Mandatory Jurisdiction

Long time readers of this blog know that you can’t designate a case limited to a covenant not to compete to the Business Court.  That’s the Lifecare case, from 2008, in which Judge Tennille said "every suit based upon a breach of a restrictive covenant . . . [will not] give rise to a mandatory business case based upon ‘unfair competition.’"

Judge Tennille intimated in Lifecare that additional allegations surrounding the breach of the covenant might give rise to the Business Court’s mandatory jurisdiction.  He said:

For example, allegations of the theft of trade secrets which provide a competitive advantage to one party could give rise to a mandatory case. See e.g., Analog Devices v. Michalski, 157 N.C. App. 462, 579 S.E.2d 449 (2003). Also, actions designed to unfairly damage another’s business would give rise to an unfair competition claim. See, e.g., Sunbelt Rentals, Inc. v. Head & Engquist Equip., LLC, 174 N.C. App. 49, 620 S.E.2d 222 (2005).

Late last week, Judge Jolly refined the contours of the Business Court’s unfair competition jurisdiction, in an Order on Notice of Designation in New Breed, Inc. v. Golden.  The New Breed complaint alleges that the multiple defendants, all former IT professionals with New Breed, were lured away by a competitor in violation of covenants contained in their employment agreements.

So what pushed New Breed over the hurdle and into the jurisdiction of the Court?  Judge Jolly said that the Complaint alleged unfair competition, which is a basis for mandatory jurisdiction under G.S.§7A-45.4(a)(4).  He said that the styling of that particular cause of action as "unfair and deceptive practices," which are excluded from the Court’s unfair competition jurisdiction under Section 7A-45.4(a)(4), made no difference. 

He held:

Under North Carolina’s current scheme of notice pleading, in examining a claim alleged in a complaint, neither the court nor party litigants are limited to the technical label given to the claim by the pleader. Rather, the reader appropriately should examine the actual facts alleged.

Op. Par. 13.

Upon examining the "actual facts alleged," Judge Jolly concluded the Complaint stated a claim for common law unfair competition, which he said was "a wrongful act done in the context of competition between business rivals."   Order 11. He read the Complaint to make allegations that "Defendants were guilty of unfair competition in that they wrongfully intended to (a) raid Plaintiff of its IT employees, (b) harm Plaintiff’s business and (c) acquire Plaintiff’s trade secrets and confidential and proprietary information." Id.

Also noteworthy in the Order is Judge Jolly’s ruling that it isn’t necessary to sue the competing business to make out a claim for unfair competition.  He held that "[t]he court cannot find a requirement that a competing business be a party litigant as a condition precedent to alleging a common law claim for unfair competition." Order 12.  New Breed sued only its former employees, not their new employer.


We can’t say it better than Mack Sperling did about eight months ago:  "If you are thinking of designating a case to the Business Court because the Complaint raises allegations that the corporate veil should be pierced, stop.  Those types of allegations, without more, aren’t enough to invoke the mandatory jurisdiction of the Court. "

In case you’re wondering, the Business Court has not changed its mind since November.  Earlier today, in Bullard v. Liberty Healthcare Services of Mary Gran Nursing, LLC, Judge Tennille on his own motion denied the Defendants’ designation of the matter as a mandatory complex business case.  As the Court stated unequivocally, "Piercing the corporate veil alone is insufficient to establish mandatory jurisdiction."  It is not the first time, or even the second time, the Court has made that statement.

The Notice of Designation contained a number of allegations regarding the potential complexity of the matter.  By remanding the case, the Business Court has reiterated that, when it comes to mandatory jurisdiction, the question is whether the matter fits into one of the "business" categories of Section 7A-45.4 of the General Statutes, regardless of complexity.  Rule 2.1 designation remains available for cases in which complexity (plus some business relationship) makes up for a case not fitting within the statute.

The Court granted an Opposition to Notice of Designation of Action as a Mandatory Complex Business case, ruling that:

This matter appears on the face of the pleadings to involve enforcement of a restrictive covenant contained in a settlement agreement. No additional issues involving the identification, delineation and protection of trade secrets appear from the pleadings and response to the Opposition. Nor does there appear to be an unfair trade practice issue unrelated to the enforcement of the restrictive covenant. Where, as here, the only critical issue is the enforceability of a restrictive covenant, mandatory jurisdiction of the Business Court is not implicated.

Full Opinion

Opposition to Notice of Designation

Response to Opposition to Notice of Designation

Notice of Designation and Complaint



The Court denied an opposition to the designation of a case as a mandatory complex business case, holding that "[t]he allegations in the Complaint involve a breach of fiduciary duty and the failure to pay dividends and fall within the mandatory jurisdiction of the Business Court."

Full Opinion

Opposition to Designation

Response in Opposition to Designation


The Court denied a motion opposing the designation of this case as a mandatory business case, holding that "this matter is a derivative action by a minority shareholder which involves issues relating to the law governing corporations," therefore "conclud[ing] that the allegations in the Complaint fall within the mandatory jurisdiction of the Business Court."

Full Opinion

The Court overruled an opposition to designation in a case involving "real estate developments which failed during the current financial crisis."

The Court found these types of cases "especially suited" for consideration by the Business Court because "(1) they involve numerous parties, (2) they involve complex issues, (3) they involve current issues relating to real estate development that will result in written opinions of use to the bar and business community, (4) they may involve resolution of multi-state legal issues, (5) they will require coordination with bankruptcy courts and other federal courts, (6) they require management by one judge, (7) they will benefit from consistent legal rulings on the same kinds of issues, (8) they will be motion intensive, and (9) they will benefit from the use of the Court’s electronic filing system."

Full Opinion



If you are thinking of designating a case to the Business Court because the Complaint raises allegations that the corporate veil should be pierced, stop.  Those types of allegations, without more, aren’t enough to invoke the mandatory jurisdiction of the Court. 

There was a short order on that subject yesterday in CCE Development Corp. v. Jebara Investments, LLC, in which the Court held that "[p]iercing the corporate veil alone is insufficient to establish mandatory jurisdiction." 

There was a similar ruling earlier this year, in Robert N. Pulliam, CPA/ABV PLLC v. Gardner, where the Court held "the presence of veil piercing allegations are not, in and of themselves, grounds for jurisdiction under N.C. Gen. Stat. § 7A-45.4(a)."

Once the Business Court takes jurisdiction over a case, that jurisdiction remains in place for the life of the case, regardless of dismissals of parties or changes in the nature of the claims.

That was the ruling of the Court last week in Mattress Now, Inc. v. KS Bank, Inc. in response to the Plaintiff’s Motion to Remand.

The case had been designated to the Business Court by the Defendant Bank, which was one of two defendants. The Plaintiff challenged that designation, but the Court rejected Plaintiff’s arguments in an earlier ruling and refused to remand the case.  After that, the Plaintiff settled the claims involving the Bank.

Plaintiff then moved again to remand.  It asserted in its Motion that the remaining claims "do not involve the corporate law and banking issues that justified removal of this case to the Business Court" and that none of the issues "require the expertise of the Business Court."

Judge Tennille, in a very short ruling, held "[t]his case was designated a mandatory complex business case pursuant to North Carolina General Statute Section 7A-45.4 on August 12, 2008. Once jurisdiction attaches, it remains attached for the entire case."

The Business Court now has jurisdiction over utility pole disputes between communications providers and municipalities.  That surprising expansion of the Court’s jurisdiction is thanks to a new law passed at the just concluded session of the North Carolina Legislature.

New section 62-55 of the General Statutes requires a municipality that "owns or controls poles, ducts, or conduits" to allow a "communications service provider" to have access to those resources at "just, reasonable, and nondiscriminatory rate." (The statute doesn’t apply if the poles, ducts, or conduits are subject to federal regulation under the Communications Act of 1934).

If a provider makes a request for access, and the request is refused, the new statute provides that either party can have its claim resolved by the Business Court, which will have exclusive jurisdiction over the dispute. The jurisdiction kicks in only after the expiration of a 90-day negotiation period or before then if either side "believes in good faith that an impasse has been reached."

The law became effective July 10, 2009. Earlier this week, in Town of Murphy v. Verizon South, Inc., Judge Tennille discussed the new statute and the procedure that the Business Court intends to follow with respect to utility pole disputes. Among other things,the Court discouraged "gamesmanship" which might result in a party rushing to file a lawsuit before the expiration of the 90 day negotiation period. Judge Tennille said "[t]he parties would be well advised to use the mediation process if their negotiations are not proving fruitful and leave it to the mediator to declare an impasse."

In the Town of Murphy case, Judge Tennille remanded a utility pole dispute to Cherokee County Superior Court. The case had been filed before the effective date of the statute, and Judge Tennille ruled that the new law was not retroactive.