The Court denied a motion for preliminary injunction on two covenants not to compete. It found that one covenant was overly broad, since it had no geographic scope whatsoever. Another covenant was also overly broad, as it restrained the defendant from working for a competitor in any capacity at all, including as a security guard or
Burgess v. American Express Company, Inc., 2007 NCBC 22 (N.C. Super. Ct. June 29, 2007)(Diaz)
Plaintiff, who was pro se, moved for Rule 11 sanctions based on defendant’s Rule 68 Offer of Judgment of a single dollar. After noting that the purpose of Rule 68 is to "encourage settlements and avoid protracted litigation," the Court found that the $1.00 offer provided little chance of seriously opening negotiations or settling
Blitz v. Agean, Inc., 2007 NCBC 21 (N.C. Super. June 25, 2007)(Diaz)
This was the second effort of this plaintiff to secure class certification of a claim under the Federal Telephone Consumer Protection Act. The Court discussed the requirements for class certification, and found that certification should be denied. The individualized inquiries that would be necessary to determine whether the faxed advertisements at issue were unsolicited, and
Lawrence v. UMLIC-Five Corp., 2007 NCBC 20 (N.C. Super. Ct. June 18, 2007)(Diaz)
The Court held that plaintiffs had failed to plead fraud with particularity, and dismissed their fraud claim pursuant to Rule 9(b) of the North Carolina Rules of Civil Procedure. Plaintiffs had attempted to plead both affirmative misrepresentations and fraud by concealment. With regard to the first, the Court held that the Complaint contained no specific allegations
Heinitsh v. Wachovia Bank, 2007 NCBC 19 (N.C. Super. June 11, 2007)(Tennille)
This case involved a trustee caught between the income beneficiary and the remainder beneficiaries of a trust. The beneficiaries disputed whether proceeds of the sale of property were income, to be distributed to the income beneficiary, or principal, to be held in trust for the remainder beneficiaries. The trustee elected to put the money in
Heinitsh v. Wachovia Bank, 2007 NCBC 18 (N.C. Super. June 11, 2007)(Tennille)
The defendant, the trustee of a trust, hired lawyers to represent it with regard to a dispute between the income beneficiaries and the remaindermen of the trust. In the course of that dispute, the income beneficiary also sued the trustee for maladministration. The issue was the trust’s right to reimbursement for the fees incurred.
The
Latigo Investments II, LLC v. Waddell & Reed Financial, Inc., 2007 NCBC 17 (N.C. Super. Ct. June 8, 2007)(Diaz)
The only issue before the Court in this case was whether it should dismiss plaintiff’s unfair and deceptive practices claim. Plaintiffs had sought to raise money to recapitalize their business. Defendants had promised to provide the necessary capital, but then reneged on their commitment. Plaintifs suffered a loss as a result, and sued on a
Burgess v. American Express Company, Inc., 2007 NCBC 16 (N.C. Super. May 21, 2007)(Diaz)
Defendant sought a "prosecution bond," pursuant to N.C.G.S. §1-109, against the allegations made by plaintiff, a pro se litigant. The Court held that it was required to consider "(1) the relative merits of the case; (2) whether the costs in the case will be substantial; (3) the evidence, if any, of the plaintiff’s inability to
Burgess v. American Express Company, Inc., 2007 NCBC 15 (N.C. Super. Ct. May 21, 2007)(Diaz)
Plaintiff sued a large number of defendants, arguing that they had caused advertising messages (in the form of pop-up ads) to be sent to him over his computer. The Court held, construing the allegations in the light most favorable to the plaintiff, that he had stated a claim for trespass to chattels under North Carolina
Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC v. Brewer, 2007 NCBC 14 (N.C. Super. May 8, 2007)(Jolly)
Plaintiffs left their law firm, a PLLC, to start a new firm. They sought their share of the value of contingent fee cases being handled by the old firm. The old firm first contended that the plaintiffs had no standing, since they had withdrawn from the old firm before filing their action., and the North