” (cleaned up)).
32. 	Still, to plead the tort, a plaintiff must identify a valid contract. 	See,
e.g., Beverage Sys. of the Carolinas, LLC v. Associated Beverage Repair, LLC, 368 N.C.
693, 700 (2016). 	Similarly, when pleading interference with prospective economic
advantage, the plaintiff must identify a specific contractual opportunity that was lost
as a result of the defendant’s allegedly tortious conduct. 	Truist Fin. Corp. v. Rocco,
2024 NCBC LEXIS 62, at **51 (N.C. Super. Ct. Apr. 25, 2024).
1. 	Inkwell
33. 	Plaintiff first alleges that “Inkwell intentionally induced (and continues
to induce) Mr. Berastain and Mr. Moreau to violate their obligations under the
Restrictive Covenant Agreements.” 	(Am. Compl. ¶ 161.) 	In response, Inkwell
analogizes to the intracorporate immunity doctrine to argue that this claim should be
dismissed: “[j]ust as a company cannot conspire with its controlling owners, officers,
or directors, a company cannot induce its officers or directors to tortiously interfere
with a contract—legally, this would be the company inducing itself.” (Br. Supp. Defs.’
Mot. Dismiss [“Defs.’ Br. Supp.”] 8, ECF No. 103.)
34. 	The intracorporate immunity doctrine “holds that ‘there can be no
conspiracy’ between a corporation and its agents.” VanFleet v. City of Hickory, 2020
NCBC LEXIS 40, at *15 (N.C. Super. Ct. Mar. 30, 2020) (quoting Chrysler Credit
Corp. v. Rebhan, 66 N.C. App. 255, 259 (1984)). 	This is because, “[i]n legal
contemplation, a corporation and its agents comprise but a single person, one less

than the requisite number for a conspiracy.” Chrysler Credit Corp., 66 N.C. App. at
259 (quoting Schroder v. Dayton-Hudson Corp., 448 F. Supp. 910, 915 (E.D. Mich.
1997), modified on other grounds, 456 F. Supp. 650 (E.D. Mich.1978)).
35. 	The intracorporate immunity doctrine, which applies to conspiracies,
does not apply to this claim. Under North Carolina law, a limited liability company
like Inkwell is “an entity distinct from its interest owners.” 	N.C.G.S. § 57D-2-01.
Inkwell is accountable for its own actions. 	If, in hiring Berastain and Moreau and
providing them a haven to violate their contractual commitments, it acts maliciously,
Inkwell’s alleged interference with Berastain and Moreau’s contractual obligations is
actionable. 	United Sewing Mach. Sales, LLC v. Digit. Cutting Servs., Inc., No.
COA24-86, 2025 N.C. App. LEXIS 3, at *18−20 (Jan. 15, 2025).
36. 	Inkwell argues that even if the intracorporate immunity doctrine does
not apply, “there is no allegation in the Amended Complaint that Inkwell ever gave
or offered to give Berastain or Moreau anything in order to persuade them to breach
the Restrictive Covenants.” (Defs.’ Br. Supp. 8.) The Court disagrees.
37. 	“This Court has interpreted ‘induce’ to mean ‘purposeful conduct,’ ‘active
persuasion, request, or petition.’ ” Charah, LLC v. Sequoia Servs. LLC, 2019 NCBC
LEXIS 18, at *18 (N.C. Super. Ct. Mar. 11, 2019) (quoting KRG New Hill Place, LLC
v. Springs Inv’rs, LLC, 2015 NCBC LEXIS 20, at *14−15 (N.C. Super. Ct. Feb. 27,
2015)); Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C. App. 349, 354 (2011).
CTS Metrolina has alleged that it had Restrictive Covenant Agreements with
Berastain and Moreau, (Am. Compl. ¶¶ 25−26, 50−64), that Inkwell knew of those

agreements, (Am. Compl. ¶ 160), and that Inkwell intentionally induced Berastain
and Moreau to violate them by, upon information and belief, providing Berastain and
Moreau the means and the motivation to perform the same duties that they had
performed for CTS Metrolina in the field of emergency restoration and repair of
commercial and residential properties, (Am. Compl. ¶¶ 101−02, 161). 	CTS further
alleges that Inkwell acted without justification, (Am. Compl. ¶ 167), and that CTS
Metrolina was damaged as a result, (Am. Compl. ¶ 168). 	These allegations are
sufficient to state a claim against Inkwell for intentional interference with the
Restrictive Covenant Agreements.
38. 	In addition, Plaintiff alleges that Inkwell intentionally induced (and
continues to induce) “CTS Metrolina customers, subcontractors, and vendors not to
perform on existing contracts and not to enter into contracts with CTS Metrolina that
they would otherwise enter.” (Am. Compl. ¶ 163.) Inkwell argues that this aspect of
the claim is also subject to dismissal because the Amended Complaint does not
explain how Inkwell induced such conduct and does not identify a customer,
subcontractor, or vendor that was lost or a contract that was not performed as a result
of Inkwell’s actions. (Defs.’ Br. Supp. 9.)
39. 	To the extent the alleged interference is with an existing relationship,
the five elements identified in United Labs. apply again here. Thus, to plead a claim
Plaintiff must first identify a valid contract about which Inkwell is aware. 	United
Labs., 322 N.C. at 661.

40. 	Similarly, to the extent the alleged interference is with a prospective
relationship, a fundamental element of the claim is an allegation identifying the
contract that would have resulted “but for defendant’s malicious intervention.”
Beverage Sys. of the Carolinas, LLC, 368 N.C. at 701. 	A Plaintiff’s failure to plead
this “but for” causation is fatal to its claim. Id.; see Bldg. Ctr., Inc. v. Carter Lumber,
Inc., 2016 NCBC LEXIS 79, at *29−30 (N.C. Super. Ct. Oct. 21, 2016) (dismissing
claim for tortious interference with prospective economic advantage where Plaintiff
alleged only that it “reasonably expected that, but for [Defendants’] conduct, its
business 	relationships 	with 	its 	customers 	would 	have 	continued 	and 	grown.”
(emphasis added)).
41. 	Plaintiff alleges that one of its subcontractors, Rytech, was solicited by
Inkwell 	in 	December 	2023. 	On 	1 	December 	2023, 	Rytech 	forwarded 	a 	job
confirmation it received from iRestore to CTS Metrolina because Rytech “could not
locate the job in CTS Metrolina’s iRestore Portal.” 	(Am. Compl. ¶¶ 106−08.) 	While
it is alleged that Rytech believed the job was generated by CTS Metrolina, it is also
alleged that the job was actually generated in iRestore by Inkwell. 	(Am. Compl.
¶ 109.) 	And, although Plaintiff argues in its brief that its contractual relationships
were disrupted, there is no allegation in the Amended Complaint that CTS Metrolina
would have received this particular job or that its relationship with Rytech suffered
as a result of Inkwell hiring Rytech. 	Accordingly, the existing allegations are
insufficient to support a claim for intentional interference with contract or with
prospective economic advantage.

42. 	The same is true with respect to Inkwell’s solicitation of AH4R. 	CTS
Metrolina alleges that Inkwell solicited AH4R to perform jobs in Raleigh and
Greensboro, North Carolina; Greenville, South Carolina; and Jacksonville, Florida,
in February and March 2024. (Am. Compl. ¶¶ 120−22.) In briefing, CTS Metrolina
alleges that but for the conduct of Inkwell, it would have received these jobs. 	(Pl.’s
Resp. Opp. Defs.’ Mot. Dismiss [“Pl.’s Br. Opp.”] 11, ECF No. 121.) 	However, the
Amended Complaint is silent on this point. 	Again, while it may be true that “CTS
Metrolina has ongoing relationships with customers[,]” (Pl.’s Br. Opp. 10), the “mere
expectation of a continuing business relationship is insufficient to establish” a claim
for tortious interference with prospective economic advantage. 	Beverage Sys. of the
Carolinas, LLC, 368 N.C. at 701.
43. 	Accordingly, Inkwell’s motion to dismiss Plaintiff’s claim for intentional
interference with contract is DENIED as it pertains to allegations that Inkwell
tortiously interfered with Berastain and Moreau’s Restrictive Covenant Agreements.
In other respects, Inkwell’s Motion with respect to this claim is GRANTED and the
claim4 is DISMISSED without prejudice.5
2. 	Cherry
44. 	As it did with Inkwell, Plaintiff alleges that Cherry intentionally
induced (and continues to induce) “CTS Metrolina customers, subcontractors, and
4 Plaintiff brings both theories—intentional interference with contract and intentional
interference with prospective economic advantage—as a single claim.
5 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court.” First Fed Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).

vendors not to perform on existing contracts and not to enter into contracts with CTS
Metrolina that they would otherwise enter.” (Am. Compl. ¶ 163.)
45. 	To establish its claim for tortious interference with existing contract, the
Court again looks to the five United Labs. elements, discussed above. CTS Metrolina
relies on its allegation that Cherry interfered by intentionally deleting at least a
dozen jobs on iRestore. 	(Pl.’s Br. Opp. 10; Am. Compl. ¶¶ 77−78.) 	However, this
allegation, standing alone, is insufficient to support the claim. 	While the pleading
suggests malice on the part of Cherry, Plaintiff does not allege that Cherry’s alleged
conduct interfered in the performance of any identified, existing, valid contract or
that CTS Metrolina was otherwise damaged.
46. 	As for interference with CTS Metrolina’s current or future relationships
with customers, subcontractors, and vendors, Plaintiff again identifies only Rytech
and AH4R. The Court’s rulings with respect to Inkwell apply equally to Cherry.
47. 	Accordingly, Cherry’s Motion with respect to Plaintiff’s claim for tortious
interference is GRANTED, and the claim is DISMISSED without prejudice.
3. 	S&P Cap
48. 	CTS Metrolina alleges that “S&P Cap is admittedly continuing Inkwell’s
operations, 	thus 	perpetuating 	Mr. 	Berastain’s 	and 	Mr. 	Moreau’s 	unlawful
interference with CTS Metrolina’s customers, subcontractors, and vendors.” 	(Am.
Compl. ¶ 166.)
49. 	Without additional facts, this allegation is too conclusory to state a
claim. Once again Plaintiff fails to name specific contracts with which S&P Cap has

interfered. 	Indeed, the alleged misconduct with Rytech and AH4R occurred on 1
December 2023, 22 February 2024, and 6 March 2024, prior to S&P Cap’s purchase
of IER and Inkwell on 24 April 2024. (Am. Compl. ¶¶ 104−09, 121−22, 135.) Failure
to allege the existence of a valid contract is fatal to Plaintiff’s claim. 	See Beverage
Sys. of the Carolinas, LLC, 368 N.C. at 699 (To state a claim for tortious interference
“plaintiff must first establish the existence of a valid contract between plaintiff and
its customers.”).
50. 	Accordingly, 	as 	to 	Plaintiff’s 	claim 	against 	S&P 	Cap 	for 	tortious
interference, the Motion is GRANTED, and this claim is DISMISSED without
prejudice.
B. Misappropriation of Trade Secrets (Inkwell, Cherry, S&P Cap)
51. 	To state a claim for misappropriation of trade secrets, CTS Metrolina
must first “identify a trade secret with sufficient particularity . . . to enable [the
Moving Defendants] to delineate that which [they are] accused of misappropriating
and a court to determine whether misappropriation has or is threatened to occur.”
Wasburn v. Yadkin Valley Bank & Tr. Co., 190 N.C. App. 315, 326 (2008) (quoting
Analog Devices, Inc. v. Michalski, 157 N.C. App. 462, 468 (2003)). 	“[G]eneral
allegations in sweeping and conclusory statements, without specifically identifying
the trade secrets allegedly misappropriated, [are] ‘insufficient to state a claim for
misappropriation of trade secrets.’ ” 	Krawiec v. Manly, 370 N.C. 602, 610 (2018)
(quoting Wasburn, 190 N.C. App. at 327)). Additionally, CTS Metrolina must allege
facts supporting a conclusion that it engaged in reasonable efforts to protect the

secrecy of the identified trade secret. BIOMILQ, Inc. v. Guiliano, 2023 NCBC LEXIS
24, at **20 (N.C. Super. Ct. Feb. 10, 2023) (citing N.C.G.S. § 66-152(3)(b)).
52. 	The North Carolina Trade Secrets Protection Act (“NCTSPA”) defines a
trade secret as “business or technical information, including but not limited to a
formula, pattern, program, device, compilation of information, method, technique, or
process” that both:
a. 	[d]erives independent actual or potential commercial value from not
being generally known or readily ascertainable through independent
development or reverse engineering by persons who can obtain
economic value from its disclosure or use; and
b. 	[i]s the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
N.C.G.S. § 66-152(3); see also Sterling Title Co. v. Martin, 266 N.C. App. 593, 601
(2019).
53. 	Our courts have employed six factors when determining the existence of
a trade secret:
(1) the extent to which the information is known outside the business;
(2) the extent to which it is known to employees and others involved in
the business; (3) the extent of measures taken to guard the secrecy of
the 	information; 	(4) 	the 	value 	of 	information 	to 	business 	and 	its
competitors; (5) the amount of effort or money expended in developing
the information; and (6) the ease or difficulty with which the information
could properly be acquired or duplicated by others.
Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 369−70 (2001). 	“These factors
overlap, and courts do not always examine them separately and individually.”
Vitaform, Inc. v. Aeroflow, Inc., 2020 NCBC LEXIS 132, at **19 (N.C. Super. Ct. Nov.
4, 2020).

54. 	As for misappropriation, the term means the “acquisition, disclosure, or
use of a trade secret of another without express or implied authority or consent[.]”
N.C.G.S. § 66-152(1). Misappropriation does not occur, however, when a trade secret
is arrived at by “independent development, reverse engineering, or was obtained from
another person with a right to disclose the trade secret.” Id. Conclusory allegations
of misappropriation are insufficient. See, e.g., Washburn, 190 N.C. App. at 327; Bite
Busters, LLC v. Burris, 2021 NCBC LEXIS 26, at **22−23 (N.C. Super. Ct. Mar. 25,
2021); Strata Solar, LLC v. Naftel, 2020 NCBC LEXIS 129, at **11−12 (N.C. Super.
Ct. Oct. 29, 2020).
55. 	The Moving Defendants argue that CTS Metrolina has failed to allege
both the existence of a trade secret and misappropriation. They contend that it does
not identify its trade secrets with sufficient particularity and that it has failed to
allege 	facts 	supporting 	its 	assertion 	that 	any 	of 	the 	Moving 	Defendants
misappropriated any trade secrets. (Defs.’ Br. Supp. 11−17.)
56. 	In the Amended Complaint, Plaintiff alleges three categories of trade
secrets:
a. 	Lists of customers, along with detailed information about each such
as contract information, preferences and requirements for the work
performed for them, terms of the contracts with these customers,
pricing 	and 	discounts 	offered 	to 	these 	customers, 	and 	other
information that enables CTS Metrolina to provide the right services
at the right prices to these customers.
b. 	Lists of subcontractors and vendors, along with detailed information
about 	each 	such 	as 	contact 	information, 	preferences 	and
requirements for them to perform services for CTS Metrolina’s
customers, 	terms 	of 	the 	contracts 	with 	the 	subcontractors 	and
vendors, pricing and discounts, and other information that enables

CTS Metrolina to engage its subcontractors and vendors under the
right conditions in order to serve its customers.
c. 	Business operation information, which includes how CTS Metrolina
sells and markets its services to customers, how it staffs jobs to serve
customers 	effectively 	and 	efficiently, 	its 	operational 	structure,
business opportunities it intends to pursue, and similar information.
(Am. Compl. ¶ 39.)
57. 	The Moving Defendants argue that Plaintiff’s allegations regarding its
trade secrets are no better than those found lacking in both Krawiec v. Manly, 370
N.C. 602 (2018) and Design Gaps, Inc. v. Hall, 2024 NCBC LEXIS 64 (N.C. Super. Ct.
May 1, 2024). 	In Krawiec, “plaintiffs described their trade secrets only as their
‘original ideas and concepts for dance productions, marketing strategies and tactics,
as well as student, client and customer lists and their contract information.’ ” 	370
N.C. at 611. Our Supreme Court upheld the trial court’s dismissal of the trade secret
misappropriation claim, finding the allegation of a trade secret lacking because
“[p]laintiffs provided no further detail about these ideas, concepts, strategies, and
tactics sufficient to put defendants on notice as to the precise information allegedly
misappropriated.” Id.
58. 	Similarly, in Design Gaps, this Court, relying on Krawiec, held that
plaintiff failed to identify its trade secrets with sufficient particularity where the
allegation was that the trade secrets included “‘customer lists, pricing formulas, and
bidding formulas,’ as well as ‘product sources, products, price lists, advertising plans,
designs and materials, technical drawings, services, pricing points, methods of sales
and business contracts and training methods as well as . . . customers’ pricing

programs, 	unit 	sales, 	dollar 	volume, 	models, 	financial 	information, 	product
roadmaps, channelization and sales strategies[,]’ ” all alleged without specificity or
further detail. 2024 NCBC LEXIS 64, at **9.
59. 	Plaintiff’s 	third 	category 	of 	trade 	secrets—“Business 	operation
information”—suffers from the lack of specificity that resulted in dismissal of the
claim in Krawiec and Design Gaps. 	The Court concludes that the allegations in the
Complaint with respect to that category are too vague to put the Moving Defendants
on notice of the specific trade secrets they are accused of misappropriating.
60. 	The same is not true, however, with respect to Plaintiff’s first two
categories of trade secrets. 	Plaintiff identifies (1) “[l]ists of customers, along with
detailed 	information 	about 	each 	such 	as 	contact 	information, 	preferences 	and
requirements for the work performed for them, terms of the contracts with these
customers, pricing and discounts offered to these customers, and other information
that enables CTS Metrolina to provide the right services at the right prices to these
customers,” and (2) “[l]ists of subcontractors and vendors, along with detailed
information about each such as contact information, preferences and requirements
for them to perform services for CTS Metrolina’s customers, terms of the contracts
with the subcontractors and vendors, pricing and discounts, and other information
that enables CTS Metrolina to engage its subcontractors and vendors under the right
conditions in order to serve its customers.” (Am. Compl. ¶ 39(a)−(b).) The language
Plaintiff uses to describe these lists is sufficient to allege the existence of two
categories of compilation-based trade secrets. (See Am. Compl. ¶¶ 39−40, 171.)

61. 	The 	NCTSPA 	uses 	the 	phrase 	“compilation 	of 	information” 	when
defining the term “trade secret,” and plenty of case law exists recognizing that such
compilations can rise to the level of a trade secret. 	See, e.g., State ex. rel Utils.
Comm’n v. MCI Telecomms., Corp., 132 N.C. App. 625, 634 (1999); Computer Design
& Integration, LLC v. Brown, 2017 NCBC LEXIS 8, at *27−28 (N.C. Super. Ct. Jan.
27, 2017); Koch Measurement Devices, Inc. v. Armke, 2015 NCBC LEXIS 45, at *13
(N.C. Super. Ct. May 1, 2015) (“[T]he Court of Appeals has held that where an
individual maintains a compilation of detailed records over a significant period of
time, those records could constitute a trade secret even if ‘similar information may
have been ascertainable by anyone in the . . . business.’ ” (quoting Byrd’s Lawn &
Landscaping, Inc. v. Smith, 142 N.C. App. 371, 376 (2001)).
62. 	Unlike the allegations found lacking in Krawiec and Design Gaps, CTS
Metrolina details the information included in these lists. It also alleges that the lists
were compiled at great expense and refined over the years. (Am. Compl. ¶¶ 40, 171.)
Accordingly, viewing the allegations in the light most favorable to CTS Metrolina, the
Court concludes that Plaintiff’s identification of its trade secrets, with the exception
of subparagraph 39(c), is sufficient to survive dismissal under Rule 12(b)(6).
63. 	As for misappropriation, Plaintiff has alleged that Cherry used CTS
Metrolina’s trade secrets to benefit Inkwell in its dealings with CTS Metrolina’s
customers, subcontractors, or vendors. (Am. Compl. ¶ 176.) This allegation of use by
Cherry 	while 	working 	for 	Inkwell 	satisfies 	the 	pleading 	requirements 	for
misappropriation 	against 	both 	Cherry 	and 	Inkwell. 	See 	N.C.G.S. 	§ 66-155

(“Misappropriation of trade secret is prima facie established by the introduction of
substantial evidence that the person against whom relief is sought both: (1) Knows
or should have known of the trade secret; and (2) Has had a specific opportunity to
acquire it for disclosure or use or has acquired, disclosed, or used it without the
express or implied consent or authority of the owner.” (emphasis added)); Wells Fargo
Ins. Servs. USA v. Link, 2018 NCBC LEXIS 42, at *40−41 (N.C. Super. Ct. May 8,
2018) (declining to dismiss plaintiff’s misappropriation of trade secrets claim where
plaintiff alleged that defendant had access to plaintiff’s trade secret information
during his employment and then used it to solicit customers for a competitor despite
the “significant inferential leap” that was required).
64. 	Plaintiff further alleges that S&P Cap has continued Inkwell’s unlawful
use of CTS Metrolina’s trade secrets. (Am. Compl. ¶ 177.) The allegation is sufficient
to support a claim against S&P Cap.
65. 	Therefore, with respect to Plaintiff’s claim for misappropriation of trade
secrets, the Motion is GRANTED to the extent Plaintiff seeks to assert a claim for
misappropriation of information identified generally in paragraph 39(c) of the
Amended Complaint, and that claim is dismissed without prejudice. 	In other
respects, the Motion is DENIED.
C. Computer Trespass (Inkwell and Pena)
66. 	Section 	14-458(a) 	of 	the 	North 	Carolina 	General 	Statutes 	(the
“Computer Trespass Statute”) provides in pertinent part:
[I]t shall be unlawful for any person to use a computer or computer
network without authority and with the intent to do any of the following:

(1) Temporarily or permanently remove, halt, or otherwise disable any
computer 	data, 	computer 	programs, 	or 	computer 	software 	from 	a
computer or computer network.
****
(4) Cause physical injury to the property of another.
(5) Make or cause to be made an unauthorized copy, in any form,
including, but not limited to, any printed or electronic form of computer
data, 	computer 	programs, 	or 	computer 	software 	residing 	in,
communicated by, or produced by a computer or computer network.
N.C.G.S. § 14-458(a)(1), (4)−(5). 	“‘Computer’ means an internally programmed,
automatic device that performs data processing or telephone switching.” 	N.C.G.S.
§ 14-453(2). 	“‘Computer network’ means the interconnection of communication
systems with a computer through remote terminals, or a complex consisting of two or
more interconnected computers or telephone switching equipment.” 	N.C.G.S. § 14-
453(3). 	“[A] person is ‘without authority’ when [ ] the person has no right or
permission of the owner to use a computer, or the person uses a computer in a manner
exceeding the right or permission[.]” N.C.G.S. § 14-458(a).
67. 	Plaintiff brings its claim for computer trespass against Pena and
Inkwell.
1. 	Pena
68. 	Plaintiff alleges that Pena violated the Computer Trespass Statute by
intentionally deleting “dozens of jobs on iRestore” during his employment with CTS
Metrolina. 	(Am. Compl. ¶¶ 79, 194.) 	Pena first argues that this claim is subject to
dismissal because “CTS Metrolina fails to allege that Pena used any computer or

computer network to injure CTS Metrolina’s property.” 	(Defs.’ Br. Supp. 17.)
Specifically, Pena argues that the Amended Complaint “does not allege facts that
would show that iRestore is, itself, a ‘computer or computer network,’ that Pena
deleted the jobs in iRestore through use of any separate ‘computer or computer
network,’ or that the data contained in iRestore belongs to CTS Metrolina as opposed
to iRestore.” (Defs.’ Br. Supp. 18.) The Court disagrees.
69. 	At various points, the Amended Complaint describes iRestore as a
“project management platform,” “operations software,” and a “portal.” 	(See Am.
Compl. ¶¶ 21, 92(b), 109.) “Computer software” is defined in the statute as “a set of
computer programs, procedures and associated documentation concerned with the
operation of a computer, computer system, or computer network.” 	N.C.G.S. § 14-
453(5) (emphasis added). 	Likewise, the dictionary definitions of “software” and
“portal” make clear that they relate to the operation of a computer or computer
network. 	See Software, BLACK ’S L AW D ICTIONARY (10th ed. 2014) (“The sequence of
instructions by which a computer accepts and translates input symbols, executes
actions, and outputs symbols such as numbers, characters in an e-mail message,
pictures in a text message, the music played on a mobile device, or GPS coordinates.”
(emphasis added)); Portal, MERRIAM -WEBSTER D ICTIONARY (“[A]n online platform
(such as a website) that provides access to services or information of a specific kind.”
(emphasis added)).
70. 	The Court is satisfied that Plaintiff has sufficiently alleged that iRestore
is a system that operates on a “computer or computer network.” 	As for the data

contained in iRestore, the Amended Complaint uses possessive language: “CTS
Metrolina manages its jobs through a project management platform called iRestore.”
(Am. Compl. ¶ 21 (emphasis added).) 	Under North Carolina’s liberal pleading
standard, the allegations are sufficient to meet the statutory requirements.
71. 	Pena next argues that Plaintiff failed to allege that Pena acted without
authority when he deleted the iRestore jobs. 	(Defs.’ Br. Supp. 18−19.) 	But CTS
Metrolina alleges that by deleting the jobs, Pena “acted in a manner exceeding the
right or permission given by CTS Metrolina.” (Am. Compl. ¶ 195.) This allegation is
sufficient.
72. 	In short, Plaintiffs’ allegations taken as a whole “put [Pena] on notice of
his actions which are at issue, allow him to understand the nature of Plaintiffs’ claim,
and enable him to answer and prepare for trial.” 	Cnty. of Wayne Constr. Managers
of Goldsboro v. Amory, 2019 NCBC LEXIS 32, at *52 (N.C. Super. Ct. May 17, 2019)
(addressing the sufficiency of allegations for violation of the Computer Trespass
Statute) (citing Wake Cnty. v. Hotels.com, L.P., 235 N.C. App. 633, 646 (2014)).
73. 	Accordingly, with respect to Plaintiff’s claim against Pena for computer
trespass, the Motion is DENIED.
2. 	Inkwell
74. 	As for Inkwell, Plaintiff alleges that “Inkwell violated the Computer
Trespass Statute by, upon information and belief, intentionally (1) using and/or
causing copies to be made of CTS Metrolina’s data from Ms. Cherry’s laptop; and (2)
using and/or causing copies to be made of CTS Metrolina’s data from Mr. Berastain’s

laptop.” Plaintiff further alleges that Inkwell is “responsible for the violations of the
Computer Trespass Statute committed by its employees, including Mr. Berastain and
Ms. Cherry, under the doctrine of respondeat superior.” (Am. Compl. ¶ 193.)
75. 	Citing MarketPlace 4 Ins., LLC v. Vaughn, 2023 NCBC LEXIS 31 (N.C.
Super. Ct. Feb. 24, 2023), Inkwell argues that Plaintiff’s respondeat superior theory
fails as a matter of law because this Court has previously declined to recognize a
vicarious liability claim for computer trespass. 	(Defs.’ Br. Supp. 20.) 	Plaintiff
responds that the Vaughn case is distinguishable. (See Pl.’s Br. Opp. 20.) The Court
agrees with Plaintiff.
76. 	In Vaughn, this Court explained that “the statutory text suggests a
legislative intent to limit civil liability to a specific class of defendants—namely those
persons 	who 	intentionally 	violate 	one 	or 	more 	of 	the 	enumerated 	statutory
provisions.” 	2023 NCBC LEXIS 31, at **51 (emphasis added). 	Given this scienter
requirement, this Court declined to recognize a claim for vicarious liability. However,
the holding in Vaughn does not apply as broadly as Inkwell contends.
77. 	In Vaughn, this Court references the reasoning of the federal court in
Doe v. Dartmouth-Hitchcock Med. Ctr., 2001 U.S. Dist. LEXIS 10704 (D.N.H. July 19,
2001). There, the plaintiff sued a physician’s employers under the federal Computer
Fraud and Abuse Act (“CFAA”)6 on a theory of vicarious liability based on allegations
6 The North Carolina Computer Trespass Statute and the CFAA contain similar scienter
requirements. Compare N.C.G.S. § 14-458(a) (“[I]t shall be unlawful for any person to use a
computer or computer network without authority and with the intent to do any of the
following[.]” (emphasis added)), with 18 USCS § 1030(2) (“Whoever . . . intentionally accesses
a computer without authorization or exceeds authorized access . . . shall be punished[.]”
(emphasis added)).

that the physician accessed plaintiff’s medical records without authority. 	Id. at
*5−10. 	In declining to impose vicarious liability on the physician’s employers, the
federal court observed that the employers themselves “were victimized by [the
physician’s] breach of the policies established to protect [plaintiff’s] confidentiality.”
Id. 	at *11. 	Accordingly, “[t]o 	hold the 	[employers] 	vicariously 	liable for [the
physician’s] intentional violation of the CFAA, when that violation necessarily
involved an intentional violation of [the employers’] own policies – and actually
victimized the [employers], would hardly be consistent with, or further the purpose
of, the CFAA, which, after all, is intended to protect computer systems . . . from
unauthorized access and concomitant damage.” Id. at *14.
78. 	The same is not true in the case before the Court. 	The allegations are
not that Inkwell was victimized by the alleged computer trespasses, but rather that
Inkwell profited from them. 	Further, as observed by Plaintiff, (see Pl.’s Br. Opp.
20−21), federal courts impose vicarious liability for violations of the CFAA in some
circumstances. 	See Binary Semantics, Ltd. v. Minitab, Inc., 2008 U.S. Dist. LEXIS
28602, at *14 (M.D. Pa. Mar. 20, 2008), vacated on other grounds, 2008 U.S. Dist.
LEXIS 36575 (M.D. Pa. May 1, 2008) (“[T]he complaint sufficiently alleges that
defendant Asha was acting at the direction of Minitab when she allegedly accessed
plaintiff’s 	protected 	computer 	and 	stole 	plaintiff’s 	trade 	secrets. Therefore, 	we
conclude that Minitab may be held liable for the CFAA violation.”); Se. Mech. Servs.
v. Brody, 2008 U.S. Dist. LEXIS 123211, at *41−42 (M.D. Fla. July 25, 2008) (“Where
a new employer seeks a competitive edge through the wrongful use of information

from the former employer’s computer system, plaintiff will likely win on the merits of
a CFAA claim.”); NetApp, Inc. v. Nimble Storage, 41 F. Supp. 3d 816, 835 (N.D. Cal.
May 12, 2014) (“[A]n employer can be vicariously liable for an employee’s violations
of the CFAA if those transgressions occur in the scope of employment or the employer
directs the employee’s conduct.”); Charles Schwab & Co. v. Carter, 2005 U.S. Dist.
LEXIS 21348, at *20 (N.D. Ill. Sept. 27, 2005) (“[T]he Court assumes that Congress
drafted the CFAA with an intent to permit vicarious liability.”).
79. 	Therefore, the Court concludes that the Computer Trespass Statute does
not foreclose the possibility of vicarious liability, as Inkwell argues. 	Accordingly,
Plaintiff’s claim against Inkwell for computer trespass may proceed, and the Motion
is DENIED.
D. Civil Conspiracy (Cherry, Pena, S&P Cap)
80. 	Plaintiff’s Eighth Cause of Action is styled as one for civil conspiracy.
Plaintiff alleges that Berastain and Moreau, along with Cherry, Pena, and S&P Cap,
entered into an agreement to unlawfully compete with CTS Metrolina, and that they
carried out that agreement by violating both the Computer Trespass Statute and this
Court’s Orders. (Am. Compl. ¶¶ 207−14.)
81. 	“Civil 	conspiracy 	is 	not 	an 	independent 	cause 	of 	action 	in 	North
Carolina. Rather, liability for civil conspiracy must be alleged in conjunction with an
underlying claim for unlawful conduct.” 	Glob. Textile All., Inc. v. TDI Worldwide,
LLC, 2018 NCBC LEXIS 104, at **18 (N.C. Super. Ct. Oct. 9, 2018) (citing Toomer v.
Garrett, 155 N.C. App. 462, 483 (2002)). As observed by our Supreme Court:

Accurately 	speaking, 	there 	is 	no 	such 	thing 	as 	a 	civil 	action 	for
conspiracy. The 	action 	is 	for 	damages 	caused 	by 	acts 	committed
pursuant to a formed conspiracy, rather than by the conspiracy itself;
and unless something is actually done by one or more of the conspirators
which results in damage, no civil action lies against anyone. The gist of
the civil action for conspiracy is the act or acts committed in pursuance
thereof—the 	damage—not 	the 	conspiracy 	or 	the 	combination. The
combination may be of no consequence except as bearing upon rules of
evidence or the persons liable.
Reid v. Holden, 242 N.C. 408, 414−15 (1955) (quoting 11 Am. Jur. 577, Conspiracy,
§ 45).
82. 	“To state a claim for civil conspiracy, a plaintiff must allege ‘(1) an
agreement between two or more individuals; (2) to do an unlawful act or to do a lawful
act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or more of
the conspirators; and (4) pursuant to a common scheme.’ ”’ 	Glob. Textile All., 2018
NCBC LEXIS 104, at **18−19 (quoting Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211
N.C. App. 343, 350 (2011)). As stated above, however, proof of a civil conspiracy “does
no more than associate the defendants together . . . . The gravamen of the action is
the resultant injury, and not the conspiracy itself.” 	Henry v. Deen, 310 N.C. 75, 87
(1984) (citation omitted). 	Therefore, to state a claim, in addition to an agreement,
there must be an allegation of a wrongful act that causes damage in furtherance of
that agreement. Fox v. Wilson, 85 N.C. App. 292, 301 (1987).
83. 	The Moving Defendants argue that Plaintiff’s claim for civil conspiracy
is subject to dismissal. 	Specifically, they argue that Plaintiff’s allegations are
conclusory and that the Amended Complaint fails to allege facts establishing “how
the conspiracy came to be, or when, or where, or why.” (Defs.’ Br. Supp. 24). Plaintiff

responds that the Amended Complaint sufficiently identifies the steps the Moving
Defendants took to conspire against CTS Metrolina. 	(Pl.’s Br. Opp. 24−26.) 	For
purposes of this Motion, the Court agrees with Plaintiff.
84. 	The Amended Complaint alleges that the “agreement” was “to aid Mr.
Berastain and Mr. Moreau in their unlawful competition with CTS Metrolina.” (Am.
Compl. ¶ 207.) 	Plaintiff alleges that Cherry agreed to become Inkwell’s Director of
Operations, a role that was identical to the one she held at CTS Metrolina, while
having knowledge of Berastain’s unlawful involvement with Inkwell. 	(Am. Compl.
¶¶ 13, 78, 128, 130.) Similarly, the Amended Complaint alleges that Pena was hired
by Cherry, and that he agreed to become employed at Inkwell performing the same
role he held with CTS Metrolina at a time when Berastain and Moreau were illegally
engaged with Inkwell. (Am. Compl. ¶¶ 15, 79, 129.)
85. 	The Amended Complaint further alleges that the principals of S&P Cap
had a “preexisting relationship” with Berastain and Moreau, had knowledge of the
Court’s prior Orders and Inkwell’s allegedly unlawfully activity, and agreed to
acquire Inkwell to continue “Inkwell’s activities of unlawfully competing against CTS
Metrolina[.]” 	(Am. Compl. ¶ 212; see also ¶¶ 136−38; 210−11.) 	These allegations
satisfy the requirement that Plaintiff allege an agreement on the part of Cherry, Pena
and S&P Cap to facilitate the allegedly unlawful acts of Berastain and Moreau.
86. 	As for the common scheme, Plaintiff alleges that Berastain, Moreau, and
the Moving Defendants “us[ed] Inkwell as the instrument to unlawfully compete
against CTS Metrolina,” (Am. Compl. ¶ 213), and that they accomplished this wrong

by violating the Computer Trespass Statute, among other things. 	(Am. Compl.
¶¶ 208, 213.)
87. 	The Court concludes that Plaintiff has sufficiently pled the existence of
a civil conspiracy that included Cherry, Pena, and S&P Cap. Accordingly, the Motion
is DENIED.7
E. Unfair and Deceptive Trade Practices (Inkwell, Cherry, Pena)
88. 	To bring a claim for unfair or deceptive trade practices pursuant to
Section 75-1.1 of the North Carolina General Statutes (the “UDTPA”), a party must
allege “(1) an unfair or deceptive act or practice, or an unfair method of competition,
(2) in or affecting commerce, (3) which proximately caused actual injury to the
plaintiff[.]” 	McLamb v. T.P. Inc., 173 N.C. App. 586, 593 (2005); see also N.C.G.S.
§ 75-1.1. “A practice is unfair if it is unethical or unscrupulous, and it is deceptive if
it has a tendency to deceive.” Dalton v. Camp, 353 N.C. 647, 656 (2001) (citing Polo
Fashions, Inc. v. Craftex, Inc., 816 F.2d 145, 148 (4th Cir. 1987)). Whether a practice
is unfair or deceptive within the meaning of the UDTPA is a question of law for the
Court to decide. Hardy v. Toler, 288 N.C. 303, 309 (1975).
89. 	Plaintiff asserts its UDTPA claim against Inkwell, Cherry, and Pena,
predicated on their involvement in an alleged conspiracy to assist Inkwell in
7 Plaintiff also alleges that these Defendants acted unlawfully by tortiously interfering with
CTS Metrolina’s current and prospective contracts. (Am. Compl. ¶ 209.) Given the Court’s
dismissal of Plaintiff’s tortious interference claim with respect to CTS Metrolina’s customers,
vendors and subcontractors and CTS Metrolina’s claim for interference with prospective
economic advantage, however, there cannot be a civil conspiracy with respect to these claims.
(supra ¶¶ 38−50.) See, e.g., Blusky Restoration Contrs., LLC v. Sasser Co., LLC, 2024 NCBC
LEXIS 106, at **29−30 (N.C. Super. Ct. Aug. 9, 2024) (citing cases).

unlawfully 	competing 	with 	CTS 	Metrolina, 	by: 	(a) 	Inkwell 	allegedly 	inducing
Berastain and Moreau to misappropriate CTS Metrolina’s trade secrets, (Am. Compl.
¶ 174); (b) Cherry and Inkwell’s use of those trade secrets, (Am. Compl. ¶ 176); and
(c) all three Defendants’ alleged violations of the Computer Trespass Statute, (Am.
Compl. ¶ 201).
1. 	Unfair Act or Practice
90. 	In 	determining 	whether 	an 	act 	is 	unfair 	or 	deceptive, 	the 	Court
considers 	“[t]he 	facts 	surrounding 	the 	transaction 	and 	the 	impact 	on 	the
marketplace[.]” 	Found. Bldg. Materials, LLC v. Conking & Calabrese, Co., 2024
NCBC LEXIS 40, at **13 (N.C. Super. Ct. Mar. 4, 2024) (quoting Noble v. Hooters of
Greenville, LLC, 199 N.C. App. 163, 167 (2009)). However, “the fairness or unfairness
of particular conduct is not an abstraction to be derived by logic. Rather, the fair or
unfair nature of particular conduct is to be judged by viewing it against the
background of actual human experience and by determining its intended and actual
effects upon others.” Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 400
(1978).
91. 	The Court concludes that computer trespass in violation of state law
constitutes conduct “which a court of equity would consider unfair.” 	See id. (citing
Extract Co. v. Ray, 221 N.C. 269, 273 (1942)). 	Simply put, violating the law by
engaging in computer trespass is not legitimate competitive business activity. Contra
S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 608 (2008)

(holding that conduct that appeared to be “nothing more than competitive business
activities” was not “immoral, unethical, oppressive” behavior).
2. 	In or Affecting Commerce
92. 	For purposes of the UDTPA, “‘commerce’ includes all business activities,
however denominated[.]” 	N.C.G.S. § 75-1.1(b). 	However, “[t]he UDTPA does not
apply to unfair or deceptive conduct contained within a single business because the
conduct has no impact on the marketplace and therefore is not ‘in or affecting
commerce.’ ” Langley v. Autocraft, Inc., 2023 NCBC LEXIS 95, at **19 (N.C. Super.
Ct. Aug. 7, 2023) (citing Nobel v. Foxmoor Grp., 380 N.C. 116, 121 (2022) (“The
internal operations of a business entity are not within the purview of the Act.”)).
93. 	The 	alleged 	wrongful 	conduct 	here 	is 	not 	contained 	within 	CTS
Metrolina. 	The claims against Inkwell and Cherry for computer trespass,8 against
Inkwell and Cherry for misappropriation of trade secrets, against Inkwell for tortious
interference with contract, and against Cherry, Pena, and S&P Cap for their alleged
participation in a conspiracy to unlawfully compete with CTS Metrolina, are all
wrongful acts in or affecting commerce. 	See, e.g., Power Home Solar, LLC v. Sigora
8 Specifically, Plaintiff claims that, after leaving its employ and becoming engaged with
Inkwell, Cherry intentionally deleted all the data on her CTS Metrolina laptop prior to
returning it. (Am. Compl. ¶¶ 93−97.) Thus, the allegation is not that this was an act that
occurred internally, but rather that it was an act “between market participants.”
On the other hand, both Pena and Cherry’s alleged iRestore deletions occurred while they
were still employed by CTS Metrolina. 	(Am. Compl. ¶¶ 78−79.) 	Without more, Pena and
Cherry’s alleged sabotage of their employer’s operations while employed are insufficient to
state a UDTPA claim. 	Wheeler v. Wheeler, 2018 NCBC LEXIS 38, at *12 (N.C. Super. Ct.
Apr. 25, 2018) (“Section 75-1.1 does not apply to the internal conduct of individuals within a
single market participant. Rather, the General Assembly intended section 75-1.1 to apply to
interactions between market participants. As a result, any unfair or deceptive conduct
contained solely within a single business is not covered by section 75-1.1” (cleaned up)).

Solar, LLC, 2021 NCBC LEXIS 55, at *51 (N.C. Super. Ct. June 18, 2021) (“Our
Courts have long recognized that claims for misappropriation of trade secrets and
tortious interference with contract may form the basis of a UDTPA claim.” (cleaned
up)).
94. 	Accordingly, with respect to Plaintiff’s claim for violation of the UDTPA,
the Motion is DENIED.
F. Accounting and Constructive Trust (Inkwell and S&P Cap)
95. 	Plaintiff demands an accounting and the imposition of a constructive
trust against Inkwell for the money it has earned from CTS Metrolina’s customers in
violation of the Restrictive Covenants, (Am. Compl. ¶¶ 215−22), and against both
Inkwell and S&P Cap for the money Berastain and Moreau received under the
purchase agreement with S&P Cap for Inkwell. (Am. Compl. ¶¶ 223−28.)
96. 	In North Carolina, a request for a constructive trust is not a claim but
is rather a request for relief. See LLG-NRMH, LLC v. N. Riverfront Marina & Hotel,
LLLP, 2018 NCBC LEXIS 105, at *14 (N.C. Super. Ct. Oct. 9, 2018) (“[A] constructive
trust is not a standalone claim for relief or cause of action.” (citing Weatherford v.
Keenan, 128 N.C. App. 178, 179 (1997))); Flynn v. Pierce, 2020 NCBC LEXIS 149, at
*15 (N.C. Super. Ct. Dec. 22, 2020) (dismissing claim for constructive trust as a
remedy rather than a claim). 	At this juncture, it remains to be seen whether a
constructive trust is appropriate relief here.
97. 	Likewise, an accounting is available as a remedy when there is a viable
underlying claim for relief, but it, too, is not a claim. See Burgess v. Burgess, 205 N.C.

App. 325, 333 (2010) (“An accounting is an equitable remedy[.]”); Botanisol Holdings
II, LLC v. Propheter, 2021 NCBC LEXIS 94, at **29 (N.C. Super. Ct. Oct. 18, 2021)
(“Like a constructive trust, while not a claim, an accounting is available as a remedy
when there is a viable underlying claim for relief.”).
98. 	Accordingly, to the extent Plaintiff styles these remedies as claims for
relief, the Motion is GRANTED. 	However, the dismissal is without prejudice to
Plaintiff’s ability to seek the imposition of a constructive trust, or an accounting, or
both, with respect to any surviving claims at the appropriate time.
G. Declaratory Judgment (Inkwell and S&P Cap)
99. 	Finally, with respect to the purported sale of Inkwell to S&P Cap,
Plaintiff requests that the Court declare “Mr. Berastain’s and Mr. Moreau’s sale of
IER and Inkwell to S&P Cap is void ab initio because it perpetuates Mr. Berastain’s
and Mr. Moreau’s unlawful competition with CTS Metrolina.” (Am. Compl. ¶ 232.)
100. 	The Declaratory Judgment Act (the “Act”), N.C.G.S. § 1-253 et seq.,
provides that “[a]ny person interested under a . . . written contract . . . or whose
rights, status or other legal relations are affected by a . . . contract . . . may have
determined 	any 	question 	of 	construction 	or 	validity 	arising 	under
the . . . contract . . . and obtain a declaration of rights, status, or other legal relations
thereunder.” 	N.C.G.S. § 1-254. 	Accordingly, a person seeking to have a written
contract construed under the Act must first have an interest under the contract. See
Terrell v. Lawyers Mut. Liab. Ins. Co., 131 N.C. App. 655, 660 (1998) (“One who seeks

to have a written contract constructed by way of declaratory judgment must first have
an interest thereunder.”).
101. 	In addition, the Act is to be liberally construed. 	See N.C.G.S. § 1-264
(“This Article is declared to be remedial, its purpose is to settle and to afford relief
from uncertainty and insecurity with respect to rights, status, and other legal
relations, and it is to be liberally construed and administered.”).
102. 	The Moving Defendants contend that CTS Metrolina lacks standing to
request that the sale of Inkwell to S&P Cap be declared void ab initio because CTS
Metrolina is not a party to the purchase agreement. (Defs.’ Br. Supp. 27.) Regardless
of that fact, CTS Metrolina responds that it has standing to bring this claim to the
extent it is seeking an interpretation of the Restrictive Covenants to which it is a
party and to which Berastain and Moreau agreed. (Pl.’s Br. Opp. 28.)
103. 	The Court agrees. The Amended Complaint alleges that Berastain and
Moreau entered into agreements with CTS Metrolina that forbade them from
“assist[ing] any other Person in engaging in [restoration work]” and from having an
“active interest in any [business or person] that engages in” the property restoration
business within certain geographical limits. (Am. Compl. ¶¶ 54(a), (c).) By creating
IER and then Inkwell, Berastain and Moreau allegedly breached these agreements,
giving CTS Metrolina an interest in determining whether Berastain and Moreau can
profit from the sale of IER and Inkwell.9
9 Given the Court’s determination that CTS Metrolina has standing with respect to its
agreements with Berastain and Moreau, it is not necessary for the Court to reach CTS
Metrolina’s argument that it also has standing because CTS Metrolina’s rights are affected
by the purchase agreement between IER/Inkwell and S&P Cap.

104. 	In short, accepting the allegations in the Amended Complaint as true
for purposes of this Motion, and giving consideration to the purpose of the Act, the
Court concludes that CTS Metrolina has sufficiently stated a claim for declaratory
judgment. 	See BIOMILQ, 2023 NCBC LEXIS 24, at **32 (“‘[A] motion to dismiss a
declaratory judgment claim is appropriate only when the complaint does not allege
an actual, genuine existing controversy, which prevents a court from entering a
purely advisory opinion.’ The question is not whether the plaintiff will prevail on
their claim, ‘[i]t is only whether they have identified an actual, genuine controversy.’ ”
(quoting Bennett v. Bennett, 2019 NCBC LEXIS 19, at **30−32 (N.C. Super. Ct. Mar.
15, 2019))).
105. 	Accordingly, as to Plaintiff’s claim for declaratory judgment, the Motion
is DENIED.
V. 	CONCLUSION
106. 	WHEREFORE, for the foregoing reasons, the Court hereby GRANTS
in part and DENIES in part the Motion as follows:
a. 	With respect to the Third Cause of Action (Tortious Interference with
Contract and with Prospective Economic Advantage):
i. 	Inkwell’s 	Motion 	as 	it 	pertains 	to 	allegations 	that 	Inkwell
tortiously interfered with Berastain and Moreau’s Restrictive
Covenant 	Agreements 	is 	DENIED. 	In 	all 	other 	respects,
Inkwell’s Motion with respect to this claim is GRANTED, and
the claim is DISMISSED without prejudice;

ii. 	Cherry’s Motion is GRANTED, and the claim is DISMISSED
without prejudice; and
iii. 	S&P Cap’s Motion is GRANTED, and the claim is DISMISSED
without prejudice.
b. 	With respect to the Fourth Cause of Action (Misappropriation of Trade
Secrets):
i. 	Inkwell, Cherry, and S&P Cap’s Motion is GRANTED to the
extent Plaintiff seeks to recover for the alleged misappropriation
of information identified generally in paragraph 39(c) of the
Amended 	Complaint, 	and 	to 	that 	extent, 	the 	claim 	is
DISMISSED without prejudice;
ii. 	In all other respects, the Motion is DENIED.
c. 	With respect to the Sixth Cause of Action (Violation of Computer
Trespass Statute, N.C.G.S. § 14-458), the Motion of both Pena and
Inkwell is DENIED.
d. 	With respect to the Seventh Cause of Action (Violation of the Unfair and
Deceptive Trade Practices Act, N.C.G.S. § 75-1 et seq.), Cherry, Inkwell,
and Pena’s Motion is DENIED.
e. 	With respect to the Eighth Cause of Action (Civil Conspiracy), Cherry,
Pena, and S&P Cap’s Motion is DENIED.
f. 	With respect to claims for the remedies of Accounting and Constructive
Trust 	in 	the 	Ninth 	and 	Tenth 	Causes 	of 	Action, 	the 	Motion 	is

GRANTED, but the Court’s ruling is without prejudice to Plaintiff’s
ability to seek the imposition of a constructive trust or an accounting, or
both, at the appropriate time.
g. 	With respect to the Eleventh Cause of Action (Declaratory Relief),
Inkwell and S&P Cap’s Motion is DENIED.
IT IS SO ORDERED, this the 4th day of February, 2025.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases