Plasman v. Decca Furniture (USA), Inc.

2016 NCBC 78

CHRISTIAN G. PLASMAN, in his individual capacity and derivatively for the benefit of, on behalf of and right of nominal party BOLIER & COMPANY, LLC, Plaintiff, v. DECCA FURNITURE (USA), INC., DECCA CONTRACT FURNITURE, LLC, RICHARD HERBST, WAI THENG TIN, TSANG C. HUNG, DECCA FURNITURE, LTD., DECCA HOSPITALITY FURNISHINGS, LLC, DONGGUAN DECCA FURNITURE CO. LTD., DARREN HUDGINS, DECCA HOME, LLC, and ELAN BY DECCA, LLC, Defendants, and BOLIER & COMPANY, LLC, Nominal Defendant, v. CHRISTIAN J. PLASMAN a/k/a BARRETT PLASMAN, Third-Party Defendant.

No. 12 CVS 2832

Superior Court of North Carolina, Catawba

October 21, 2016

Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers, for Plaintiff Christian G. Plasman, and Third-Party Defendant Christian J. Plasman a/k/a Barrett Plasman.

McGuireWoods LLP, by Robert A. Muckenfuss, Jodie H. Lawson Andrew D. Atkins, Elizabeth Zwickert Timmermans, and Anita M Foss, for Defendants Decca Furniture (USA), Inc., Decca Contract Furniture, LLC, Richard Herbst, Wai Theng Tin, Tsang C. Hung, Decca Furniture, Ltd., Decca Hospitality Furnishings, LLC, Dongguan Decca Furniture Co. Ltd., Darren Hudgins, Decca Home, LLC, Elan by Decca, LLC, and Nominal Defendant Bolier & Company, LLC.

ORDER AND OPINION ON DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT AND MOTION TO DISMISS SUPPLEMENTED AND AMENDED THIRD PARTY COUNTERCLAIMS

Louis A. Bledsoe, III Special Superior Court Judge

1. THIS MATTER is before the Court upon Defendants Decca Furniture (USA), Inc. ("Decca USA"), Decca Contract Furniture, LLC ("Decca Contract"), Decca Hospitality Furnishings, LLC ("Decca Hospitality"), Decca Home, LLC ("Decca Home"), Elan by Decca, LLC ("Elan, " together with Decca USA, Decca Contract, Decca Hospitality, Decca Home, and Elan, the "Decca Defendants"), Richard Herbst ("Herbst"), Darren Hudgins ("Hudgins"), Wai Theng Tin ("Tin"), and nominal defendant Bolier & Company, LLC's ("Bolier, " together with the Decca Defendants, Herbst, Hudgins, and Tin, the "Defendants") (i) Motion to Dismiss Plaintiff Christian G. Plasman's ("Chris Plasman" or "Plaintiff") Second Amended Complaint (the "Motion to Dismiss Complaint") and (ii) Motion to Dismiss Third Party Defendant Christian J. Plasman's ("Barrett Plasman, " together with Chris Plasman, the "Plasmans") Supplemented and Amended Third Party Counterclaims (the "Motion to Dismiss Counterclaims", collectively, the "Motions") in the above- captioned case.^[1]

2. The Court, having considered the Motions, briefs in support of and in opposition to the Motions, and arguments of counsel made at a hearing on the Motions, hereby GRANTS the Motions.

I. PROCEDURAL HISTORY

3. Plaintiff Chris Plasman originally filed this action in October 2012, and Defendants subsequently removed the matter to the United States District Court for the Western District of North Carolina (Voorhees, J.) in December 2012. The federal court entered a preliminary injunction in February 2013 (the "P.I. Order"), and, in September 2014, the federal court dismissed Chris Plasman's federal copyright infringement claim, declined to exercise supplemental jurisdiction, and remanded the case to this Court for all further proceedings.

4. Upon remand, the parties filed a number of substantive motions, which this Court resolved in a May 26, 2015 order and opinion. Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015 NCBC LEXIS 55 (N.C. Super. Ct. May 26, 2015). In that opinion, the Court ruled on Plaintiff's Motion to Amend Complaint, Defendants' Motion to Dismiss Plaintiff's First Amended Complaint, Defendants' Motion to Strike Supplemental Pleadings, Defendants' Motion to Dismiss Barrett Plasman's Counterclaims, along with various other motions not relevant to the present matter.

5. This Court concluded in its May 26, 2015 Order that the "First Amended Complaint and proposed Second Amended Complaint reveal[ed] fatal deficiencies on their face." Bolier, 2015 NCBC LEXIS 55, at *9. The First Amended Complaint also asserted claims "in a confusing, unfocused manner" by grouping claims together illogically and failing to make clear whether claims were brought individually or on Bolier's behalf and which Defendants were allegedly liable for which claims. Id. at *11. Nevertheless, the Court, in the exercise of its discretion and under the specific circumstances in this case, determined that it was appropriate "to provide Chris Plasman another chance to amend the operative complaint to attempt to state legally cognizable claims in this action." Id. at *13. Therefore, the Court granted Chris Plasman's Motion to Amend and denied in part as moot Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. The Court also denied in part as moot Defendants' Motion to Dismiss Barrett Plasman's Counterclaims.

6. Chris Plasman filed his Second Amended Complaint on June 25, 2015. Barrett Plasman filed his Supplemented and Amended Third Party Counterclaims on the same day.^[2] In lieu of filing an answer, Defendants filed the present Motions on September 22, 2015. The Motions have been fully briefed, and the Court held a hearing on the Motions on December 17, 2015, at which all parties were represented by counsel. The Motions are now ripe for resolution.

II. FACTUAL BACKGROUND

7. The Court does not make findings of fact on motions to dismiss under Rule 12(b)(6), but only recites those allegations in the Second Amended Complaint that are relevant and necessary to the Court's determination of the Motions.^[3]

8. Chris Plasman alleges that he is an experienced furniture executive, who in 2002 started Bolier, a furniture business whose name is a Plasman family name. (SAC ¶¶ 35-38.) Chris Plasman approached Defendants Tsang, Herbst, and Decca China, who manufactured furniture, about partnering to run Bolier.^[4] (SAC ¶¶ 42- 43.) Plaintiff alleges that Decca China become Bolier's sole supplier and then "insisted" that its affiliated entity, Decca USA, own part of Bolier. (SAC ¶ 56.) Plaintiff contends that Herbst promised him that Bolier would operate as a 50/50 partnership, although on paper Decca USA would own the majority interest. (SAC ¶¶ 57-65.) In August of 2013, Chris Plasman and Decca USA executed Bolier's Operating Agreement, which identified Chris Plasman and Decca USA as Bolier's only members. (SAC ¶¶ 81-84.) Under the express terms of the written Operating Agreement, Chris Plasman is a 45% owner, and Decca USA is a 55% owner of Bolier. (SAC ¶¶ 331.)

9. At the end of August 2003, by written resolution, Chris Plasman began serving as Bolier's President and CEO, and Herbst began serving as Bolier's Vice President, Secretary, and Treasurer. (SAC ¶¶ 88-89.) Chris Plasman signed an employment agreement, which addressed his job duties, salary, and grounds for termination. (SAC Ex. 12.) In 2005, Chris Plasman hired his son, Barrett Plasman, as Bolier's Operations Manager. (SAC ¶ 105.)

10. Decca USA provided legal, accounting, and administrative services to Bolier, and invoiced Bolier for the cost of these services.^[5] (SAC ¶ 104.) The cost of these Contract Services became a point of contention between Chris Plasman, as Bolier's President, and Decca USA. (SAC ¶ 111.) Nevertheless, Chris Plasman licensed Bolier's name and designs to Decca China.^[6] (SAC ¶¶ 135-36.) Under the licensing agreements, Decca China and its subsidiaries and affiliates would sell Bolier products in foreign markets and pay royalties to Bolier based on sales. (SAC ¶ 137-38.)

11. Continuing through 2012, Chris Plasman and Decca USA clashed over the cost of the Contract Services, the amount of the royalties paid to Bolier, and numerous other matters regarding the operation of Bolier. (SAC ¶¶ 139-74.) On October 19, 2012, Herbst informed Chris Plasman that Decca USA was terminating the employment of both Chris and Barrett Plasman, citing the cost of their salaries as untenable. (SAC ¶¶ 198-99, 211.) Chris Plasman alleges that Decca USA lacked the authority to terminate either of the Plasmans. (SAC ¶¶ 208-09.)

12. Despite receiving notice of their terminations, the Plasmans contend that they continued to work for Bolier. (SAC ¶¶ 216.) On January 14, 2013, Decca USA locked out the Plasmans from Bolier's premises. (SAC ¶ 220.) Barrett Plasman attempted to enter Bolier's offices, but Tin and Hudgins-whom the Second Amended Complaint identifies as officers and directors of Decca USA-along with Defendants' counsel and the High Point Police Department denied him entry and told him that his employment was terminated and that he was no longer allowed on Bolier's property. (SAC ¶¶ 222-27.) Shortly thereafter, Defendants informed Bolier's employees at an employee meeting that the Plasmans' employment had been terminated. (SAC ¶ 228.) Defendants also sent a letter to Bolier customers regarding the Plasmans' employment termination, and Defendants' counsel sent a letter to Bank of North Carolina informing the bank that the Plasmans lacked the authority to make transactions in Bolier's name. (SAC ¶¶ 237, 469.) The Plasmans allege that Defendants made numerous defamatory statements about them at the employee meeting and in the letters to Bolier customers and Bank of North Carolina employees.

13. In the Second Amended Complaint, filed after the issuance of the P.I. Order, Chris Plasman alleges that his relationship with Decca USA has deteriorated. Specifically, Plaintiff alleges that Decca USA routinely rejects or refuses to vote on matters he proposes at Bolier's bi-annual member meetings, contrary, he alleges, to the Operating Agreement and the terms of the P.I. Order. (SAC ¶¶ 309, 319, 325.)

III. LEGAL STANDARD

14. The question for the Court on a motion to dismiss under N.C. R Civ. P. 12(b)(6) is "whether, as a matter of law, the allegations...