Watching The Court

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Today, the Business Court denied Plaintiff’s Motion for a Preliminary Injunction in a state law trademark dispute between competing jewelry stores.  The Order in Windsor Jewelers, Inc. v. Windsor Fine Jewelers, LLC, 2009 NCBC 2 (N.C. Super. Ct. Feb. 16, 2009) dissolved a Temporary Restraining Order which had previously been entered in the case. …

The Business Court’s plate is pretty full as we move into the new year of 2009.  This post summarizes the dispositive motions pending before the Court that are fully briefed and ready for a ruling.

These cases cover a broad range of issues, summarized by general categories below, including: class actions, construction law, derivative actions, breach of fiduciary duty/unfair competition, jurisdiction, partnership, securities fraud, shareholder/member disputes, trademark law, trusts, and uniform commercial code. 

As you read on, a few disclaimers.  First, this only covers dispositive motions.  There are certainly other, non-dispositive motion pending.  Second, I may have missed some.  And third, these summaries are deliberately short.  I’m not trying to cover all of the issues that might be included in a dispositive motion filing, just trying to give you a general idea of rulings that may be coming down in the next several months.  That’s involved a quick look at the briefs.  And on that note, a number of the cases involves multiple issues and don’t fall exclusively into one category.

Each summary includes a link to the Business Court electronic file.

Class Actions

Clark v. Alan Vesture Auto Group, Inc.: This is a putative class action against an automobile dealer for allegedly misleading financing practices.  Pending are a motion to dismiss two defendants because of insufficiency of service of process, and a motion for summary judgment.  One issue is whether the Court should consider the dispositive motion before discovery and at the same time as its ruling on the class certification motion. 

Construction Law

Miller & Long Co., Inc. v. Intracoastal Living, LLC: The issues in this construction law case involve collection on a payment bond and enforcement of a claim of lien.

Wachovia Bank N.A. v. Superior Construction Corp.: The issue in this construction law case is the priority of Wachovia’s deed of trust versus a previously filed mechanics lien, where the lienholder had accepted some payment on its lien and executed a partial waiver of lien.

RJM Plumbing, inc. v. Superior Construction Corp: Motion for summary judgment by subcontractor on claim for breach of contract

Derivative Actions

Esquire Trade & Finance, Inc. v. Diversified Senior Services, Inc.: This case raises derivative action issues, including whether the allegations of the complaint were improperly broader than the demand which had been made, the effect of findings by a special litigation committee, whether plaintiff was owed a “special duty” as a preferred shareholder which entitled him to make direct claims against the corporation, and whether fiduciary duty claims were barred by the two year statute of repose of GS §55-7-48.

Garrett v. Parton: Motions to dismiss a derivative claim made by taxpayer on behalf of the City of Roanoke to recover money invested in a music theater, on the basis of standing.

Lancaster v. Harold K. Jordan and Co.: This is another derivative action case, involving whether the plaintiffs, members of the limited liability company plaintiff, had standing to bring claims on behalf of the LLC. The case raises the usual issues of whether the Defendant owed a “special duty” to the Plaintiffs, and whether Plaintiffs had injury “separate and distinct” from that of the LLC.

Mitchell, Brewer, et al v. Brewer: This dispute involves the breakup of a law firm that was a limited liability company, including whether plaintiffs were entitled to maintain the action as a derivative action, in part because they had withdrawn as members of the limited liability company, and whether they were entitled to pursue an action against the individual members of the LLC.

Revolutionary Concepts, Inc. v. Clements Walker PLLC: This isn’t a derivative action in the true sense of the term, but it does raise the issue of when a shareholder has standing to maintain an action for an injury to the corporation.  The more interesting issue in this case is whether the Business Court lacks subject matter jurisdiction over a malpractice claim involving a patent because federal courts have exclusive jurisdiction over patent matters.

Webb v. Royal American Company: Motion to dismiss derivative claim against lender to limited liability company, issues include whether an adequate demand was made or whether plaintiff had established demand futility, and whether claims were barred by exculpatory provisions in loan agreement.Continue Reading The Year Ahead In The North Carolina Business Court

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