LINEAGE LOGISTICS, LLC v. PRIMUS BUILDERS, INC., 2024 NCBC 9

STATE OF NORTH CAROLINA
COUNTY OF IREDELL
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 2372
LINEAGE LOGISTICS, LLC,
Plaintiff,
v.
PRIMUS BUILDERS, INC. and
REPUBLIC REFRIGERATION,
INC.,
Defendants.
ORDER AND OPINION ON
PLAINTIFF’S MOTION TO STRIKE
AFFIRMATIVE DEFENSES AND
THIRD-PARTY DEFENDANT’S
MOTION TO DISMISS
REPUBLIC REFRIGERATION,
INC.,
Third-Party Plaintiff,
v.
P3 ADVANTAGE, INC.,
Third-Party
Defendant.
1. 	THIS MATTER is before the Court on Plaintiff Lineage Logistics, LLC’s
(“Lineage”) Motion to Strike Affirmative Defenses (the “Motion to Strike”) under Rule
12(f) of the North Carolina Rules of Civil Procedure (the “Rule(s)”), filed 27 November
2023,1 and Third-Party Defendant P3 Advantage, Inc.’s (“P3”) Motion to Dismiss the
Third-Party Complaint (the “Motion to Dismiss”; together with the Motion to Strike,
1 (Pl. Lineage Logistics, LLC’s Mot. Strike Affirmative Defenses [hereinafter “Mot. Strike”],
ECF No. 177.)
Lineage Logistics, LLC v. Primus Builders, Inc., 2024 NCBC 9.

the “Motions”) under Rules 12(b)(2), (4), (5), and (6), filed 1 December 2023, in the
above-captioned case.2
2. 	Having considered the Motions, the parties’ briefs in support of and in
opposition to the Motions, the arguments of counsel at the hearing on the Motions,
and other appropriate matters of record, the Court, in the exercise of its discretion,
hereby GRANTS in part and DENIES in part the Motion to Strike and GRANTS
the Motion to Dismiss as set forth below.
McGuireWoods LLP, by Alec Covington, Dylan M. Bensinger, Anthony
Tatum, Shelby Guilbert, and Zachary L. McCamey, for Plaintiff Lineage
Logistics, LLC.
Hedrick Gardner Kincheloe & Garofalo, LLP, by David L. Levy and
Kristy M. D’Ambrosio, and Robinson Elliot & Smith, by William C.
Robinson 	and 	Dorothy 	M. 	Gooding, 	for 	Defendant 	Republic
Refrigeration, Inc.
Gallivan, White, & Boyd, P.A., by Christopher M. Kelly and Shivani
Shah, and Taylor English Duma, LLP, by Ryan M. Arnold, Stephen L.
Wright, and Gregory G. Schultz, for Defendant Primus Builders, Inc. and
Third-Party Defendant P3 Advantage, Inc.
Bledsoe, Chief Judge.
I.
FACTUAL BACKGROUND
3. 	The Court does not make findings of fact on the Motions. Rather, the Court
recites the allegations asserted and documents referenced in the pleadings that are
relevant to the Court’s determination of the Motions.
2 (Third-Party Def. P3 Advantage, Inc.’s Mot. Dismiss Third-Party Compl. [hereinafter “Mot.
Dismiss”], ECF No. 182.)

4. 	Lineage operates a cold-storage facility in Statesville, North Carolina that
stores temperature-controlled food products for customers (the “Facility”).3 Lineage
assumed ownership of the Facility after it merged with Millard Refrigerated Services,
LLC (“Millard”).4
5. 	Defendant 	Primus 	Builders, 	Inc. 	(“Primus”) 	is 	a 	general 	contractor
specializing in the construction of large, refrigerated buildings.5 Primus contracted
with Millard (the “Primus Contract”) to design and construct six blast cells at the
Facility (the “Project”).6 	Primus entered a subcontract with Defendant Republic
Refrigeration, Inc. (“Republic”) to perform services on the Project (the “Republic
Subcontract”).7
6. 	In the Primus Contract, Primus promised to name Lineage and Millard as
additional insureds under several insurance policies and to indemnify Lineage
against claims and damages that arose out of Primus’s performance on the Project.8
Similarly, under the Republic Subcontract, Republic promised to name Lineage as an
3 (Pl. Lineage Logistics, LLC’s Second Am. Compl. and Cross-Cl. ¶ 1 [hereinafter “Lineage
Second Am. Compl.”], ECF No. 121.)
4 (Lineage Second Am. Compl. ¶ 2; Pl. Primus Builders, Inc. and P3 Advantage, LLC’s Second
Am. Compl. ¶¶ 10–11 [hereinafter “Primus Second Am. Compl.”], ECF No. 122.)
5 (Primus Second Am. Compl. ¶ 1.)
6 (Lineage Second Am. Compl. ¶ 5.)
7 (Lineage Second Am. Compl. ¶¶ 7, 25; Primus Am. Compl. ¶¶ 12–13.)
8 (Lineage Second Am. Compl. ¶¶ 27–29; Lineage Second Am. Compl. Ex. A Guaranteed
Maximum Sum Contract 44, ECF No. 121.1.)

additional insured under several insurance policies and to indemnify Lineage against
any claims or damages that arose out of Republic’s performance on the Project.9
7. 	Primus hired its affiliate P3 “to furnish labor for the demolition and removal
of IMP walls in the old blast cells including old blast cell 9 of the Project.”10 On 10
January 2020, two P3 employees—Anthony Lamattina (“Lamattina”) and Carson
Brandon Drawdy (“Drawdy”)—were using a scissor lift to work on one of the blast
cells at the Facility.11 Lineage alleges that after Lamattina and Drawdy completed
their initial task, a Republic employee requested that they remain on the lift and
remove ice from an evaporator on one of the blast cells.12 	While removing the ice,
Lamattina inadvertently punctured a coil containing liquid anhydrous ammonia,
releasing nearly 1,000 pounds of ammonia into the Facility (the “Incident”).13
Lamattina was exposed to the ammonia and died at the scene. 	Drawdy was also
9 (Lineage Second Am. Compl. ¶¶ 7, 30–31; Lineage Second Am. Compl. Ex. B Design/Build
Subcontract 18, ECF No. 121.2.)
10 (Republic Refrigeration, Inc.’s Mot. Dismiss, Am. Answer Pl.’s Second Am. Compl. and
Third-Party Compl. [hereinafter “Republic’s Answer” or “Third-Party Compl.”] ¶ 15, ECF No.
172.) Republic’s Answer and Third-Party Complaint are located in different sections within
ECF No. 172, with Republic’s Third-Party Complaint beginning on page fifteen of the
document. The Court’s references to “Republic’s Answer” or “Third-Party Compl.” will refer
to the applicable section in ECF No. 172.
11 (Lineage Second Am. Compl. ¶ 57; Primus Second Am. Compl. ¶¶ 22–26.) Primus’s Second
Amended Complaint does not identify Drawdy by name.
12 (Lineage Second Am. Compl. ¶ 58.) Primus’s Second Amended Complaint does not allege
that a Republic employee requested Lamattina to remain on the scissor lift or remove ice.
(Primus Second Am. Compl. ¶¶ 22–26.)
13 (Lineage Second Am. Compl. ¶ 59; Primus Second Am. Compl. ¶ 22.)

exposed, but he was able to jump to the floor and escape the building. He was later
hospitalized with significant injuries from the exposure.14
8. 	In addition to the human cost, the release of ammonia caused Lineage to
incur massive cleanup and investigation costs, disruption to its business operations,
and significant loss of products that were destroyed or rendered unusable because of
the ammonia exposure.15 Lineage and Primus allege that they have been named as
defendants in numerous lawsuits related to the Incident, including a wrongful death
action by Lamattina’s estate and suits from customers seeking to recover for damage
to property stored at the Facility (each an “Underlying Action”).16 	Lineage and
Primus also allege that they face claims from property owners who have not yet
brought lawsuits.17
II.
PROCEDURAL BACKGROUND
9. 	This action began as an insurance coverage dispute. 	On 26 August 2021,
Lineage filed its original complaint, asserting a single claim against National Union
14 (Lineage Second Am. Compl. ¶ 60; Primus Second Am. Compl. ¶ 26.)
15 (Lineage Second Am. Compl. ¶¶ 62–63.)
16 Each amended complaint identifies three pending lawsuits: Stone ex rel. Estate of
Lamattina v. Lineage Logistics, LLC, Case No. 20-CVS-3109 (N.C. Super. Ct. 2020); DFA
Dairy Brands, LLC v. Primus Builders, Inc., Case No. 5:21-cv-00025-KDB-DSC (W.D.N.C.
2021); and Equatorial Seafood, LLC v. Lineage Logistics, LLC, Case No. 21-CVS-1960 (N.C.
Super. Ct. 2021). 	(Lineage Am. Compl. ¶ 64; Primus Am. Compl. ¶ 27.) 	Primus’s Second
Amended Complaint also names a separate action brought by Lineage against Primus,
Lineage Logistics, LLC v. Primus Builders, Inc., Case No. 23-CVS-62 (N.C. Super. Ct. 2023).
(Primus Am. Compl. ¶ 27.)
17 (Lineage Second Am. Compl. ¶ 29; Primus Second Am. Compl. ¶ 33.)

Fire Insurance Company of Pittsburgh, PA (“National Union”), Travelers Property
Casualty Company of America (“Travelers”), and Hartford Fire Insurance Company
(“Hartford”) for a declaratory judgment that Lineage was an additional insured under
these insurers’ relevant policies and entitled to coverage up to the combined limits of
liability under those policies.18
10. 	The Court permitted Primus to intervene in this action on 29 November
2021, and Primus filed its original Complaint the following day.19 	After Hartford
filed an answer to Primus’s Complaint on 15 December 2021,20 Primus filed an
amended complaint (“Primus’s Amended Complaint”) later that same day adding
claims against Hartford.21
11. 	Lineage filed an amended complaint and crossclaim on 5 January 2022,
adding claims against Hartford, National Union, Primus, and Republic.22 	Lineage
and Primus reached a settlement with National Union on 1 September 202223 and
18 (Lineage Compl. ¶¶ 47–53, ECF No. 3.)
19 (Order Primus Builders, Inc.’s Mot. Intervene as Pl., ECF No. 31; Pl. Primus Builders,
Inc.’s Compl. [hereinafter “Primus’s Original Compl.”], ECF No. 36.)
20 (Def. Hartford Fire Insurance Company’s Answer Pl. Primus Builders, Inc.’s Compl., ECF
No. 41.) 	Hartford filed its answer to Primus’s Original Complaint, but it was not until
Primus’s Amended Complaint that Primus actually named Hartford as a defendant.
21 (Pl. Primus Builders, Inc.’s Am. Compl., ECF No. 42.) Before Lineage filed its Amended
Complaint, National Union and Travelers filed motions to dismiss or stay Primus’s Original
Complaint, (ECF Nos. 48, 50), which this Court declared moot by an order dated 19 January
2022, (ECF No. 60).
22 (See generally Pl. Lineage Logistics LLC’s First Am. Compl. and Cross Claim, ECF No. 55.)
23 (Lineage Second Am. Compl. ¶ 72.)

with Hartford in December 2022.24 Lineage and Primus ultimately dismissed their
claims against National Union on 6 October 2022,25 and against Hartford on 1
February 2023.26
12. 	After dismissing their claims against these two insurers and with leave of
court, Lineage and Primus filed new complaints on 24 and 28 February 2023,
respectively.27 While these new complaints continued to seek relief against Travelers
as the remaining insurer defendant, Lineage also brought claims for:
a. 	a declaratory judgment against Primus that Primus must defend and/or
indemnify Lineage for losses sustained as a result of the Incident under
the Primus Contract;28
b. 	breach of the Primus Contract against Primus for failure to indemnify
Lineage for its losses as required by the Primus Contract;29
c. 	a declaratory judgment that Republic must indemnify Lineage under
the Republic Subcontract;30
24 (Lineage Second Am. Compl. ¶ 84.)
25 (Lineage Second Am. Compl. ¶ 72; Voluntary Dismissal With Prejudice All Claims Made
Against Def. National Union Fire Insurance Company Pittsburgh, PA, ECF No. 104;
Stipulation Dismissal, ECF No. 105.)
26 (Lineage Second Am. Compl. ¶ 87; Voluntary Dismissal With Prejudice All Claims Made
Against Def. Hartford Fire Insurance Company, ECF No. 111; Notice Voluntary Dismissal,
ECF No. 112.)
27 (Lineage Second Am. Compl.; Primus Second Am. Compl.)
28 (Lineage Second Am. Compl. ¶¶ 133–38.)
29 (Lineage Second Am. Compl. ¶¶ 139–46.)
30 (Lineage Second Am. Compl. ¶¶ 147–52.)

d. 	tortious interference with contract against Republic;31 and
e. 	breach of the Republic Subcontract against Republic for failure to
indemnify Lineage as required by the Republic Subcontract.32
13. 	Travelers 	and 	Republic 	thereafter 	moved 	to 	dismiss 	these 	new
Complaints,33 and in an Order dated 10 August 2023, the Court dismissed all claims
against Travelers without prejudice but permitted Lineage’s claims against Republic
for 	declaratory 	judgment 	concerning 	Lineage’s 	rights 	to 	indemnity 	under 	the
Republic Subcontract and for breach of the indemnity obligations under that contract
to proceed to discovery.34 Lineage’s claims against Primus for declaratory judgment
concerning Lineage’s rights to indemnity under the Primus Contract and for breach
of the indemnity obligations under that contract remain in the case as well.
14. 	On 2 October 2023, the Court entered a Consent Order realigning the
parties.35 That same day, Primus dismissed its declaratory judgment claims against
Republic without prejudice.36
31 (Lineage Second Am. Compl. ¶¶ 122–32.)
32 (Lineage Second Am. Compl. ¶¶ 153–60.)
33 (Def. Travelers Property Casualty Company America’s Mot. Dismiss the Second Am.
Compl. Lineage Logistics, LLC, ECF No. 132; Def. Republic Refrigeration, Inc.’s Mot. Dismiss
Pl. Lineage Logistics, LLC’s Second Am. Compl. Pursuant Rule 12(b)(6), ECF No. 134.)
34 (Order and Op. Travelers Property Casualty Company America’s Mots. Dismiss Pls.’ Am.
Compls., Republic Refrigeration, Inc.’s Mot. Dismiss Lineage Logistics, LLC’s Am. Compl.,
and Republic Refrigeration, Inc.’s Mot. Stay, ECF No. 155; Lineage Logistics, LLC v. Nat’l
Union Fire Ins. Co., 2023 NCBC LEXIS 97 (N.C. Super. Ct. Aug. 10, 2023).) 	In this order
and opinion, the Court also denied Republic’s Motion to Stay, (ECF No. 135).
35 (Consent Order Realignment the Parties, ECF No. 166.)
36 (Notice Voluntary Dismissal Without Prejudice, ECF No. 165.)

15. 	On 25 October 2023, Primus filed an amended answer to Lineage’s Second
Amended 	Complaint 	and 	included 	a 	crossclaim 	against 	Republic 	for 	express
indemnification (“Primus’s Answer”).37
16. 	On 1 November 2023, Republic also filed an amended answer to Lineage’s
Second Amended Complaint (“Republic’s Answer”) and, at the same time, asserted a
third-party complaint against P3 (the “Third-Party Complaint”) alleging that P3 was
responsible for the Incident and liable to Republic should Republic be ordered to pay
Lineage on its claims.38 Republic asserted claims against P3 for (i) negligence (Count
I), (ii) common law indemnification (Count II), and (iii) contribution (Count III).39
17. 	Lineage filed its Motion to Strike on 27 November 2023, seeking to strike
certain of Republic’s and Primus’s affirmative defenses in their Answers to Lineage’s
Second Amended Complaint.40 	P3 filed the Motion to Dismiss the Third-Party
Complaint on 1 December 2023, seeking the dismissal of Republic’s third-party
claims against it.41
37 (Def. Primus Builders, Inc.’s Am. Answer Lineage Logistics, LLC’s Second Am. Compl. and
Cross-Cl. and Primus Builders, Inc.’s Cross-Cl. Against Republic [hereinafter “Primus’s
Answer”], ECF No. 171.)
38 (Third-Party Compl.)
39 (Third-Party Compl. ¶¶ 26–36.)
40 (Mot. Strike.)
41 (Mot. Dismiss.)

18. 	After full briefing, the Court convened a hearing on the Motions on 18
January 2024, at which all parties were represented by counsel (the “Hearing”). The
Motions are now ripe for resolution.
III.
ANALYSIS
A. 	Lineage’s Motion to Strike
19. 	Under Rule 12(f), a trial court “may order stricken from any pleading any
insufficient 	defense 	or 	any 	redundant, 	irrelevant, 	immaterial, 	impertinent, 	or
scandalous matter.” N.C.R. Civ. P. 12(f). “Rule 12(f) motions are viewed with disfavor
and are infrequently granted.” Daily v. Mann Media, Inc., 95 N.C. App. 746, 748–49
(1989) (cleaned up). A decision to grant or deny a Rule 12(f) motion to strike is within
the trial court’s sound discretion. Reese v. City of Charlotte, 196 N.C. App. 557, 567
(2009).
20. 	Significantly for present purposes, “[a] motion under Rule 12(f) is a device
to test the legal sufficiency of an affirmative defense,” Faulconer v. Wysong & Miles
Co., 155 N.C. App. 598, 601 (2002), and “[t]he requirements for pleading a defense
are no more stringent than the requirements for pleading a claim for relief.” Vernon
v. Crist, 291 N.C. 646, 653 (1977). As a result, a Rule 12(f) motion to strike affirmative
defenses is considered under the same standard as a motion to dismiss claims under
Rule 12(b)(6). 	See, e.g., Mozingo v. N.C. Nat’l Bank, 31 N.C. App. 157, 163 (1976)
(noting that Rule 12(f) is an “analogue to” Rule 12(b)(6) and that “the same tests

apply” 	to 	both 	rules); 	see 	also 	N.C.R. 	Civ. 	P. 	8(a)–(c) 	(setting 	forth 	pleading
requirements for both claims for relief and defenses).
21. 	This Court has recognized that “defenses may be stricken from pleadings, if
they are insufficient as a matter of law.” Nat’l Fin. Partners Corp. v. Ray, 2014 NCBC
LEXIS 50, at *18 (N.C. Super. Ct. Oct. 13, 2014) (quoting Palmer v. Oakland Farms,
Inc., 2010 U.S. Dist. LEXIS 63265, at *4 (W.D. Va. June 24, 2010)).
22. 	As this Court has explained:
[T]o survive a motion to strike, a defendant must offer more than a
“bare-bones conclusory allegation which simply names a legal theory but
does not indicate how the theory is connected to the case at hand.” Villa
v. Ally Fin., Inc., 2014 U.S. Dist. LEXIS 25624, at *6 (M.D.N.C. Feb. 28,
2014) (citation omitted); see also Johnson v. Clark, 2013 U.S. Dist.
LEXIS 95492, at *4–6 (E.D.N.C. July 9, 2013) (striking “conclusory
defenses” that failed to allege sufficient facts to provide the plaintiff with
sufficient notice of the affirmative defenses in question); Koehler v.
United States, 2012 U.S. Dist. LEXIS 163816, at *3–4 (E.D.N.C. Nov.
15, 2012) (providing that “conclusory defenses, presented without any
factual 	support, 	should 	be 	stricken”); 	Odyssey 	Imaging, 	LLC 	v.
Cardiology Assocs. of Johnston, LLC, 752 F. Supp. 2d 721, 726 (W.D. Va.
2010) (explaining that “dismissal under Rule 12(f) is appropriate where
the 	defendant 	has 	not 	articulated 	its 	defenses 	so 	that 	they 	are
contextually comprehensible”). 	“When a court strikes a defense, the
general practice is to grant the defendant leave to amend.” 	Banks v.
Realty Mgmt. Serv., 2010 U.S. Dist. LEXIS 7501, at *3 (E.D. Va. Jan.
29, 2010).
Nat’l Fin. Partners Corp., 2014 NCBC LEXIS 50, at *18; see also Staton v. N. State
Acceptance, LLC, No. 1:13-CV-277, 2013 U.S. Dist. LEXIS 105599, at *7 (M.D.N.C.
July 29, 2013) (“At a minimum, therefore, a statement of an affirmative defense must
give notice to an opponent of its basis and go beyond conclusions.”).
23. 	Thus, as Judge Robinson of this Court has summarized: “a defense that is
conclusory, contextually incomprehensible, not well-grounded in fact, speculative, or

otherwise devoid of any factual support may be stricken pursuant to Rule 12(f), since
such a defense will ordinarily fail to give a party sufficient notice of the nature of the
defense as required by Rule 8.” Merrell v. Smith, 2020 NCBC LEXIS 126, at *7 (N.C.
Super. Ct. Oct. 22, 2022); see, e.g., Carpenter v. Carpenter, 189 N.C. App. 755, 761
(2008) (reversing striking of answer containing defenses that could have “a possible
bearing on the litigation”); Daily, 95 N.C. App. at 749 (affirming the striking of a
defense that had “no possible bearing upon the litigation”).
24. 	Lineage’s Motion to Strike seeks to strike certain affirmative defenses from
Republic’s and Primus’s Amended Answers to Lineage’s Second Amended Complaint.
The Court will consider each challenge in turn.
1. Republic’s Affirmative Defenses
25. 	In response to Lineage’s Motion to Strike, Republic has agreed to withdraw
the following affirmative defenses: (i) adoption of any and all contractual defenses,
limitations, exclusions, and language (Third Defense); (ii) justification (Fourth
Defense); (iii) adoption of defenses (Fifth and Sixth Defenses); (iv) a purported motion
to strike (Seventh Defense); (v) collateral estoppel and res judicata (Eighth Defense);
(vi) 	waiver 	(Ninth 	Defense); 	(vii) 	laches 	(Tenth 	Defense); 	and 	(viii) 	accord,
satisfaction, and compromising settlement (Eleventh Defense).42 	Accordingly, the
Court will strike these defenses.43
42 (See Mem. Opp’n Pl.’s Mot. Dismiss [sic] Strike Affirmative Defenses 5 [hereinafter
“Republic’s Br. Opp’n Mot. Strike”], ECF No. 190.)
43 The Motion to Strike also seeks to strike Republic’s thirteenth affirmative defense, which
states that “[Lineage’s] claims are barred in whole or in part to the extent they have been
raised in a prior pending action.” (Republic’s Answer 14; Pl. Lineage Logistics, LLC’s Mem.

26. 	Republic seeks to maintain, however, three affirmative defenses which
Lineage seeks to strike through its motion: (i) the defense titled “First Motion to
Dismiss,” a single-sentence “motion” asserted under Rule 12(b)(6) at the beginning of
Republic’s Answer;44 (ii) statute of limitations (Twelfth Defense);45 and (iii) N.C.G.S.
§ 22B-1 (Fourteenth Defense).46
a. 	“First Motion to Dismiss”
27. 	Republic’s inclusion of its purported “First Motion to Dismiss” at the
beginning of its amended answer reflects common practice in the North Carolina
state courts. Also typical of North Carolina state court practice, Republic’s purported
motion is not accompanied by a supporting brief. Under Business Court Rule 7.2 (the
“BCR(s)”), however, a motion to dismiss “must be set out in a separate document”—
i.e., it may not be included in a party’s answer—and “[a] motion unaccompanied by a
required brief may, in the discretion of the Court, be summarily denied.” BCR 7.2.
Supp. Mot. Strike Affirmative Defenses 12, 14 [hereinafter “Lineage’s Br. Supp.”], ECF No.
178.) Republic did not address Lineage’s Motion to Strike this defense in its briefing or at
the Hearing, and the Court agrees with Lineage that “Republic does not identify any previous
litigation that might have preclusive effect on this action[.]” 	(Lineage’s Br. Supp. 12.)
Accordingly, the Court will strike this affirmative defense as well. See also, e.g., Elhulu v.
Alshalabi, 2021 NCBC LEXIS 44, *21 (N.C. Super. Ct. Apr. 29, 2021) (granting motion as
uncontested when response brief did not respond to moving party’s argument); Glover Constr.
Co. v. Sequoia Servs., LLC, 2020 NCBC LEXIS 76, at *23 (N.C. Super. Ct. June 18, 2020)
(same).
44 (Republic’s Answer 1.)
45 (Republic’s Answer 14.)
46 (Republic’s Answer 14.)

28. 	Rather than summarily deny the First Motion to Dismiss, however, the
Court, in the exercise of its discretion and after discussion and agreement with the
parties at the Hearing, elects not strike the First Motion to Dismiss but instead will
consider the purported motion inoperative and take no action on it unless and until
Republic files a motion in compliance with BCR 7.2. 	Lineage will retain all its
available defenses to any such motion. 	Accordingly, Lineage’s Motion to Strike the
First Motion to Dismiss will be denied on this limited basis.
b. 	Statute of Limitations (Twelfth Defense)
29. 	Republic’s statute of limitations defense asserts that Lineage’s claim against
Republic for breach of the Republic Subcontract, which was filed on 24 February 2023,
was filed more than three years after the 10 January 2020 Incident, which was the
earliest date on which the claim could have accrued, and was thus after the applicable
three-year statute of limitations period had expired.47 	See, e.g., Charlotte Motor
Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 301 (2009) (“The statute of
limitations 	period 	for 	an 	indemnity 	contract 	is 	three 	years.”); 	see 	also, 	e.g.,
Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 6 (2017) (“A cause of action
is complete and the statute of limitations begins to run upon the inception of the loss
from the contract, generally the date the promise is broken.”); Schenkel & Schultz,
Inc. v. Hermon F. Fox & Assocs., P.C., 180 N.C. App. 257, 267 (2006) (“North Carolina
follows the general rule that a cause of action on an obligation to indemnify normally
accrues when the indemnitee suffers actual loss.”).
47 (Republic’s Br. Opp’n Mot. Strike 6.)

30. 	Lineage argues in opposition that its claim was timely because, under Rule
15(c), its claim for breach of the indemnity clause in the Republic Subcontract relates
back to Lineage’s First Amended Complaint, which was filed on 5 January 2022, less
than two years after the Incident and thus well within the three-year statute of
limitations for breach of contract. The Court agrees with Lineage.
31. 	Under North Carolina law, “[a] claim asserted in an amended pleading is
deemed to have been interposed at the time the claim in the original pleading was
interposed, unless the original pleading does not give notice of the transactions,
occurrences, or series of transactions or occurrences, to be proved pursuant to the
amended pleading.” N.C.R. Civ. P. 15(c). If an original complaint “gave notice under
Rule 8(a)(1) of a claim based on [the same transaction or occurrence], then the
amended complaint under Rule 15(c) is absorbed into the original[.]” Pyco Supply Co.
v. Am. Centennial Ins. Co., 321 N.C. 435, 443 (1988). 	Lineage’s indemnity claim
against Republic relates back to the First Amended Complaint because Lineage’s
breach of contract claim in the Second Amended Complaint and its declaratory
judgment claim in the First Amended Complaint are both based on Republic’s alleged
breach of the same indemnity provision in the Republic Subcontract. 	Republic was
therefore on “notice of the transactions, occurrences, or series of transactions or
occurrences” on which Lineage’s current breach of contract claim is based upon the
filing of the First Amended Complaint. 	The Court will therefore grant Lineage’s
Motion to Strike Republic’s statute of limitations affirmative defense.

c. 	N.C.G.S. § 22B-1 (Fourteenth Defense)
32. 	The Court has previously rejected Republic’s argument that N.C.G.S.
§ 22B-1 renders the Republic Subcontract’s indemnity provision void,48 and Republic
has represented that this affirmative defense is asserted solely to preserve the issue
for appeal.49 	Since the Court has already determined that Republic’s affirmative
defense fails as a matter of law, the Court will grant Lineage’s Motion to Strike
Republic’s affirmative defense based on section 22B-1.
2. Primus’s Affirmative Defenses
33. 	In response to Lineage’s Motion to Strike, Primus has agreed to withdraw
its affirmative defenses based on lack of subject matter jurisdiction (Fifth Defense)
and the statute of limitations and/or repose (Seventh Defense).50 	Accordingly, the
Court will strike these defenses. In addition, the parties agreed at the Hearing that
Primus’s 	unclean 	hands 	defense 	(Eighth 	Defense) 	should 	be 	stricken 	as 	to
quantifiable past losses but remain as a defense to uncertain future losses. The Court
will therefore memorialize the parties’ agreement in this Order and Opinion.
34. 	Lineage’s Motion to Strike has thus been narrowed to Primus’s affirmative
defenses for waiver (Third Defense) and equitable estoppel (Fourth Defense).51 These
48 Lineage Logistics, LLC v. Nat’l Union Fire Ins. Co., 2023 NCBC LEXIS 97, at *40–41 (N.C.
Super. Ct. Aug. 10, 2023); (see also Lineage’s Br. Supp 13–14; Republic’s Br. Opp’n Mot.
Strike 6).
49 (Republic’s Br. Opp’n Mot. Strike 6.)
50 (Primus Builders, Inc.’s Mem. Opp’n Pl.’s Mot. Strike Affirmative Defenses 10–11
[hereinafter “Primus’s Br. Opp’n”], ECF No. 189.)
51 (Mot. Strike; Primus’s Answer 24–25.)

defenses are related, and through them, Primus alleges that Lineage has waived or
is otherwise equitably estopped from seeking indemnity from Primus because of
Lineage’s own negligence.52 Although Lineage argues that Primus has failed to allege
facts showing each of the required elements for waiver53 or equitable estoppel54,
necessitating that each defense be stricken, the Court finds, upon a review of all of
the allegations of Primus’s amended answer, including those incorporated into these
two defenses, that Primus has satisfied its pleading burden under Rule 8 to put
Lineage on notice of the facts supporting these affirmative defenses. 	The Court
further concludes that each asserted defense could have “a possible bearing on the
litigation.” Carpenter, 189 N.C. App. at 761; see also Daily, 95 N.C. App. at 749. As
a result, the Court will deny the Motion to Strike Primus’s affirmative defenses of
waiver and equitable estoppel.
52 (Primus’s Br. Opp’n 12–13.)
53 (Lineage’s Br. Supp. 3–4.) See, e.g., Fetner v. Rocky Mount Marble & Granite Works, 251
N.C. 296, 302 (1959) (“The essential elements of waiver are (1) the existence, at the time of
the alleged waiver, of a right, advantage or benefit; (2) the knowledge, actual or constructive,
of the existence thereof; and (3) an intention to relinquish such right, advantage or benefit.”).
54 (Lineage’s Br. Supp. 4–5.) See, e.g., Gore v. Myrtle/Mueller, 362 N.C. 27, 33–34 (2007):
[T]he essential elements of an equitable estoppel as related to the party
estopped are: (1) 	Conduct which amounts to a false representation or
concealment of material facts, or at least, which is reasonably calculated to
convey the impression that the facts are otherwise than, and inconsistent with,
those 	which 	the 	party 	afterwards 	attempts 	to 	assert; 	(2) 	intention 	or
expectation that such conduct shall be acted upon by the other party, or
conduct which at least is calculated to induce a reasonably prudent person to
believe such conduct was intended or expected to be relied and acted upon;
[and] (3) knowledge, actual or constructive, of the real facts.
Id. (cleaned up).

B. 	P3’s Motion to Dismiss
35. 	P3 seeks to dismiss all claims in Republic’s Third-Party Complaint for
insufficiency of process under Rules 12(b)(4) and 12(b)(5) and resulting lack of
personal jurisdiction under Rule 12(b)(2) as well as for failure to state a claim upon
which relief can be granted under Rule 12(b)(6). P3 also moves to dismiss Republic’s
negligence claim on statute of limitations grounds (N.C.G.S. § 1-52) under Rule
12(b)(6).
1. Insufficiency of Process/Lack of Personal Jurisdiction
36. 	P3 contends that Republic failed to “submit a summons for issuance by the
Court” and “failed to properly serve the Third-Party Complaint,”55 requiring the
dismissal of the third-party action against P3 for insufficient process under Rules
12(b)(4) and 12(b)(5) and for lack of personal jurisdiction under Rule 12(b)(2).56
37. 	It is undisputed that Republic filed its Third-Party Complaint against P3 on
1 November 2023 but did not cause a summons to be issued until 5 December 2023
and effect service upon P3 until 10 January 2024.57 P3 argues that the Third-Party
Complaint should be dismissed because the delay in issuing the summons caused
Republic’s action against P3 to abate under Rule 4(a), which provides that “[u]pon
55 (Mem. Supp. P3 Advantage, Inc.’s Mot. Dismiss The Third-Party Compl. 10 [hereinafter
“P3’s Br. Supp.”], ECF No. 183.)
56 (P3’s Br. Supp. 9–11.)
57 The relevant summons documents are appended to the end of Republic’s brief opposing the
Motion to Dismiss. (Mem. Opp’n P3 Advantage, Inc.’s Mot. Dismiss Third-Party Compl. 9–
16 [hereinafter “Republic’s Br. Opp’n Mot. Dismiss”], ECF No. 191.)

the filing of the complaint, summons shall be issued forthwith, and in any event
within five days.” 	N.C.R. Civ. P. 4(a). 	P3 further argues that dismissal for lack of
personal 	jurisdiction 	must 	follow, 	citing 	Thomas 	& 	Howard 	Co. 	v. 	Trimark
Catastrophe Servs., Inc., 151 N.C. App. 88, 91 (2002) (“Absent valid service of process,
a court does not acquire personal jurisdiction over the defendant and the action must
be dismissed.” (citation omitted)).58
38. 	The Court of Appeals, however, has held that while an “action abate[s] upon
failure to issue proper summons within five days of filing the complaint, [ ] the action
revive[s] upon the issuance and service of summons on defendant.” Roshelli v. Sperry,
57 N.C. App. 305, 308 (1982). In Roshelli, as here, a complaint abated and was subject
to dismissal under Rule 4(a) after a summons was not issued within five days after
the complaint’s filing. And again like here, a second summons was issued and served
more than five days after the complaint was filed. The Court of Appeals held on these
facts that “the effect of the second summons . . . was to revive and commence a new
action on the date of issue.” Id. The Court, therefore, affirmed the trial court’s denial
of the defendant’s motion to dismiss for insufficiency of process and lack of personal
jurisdiction.
39. 	Roshelli is controlling. 	Although Republic’s third-party action against P3
abated and was subject to dismissal under Rule 4(a) after Republic failed to cause a
summons to be issued within five days after the Third-Party Complaint was filed,
Roshelli provides that the issuance and service of a second summons thereafter
58 (P3’s Br. Supp. 10.)

revived the action. Accordingly, P3’s Motion to Dismiss under Rules 12(b)(2), 12(b)(4),
and 12(b)(5) is without merit and shall be denied. See also, e.g., Morton v. Blue Ridge
Ins. Co., 250 N.C. 722, 724–25 (1959) (concluding that issuance of a second summons
instituted a new action at the time of issuance of the second summons).
2. Statute of Limitations
40. 	P3 next moves under Rule 12(b)(6) to dismiss Republic’s negligence claim,
contending 	that 	that 	claim 	is 	barred 	by 	the 	applicable 	three-year 	statute 	of
limitations under N.C.G.S. § 1-52.59 “A statute of limitations defense may properly
be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the
complaint that such a statute bars the claim.” Horton v. Carolina Medicorp, Inc., 344
N.C. 133, 136 (1996). “Once a defendant raises a statute of limitations defense, the
burden of showing that the action was instituted within the prescribed period is on
the plaintiff. A plaintiff sustains this burden by showing that the relevant statute of
limitations has not expired.” Id.
41. 	When ruling on a motion to dismiss under Rule 12(b)(6), the Court must
consider “whether the allegations of the [challenged pleading], if treated as true, are
sufficient to state a claim upon which relief can be granted under some legal theory.”
Corwin v. Brit. Am. Tobacco, PLC, 371 N.C. 605, 615 (2018) (quoting CommScope
Credit Union v. Butler & Burke, LLP, 369 N.C. 48, 51 (2016)).
42. 	Dismissal pursuant to Rule 12(b)(6) is proper when “(1) the [challenged
pleading] on its face reveals that no law supports [its] claim[s]; (2) the [pleading] on
59 (P3’s Br. Supp. 11–12.)

its face reveals the absence of facts sufficient to make a good claim; or (3) the
[pleading] discloses some fact that necessarily defeats the [non-moving party’s]
claim.” Corwin, 371 N.C. at 615 (quoting Wood v. Guilford County, 355 N.C. 161, 166
(2002)).
43. 	On a Rule 12(b)(6) motion, the challenged pleading is construed liberally,
viewing the allegations as true and in the light most favorable to the non-moving
party, and the claim is not dismissed unless it appears beyond doubt that the non-
moving party could prove no set of facts in support of his claim which would entitle
him to relief. 	U.S. Bank Nat’l Ass’n ex rel. C-BASS Mortg. Loan Asset-Backed
Certificates, Series 2006-RP2 v. Pinkney, 369 N.C. 723, 726 (2017). While “the well-
pleaded material allegations 	of 	the 	[challenged pleading] 	are 	taken 	as 	true[,]
conclusions of law or unwarranted deductions of fact are not admitted.” 	Azure
Dolphin, LLC v. Barton, 371 N.C. 579, 599 (2018) (quoting Arnesen v. Rivers Edge
Golf Club & Plantation, Inc., 368 N.C. 440, 448 (2015)).
44. 	Under North Carolina law, a claim for negligence “accrues when the wrong
giving rise to the right to bring suit is committed.” Harrold v. Dowd, 149 N.C. App.
777, 781 (2002). 	Republic’s negligence claim is based on P3’s alleged conduct in
causing the injuries suffered in the Incident.60 P3 argues that because the Incident
occurred on 10 January 2020 and the Third-Party Complaint was filed over three
years later on 1 November 2023, Republic’s negligence claim should be dismissed.
60 (Third-Party Compl. ¶¶ 17–34.)

45. 	Republic contends that its negligence claim is timely because the claim
relates back to Lineage’s claims for negligence, gross negligence, and indemnity in a
lawsuit Lineage filed against P3 in January 2023 in Iredell County Superior County
(Civil Action No. 23-CVS-62) (the “Iredell Action”).61 	Based on those allegations,
Republic contends that P3 has long been on notice of the events or occurrences giving
rise to Republic’s negligence claim and that relation back is therefore proper under
Rule 15(c).
46. 	At the Hearing, the parties sparred over the application of Crossman v.
Moore, 341 N.C. 185 (1995), and Baldwin v. Wilkie, 179 N.C. App. 567 (2006), to the
facts of this case. 	In Crossman, the Supreme Court held that Rule 15(c) “does not
apply to the naming of a new party-defendant to the action. 	It is not authority for
the relation back of a claim against a new party.” Id. at 187. In Baldwin, the Court
of Appeals looked to New York law for guidance to conclude that, for the purpose of
determining venue, Rule 15(c) permitted relation back when the claim of a newly
joined plaintiff was “virtually identical” to the original plaintiff’s claim and the newly
joined plaintiff, through its injury, was “similarly situated” to the original plaintiff.
Baldwin, 179 N.C. App. at 571 (quoting Key Int’l Mfg., Inc. v. Morse/Diesel, Inc., 536
N.Y.S.2d 792, 798 (1988)).
47. 	P3 was originally a plaintiff in this action asserting claims against Republic.
P3 dismissed those claims on 2 October 202362 and was no longer a party-plaintiff in
61 (Republic’s Br. Opp’n Mot. Dismiss 5.)
62 (Notice Voluntary Dismissal Without Prejudice.)

the litigation.63 Less than a month later, Republic brought P3 back into the case as
a third-party defendant. 	While, as Republic contends, the third-party claims that
Republic asserts against P3 are based on allegations very similar to those Lineage
advanced against P3 in the Iredell Action, Rule 15(c) contemplates relation back to
the “original pleading” in the same action, not to a pleading in a separate action. See
id. (applying relation back to the original complaint in the same action); see also, e.g.,
Watkins v. Stephenson, 57 F.4th 576, 580 (6th Cir. 2023) (“[the analogous Federal]
Rule 15’s text contemplates that the relevant filings will arise in the same case.”).64
Further, Crossman makes plain that Republic cannot get the benefit of Rule 15(c)’s
relation back provision since P3 is a newly added defendant. 	Accordingly, since
Republic’s negligence claim was filed more than three years after it accrued, that
claim is barred by the applicable statute of limitations. 	P3’s Motion shall therefore
be granted dismissing this claim.
63 (See Consent Order Realignment the Parties.)
64 Numerous federal circuit decisions are to similar effect. 	See, e.g., Velez-Diaz v. United
States, 507 F.3d 717, 719 (1st Cir. 2007) (“Rule 15(c), by its terms, applies to amended
pleadings in the same action as an original, timely pleading: the pleading sought to be
amended may not be a pleading filed in a different case.” (emphasis in original)); Carter v.
Tex. Dep’t Health, 119 Fed. Appx. 577, 581 (5th Cir. 2004) (for purposes of Federal Rule 15(c),
an “ ‘original pleading’ may not be a pleading filed in a different case”); United States ex rel.
Malloy v. Telephonics Corp., 68 Fed. Appx. 270, 273 (3d Cir. 2003) (“We agree that Rule 15(c)
does not permit a complaint filed in one civil action to relate back to a complaint filed in a
separate civil action.” (cleaned up)); Bailey v. N. Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th
Cir. 1990) (holding that a complaint filed in one civil action cannot relate back to a complaint
filed in a separate civil action); see also Turner v. Duke Univ., 325 N.C. 152, 164 (1989)
(“Decisions under the federal rules are [ ] pertinent for guidance and enlightenment in
developing the philosophy of the North Carolina rules.”).

3. Failure to State a Claim Upon Which Relief May Be Granted
48. 	P3 	separately 	argues 	that 	because 	Lineage’s 	claims 	are 	grounded 	in
contract, not tort, Republic’s third-party claims for negligence, indemnity, and
contribution must be dismissed.65 The Court agrees.
49. 	First, the Court has already determined that Republic’s negligence claim
against P3 shall be dismissed on statute of limitations grounds. 	Even if the claim
had survived that challenge, however, the Court agrees with P366 that Republic’s
failure to allege any underlying tortious injury or damages provides a separate
ground for dismissal. See, e.g., Parker v. Town of Erwin, 243 N.C. App. 84, 110 (2015)
(requiring that a negligence claim allege both that “the breach was the actual and
proximate cause of the plaintiff’s injury” and that “damages resulted from the injury”
(quoting Bostic Packaging, Inc. v. City of Monroe, 149 N.C. App. 825, 830 (2002))).
50. 	Moreover, while it is true that Republic will only be liable for breach of the
indemnity provision in the Republic Subcontract if it is found to be negligent in
connection with the Incident, Lineage’s claims against Republic are in contract, not
tort. And while Republic may defend against Lineage’s contract claim by seeking to
establish that it was not negligent (thereby avoiding liability on the contract claim),
Republic’s defense is a contract defense, not a basis to assert an independent
negligence claim against P3. And since Republic’s contribution claim is only available
if Republic prevails on its negligence claim, that claim, too, must therefore be
65 (P3’s Br. Supp. 13–16.)
66 (P3’s Br. Supp. 12–13.)

dismissed. 	See, e.g., State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 470
(1989) (“[T]he right to contribution does not exist unless two or more parties are joint
tortfeasors.”). 	For each of these separate and independent reasons, Republic’s
negligence and contribution claims shall be dismissed.
51. 	Republic’s indemnification claim fares no better. Republic frames the claim
as “common law indemnification” and asserts that it is entitled to indemnity because
“the damages alleged by Lineage were caused in whole or in part by the conduct of
P3 Advantage, without any corresponding culpable conduct on the part of Republic.”67
P3 contends that this claim should be dismissed because Lineage’s claims against
Republic do not sound in tort, and in the absence of a tort claim, Republic cannot seek
indemnification from P3.68 The Court agrees with P3.
52. 	“In North Carolina, a party’s rights to indemnity can rest on three bases: (1)
an express contract; (2) a contract implied-in-fact; or (3) equitable concepts arising
from the tort theory of indemnity, often referred to as a contract implied-in-law.”
Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 38 (2003). Republic does not allege
an express contract or a contract implied-in-fact giving rise to a right to indemnity,
so Republic’s “common law” right to indemnity, if it exists at all, is based on a right
to indemnity implied-in-law.
53. 	“For indemnification implied-in-law, more an equitable remedy than an
action in and of itself, North Carolina law requires there be an underlying injury
67 (P3’s Br. Supp. 15.)
68 (P3’s Br. Supp. 15.)

sounding in tort. 	The party seeking indemnity must have imputed or derivative
liability for the tortious conduct from which indemnity is sought.” 	Id. at 41. 	Since
there is no tort claim against Republic for which it seeks indemnity from P3,
Republic’s claim does not fit the “active-passive tort-feasor framework” required to
state a claim for a right to indemnity implied-in-law. See id. at 47 (holding that “the
parties do not fit the active-passive tort-feasor framework required to support an
equitable right to indemnity implied-in-law” where the plaintiff’s claim sought
indemnification from a claim for breach of contract and not one sounding in tort).
Since Republic failed to allege any of the three bases that permit it a right to
indemnity, 	the 	Court 	will 	grant 	P3’s 	Motion 	dismissing 	Republic’s 	claim 	for
indemnification.69
IV.
CONCLUSION
54. 	WHEREFORE:
a. 	The Court, in the exercise of its discretion, hereby GRANTS in part
and DENIES in part the Motion to Strike as follows:
i. 	Lineage’s Motion to Strike is DENIED as to Republic’s “First
Motion to Dismiss,” but the Court will consider the purported
69 Republic also raises an additional timeliness argument—contending that its claims for
indemnity and contribution are timely because they did not accrue until Lineage sued
Republic in January 2022. But as discussed above, claims for implied-in-law indemnity and
contribution necessarily depend upon an underlying tort, and, here, Lineage has not asserted
a tort claim against Republic. Therefore, Republic’s accrual argument, even if correct, does
not salvage its claims. See Schenkel & Schultz, Inc., 180 N.C. App. at 268.

motion inoperative and take no action on it unless and until
Republic files a motion in compliance with BCR 7.2. Lineage will
retain all its available defenses to any such motion.
ii. 	Lineage’s Motion to Strike is GRANTED as to Republic’s third,
fourth, 	fifth, 	sixth, 	seventh, 	eighth, 	ninth, 	tenth, 	eleventh,
twelfth, thirteenth, and fourteenth affirmative defenses, and
those defenses shall be stricken without prejudice.70
iii. 	Lineage’s Motion to Strike is DENIED as to Primus’s third and
fourth affirmative defenses.
iv. 	Lineage’s Motion to Strike is GRANTED as to Primus’s fifth and
seventh affirmative defenses, and those defenses shall be stricken
without prejudice.
v. 	Lineage’s Motion to Strike is GRANTED as to Primus’s eighth
affirmative defense (unclean hands) to the extent that defense is
asserted as a defense to Lineage’s claims for past losses, and that
defense shall be stricken to that extent without prejudice, but
to the extent the defense is asserted as a defense to Lineage’s
claims for future losses, Lineage’s Motion to Strike is DENIED.
b. 	The Court hereby GRANTS the Motion to Dismiss, and the Third-Party
Complaint shall be DISMISSED with prejudice.
70 “When a court strikes a defense, the general practice is to grant the defendant leave to
amend.” Nat’l Fin. Partners Corp., 2014 NCBC LEXIS 50, at *19 (quoting Banks, 2010 U.S.
Dist. LEXIS 7501, at *3).

SO ORDERED, this the 23rd day of February, 2024.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge