N.C. Business Court Opinions, July 1, 2026 – July 14, 2026
By: Amanda Reader, Romney Harris, and Lauren Schantz
FS Med. Supplies, LLC v. TannerGap, Inc., 2026 NCBC 61 (N.C. Super Ct. July 2, 2026) (Houston, J.)
Key Terms: motion to dismiss; Rule 12(b)(6); prior pending action doctrine; abatement; federal court; subject matter jurisdiction; collateral attack
Plaintiff, a Delaware company based in Texas, brought this action against Defendants, pharmaceutical services providers with operations in Charlotte, North Carolina, asserting claims for breach of contract, violations of N.C.G.S. § 75-1.1, piercing the corporate veil/alter ego, and allegedly voidable transfers under Chapter 39 of the North Carolina General Statutes. Plaintiff had sued Defendants and their affiliates multiple times in multiple courts since 2021, including a nearly identical action currently pending in the Western District of North Carolina (“Federal Action”). Defendants moved to dismiss Plaintiff’s complaint under Rule 12(b)(6).
Plaintiff conceded that the Federal Action was a previously-filed, still-pending federal case involving the same parties and the same causes of action. Because the Federal Action was pending in a federal district court sitting within North Carolina and subsumed the matters before the Business Court, the Court held that the present action was subject to abatement and dismissal under the prior pending action doctrine.
Plaintiff argued that the doctrine did not apply because the federal court lacked subject matter jurisdiction over the Federal Action. But the Court noted that Plaintiff chose to file the Federal Action in federal court and that the federal court had not yet determined that it lacked jurisdiction. The Court reasoned that Plaintiff could not collaterally attack subject matter jurisdiction in the Federal Action in a state court case; that issue was for the federal court to resolve.
The Court also rejected Plaintiff’s request that it proceed on the assumption that the federal court would ultimately dismiss the Federal Action. The Court explained that doing so would require judges in later-filed cases to second-guess the jurisdiction of the first-filed court before that court had ruled, frustrating the purpose of the prior pending action doctrine: to prevent unnecessary litigation.
Having concluded that application of the prior pending action doctrine was not contingent on the first court’s final jurisdictional determination, the Court dismissed the action without prejudice, allowing Plaintiff to proceed in the Federal Action and in the parties’ other pending litigation.
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Brock v. Kyryk, 2026 NCBC 62 (N.C. Super Ct. July 8, 2026) (Houston, J.)
Key Terms: motion to dismiss; Rule 12(b)(6); planned community; property owners’ association; derivative action; N.C.G.S. § 55A-7-40; standing; subject matter jurisdiction; special assessment; nonprofit corporation; breach of fiduciary duty; negligent misrepresentation; preliminary injunction; remedy
Plaintiffs, members of a property owners’ association, initiated a derivative lawsuit under N.C.G.S. § 55A-7-40 against Defendants, members of the association’s board. Plaintiffs challenged the notice and conduct of a special meeting and the resulting special assessment to fund repairs to the community’s common areas damaged by Hurricane Helene. Plaintiffs asserted claims against Defendants for breach of fiduciary duty, negligent misrepresentation, and preliminary injunction. Defendants moved to dismiss, arguing that Plaintiffs lacked standing to bring a derivative action and failed to state any claim for relief.
Standing. Defendants argued that, other than a reference to N.C.G.S. § 55A-7-40, the complaint failed to allege any facts to support a derivative action. The Court agreed, noting that not only did the complaint fail to allege facts showing that the asserted claims were brought on behalf of the association rather than Plaintiffs individually, but also that Plaintiffs did not seek substantive relief for the association. The Court therefore dismissed the derivative claims without prejudice.
Breach of Fiduciary Duty. Plaintiffs alleged that Defendants breached fiduciary duties in connection with the special assessment and the meeting process. The Court dismissed the claim without prejudice, because a board is required to act in the best interests of the association, not its individual members. Plaintiffs did not plead facts showing that the association itself owed Plaintiffs a fiduciary duty, and their allegations regarding the existence of such a duty were conclusory.
Negligent Misrepresentation. Plaintiffs alleged that the meeting notice contained a false statement. The Court dismissed the claim without prejudice because Plaintiffs did not plead facts showing that any member of the association actually relied on the statement, that any reliance was reasonable or justifiable, or that Plaintiffs suffered actual harm because of the statement.
Injunctive Relief. The Court also dismissed Plaintiffs’ request for a preliminary injunction without prejudice, concluding that injunctive relief is a remedy rather than an independent cause of action.
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XL Ins. Am., Inc. v. Nat’l Veterinary Assocs., Inc., 2026 NCBC Order 58 (N.C. Super Ct. July 10, 2026) (Robinson, C.J.)
Key Terms: N.C.G.S. § 7A-45.4(a); order on designation; N.C.G.S. § 7A-45.4(c); contemporaneous filing; conditional notice of designation; BCR 2.5; BCR 3.6
Plaintiff filed a complaint and conditional notice of designation at 5:34 P.M. on May 26, 2026. Although Plaintiff certified that it had served the CNOD on both the Chief Justice of the Supreme Court and the Chief Judge of the Business Court, neither court actually received the notice and Plaintiff was unable to produce the transmittal email. At 5:02 P.M. on June 29, 2026, Plaintiff filed its supplement to conditional notice of designation, informing the Court that Defendant consented to designation.
The Court determined that this action was not properly designated for two reasons. First, Plaintiff did not contemporaneously serve the CNOD on the Chief Justice and the Chief Judge as required by N.C.G.S. § 7A-45.4(c). Second, Plaintiff did not timely file the supplement because Plaintiff filed it two minutes after five o’clock on the due date, thereby effectively filing it the following day.
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The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.