NC Business Court On A Barely Ever Referenced Rule Of Civil Procedure And A Host Of Employment-Related Claims

There are undoubtedly many of the Rules of Civil Procedure that you remember by number.  Certainly Rules 12, 56, and 65.  But Rule 10(b)?  What does that even say?

If you are reaching for your Rulebook, put it away.  Rule 10 is titled "Form of Pleadings."  Section (b) of that Rule says:

Paragraphs; separate statement. - All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

I translate that as number the paragraphs of your pleadings, and keep them short.  Rule 10 dovetails with Rule 8, which requires a "short and plain" statement of claims with averments that are "simple, concise, and direct."

But the counterclaim that was the subject of the Business Court's ruling in Kingsdown, Inc. v. Hinshaw, 2015 NCBC 28 was anything but compliant with the Rules of Civil Procedure.  Numbered paragraphs 2 and 3 were interrupted by several pages of single dspaced, rambling prose, which alluded to everything between Ray being asked by her employer during her employment to pick up lunches for salesmen, and not being allowed, after her termination, to transfer her old company phone number to her new cellphone or to have access to family photos on her company computer.

So, what is a lawyer to do when faced with responding to such lengthy assertions?  Move to dismiss, of course.  Kingsdown, doing exactly that, argued that Ray's counterclaim was in violation of both Rules 8 and 10.

Judge Bledsoe stated that the usual Rule 8 challenge to a pleading was "based on the lack of specific detail in the complaint, not because the complaint is too detailed and voluminous."  Op. Par. 20.  He found no North Carolina decisions dismissing a complaint for it being overly "detailed," but cited several federal court decisions taking that action. Op ¶20 & n.6.

Even so, the Court denied the Motion to Dismiss on Rule 8 grounds, saying that the allegations of the counterclaims were not "so voluminous or incomprehensible to prevent Kingsdown from discerning the nature and basis" for the counterclaims "or otherwise formulating an answer to the Counterclaims."  Op. ¶20.

Although Ray's counterclaims survived a Rule 8 dismissal, they were dismissed without prejudice because of the violation of Rule 10.  Judge Bledsoe "admonish[ed] Ms. Ray to follow the requirement under Rule 8 to advance 'simple, concise, and direct' allegations in the preparation and filing of her amended Counterclaims."  Op. ¶21.

Despite the dismissal being without prejudice, Judge Bledsoe threw cold water on a number of Ray's counterclaims and dismissed them with prejudice.  Most of those counterclaims stemmed from the termination of her employment with Kingsdown.

Wrongful discharge: Wrongful discharge claims need to be pled with specificity.  Op. ¶25  Ray's "scattershot allegations" (Op. ¶26) fell short of what was necessary for the Court to determine whether Kingsdown had taken any improper action which was the "but for" cause of her termination.  Op. ¶26.  That claim was dismissed without prejudice.

Blacklisting:  To make out a claim under the blacklisting statute (G.S. §14-355) a party must plead "(1) that she attempted to obtain employment with another entity; (2) that [her former employer] took affirmative steps by 'words or writing of any kind' to prevent her from obtaining employment with that entity; and (3) that whatever statements or writing that were made to the entity were false." Op. ¶30.  The Court dismissed this counterclaim with prejudice because Ray had failed to plead any of the essential elements of her claim.

Intentional Infliction of Emotional Distress: Judge Bledsoe observed that:

our appellate courts have consistently held that 'the mere firing of an employee can never be "extreme and outrageous’ conduct sufficient to state a claim for intentional infliction of emotional distress."

Op. ¶34 (quoting Sims-Campbell v. Welch, 2015 N.C. App. LEXIS 166, *11–12 (N.C. Ct. App. Mar. 3, 2015)).

This claim was also dismissed with prejudice because Ray's allegations (that she was slighted or ignored by Kingsdown’s management from time to time, and her frustration and irritation with having to suffer various personal inconveniences resulting from the performance of her job) did not rise to the level of mistreatment that could give rise to a claim for intentional infliction of emotional distress.

Constructive Fraud/Fiduciary Duty: Ray's claim for constructive fraud depended on Kingsdown owing her a fiduciary duty, because the existence of a fiduciary relationship is an element of a constructive fraud claim.  Ray's counsel argued that since Ray was an officer of Kingsdown, and thus owed the corporation a fiduciary duty, that the corporation therefore owed her a reciprocal fiduciary duty.  Judge Bledsoe rejected this argument in a footnote, stating that this was "simply not the law."  Op. ¶42 & n.9.

Unfair and Deceptive Practices: The Chapter 75 claim was dismissed with prejudice as it rested on facts which arose out of Ray's employment and therefore involved "internal business disputes rather than interactions with businesses or consumers."  Op. ¶45.  It was therefore not "in or affecting commerce" which is the type of conduct targeted by G.S. §75-1.1(a).

If you are wondering if there could be any claims left in this hodge podge of counterclaims, the answer is unfortunately yes.  But you are probably as tired of reading about this Opinion as I am writing about it.  A part of a defamation counterclaim was dismissed without prejudice but a part of it with prejudice.  A negligence counterclaim was dismissed with prejudice.  A civil conspiracy counterclaim was dismissed with prejudice.

Dead Partner And Disqualification

The Business Court on Wednesday disqualified  a law firm from representing its longtime corporate client in a lawsuit against the corporation's former CEO and Chairman of its Board of Directors.

The basis for the ruling in Kingsdown Inc. v. Hinshaw, 2015 NCBC 27 was that a partner in the law firm (now deceased) had represented the former CEO/Chairman of the corporate plaintiff (Hinshaw) on a personal basis in some of the transactions that were at issue in the lawsuit.

Hinshaw moved to disqualify the law firm over its protestations that its representation was permitted by Rule 1.10 of the Revised Rules of Professional Conduct.  If that Rule isn't uppermost in your mind, it says that:

When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. 

So, to succeed on his disqualification motion, Hinshaw had to show that he had an attorney-client relationship with a former lawyer at the firm, and that the matters on which he had been represented were the "same or substantially related to" the matters involved in the lawsuit  before the Business Court, and the law firm had the burden to show that it did not have access to material confidential information protected by Rules 1.6 and 1.9(c).

Attorney-Client Relationship?

Kingsdown contended that the law firm had never opened a client matter for Hinshaw, had never sent him an engagement letter, and had never been paid any money by Hinshaw.  Hinshaw, from his side, presented affidavit testimony that the law firm's senior partner, since deceased, had often advised him personally. 

Some of the advice concerned his compensation from Kingdown and a transaction regarding a beach house owned by Hinshaw which he traded to Kingsdown for an undeveloped beach property owned by Kingsdown which Hinshaw then leased back to Kingsdown. 

Both of those matters -- Hinshaw's compensation from Kingsdown and the curious beach house deal -- were at the front and center of Kingsdown's lawsuit against Hinshaw for breach of his fiduciary duty.

Judge Bledsoe didn't waste much of his opinion in finding "ample evidence" that Hinshaw could have "reasonably inferred" that he had an attorney-client relationship with the deceased partner, and therefore the law firm. Op. par. 30.

Confidential Information?

The law firm fought hard to show that none of its current attorneys had any of Hinshaw's confidential information.  That was the lawyers' burden to carry, per Ferguson v. DDP Pharmacy, 174 N.C. App. 532, 539, 621 S.E.2d 323. 328 (2005)(“The burden rests upon the law firm to prove the former attorney did not share any information about the former client with the remaining attorneys in the firm.”).  Op. ¶37.

The argument of the lawyers rested partly on an affidavit from a lawyer representing Kingsdown as to his review of his firm's billing records.  The affiant stated that the records showed that none of the lawyers still at the firm had represented Hinshaw on the matters at issue in the lawsuit.  Other lawyers at the firm who had worked on Kingsdown matters presented affidavits stating that they were "not aware" of any of Hinshaw's confidential information.

Judge Bledsoe found that insufficient.  He noted that the situation before the Court was not the usual paradigm presented by Rule 1.10 of an attorney leaving a law firm and taking a client's files and records containing confidential information with her.  Here, the attorney who had personally represented Hinshaw had passed away and the law firm had continued in existence.  The Court held that:

the client’s files and confidential documents presumably remain at the Firm and are available to the other attorneys in the firm. As such, the Court concludes that the failure of the Firm to provide competent and persuasive evidence of the existence and whereabouts of these files, and the clients’ confidential documents and information that may be contained therein, is a significant factor in determining whether Kingsdown and the Firm have met their burden under Rule [1.]10(b).

Op. ¶46.

What could the law firm have done to persuade Judge Bledsoe that its lawyers did not have access to or knowledge of Hinshaw's confidential information?  He didn't say specifically, but wrote that Kingsdown had:

not brought forward competent evidence that the Firm has conducted a sufficient investigation of the Firm’s attorneys and files to ascertain whether the Firm has knowledge of [Hinshaw's] material confidential information, or if such an investigation has been conducted, provided evidence of what the investigation involved, who and what was consulted, and what the investigation found.

Op. ¶44.

So, if you ever find yourself in the unenviable position of representing a corporate client against a former officer/director on transactions where a deceased partner was personally advising that individual, you now have somewhat of a road map to avoiding disqualification.

Appearance of Impropriety

The "overarching consideration" in considering a motion to disqualify is to "prevent even the appearance of impropriety and thus resolve any and all doubts in favor of disqualification."  Op.  ¶48.

While  Hinshaw obviously had angst at being sued by the same law firm that he said had given him the advice that he claimed to have followed, the Court pointed out another significant concern that might create the "appearance of impropriety."

The law firm's attorneys were likely to be witnesses in the lawsuit.  Judge Bledsoe pointed out that:

those attorney-witnesses may potentially face divided loyalties between their allegiance to the Firm and the defense of the Firm’s advice, on the one hand, and their duty of loyalty to, and zealous advocacy for, their clients, on the other, as that advice, and the parties’ actions in alleged reliance on that advice, comes under intense scrutiny.

Op. ¶52.

This Opinion was issued at the same time as another published opinion in the case, Kingsdown Inc. v. Hinshaw, 2015 NCBC 28  That decision -- which I may write about tomorrow -- concerns a motion to dismiss one of the Defendant's counterclaims and third party claims.

 

If You Are Proceeding Pro Se In The Business Court It Is Best Not To Be Defiant

It's probably never a good idea to proceed without a lawyer in any Court, but if you are a non-lawyer and insist on proceeding pro se in the Business Court, don't be defiant and obnoxious.  You will not like the result.

Two of the Defendants (JW Ray and Digi-Plus LLC) in a case called London Leasing LLC v. Arcus  terminated the counsel representing them and decided to proceed on their own.

They did that in a high-handed and arrogant way. When Plaintiff's counsel called Ray to try to arrange a mediation, Defendant Ray told him that:

(1) neither Ray nor DigiPlus would attend any mediation in person, and would only attend by teleconference 'so that the mediator could explain to Plaintiff how absurd or ridiculous Plaintiff’s claims are in this lawsuit;'

(2) neither Ray nor DigiPlus would offer any payment towards a settlement;

(3) neither Ray nor DigiPlus would hire replacement counsel;

(4) neither Ray nor DigiPlus would respond to any discovery requests;

(5) neither Ray nor DigiPlus would pay any judgment levied against them in the lawsuit; and

(6) neither Ray nor DigiPlus would participate in the lawsuit unless they were “arrested for criminal conduct.”

Order ¶6.

As you can imagine, the (unpublished) Order entered by Judge McGuire was not complimentary of this discourtesy.  He stated that these two Defendants had "openly flouted this Court's [case management] order and the applicable North Carolina rules."  ¶14.

The relief granted by the Court in light of this rude behavior -- after ruling that lesser sanctions would be inadequate given the "seriousness of the misconduct" (Order ¶15)  -- was to strike the Answer of these Defendants and to enter default against them.

The only punishment not delivered by Judge McGuire was not noting that Ray was engaging in the unauthorized practice of law if he was also speaking on behalf of DigiPlus LLC.

 

There Is A Difference Between "Inducing" Something and "Causing" Something

If you asked me to list my favorite torts, tortious interference with prospective economic advantage would be near the bottom of the list.

But that tort was front and center in Judge McGuire's Opinion in KRG New Hill Place, LLC v. Springs Investors, LLC, 2015 NCBC, 2015 NCBC 19, which addressed the proof required for an essential element of the tort.

To prove tortious interference with prospective economic advantage, "a plaintiff must show that the defendant, without justification, induced  a third party to refrain from entering into a contract with the plaintiff, which would have been made absent the defendant's interference."  Op. ¶4.

The Defendant Springs Investors -- which was asserting a tortious interference counterclaim -- said that the Plaintiff KRG's breach of an agreement to develop a 123 parcel of real estate caused a third party (Kaplan) to back out of a Joint Venture to develop a residential apartment complex on adjoining property owned by Springs.

Defendant said that the Plaintiff's breach had met the requirement that its actions induced Kaplan's decision to refrain from entering into the Joint Venture, because the breach had caused Kaplan's decision to decide to refuse to go ahead with the Joint Venture.

That was insufficient to make out a claim for the prospective interference tort, said Judge McGuire.  He relied on a Court of Appeals decision affirming a Business Court ruling.  In that case, the COA held, in interpreting the word "induce" in a contract, that:

The relevant definition of 'induce' is (1) 'to move by persuasion or influence[;]'
(2) “to call forth or bring about by influence or stimulation[;]' and (3) “to cause the formation of[.]' Similarly, Black’s Law Dictionary defines inducement as '[t]he act or process of enticing or persuading another person to take a certain course of action.'  We note that all of the above-cited definitions of . . . 'induce' are similar in that they involve active persuasion, request, or petition.

Op. ¶26 (quoting Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C. App. 349, 354, 712 S.E.2d 366, 369 (2011) (citing Merriam-Webster’s Collegiate Dictionary 637 (11th ed. 2005) and Black’s Law Dictionary 845 (8th ed. 2009)).

So, "inducing" something has to mean more than just causing something.  As Judge McGuire put it:

To equate 'induced' with 'caused' would mean that any type of conduct by a party that caused a third party to refrain from entering into a contract with a claimant would be grounds for asserting the claim. This would have broad implications for contractual relations in this State as it would make every contracting party potentially liable for the types of damages available for intentional torts, including compensatory and punitive damages, whenever the failure to fulfill a contract for any reason caused the other party to the contract to lose a prospective business opportunity.
 

 Op. ¶28.

Judge McGuire granted Plaintiff's Motion to Dismiss the tortious interference counterclaim because the Defendant had not made any allegations of purposeful conduct by the Plaintiff directed towards Kaplan.

Stop Asking The Business Court To Overrule An Order Of Another Business Court Judge

I don't know why lawyers keep trying to get Business Court Judges to overrule decisions by one of their predecessors.  It is just not going to happen, as illustrated (yet again) by Judge Bledsoe's decision in County of Catawba v. Frye Regional Medical Center, Inc., 2015 NCBC 17.

Judge Murphy, in October 2014, had granted summary judgment in favor of the Defendant on  Plaintiff's claims of fraud and unfair and deceptive practices.  Plaintiff, disagreeing with the ruling, first filed a Motion for Reconsideration (which it withdrew), and followed it with a "Motion for Revision."  It filed both motions after Judge Murphy's retirement.

Judge Bledsoe observed that both motions "seek the same relief -- reversal of Judge Murphy's [summary judgment order" ].  Op. ¶8.

If you read this blog, you know that the Business Court has already rejected the argument that Judge Murphy's retirement, and the resulting change in the Business Court Judge handling the case, is not a "substantial change in circumstances" giving the new Judge the authority to modify, overrule, or change Judge Murphy's Order.

But the Plaintiff in the Catawba County case made a new argument as to why Judge Bledsoe had the authority to overrule Judge Murphy.  It relied on Rule 63 of the North Carolina Rules of Civil Procedure, entitled "disability of a Judge," which says that:

If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties, including entry of judgment, may be performed:

(1) In actions in the superior court by the judge senior in point of continuous service on the superior court regularly holding the courts of the district.

NCRCP 63.

Judge Bledsoe disagreed that Rule 63 granted him the authority to overrule Judge Murphy, stating:

Plaintiff essentially contends that [Rule 63] treats Judge Murphy’s retirement at the expiration of his term of office as an invitation to this Court to decide Defendants’ SJ Motion anew. The Court disagrees. Not only would such a reading ignore the North Carolina rule that one Superior Court judge generally cannot overrule another, but read in context, the Court concludes that Rule 63 is intended for situations where, for example, a Superior Court judge leaves the bench prior to entering a written order on a matter that has been heard, or before a matter is remanded from the appellate courts with instructions for further action. The Court does not read Rule 63 to address the situation here, where Judge Murphy received the parties’ briefs, held a hearing, issued a written order ruling on the parties’ arguments and dismissing claims, and then left the bench.

Op. ¶16.

Those of you who are civil procedure aficionados are no doubt thinking about NCRCP 54(b), which says that in the absence of a final judgment, "any order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties."

Judge Bledsoe recognized that his Opinion means that a party loses its "right to seek revision of a summary judgment ruling by the trial court under Rule 54(b) when the issuing Superior Court Judge retires or otherwise leaves the bench prior to the entry of a final judgment."  Op. ¶16.

Judge Bledsoe also observed that allowing him to overrule Judge Murphy's decision would invite a "potential sea of motions. . . from disappointed litigants seeking to overturn decisions issued in the last weeks of [a] departing judge's service on the bench."  Op. ¶17 & n.2.

So what's the remedy for the unhappy Plaintiff in this case?  As Judge Bledsoe put it, "the party's redress is with the North Carolina appellate courts and not with another Superior Court judge."  Op. ¶17.