Mezcalito Apex, Inc. v. Murillo

Mezcalito Apex, Inc. v. Murillo, 2026 NCBC 14.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

WAKE COUNTY 25CV003825-910

MEZCALITO APEX, INC.,

Plaintiff,

v. ORDER AND OPINION ON

DEFENDANT’S MOTION TO DISMISS

OSCAR FERNANDO MURILLO,

Defendant.

1. THIS MATTER is before the Court on the 17 October 2025 filing of

Defendant’s Motion to Dismiss (the Motion). (ECF No. 21 [Mot.].) Pursuant to

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure (the Rule(s)), Defendant

Oscar Fernando Murillo (Defendant) seeks dismissal of all claims alleged against him

by Plaintiff Mezcalito Apex, Inc. (Plaintiff). (Mot. 1.)

2. For the reasons set forth herein, the Court GRANTS in part and DENIES

in part the Motion.

Cunningham Law, PLLC by James Calvin Cunningham and J. Caitlyn

Bullock, for Plaintiff Mezcalito Apex, Inc.

Williams Mullen by Michael C. Lord and Lewis H. Hallowell, for

Defendant Oscar Fernando Murillo.

Robinson, Chief Judge.

I. INTRODUCTION

3. This action arises out of Plaintiff’s contention that Defendant, a former

senior-level employee at one of Plaintiff’s Tex-Mex restaurants, breached his

confidentiality agreement, misappropriated Plaintiff’s trade secrets, and participated

in unfair and deceptive trade practices in an effort to create a substantially identical

Tex-Mex restaurant in Missouri.

II. FACTUAL BACKGROUND

4. The Court does not make findings of fact when ruling on a motion to dismiss

pursuant to Rule 12(b)(6) and only recites those factual allegations relevant and

necessary to the Court’s determination of the Motion.

A. The Parties

5. Plaintiff is a North Carolina corporation with its principal office in Wake

County, North Carolina. (Am. Compl. ¶ 1, ECF No. 14.)

6. Defendant is a citizen and resident of Wake County, North Carolina, and

was formerly employed by Plaintiff. (Am. Compl. ¶ 2.)

B. Plaintiff’s Business

7. Plaintiff owns and operates a Tex-Mex restaurant in Apex, North Carolina,

known as Mezcalito, which is part of a larger, privately-owned Tex-Mex restaurant

chain that currently operates more than eight separate locations throughout North

Carolina. (Am. Compl. ¶¶ 1, 7.)

8. Mezcalito’s brand has been established “through its use of particularized

aesthetics and cosmetics including food preparations, drink preparations and

distinctive cantaritos, particular elements of its menus, as well as restaurant decor,

elements of lighting, hearth, mantle, tables and booths and vibrant wall colors.” (Am.

Compl. ¶ 8.) Mezcalito distinguishes itself from other Tex-Mex restaurants by

“combin[ing] traditional signature recipes with unique preparations such as the

‘Salsa Chip’ and the ‘Ultimate ACP’ with particular ingredients, with particular

seasonings and flavorings and from particular suppliers, in unique proportions to

deliver a distinctive ‘upscale’ and authentic culinary experience.” (Am. Compl. ¶ 8.)

C. Defendant’s Employment with Plaintiff

9. Defendant began his training and full-time employment with Plaintiff on

or about 13 March 2023. (Am. Compl. ¶ 11.)

10. As part of his senior-level employment, Defendant became knowledgeable

regarding Plaintiff’s recipes, ingredients, business plans, menus, costs, and revenues.

(Am. Compl. ¶ 11.)

11. On 21 March 2023, Defendant entered into a Non-Competition, Non-

Disclosure & Confidentiality Agreement with Plaintiff (the Employment Agreement).

(Am. Compl. ¶ 14; see also Def.’s Br. Supp. Mot. Ex. A, ECF No. 22.2 [Agmt.].)

12. Section 1(b) of the Employment Agreement provides:

Employee acknowledges that the Company’s business and services are

highly specialized, the identity and particular needs of the Company’s

customers and suppliers are not generally known, and the documents

and information regarding the Company’s customers, suppliers,

services, methods of operation, sales, pricing, recipes and costs are

highly confidential and constitute trade secrets. Employee further

acknowledges that the services rendered to the Company by Employee

have been or will be of a special and unusual character which have a

unique value to the Company and that Employee has had or will have

access to trade secrets and confidential information belonging to the

Company, the loss of which cannot adequately be compensated by

damages in an action at law. Employee acknowledges that the Trade

Secrets and Confidential Information disclosed to Employee during the

course of Employee’s at-will employment is a [sic] of a special and unique

character, is not generally known in the Company’s industry, and the

Company has a proprietary interest in its Trade Secrets and

Confidential Information.

(Agmt. § 1(b).)

13. Section 2(a) of the Employment Agreement further provides that

Employee shall not use, communicate, reveal or otherwise divulge to, or

use for the benefit of any person, partnership, Company or other entity

other than the Company and certain others specifically designated in

writing by the Company, either during the term of or after the

termination of Employee’s at-will employment, any Trade Secrets or

Confidential Information obtained by Employee in connection with

Employee’s at-will employment by the Company, regardless of whether

such termination is initiated by Employee or the Company.

(Agmt. § 2(a).)

14. The Employment Agreement defines “Confidential Information” as

knowledge or information in any form concerning the Company, its

owners, partners, officers, agents, joint venturers, or affiliates, which

was learned, disclosed, or made available by the Company to Employee

incident to his affiliation with the Company that Employee knows or has

reason to know has commercial value because it is not generally known

in the “Tex-Mex” restaurant trade or industry. Confidential information

of the Company shall include, without limitation: (a) the current, future

and proposed menus, ingredients, food or drink recipes or preparations

of the Company or its Affiliates, as well as financial, ordering, technical,

research, operational, sales and marketing literature or information

related thereto; (b) ideas, inventions, works of authorship, technical

manuals, training materials, restaurant concepts, designs and

aesthetics, computer software and programs or any other information,

however documented, that is a trade secret or proprietary information

within the meaning of applicable law, including N.C.G.S. § 66-152;

(c) business plans, business forecasts, contracts, budgets, prices and

costs, margins, financial statements, tax information, research, sales

and distribution arrangements, and the identity of partners, suppliers,

vendors and customers; (d) the existence of any business discussions,

negotiations or agreements between the Company and any third party;

(e) any information marked as confidential or otherwise represented by

the Company as confidential either before or within a reasonable time

after its disclosure; and (f) any information regarding the skills and

compensation of employees, contractors or other agents of the Company

or its Affiliates.

(Agmt. § 3.)

15. Expressly excluded from the Employment Agreement’s definition of

“Confidential Information” is information that

(i) was in the public domain at the time it was disclosed or made

available to Employee; (ii) entered the public domain subsequent to

disclosure to Employee through no fault of Employee; (iii) was

independently developed by Employee without use or reference to

Confidential Information of the Company as demonstrated by

contemporaneously prepared documentation; or (iv) was disclosed to

Employee by a third party that did not breach any obligations of

confidence by making such disclosure.

(Agmt. § 3(a).)

D. Events Giving Rise to Litigation

16. After leaving his employment with Plaintiff in the fall of 2024, Defendant

relocated to Springfield, Missouri, where he worked for another Tex-Mex restaurant,

Habaneros Mexican + Cantina (Habaneros). (Am. Compl. ¶ 2.)

17. While employed by Habaneros, Defendant became a twenty-five percent

(25%) owner and was responsible for developing its menus, recipes, preparations,

drinks, and other elements of the restaurant. (Am. Compl. ¶ 21.)

18. Plaintiff alleges that, in carrying out these tasks and responsibilities for

Habaneros, Defendant implemented changes at Habaneros that were copies of

Plaintiff’s menu, recipes, preparations, drinks, decorations, glassware, dishes, dish

preparations, dish names, and aesthetics. (Am. Compl. ¶ 22).

19. As detailed further below, Plaintiff originally sued both Defendant and

Habaneros. As part of its settlement with Plaintiff, Habaneros terminated

Defendant’s employment and implemented changes to its restaurant to make it

distinct from Mezcalito. (Am. Compl. ¶ 23.)

20. Defendant has since moved back to Cary, North Carolina, where he is

currently employed by another Tex-Mex restaurant, Aqui Mero. (Am. Compl. ¶ 2.)

21. Plaintiff alleges that Defendant has communicated with Plaintiff and

admitted to breaching the Employment Agreement and that Defendant knew his

conduct was wrongful. (Am. Compl. ¶ 24.)

III. PROCEDURAL BACKGROUND

22. On 31 January 2025, Plaintiff and another entity, Mezcalito, Inc., initiated

this action against Defendant and Habaneros upon the filing of the Complaint. (ECF

No. 3.)

23. On 20 August 2025, with leave of court, Plaintiff filed its Amended

Complaint.1 (ECF No. 14.)

24. On 17 October 2025, Defendant filed the Motion. Following full briefing,

the Court held a hearing on the Motion on 21 January 2026 (the Hearing), at which

all parties were represented by counsel. (See ECF No. 26.)

25. The Motion is ripe for resolution.

1 Mezcalito, Inc. is not a party to the Amended Complaint. (See ECF No. 14.) Further, the

matter has been resolved between Plaintiff and Habaneros, resulting in the entry of a

Consent Permanent Injunction, (ECF No. 17), prohibiting Habaneros from engaging in

certain conduct. Thus, Plaintiff does not assert any claims against Habaneros in its Amended

Complaint. (See Am. Compl. ¶ 3.)

IV. LEGAL STANDARD

26. In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court

reviews the allegations in the complaint in the light most favorable to the plaintiff.

See Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5 (2017). The Court’s

inquiry is “whether, as a matter of law, the allegations of the complaint . . . are

sufficient to state a claim upon which relief may be granted under some legal

theory[.]” Harris v. NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670 (1987). The

Court accepts all well-pleaded factual allegations in the relevant pleadings as true.

See Krawiec v. Manly, 370 N.C. 602, 606 (2018). However, the Court is not required

“to accept as true allegations that are merely conclusory, unwarranted deductions of

fact, or unreasonable inferences.” Good Hope Hosp., Inc. v. N.C. Dep’t of Health &

Hum. Servs., 174 N.C. App. 266, 274 (2005) (quotation marks and citation omitted).

27. Furthermore, the Court “can reject allegations that are contradicted by the

documents attached, specifically referred to, or incorporated by reference in the

complaint.” Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 206 (2016)

(citations omitted). The Court may consider these attached or incorporated

documents without converting the Rule 12(b)(6) motion into a motion for summary

judgment. Id. (citation and quotations omitted).

28. Our Supreme Court has observed that “[i]t is well established that

dismissal pursuant to Rule 12(b)(6) is proper when ‘(1) the complaint on its face

reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals

the absence of facts sufficient to make a good claim; or (3) the complaint discloses

some fact that necessarily defeats the plaintiff’s claim.’ ” Corwin v. Brit. Am.

Tobacco PLC, 371 N.C. 605, 615 (2018) (citations omitted). This standard of review

for Rule 12(b)(6) motions is the standard our Supreme Court “routinely uses . . . in

assessing the sufficiency of complaints in the context of complex commercial

litigation.” Id. at 615 n.7 (citations omitted).

V. ANALYSIS

29. Defendant moves to dismiss all of Plaintiff’s claims against him, which

include: (1) breach of contract, (Am. Compl. ¶¶ 25–29), (Count One);

(2) misappropriation of trade secrets in violation of N.C.G.S. § 66-152, et seq., (Am.

Compl. ¶¶ 30–42), (Count Two); (3) unfair and deceptive trade practices pursuant to

N.C.G.S § 75-1.1, et seq. and common law unfair competition, (Am. Compl. ¶¶ 43–47),

(Count Three); and (4) preliminary and permanent injunction, (Am.

Compl. ¶¶ 48–56), (Count Four). The Court will address each claim in turn.

A. Count One: Breach of Contract

30. Plaintiff alleges that Defendant has breached the Employment Agreement

by providing Habaneros with information defined as confidential under the

Employment Agreement. (Am. Compl. ¶ 27.)

31. To properly plead a breach of contract claim, the claimant must allege

“(1) [the] existence of a valid contract and (2) [a] breach of the terms of that contract.”

Poor v. Hill, 138 N.C. App. 19, 26 (2000) (citing Jackson v. Cal. Hardwood Co.,

120 N.C. App. 870, 871 (1995)). Where each of these elements are alleged, “it is error

to dismiss a breach of contract claim under Rule 12(b)(6).” Woolard v. Davenport,

166 N.C. App. 129, 134 (2004) (citation omitted). “[S]tating a claim for breach of

contract is a relatively low bar.” Vanguard Pai Lung, LLC v. Moody, 2019 NCBC

LEXIS 39, at *11 (N.C. Super. Ct. June 19, 2019).

32. Defendant contends that the breach of contract claim fails because the

Employment Agreement “only prohibits [Defendant] from disclosing [Plaintiff’s]

trade secrets, and [Plaintiff’s] allegations of breach do not involve trade secrets.”

(Def.’s Br. Supp. Mot. 14, ECF No. 22 [Br. Supp.].) Specifically, Defendant notes that

the Employment Agreement (i) defines confidential information in a way that “tracks

the definition of ‘trade secrets’ under North Carolina law”; (ii) provides that the duty

to maintain confidentiality remains in effect until the information no longer qualifies

as a trade secret; and (iii) excludes information that is publicly known at the time of

disclosure or subsequently becomes publicly known through no fault of the employee.

(Br. Supp. 14–15.)

33. Defendant further argues that because the elements of Plaintiff’s

restaurant allegedly copied by Defendant—including its “menu, drinks, decorations,

glassware, dishes, dish presentations, dish names, aesthetics, [and] look and feel”—

are publicly disclosed, such elements are not information that Defendant is obligated

to keep confidential under the Employment Agreement. (Br. Supp. 15.)

34. As an initial matter, the Court notes that the Employment Agreement

provides a definition of “confidential information” beyond a mere recitation of the

statutory definition of trade secrets. While the definition of “confidential

information” includes “ideas, inventions, works of authorship, technical manuals,

training materials, restaurant concepts, designs and aesthetics, computer software

and programs or any other information, however documented, that is a trade secret or

proprietary information within the meaning of applicable law, including

N.C.G.S. § 66-152[,]” the definition also includes numerous other items that are

considered confidential by the agreement but which may not meet the statutory

definition of a trade secret. (Agmt. § 3 (emphasis added).)

35. Upon review of the allegations in the Amended Complaint, the Court

determines that, at this stage, Plaintiff has sufficiently pled a claim for breach of

contract. Specifically, Plaintiff has alleged that the Employment Agreement is a

valid, enforceable agreement between Plaintiff and Defendant and that Defendant

breached that agreement by disclosing to Habaneros certain confidential information.

(Am. Compl. ¶¶ 26–27.)

36. Therefore, the Court hereby DENIES the Motion as to Count One for

breach of the Employment Agreement.

B. Count Two: Misappropriation of Trade Secrets

37. Plaintiff alleges that “[Defendant] possesses, was trained in, and utilized

the confidential, proprietary, market-sensitive and unique information of [Plaintiff]

in the changes he implemented at Habaneros[.]” (Am. Compl. ¶ 31.) Specifically,

Plaintiff alleges that Defendant has misappropriated the following:

a. recipes, ingredients, and unique preparations;

b. unique food and drink presentations;

c. business plans;

d. supplier relationships;

e. menus;

f. pricing;

g. documents and records; and

h. employment practices, policies, and payroll information.

(Am. Compl. ¶ 31.)

38. Plaintiff alleges that “[t]his information constitutes trade secrets as defined

by the North Carolina Trade Secrets Act in that they derive independent economic

value from not being generally known to and not being readily ascertainable by

[Plaintiff’s] competitors or the public generally.” (Am. Compl. ¶ 32.) Further,

Plaintiff alleges that it takes precautions to maintain the confidentiality of the

alleged trade secrets by limiting access to “need to know” employees, using

employment agreements that contain confidentiality and non-disclosure covenants,

and requiring employees to agree to and comply with personnel policies that address

the security and confidentiality of Plaintiff’s trade secrets. (Am. Compl. ¶ 33.)

39. As to the alleged misappropriation by Defendant, Plaintiff alleges that

Defendant “has provided to Habaneros, or will inevitably and imminently provide,

[Plaintiff’s] Confidential Information and trade secrets to Aqui Mero[.]” (Am.

Compl. ¶ 35.)

40. Defendant argues that the trade secret misappropriation claim fails

because (i) the alleged misappropriation occurred in Missouri and, therefore, North

Carolina law does not apply; and (ii) notwithstanding the choice-of-law issue,

Plaintiff has not identified its trade secrets or Defendant’s alleged acts of

misappropriation with sufficient particularity. (Br. Supp. 5.) The Court will address

each argument in turn.

1. Choice of Law

41. In determining the applicable substantive law for a trade secret

misappropriation claim, North Carolina courts use the lex loci delicti test. See e.g.,

SciGrip, Inc. v. Osae, 373 N.C. 409, 420–21 (2020). Under this test, “the substantive

law of the state where the injury or harm was sustained or suffered, which is,

ordinarily, the state where the last event necessary to make the actor liable or the

last event required to constitute the tort takes place, applies.” Id. at 420 (citation

modified).

42. Defendant contends that because Plaintiff only alleges that he

misappropriated trade secrets in Missouri by incorporating them at Habaneros,

Plaintiff has failed to state a claim under the North Carolina Trade Secrets Protection

Act (NCTSPA). (Br. Supp. 6–7.) Defendant argues that he “might have learned

[Plaintiff’s] information in North Carolina, but the last act necessary to make him

liable—the actual misappropriation, i.e., unauthorized use of [Plaintiff’s] trade

secrets—supposedly occurred when [Defendant] worked for Habaneros in Missouri.”

(Br. Supp. 6.)

43. Plaintiff argues in response that the choice-of-law determination is

appropriate only after discovery, once sufficient facts exist to establish where the

alleged misappropriation occurred. (Pl.’s Br. Opp’n Mot. 5, ECF No. 23 [Br. Opp’n].)

Additionally, Plaintiff contends that at present, “[t]he gaps in the factual record leave

open the clear probability that misappropriation occurred, at least in part, in North

Carolina[,]” and that “it remains unclear how or when Defendant began using

[Plaintiff’s] proprietary information—including whether he leveraged such

information while still employed and residing in North Carolina to secure his

subsequent business venture, to establish relationships, or to otherwise prepare to

replicate a Mezcalito restaurant.” (Br. Opp’n 6.)

44. As an initial matter, the Court notes that a choice-of-law issue may be

determined at the motion to dismiss stage, particularly where there are no allegations

in the relevant pleading that support an inference that the last act giving rise to the

injury occurred anywhere other than outside North Carolina. See Elior, Inc. v.

Thomas, 2024 NCBC LEXIS 61, at *43–44 (N.C. Super. Ct. Apr. 22, 2024); Env’t

Holdings Grp., LLC v. Finch, 2022 NCBC LEXIS 45, at *12–13 (N.C. Super. Ct.

May 16, 2022) (determining at the 12(b)(6) stage that Virginia law applied to a trade

secret misappropriation claim where complaint alleged no actions taken by the

defendant in North Carolina other than reporting to his supervisor in a Raleigh

office).

45. Upon review of the Amended Complaint, the substance of the allegations is

that Defendant misappropriated the alleged trade secrets by disclosing them to

Habaneros and using them in implementing changes at Habaneros that, in essence,

replicated Plaintiff’s restaurant. (See Am. Compl. ¶¶ 20, 22.) Despite Plaintiff’s

contention that Defendant may have misappropriated the alleged trade secrets while

still in North Carolina, the Court determines that the Amended Complaint is devoid

of any allegation, even upon information and belief, that any misappropriation

occurred prior to Defendant’s relocation to Missouri and alleged misappropriation

there.

46. Accordingly, the Court concludes that Missouri law governs the trade secret

misappropriation claim, as the facts expressly alleged by Plaintiff in the Amended

Complaint permit no inference other than that the last act necessary to impose

liability occurred in Missouri. Given that Plaintiff has brought Count Two exclusively

under the NCTSPA and has pled no additional or alternative claim for

misappropriation under Missouri law, the Court concludes that Count Two must be

dismissed based on choice-of-law.

2. Identification of Trade Secrets

47. Even assuming arguendo that North Carolina law applies, the Court

concludes that Plaintiff has failed to plead the alleged trade secrets with sufficient

particularity, as required under the NCTSPA.

48. The North Carolina Trade Secrets Protection Act defines a trade secret as:

business or technical information, including but not limited to a formula,

pattern, program, device, compilation of information, method,

technique, or process that:

a. Derives independent actual or potential commercial value

from not being generally known or readily ascertainable through

independent development or reverse engineering by persons who

can obtain economic value from its disclosure or use; and

b. Is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

N.C.G.S. § 66-152(3). “To plead misappropriation of trade secrets, a plaintiff must

identify a trade secret with sufficient particularity so as to enable a defendant to

delineate that which he is accused of misappropriating and a court to determine

whether misappropriation has or is threatened to occur.” Krawiec, 370 N.C. at 609

(citation omitted).

49. At the Hearing, Plaintiff’s counsel conceded that neither menus nor unique

food and drink presentations can constitute trade secrets, as these items are in the

public view and, at least with respect to unique food and drink presentations, would

more properly be considered trade dress, a cause of action not asserted in the

Amended Complaint. The Court agrees and concludes that Plaintiff cannot maintain

a claim for trade secret misappropriation as to menus or unique food and drink

presentations.

50. As for the remaining alleged trade secrets, the Court concludes that

Plaintiff has failed to identify any trade secret with sufficient particularity. While

these items—including (i) recipes, ingredients, and unique preparations, (ii) business

plans, (iii) supplier relationships, (iv) pricing, (v) documents and records, and

(vi) employment practices, policies, and payroll information—may conceivably

include information that properly qualifies as a trade secret under the NCTSPA, such

categories of information, with no further reasoning, detail, or information, are not

sufficiently particular to serve as a basis for a trade secret misappropriation claim in

North Carolina. See Krawiec, 370 N.C. at 611–12 (determining that a description of

trade secrets as “original ideas and concepts for dance productions” and “marketing

strategies and tactics” was insufficiently particular); Design Gaps, Inc. v. Hall,

2024 NCBC LEXIS 64, at *9 (N.C. Super. Ct. May 1, 2024) (dismissing trade secret

misappropriation claim for lack of particularity where complaint included no further

detail about the “customer lists, formulas, plans, materials, methods, information,

roadmaps, and strategies” alleged to be trade secrets).

3. Allegations of Misappropriation

51. Moreover, the Court determines that Plaintiff has not sufficiently pled with

specificity the acts by which Defendant allegedly misappropriated any trade secrets.

52. Misappropriation is defined as the “acquisition, disclosure, or use of a trade

secret of another without express or implied authority or consent, unless such trade

secret was arrived at by independent development, reverse engineering, or was

obtained from another person with a right to disclose the trade secret.”

N.C.G.S. § 66-152(1). The allegations of a complaint must identify with specificity

“the acts by which the alleged misappropriations were accomplished.” Washburn v.

Yadkin Valley Bank & Tr. Co., 190 N.C. App. 315, 327 (2008).

53. Beyond the broad assertion that Defendant used Plaintiff’s trade secrets in

creating a substantially similar restaurant for Habaneros, the Complaint offers no

additional specificity regarding how Defendant did so.

54. Further, North Carolina courts do not recognize the doctrine of inevitable

disclosure, nor does the NCTSPA provide for the same. See, e.g., Se. Anesthesiology

Consultants, PLLC v. Charlotte-Mecklenburg Hosp. Auth., 2018 NCBC LEXIS 137,

at *57–58 (N.C. Super. Ct. June 22, 2018). Throughout the Amended Complaint,

Plaintiff uses the conjunction “or” to describe the alleged misappropriation. (See, e.g.,

Am. Compl. ¶ 36 (alleging Defendant “has used or disclosed or will inevitably use or

disclose these trade secrets” (emphasis added)).) Therefore, to the extent Plaintiff’s

claim for trade secret misappropriation is based on the allegation that Defendant will

inevitably use or disclose Plaintiff’s trade secrets, Count Two fails as a matter of law

for this additional reason.

55. For the reasons set forth herein, the Court determines that Plaintiff has

failed to state a claim for misappropriation of trade secrets under the NCTSPA.

Therefore, the Court GRANTS the Motion as to Count Two for misappropriation of

trade secrets, and Count Two is dismissed with prejudice to the limited extent it is

based on the alleged misappropriation of Plaintiff’s menus and unique food and drink

presentations, as those items do not constitute trade secrets. Count Two is otherwise

dismissed without prejudice as it relates to the remaining alleged trade secrets

identified in paragraph 31 of the Amended Complaint.2

C. Count Three: Unfair and Deceptive Trade Practices and Common

Law Unfair Competition

56. Plaintiff alleges that Defendant’s actions, “including [Defendant’s]

misappropriation and disclosure of trade secrets, and other intentional and willful

actions” described in the Amended Complaint, constitute unfair and deceptive acts

and practices and unfair methods of competition. (Am. Compl. ¶ 44.)

2 This partial dismissal without prejudice assumes Plaintiff can otherwise sufficiently plead

facts supporting the application of North Carolina law, which the Court determines it has

not done in the Amended Complaint.

57. “To prevail on a claim of unfair and deceptive trade practice a plaintiff must

show (1) an unfair or deceptive act or practice, or an unfair method of competition,

(2) in or affecting commerce, (3) which proximately caused actual injury to the

plaintiff or to his business.” Spartan Leasing, Inc. of N.C. v. Pollard, 101 N.C.

App. 450, 460–61 (1991) (citing Marshall v. Miller, 302 N.C. 539 (1981)).

58. Chapter 75 of the North Carolina General Statutes (UDTPA) provides, in

pertinent part, that “[u]nfair methods of competition in or affecting commerce, and

unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”

N.C.G.S. § 75-1.1(a). Further, the UDTPA defines “commerce” to include “all

business activities, however denominated, but does not include professional services

rendered by a member of a learned profession.” N.C.G.S. § 75-1.1(b).

59. “North Carolina courts have previously concluded that when the UDTP[A]

claim rests solely upon other claims . . . which the court determines should be

dismissed, the UDTP[A] claim must fail as well.” Charah, LLC v. Sequoia Servs.,

LLC, 2020 NCBC LEXIS 52, at *19 (N.C. Super. Ct. Apr. 17, 2020).

60. Moreover, when the UDTPA claim is premised on a breach of contract, the

plaintiff must allege substantial aggravating circumstances sufficient to support the

UDTPA claim. See SciGrip, 373 N.C. at 426–27 (concluding that “an intentional

breach of contract, standing alone, simply does not suffice to support the assertion of

[a UDTPA] claim”).

61. “Traditionally at common law, including that of North Carolina, the tort of

unfair competition consisted of acts or practices by a competitor which are likely to

deceive the consuming public.” Stearns v. Genrad, Inc., 564 F. Supp. 1309, 1320

(M.D.N.C. 1983), aff’d, 752 F.2d 942 (4th Cir. 1984) (citation omitted). “The

gravamen of unfair competition is the protection of a business from misappropriation

of its commercial advantage earned through organization, skill, labor, and money.”

Henderson v. U.S. Fid. & Guar. Co., 346 N.C. 741, 749 (1997) (citations omitted).

“Unfair competition has been found to encompass a range of behaviors ‘such as

trademark infringement, imitation of a competitor’s product or its appearance,

interference with a competitor’s contractual relations, [and] disparagement of a

competitor’s product or business methods, and misappropriation of a competitor’s

intangible property rights such as advertising devices or business systems.’ ”

Gateway Mgmt. Servs. v. Carrbridge Berkshire Grp., Inc., 2018 NCBC LEXIS 45,

at *19–20 (N.C. Super. Ct. May 9, 2018) (quoting Stearns, 564 F. Supp. at 1320).

62. “Courts have recognized that a claim for common law unfair competition is

analyzed the same way as a claim for unfair or deceptive trade practices under

[N.C.]G.S. § 75-1.1.” Cnty. of Wake PDF Elec. & Supply Co., LLC v. Jacobsen,

2020 NCBC LEXIS 103, at *26 (N.C. Super. Ct. Sep. 9, 2020) (citations omitted); see

also Glob. Textile All., Inc. v. TDI Worldwide, LLC, 2018 NCBC LEXIS 104, at *23

(N.C. Super. Ct. Oct. 9, 2018) (“The standard which a plaintiff must meet to recover

on an unfair competition claim under the common law is not appreciably different

from a claim for unfair or deceptive trade practices.” (citation modified) (quoting

BellSouth Corp. v. White Directory Publishers, Inc., 42 F. Supp. 2d 598, 615

(M.D.N.C. 1999))).

63. As the Court has concluded that Plaintiff’s allegations are insufficient to

state a claim for misappropriation of trade secrets, the Court likewise determines

that Plaintiff’s allegations are insufficient to state a UDTPA or common law unfair

competition claim based on that same conduct. Further, to the extent that Count

Three is premised on Defendant’s alleged breach of contract as asserted in Count One,

the Court concludes that the Amended Complaint is devoid of allegations amounting

to “substantial aggravating circumstances” necessary to sustain a UDTPA claim on

the basis of an alleged breach of contract. See SciGrip, 373 N.C. at 427.

64. Therefore, the Court GRANTS the Motion as to Count Three. With respect

to the alleged misappropriation of menus and unique food and drink presentations,

Count Three for unfair and deceptive trade practices and common law unfair

competition is dismissed with prejudice, as the Court concludes these items do not

constitute trade secrets under North Carolina law. To the extent Count Three is

based on the alleged misappropriation by Defendant of other purported trade secrets

and/or a breach by Defendant of the Employment Agreement, Count Three is

dismissed without prejudice.

D. Count Four: Preliminary and Permanent Injunction

65. Plaintiff purports to bring Count Four for preliminary and permanent

injunction, seeking a Court order

enjoining [Defendant] from further actual or threated misappropriation

of [Plaintiff’s] trade secrets, clearly terminating his participation in

[Plaintiff’s] profit-sharing program, imposing a constructive trust over

all personal property, assets and tangible things of value in the care,

custody or control of [Defendant] in order to prevent fraudulent

transfers and/or voidable transactions that could impair [Plaintiff’s]

ability to obtain monetary satisfaction of any judgment in this action,

and otherwise maintaining the status quo to prevent possible

irreparable harm during the pendency of this action.

(Am. Compl. ¶ 56.)

66. Injunctive relief “is an ancillary remedy, not an independent cause of

action.” Revelle v. Chamblee, 168 N.C. App. 227, 230 (2005) (citation omitted). It is

well-settled that “injunctive relief is not a standalone claim[.]” Window World of St.

Louis, Inc. v. Window World, Inc., 2021 NCBC LEXIS 88, at *15 (N.C. Super. Ct.

Oct. 6, 2021).

67. Moreover, the Court notes that to properly pursue injunctive relief in this

Court by motion, the moving party must file a separate document in the form of a

motion along with a separately filed supporting brief. See BCR 7.2.

68. Accordingly, the Court hereby GRANTS the Motion as to Count Four, and

Count Four for preliminary and permanent injunctive relief is dismissed without

prejudice to Plaintiff’s ability to seek this remedy at a later time through proper

procedures if warranted by the relevant facts and law.

VI. CONCLUSION

69. For the foregoing reasons, the Court hereby GRANTS in part and DENIES

in part the Motion as follows:

a. The Court GRANTS the Motion as to Count Two for

misappropriation of trade secrets to the extent it is based on an alleged

misappropriation of unique food and drink presentations and menus,

and Count Two is DISMISSED with prejudice to that limited extent;

b. The Court GRANTS the Motion as to Count Two for

misappropriation of trade secrets with respect to all other alleged

misappropriations, and Count Two is DISMISSED without prejudice to

that limited extent;

c. The Court GRANTS the Motion as to Count Three for violation

of the UDTPA and common law unfair competition, and that claim is

DISMISSED with prejudice to the extent it is premised on an alleged

misappropriation of menus and unique food and drink presentations and

without prejudice to the extent it is based on all other alleged

misappropriations of trade secrets and/or Defendant’s alleged breach of

the Employment Agreement;

d. The Court GRANTS the Motion as to Count Four for preliminary

and permanent injunction, and that claim is DISMISSED without

prejudice; and

e. Except as herein granted, the Motion is hereby DENIED.

IT IS SO ORDERED, this the 17th day of February, 2026.

/s/ Michael L. Robinson

Michael L. Robinson

Chief Business Court Judge