Becker v. Bridges Experience, Inc., 2026 NCBC 66.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
NEW HANOVER COUNTY 24CVS004823-640
DERRIC BECKER and JOSEPH
FINLEY, individually, and derivatively
on behalf of Bridges Experience, Inc.,
Plaintiffs, ORDER AND OPINION ON
PLAINTIFFS’ MOTION FOR
v. LEAVE TO FILE SECOND
AMENDMENT TO COMPLAINT,
BRIDGES EXPERIENCE, INC., f/k/a BRIDGES EXPERIENCE’S
CASTLE BRANCH, INC.; BRETT MOTION TO DISMISS,
HALNA DU FRETAY a/k/a BRETT DEFENDANTS WILLIAM JOSEPH MARTIN; and WILLIAM JOSEPH STEWART AND BRETT HALNA STEWART, DU FRETAY’S MOTION FOR
SUPPLEMENTAL BRIEFING, AND
Defendants, PLAINTIFFS’ MOTION FOR
LEAVE TO FILE THIRD
and AMENDED COMPLAINT
[Public] 1
BRIDGES EXPERIENCE, INC.,
Nominal Defendant.
1. THIS MATTER is before the Court on Plaintiffs’ Motion for Extension
of Time and for Leave to File Second Amendment to Complaint (Motion to File Second
Amended Complaint), (ECF No. 97), Bridges Experience’s Motion to Dismiss
Plaintiffs’ Derivative Claims (Motion to Dismiss), (ECF No. 170), Defendants William
Joseph Stewart and Brett Halna du Fretay’s Motion for Supplemental Briefing
1 The Court’s Order was provisionally filed under seal on 21 July 2026 to permit counsel for
the parties to confer and advise the Court whether they contend any matters referenced herein should be sealed. The parties have not requested that the Court consider sealing any portion of the Order. Therefore, the Court now files its Order in its original form on the public record.
(Motion for Supplemental Briefing), (ECF No. 177), and Plaintiffs’ Motion for
Extension of Time and for Leave to File Third Amended Complaint (Motion to File
Third Amended Complaint), (ECF No. 229), (collectively, the Motions).
2. The Court, having considered the Motions and related briefing, the
relevant matters of record, and the arguments of counsel at a hearing on the Motions
held 11 May 2026, concludes for the reasons stated below that the Motion to Dismiss
is GRANTED in part and DENIED in part, the Motion to File Second Amended
Complaint is DENIED as moot, the Motion for Supplemental Briefing is DENIED
as moot, and the Motion to File Third Amended Complaint is GRANTED in part
and DENIED in part.
Brooks, Pierce, McLendon, Humphrey & Leonard LLP, by James C.
Adams, Gabrielle E. Supak, and Anna Majestro, for Plaintiff Derric
Becker.
Reiss & Nutt, PLLC, by W. Cory Reiss and Mackenzie Jo Lintz, for
Plaintiff Joseph Finley.
Poyner Spruill LLP, by Andrew H. Erteschik, Colin R. McGrath, John
Michael Durnovich, and Clare W. Magee, for Defendant and Nominal
Defendant Bridges Experience, Inc. f/k/a Castle Branch, Inc.
Williams Mullen, by Camden R. Webb, Killian Wyatt, and Julianna
Coppage, for Defendant Brett Halna du Fretay a/k/a Brett Martin.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, by H.
Hunter Bruton, Michael W. Mitchell, and John L. Gibbons, for
Defendant William Joseph Stewart.
Earp, Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
3. On 27 December 2024, Plaintiffs sued Defendants Bridges Experience,
Inc. (Bridges Experience) and Brett Halna du Fretay a/k/a Brett Martin (Martin), for failure to provide notice of dissenter’s appraisal rights, judicial dissolution, breach of
fiduciary duty, and constructive fraud. (Compl. ¶¶ 69–108, ECF No. 3.) Plaintiffs
also requested that the Court impose a constructive trust on certain shares of stock
owned by Martin. (Compl. ¶¶ 109–12.)
4. The same day, Plaintiffs served their first derivative demand (First
Derivative Demand) on Defendant Bridges Experience alleging breaches by Martin
of the fiduciary duties he owed the company. (See generally Ex. K to First Am. Compl.
[First Derivative Demand], ECF No. 48.) Specifically, the First Derivative Demand
asserted that Martin, as a director and officer of the company, misused corporate
funds and defrauded the company and its shareholders when it came to a “make
whole” payment Martin received from the sale of the parties’ business. (First
Derivative Demand 3.)
5. On 1 May 2025, the Court issued a Case Management Order (CMO)
setting the deadline to amend pleadings and/or add parties as 30 June 2025. (Case
Management Order § IV(B) ¶ 4, ECF No. 41.)
6. Thereafter, Plaintiffs filed a First Amended Complaint on 15 May 2025,
naming Bridges Experience as a nominal defendant and adding derivative claims on
behalf of the company that aligned with the allegations in their First Derivative
Demand. (First Am. Compl. ¶¶ 122–42, ECF No. 46.) Plaintiffs also requested that
the Court impose a constructive trust on certain shares of stock owned by Martin,
and they added William Joseph Stewart (Stewart), president of Bridges Experience,
as a defendant. (See First Am. Compl. ¶¶ 122–35, 143–46.)
7. The following day, Bridges Experience filed an unopposed motion asking
the Court to (1) appoint Mr. Sam Duffort (Mr. Duffort or Special Litigation
Committee) to investigate their derivative claims pursuant to Section 55-7-44(f) of
the North Carolina General Statutes; and (2) stay Defendants’ deadline to answer or
otherwise respond to the First Amended Complaint until thirty days after the Special
Litigation Committee’s determination. (Bridges Experience’s Unopposed Mot.
Appointment Sam Duffort & Unopposed Mot. Temporary Stay [5/16/2025 Mot.] 1,
ECF No. 50.)
8. On 23 June 2025, the Court appointed Mr. Duffort to investigate the
derivative claims and to determine by 22 September 2025 whether maintaining those
claims would be in the best interest of Bridges Experience. (Order Unopposed Mot.
Appointment Sam Duffort & Unopposed Mot. Temporary Stay [6/23/2025 Order] ¶¶
6, 8–9, ECF No. 74.) The Court later extended this deadline to 6 October 2025 to
allow for the scheduling of interviews that the Special Litigation Committee intended
to conduct as part of its investigation. (Order Joint Consent Mot. Extension Time ¶
4(a), ECF No. 86.)
9. On 1 October 2025, Plaintiffs sent the Special Litigation Committee a
letter in which they requested that Mr. Duffort investigate transactions they claimed
to have recently discovered. (Oct. 2025 Letter to Thomas Segars, ECF No. 89.1.)
Plaintiffs followed this letter with a Second Derivative Demand sent to the company
on 7 October 2025. (Oct. 7, 2025 Derivative Demand [Second Derivative Demand],
ECF No. 106.1.)
10. On 6 October 2025 (the deadline for the Special Litigation Committee to
file its report), Plaintiffs moved for an order requiring the Special Litigation
Committee to expand its inquiry to include the allegations in their Second Derivative
Demand. The allegations included claims on behalf of Bridges Experience for breach
of fiduciary duty involving construction loans for properties on Oak Island and
payments made by the company to rent other properties indirectly owned by Martin
(Studio ILM and Thin Space). (Mot. Sam Duffort Investigate & Extension Time 1–2,
ECF No. 87.)
11. On 20 October 2025, Plaintiffs filed their Motion to File Second
Amended Complaint seeking to add claims on behalf of Bridges Experience that
aligned with their Second Derivative Demand. (See generally Proposed Second Am.
Compl., ECF No. 98.1.) With Plaintiffs’ consent, Bridges Experience filed a motion
requesting Mr. Duffort’s appointment to investigate this second set of claims.
(Bridges Experience’s Consent Mot. Appoint Sam Duffort Investigate Pls.’ Second
Derivative Demand [10/22/2025 Mot.] 1–2, ECF No. 104.) The Court granted the
consent motion on 4 November 2025 and set 19 December 2025 as the deadline for
the Special Litigation Committee to file its report. (Order Consent Mot. Appointment
Sam Duffort [11/4/2025 Order] ¶¶ 6–7, ECF No. 126.)
12. Thereafter, on 19 December 2025, Mr. Duffort timely filed a 108-page
report in which he concluded that pursuing both Plaintiffs’ first and second sets of
derivative claims would not be in the company’s best interest. (Final R. & R. Special
Litigation Committee Bridges Experience, Inc. [Duffort Report] 3–4, ECF No. 163.)
13. Following the filing of the Duffort Report, on 31 December 2025, Bridges
Experience filed its Motion to Dismiss requesting that the Court (1) dismiss the
derivative claims in Plaintiffs’ First Amended Complaint in accordance with N.C.G.S.
§ 55-7-44(a); and (2) determine that the derivative claims in the proposed Second
Amended Complaint were futile. (Br. Supp. Bridges Experience’s Mot. Dismiss Pls.’
Derivative Claims [Bridges’ Br. Supp.] 4, ECF No. 171.)
14. On 9 January 2026, Defendants Martin and Stewart filed a Motion for
Supplemental Briefing in which they requested that the Court order the parties to
submit supplemental briefs addressing the impact, if any, the Duffort Report had on
Plaintiffs’ Motion to File Second Amended Complaint. (Defs. William Joseph Stewart
& Brett Halna du Fretay’s Mot. Suppl. Briefing [Mot. Suppl. Briefing] 1, ECF No.
177.)
15. A week later, Plaintiffs filed a motion requesting “limited discovery on
whether [Mr.] Duffort’s investigation and the Report complies with N.C.G.S. § 55-7-44” or, in the alternative, an extension of thirty days from the denial of Plaintiffs’
request for limited discovery to respond to Bridges Experience’s Motion to Dismiss
(the Discovery Motion). (Pls.’ Am. Mot. Extension Time Resp. Mot. Dismiss Conduct
Limited Disc. 1, ECF No. 183.)
16. In response to Plaintiffs’ Discovery Motion, the Court suspended
Plaintiffs’ deadline to respond to the Motion to Dismiss and set a briefing schedule
on the Discovery Motion. (Order Pls.’ Am. Mot. Extension Time Resp. Mot. Dismiss Conduct Limited Disc. ¶ 4, ECF No. 184.) The Discovery Motion was fully briefed.
(ECF Nos. 197–98, 207.)
17. On 6 March 2026, the Court entered an order denying Plaintiffs’ request
for limited discovery because (1) Plaintiffs failed to satisfy the pleading requirements
of Section 55-7-44(d); and (2) the Special Litigation Committee was independent,
conducted a reasonable inquiry in good faith, and drew reasonable conclusions from
that inquiry. Becker v. Bridges Experience, Inc., 2026 NCBC LEXIS 64 (N.C. Super.
Ct. Mar. 13, 2026) [Order Denying Limited Discovery]. 2 The Court also lifted the
stay for briefing the Motion to Dismiss and gave Plaintiffs thirty days to respond. Id.
at *21.
18. Plaintiffs filed their brief in opposition to the Motion to Dismiss on 6
April 2026. (ECF No. 233.) On the same day, Plaintiffs filed a motion for leave to file
a third amended complaint by which, among other things, they seek to challenge the
Court’s conclusion that the Special Litigation Committee acted in good faith and
conducted a reasonable inquiry. (Pls.’ Mot. Extension Time & Leave File Third Am.
Compl. ¶ 8, ECF No. 229.)
19. Bridges Experience filed its reply in support of its Motion to Dismiss on
15 April 2026. (ECF No. 242.)
20. Thereafter, on 27 April 2026, Defendants filed responses in opposition
to the Motion to File Third Amended Complaint. (ECF Nos. 251, 255.) Plaintiffs filed
their reply on 7 May 2026. (ECF No. 258.)
2 The order was provisionally filed under seal on 6 March 2026 and filed publicly on 13 March
2026.
21. The Court held a hearing on the Motions on 11 May 2026. All parties
were present through counsel and were given an opportunity to be heard.
22. The Motions are now ripe for disposition.
II. ANALYSIS
A. Motion to Dismiss
23. Section 55-7-44 of the North Carolina General Statutes provides for the
investigation and mandatory dismissal of derivative claims if it is determined that
maintaining them would not be in the company’s best interest. See generally N.C.G.S.
§ 55-7-44. The statute states in pertinent part:
(a) The court shall dismiss a derivative proceeding on motion of the
corporation if a determination is made, whether before or after the
commencement of the derivative proceeding, by one of the groups
specified in subsection (b) of this section in good faith, after conducting
a reasonable inquiry upon which its conclusions are based, that the
maintenance of the derivative proceeding is not in the best interest of
the corporation. 3
N.C.G.S. § 55-7-44(a) (emphasis added). 4
3 The Special Litigation Committee in this case was appointed under Section 55-7-44(b)(3),
which states:
(b) The inquiry and determination in subsection (a) of this section shall be
made . . .
(3) Upon motion by the corporation, by a panel of one or more individuals
appointed by the court.
N.C.G.S. § 55-7-44(b)(3).
4 After Mr. Duffort was appointed in this case, (see 6/23/2025 Order ¶ 8), the Governor signed
2025 Session Law 33, amending N.C.G.S. § 55-7-44 effective 1 October 2025. 2025 N.C. Sess. Laws 33. The amendment deleted the express requirement that a Court-appointed investigative panel be independent. Id. (changing “one or more independent persons” to “one or more individuals”). Because independence is a factor when evaluating good faith, Swenson v. Thibaut, 39 N.C. App. 77, 108 (1978) (noting the “importance of independent judgment by directors as being crucial to the good faith question” (emphasis omitted)), and because the
24. Prior to his appointment, the Court twice addressed Mr. Duffort’s
independence. The Court observed that Plaintiffs did not oppose his first
appointment and consented to his second appointment. It concluded that Mr. Duffort
was, in fact, independent. (See 6/23/2025 Order ¶¶ 3, 6; 11/4/2025 Order ¶¶ 3, 5.)
Further, in its Order Denying Limited Discovery, entered after the Duffort Report
was filed, the Court again concluded that there was nothing to indicate that Mr.
Duffort lacked independence. Becker, 2026 NCBC LEXIS 64, at *20.
25. In addition, as discussed in the Order Denying Limited Discovery, the
Court concluded that Mr. Duffort’s inquiry was reasonable, and his conclusions based
on that inquiry were made in good faith. Id. at *14–20. Therefore, dismissal of the
derivative claims in the First Amended Complaint, the operative pleading, is
mandated by statute. See JT Russell & Sons, Inc. v. Russell, 2025 NCBC LEXIS 22,
at *9 (N.C. Super. Ct. Mar. 4, 2025) (“Factors to consider in deciding [a motion
pursuant to N.C.G.S. § 55-7-44] include whether the panel is independent, whether
it conducted a reasonable inquiry, and whether it made its decision in good faith.”
(citations omitted)).
26. The Court rejects Plaintiffs’ attempt to relitigate the requirements of
Section 55-7-44, both in their opposition to Bridges Experience’s Motion to Dismiss
amended statute still requires the Court to determine whether the Special Litigation Committee acted in good faith, the Court continues to review for independence.
The amendment also added the following italicized language: “[t]he court shall dismiss a derivative proceeding on motion of the corporation if a determination is made, whether before or after the commencement of the derivative proceeding, by one of the groups specified in subsection (b)[.]” N.C.G.S. § 55-7-44(a). No party argues that the Motion to Dismiss in this case is untimely.
and in support of their Motion to File Third Amended Complaint. As explained in
the Order Denying Limited Discovery, the Court has already decided that the Special
Litigation Committee met those requirements, and as discussed more fully below,
Plaintiffs have neither moved, nor presented proper grounds, for reconsideration of
that decision. See W4 Farms, Inc. v. Tyson Farms, Inc., 2017 NCBC LEXIS 99, at *8
(N.C. Super. Ct. Oct. 19, 2017) (“Reconsideration by re-argument is not proper under
Rule 54.” (quoting Brunson v. N.C. Dep't of Soc. Servs., No. 5:09-CT-3063-FL, 2011
U.S. Dist. LEXIS 20469, at *7 (E.D.N.C. Feb. 28, 2011))).
27. Accordingly, the Motion to Dismiss shall be GRANTED with respect to
the derivative claims in Plaintiffs’ First Amended Complaint, 5 and those claims shall
be DISMISSED with prejudice. 6
B. Plaintiffs’ Motions to Amend the Complaint
28. Plaintiffs no longer wish to pursue their Motion to File Second Amended
Complaint. (See Pls.’ Reply Br. Supp. Mot. Extension Time & Leave File Third Am.
Compl. [Pls.’ Reply] 1 n.1, ECF No. 258 (“[T]he Court need not consider whether to
allow Plaintiffs to file the [proposed Second Amended Complaint] because the present
Amendment Motion moots Plaintiffs’ prior [Motion to File Second Amended
5 To the extent the First Amended Complaint seeks a constructive trust to remedy one or
more of the attempted derivative claims, the Motion to Dismiss is likewise GRANTED. This determination does not affect Plaintiffs’ ability to seek a constructive trust, if otherwise appropriate, with respect to their direct claims.
6 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).
Complaint.]”).) Accordingly, the Motion to File Second Amended Complaint is
DENIED as moot. 7
29. As was true of the Motion to File Second Amended Complaint, in the
Motion to File Third Amended Complaint Plaintiffs seek to add derivative claims for:
(1) breach of fiduciary duty and constructive fraud against Martin regarding Thin
Space; (2) breach of fiduciary duty and constructive fraud against Martin and Stewart
regarding the Oak Island Transactions; and (3) breach of fiduciary duty and
constructive fraud against Martin and Stewart regarding Studio ILM. These new
derivative claims were the subject of Mr. Duffort’s second investigation. Plaintiffs
also seek to add allegations to both the original and the new derivative claims to
support their continued assertion that Mr. Duffort was not independent, did not
conduct a reasonable inquiry, and failed to act in good faith. (See generally Proposed
Third Am. Compl., ECF No. 231.1.) A proposed amendment to the Fourth Cause of
Action, a derivative claim against Martin and Stewart for waste and misuse of
company assets, alleges that Martin’s salary was excessive, an allegation previously
investigated by Mr. Duffort. (Proposed Third Am. Compl. ¶¶ 284–85.)
30. In addition to changes to the derivative claims, the Motion to File Third
Amended Complaint also seeks to add new direct claims against Martin and Stewart
for (1) fraud and (2) breach of fiduciary duty regarding an allegedly improper
7 The individual Defendants filed their Motion for Supplemental Briefing after the Duffort
Report was filed, arguing that the Court should permit the parties to submit supplemental briefs on the impact, if any, the Duffort Report had on the Motion to File Second Amended Complaint. Given that the Motion to File Second Amended Complaint was DENIED as moot, Defendants’ Motion for Supplemental Briefing shall also be DENIED as moot. shareholder distribution. The latter claim includes allegations that Bridges
Experience violated N.C.G.S. § 55-6-40. (Proposed Third Am. Compl. ¶¶ 303–24, 372–
83.) The direct claims in the proposed Third Amended Complaint are nearly identical
in form and substance to those presented in the proposed Second Amended Complaint
filed with the Court on 20 October 2025.
31. The parties do not agree on the standard that governs Plaintiffs’ Motion
to File Third Amended Complaint. Defendants contend that because the proposed
amendment comes well after the deadline to amend provided in the CMO, Business
Court Rule (BCR) 9.4 requires Plaintiffs first to show good cause to modify that
deadline before proceeding to Rule 15 of the North Carolina Rules of Civil Procedure.
(Defs. William Joseph Stewart & Brett Halna du Fretay’s Resp. Opp’n Pls.’ Mot.
Extension Time & Leave File Third Am. Compl. [Defs.’ Opp’n] 5–9, ECF No. 251;
Bridges Experience’s Resp. Pls.’ Mot. Extension Time & Leave File Third Am. Compl.
[Bridges Opp’n] 7–8, ECF No. 255.) Plaintiffs respond that the good cause
requirement is met for the same reasons the proposed amendment complies with Rule
15. (Pls.’ Reply 11–14.)
32. The Court agrees with Defendants that to amend now, Plaintiffs must
both (1) show good cause to modify the CMO deadline and (2) satisfy the requirements
of Rule 15. “[T]he touchstone of [the] good cause requirement is diligence.” Faulconer
v. Centra Health, Inc., 808 F. App’x 148, 152 (4th Cir. 2020) (citation modified). In
this instance Plaintiffs have satisfied the Court that they have been diligent and that
good cause exists in these limited circumstances to extend the deadline to amend.
33. Turning to Rule 15, it is true, as Plaintiffs argue, that leave to amend a
pleading “shall be freely given when justice so requires.” N.C. R. Civ. P. 15(a). “There
is no more liberal canon in the [R]ules” than “when justice so requires.” Vaughan v.
Mashburn, 371 N.C. 428, 434 (2018) (citing G. Gray Wilson, North Carolina Civil
Procedure Ch. 15, § 15-3 (3d ed. 2007)). Even so, “the right to amend is not
unfettered.” Howard v. IOMAXIS, LLC, 2023 NCBC LEXIS 159, at *13 (N.C. Super.
Ct. Nov. 29, 2023). “Reasons justifying denial of an amendment include: (1) undue
delay, (2) bad faith, (3) undue prejudice, (4) futility of amendment, and (5) repeated
failure to cure defects by previous amendments.” Window World of St. Louis, Inc. v.
Window World, Inc., 2015 NCBC LEXIS 79, at *18 (N.C. Super. Ct. Aug. 10, 2015)
(citing Martin v. Hare, 78 N.C. App. 358, 361 (1985)).
34. Defendants argue that the motion to amend comes too late, would be
unduly prejudicial and, in the case of Plaintiffs’ proposed derivative claims, would be
futile. (Defs.’ Opp’n 9–12, 15–16; Bridges Opp’n 8–14.)
i. The Direct Claims
35. Addressing the two proposed direct claims first, Plaintiffs contend that
they put Defendants on notice of these claims in October 2025 with the filing of their
Motion to File Second Amended Complaint. Since then, Mr. Duffort has been
appointed a second time and completed two investigations. At the parties’ request,
and to allow for these investigations, the Court extended some deadlines and stayed
others. (See ECF Nos. 124, 151, 176, 223.) As a result, neither fact nor expert
discovery has progressed. In December, once the Duffort Report was completed, Bridges Experience moved to dismiss the First Amended Complaint, and that motion
remains pending. Neither Bridges Experience nor either of the individual
Defendants has yet to file an Answer.
36. “The burden is upon the opposing party to establish that that party
would be prejudiced by the amendment.” Mauney v. Morris, 316 N.C. 67, 72 (1986)
(citations omitted); see also Babb v. Graham, 190 N.C. App. 463, 484 (2008) (“A party
objecting to the filing of an amended pleading has the burden of satisfying the trial
court that he would be prejudiced by the granting or denial of a motion to amend.”
(citation modified)).
37. Other than the passage of time, Defendants offer little support for their
position that they would be unduly prejudiced by adding the direct claims. And, while
it is true that Plaintiffs initiated the lawsuit some nineteen months ago with the filing
of their original Complaint on 27 December 2024, given the unique procedural
posture of this case, Defendants have failed to meet their burden.
38. Accordingly, the Court concludes that Rule 15’s liberal standard for
amendment counsels in favor of granting Plaintiffs’ motion for leave to add their sixth
and ninth claims for relief. The Court shall therefore GRANT in part the Motion to
File Third Amended Complaint, but only as to the proposed direct claims and the
factual allegations concerning those direct claims.
ii. The Derivative Claims
39. As for the proposed new derivative claims that were the basis of Mr.
Duffort’s second inquiry, (Thin Space, Oak Island Transactions, and Studio ILM),
Defendants are correct that the Motion fails on futility grounds for the same reasons
that the derivative claims in the First Amended Complaint failed.
40. The standard for futility is essentially the same standard used to decide
a motion under Rule 12(b)(6) but “provides the Court liberal discretion to find that an
amendment lacks futility.” Simply the Best Movers, LLC v. Marrins’ Moving Sys.,
2016 NCBC LEXIS 28, at *5–6 (N.C. Super. Ct. Apr. 6, 2016) (citation omitted). In
short, “a motion to amend is not futile when ‘the allegations of the [amendment],
treated as true, are sufficient to state a claim upon which relief may be granted under
some legal theory, whether properly labeled or not.’ ” IOMAXIS, 2023 NCBC LEXIS
159, at *15 (quoting Harris v. NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670
(1987)). However, “[a] motion for leave to amend is futile and appropriately denied
when the ‘proposed amendment could not withstand a motion to dismiss for failure
to state a claim.’ ” Insight Health Corp. v. Marquis Diagnostic Imaging of N.C., LLC,
2016 NCBC LEXIS 77, at *6 (N.C. Super. Ct. Oct. 7, 2016) (quoting Smith v. McRary,
306 N.C. 664, 671 (1982)).
41. After the proposed Second Amended Complaint was filed, the Special
Litigation Committee investigated and reported on the derivative claims that are
again alleged in the proposed Third Amended Complaint. Mr. Duffort determined
that maintaining those claims would not to be in the best interest of Bridges Experience. The Court has concluded that Mr. Duffort was independent, conducted
a reasonable inquiry from which he drew his conclusions, and that he acted in good
faith. Becker, 2026 NCBC LEXIS 64, at *14–20. Accordingly, Section 55-7-44(a)
mandates that, should the proposed derivative claims be allowed, they would
immediately be dismissed on the corporation’s motion.
42. The corporation has stated that it would move to dismiss the claims if
they ever came before the Court. (See Bridges’ Br. Supp. 4 n.4 (“[I]f the Court were
to grant Plaintiffs’ pending motion to file the proposed derivative claims in the second
amended complaint, then in light of the [Duffort Report], Bridges [Experience] will
file a new motion to dismiss those claims under N.C.[G.S.] § 55-7-44.”).)
Consequently, adding the proposed derivative claims would be a futile endeavor. 8
43. Addressing Plaintiffs’ contention that they should be permitted to
amend the derivative claims to again challenge Mr. Duffort’s independence, the scope
of his inquiry, and his good faith, the Court agrees with Defendants that Plaintiffs
are essentially asking the Court to reconsider its conclusions in the Order Denying
Limited Discovery without first filing the requisite motion. Nevertheless, the Court
considers the arguments presented.
8 To the extent Plaintiffs argue that their proposed amendment is a response to the Court’s
ruling that they failed to plead that Mr. Duffort lacked independence, did not conduct a reasonable investigation, or acted in bad faith, their effort is too late. “Hindsight being perfect, any lawyer can construct a new argument to support a position previously rejected by the court, especially once the court has spelled out its reasoning in an order.” W4 Farms, Inc., 2017 NCBC LEXIS 99, at *9 (quoting Potter v. Potter, 199 F.R.D. 550, 553 (D. Md. 2001)).
44. Rule 54(b) provides that an interlocutory ruling is “subject to revision at
any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.” N.C. R. Civ. P. 54(b).
45. Absent guidance from North Carolina’s appellate courts on the standard
to apply when considering a motion to reconsider an interlocutory ruling under Rule
54(b), the Court turns to federal case law addressing similarly worded portions of
Federal Rule 54(b). See Ehmann v. Medflow, Inc., 2019 NCBC LEXIS 10, at *9 (N.C.
Super. Ct. Feb. 6, 2019) (“Without the benefit of North Carolina appellate precedent,
in considering a motion for reconsideration the Business Court has previously relied
on case law addressing Federal Rule of Civil Procedure 54(b).” (collecting cases)).
46. “Courts will reconsider an interlocutory order in the following
situations: (1) there has been an intervening change in controlling law; (2) there is
additional evidence that was not previously available; or (3) the prior decision was
based on clear error or would work manifest injustice.” Akeva L.L.C. v. Adidas Am.,
Inc., 385 F. Supp. 2d 559, 566 (M.D.N.C. 2005) (citations omitted). “Such problems
rarely arise and the motion to reconsider should be equally rare.” W4 Farms, Inc.,
2017 NCBC LEXIS 99, at *5 (quoting DirecTV, Inc. v. Hart, 366 F. Supp. 2d 315, 317
(E.D.N.C. 2004)).
47. The burden is on Plaintiffs to satisfy the Court that there are grounds
to reconsider its prior ruling. See, e.g., JTH Tax, Inc. v. Aime, 984 F.3d 284, 292 (4th
Cir. 2021) (“Where a motion for reconsideration is based on purportedly newly discovered evidence, . . . [t]he moving party bears the burden of demonstrating that
the evidence” could not have been discovered previously.).
48. Here, Plaintiffs contend that there are four categories of evidence that
were not available when the Court rendered its earlier order: (1) a February 2025
email chain between Cherie Homa and Tom Segars produced 30 April 2026 (February
2025 Email), (ECF No. 257.1); (2) Plaintiff Finley’s projected 2025 K-1 numbers
received via email on 1 April 2026, (Aff. Joseph Finley [Finley Aff.] Ex. A, ECF No.
259.1); (3) a social media post and webpage announcing the planned discontinuation
of Bridges Experience’s business discovered by Plaintiffs on 30 April 2026, (Finley
Aff. ¶¶ 8–11); and (4) documents produced by Truist in December 2025, shortly before
the Duffort Report was filed, (ECF Nos. 235.25–.26, 235.28).
49. First, Plaintiffs contend that the February 2025 email chain is evidence
that Mr. Duffort was not independent when he conducted the investigation. The
email chain suggests that Bridges Experience hired Ellis & Winters, LLP (Ellis &
Winters) to assist it to identify candidates to serve on the Special Litigation
Committee weeks before Mr. Duffort was retained and Ellis & Winters was identified
as the Special Litigation Committee’s legal counsel. According to Plaintiffs, this
evidence contradicts Mr. Duffort’s representation that he retained Ellis & Winters to
assist him in this matter, (Duffort Report 2), thereby raising an issue of fact regarding
Mr. Duffort’s independence. 9
9 Plaintiffs rely on In re Carvana Co. S’holders Litig., C.A. No. 2020-0415-KSJM, 2024 Del.
Ch. LEXIS 105 (Del. Ch. Mar. 27, 2024) and London v. Tyrrell, No. 3321-CC, 2010 Del. Ch. LEXIS 54 (Del. Ch. Mar. 11, 2010), two unpublished decisions from the Delaware Chancery Court. In Carvana, the court called Plaintiff’s contention that the special litigation
50. Bridges Experience responds that there is nothing unusual about a
company recommending counsel who is ultimately retained by a Special Litigation
Committee charged with investigating derivative claims. During the hearing, the
company admitted through counsel that it sought Ellis & Winters’ assistance to
establish the Special Litigation Committee because of the firm’s experience in that
area. However, Bridges Experience argues that its limited involvement with Ellis &
Winters does not mean that Mr. Duffort could not later retain Ellis & Winters as
counsel to the Special Litigation Committee without jeopardizing his independence.
51. In support of its position, Bridges Experience points to the language of
the statute, which permits even directors who have been sued to serve on the Special
Litigation Committee. See N.C.G.S. § 55-7-44(c)(2) (“For purposes of this section,
none of the following factors by itself shall cause a director to be considered not
independent . . . [t]he naming of the director as a defendant in the derivative
proceeding or as a person against whom action is demanded.”). If those directors may
be considered independent for purposes of the statute, Bridges Experience reasons,
there is no basis to question Mr. Duffort’s independence.
committee’s counsel was “hand-picked by management” a “bad argument.” 2024 Del. Ch. LEXIS 105, at *22–23. According to that court, “[a]ccepting a recommendation from management alone does not evidence a lack of independence of the [special litigation committee], and that is all that happened here.” Id. at *23.
In London, the Delaware court commented that “[a special litigation committee] member does not have to be unacquainted or uninvolved with fellow directors to be regarded as independent. But [a special litigation committee] member is not independent if he or she is incapable, for any substantial reason, of making a decision with only the best interests of the corporation in mind.” 2010 Del. Ch. LEXIS 54, at *39. This Court is not constrained to follow Delaware law, but even if it were, the evidence does not support a conclusion that Mr. Duffort was “incapable . . . of making a decision with only the best interests of the corporation in mind.” Id.
52. The Special Litigation Committee referenced three documents, as well
as Mr. Duffort’s affidavit, to support a conclusion that Mr. Duffort acted
independently. (Aff. Samuel Duffort [Duffort Aff.], ECF No. 73.1; 7 March 2025
Letter Agreement between Bridges Experience and Ellis & Winters [7 March 2025
Letter Agreement], ECF No. 262.1; Independent Panel Agreement, ECF No. 262.2; 6
March 2025 Letter Agreement between Mr. Duffort and Ellis & Winters [6 March
2025 Letter Agreement], ECF No. 288)10
53. The documents establish that (1) Mr. Duffort retained Ellis & Winters
as his counsel and (2) although Bridges Experience agreed both to compensate Mr.
Duffort for his time and expense and to absorb Ellis & Winters’ charges, it also agreed
that “only Mr. Duffort [would] be the [f]irm’s client in this matter.” (7 March 2025
Letter Agreement 1); see also (Independent Panel Agreement ¶ 2 (“Duffort and the
Company further understand and agree that Duffort shall conduct his independent
panel investigation independently, with no control, direction, instruction, or influence
from . . . the Company.”).) Further “Bridges agree[d] that its obligation to pay [Ellis
& Winters’] fee [would] not be contingent upon any aspect of Mr. Duffort’s
investigation or upon the determination that Mr. Duffort ultimately ma[de][.]” (7
March 2025 Letter Agreement 2.)
10 Mr. Duffort referenced the 6 March 2025 Letter Agreement but objected to its production
on attorney-client privilege grounds. The document was submitted to the Court in camera pursuant to the Court’s order, (ECF No. 266). The Court has reviewed the document and determines that the portions quoted are not privileged attorney-client communications. (Order Regarding Engagement Letter, ECF No. 282.)
54. Similarly, the 6 March 2025 Letter Agreement between Mr. Duffort and
Ellis & Winters provides: “[d]espite Bridges’ payment of the fees, [Ellis & Winters is]
engaged solely to represent the panel in its independent investigation of the minority
shareholder claims.” (6 March 2025 Letter Agreement 1.) It further states:
Although Bridges will pay our fees associated with this
engagement (as explained below) you, and only you, are the
Firm’s client in this matter. As a consequence, the
communications that we have with you are confidential and
privileged. Bridges’ payment of fees does not entitle it to any
privileged communications. This is important to provide you and
the Firm with the independence necessary to faithfully discharge
our roles in connection with your service as a panel under
N.C.[G.S.] § 55-7-44(f). If you have any questions about this or
the need to maintain independence in this role, please do not
hesitate to discuss them with us.
(6 March 2025 Letter Agreement 2.)
55. Additionally, Mr. Duffort testified that, prior to the Court appointing
him, counsel for Plaintiffs questioned Mr. Duffort, with counsel from Ellis & Winters
present, about his ability to serve independently. They included questions about Mr.
Duffort’s relationship with Bridges Experience or any of the other parties. (Duffort
Aff. ¶ 5.) Mr. Duffort testified that he truthfully denied the existence of any
relationship. (Duffort Aff. ¶ 5.)
56. Given this undisputed evidence, the Court concludes that Plaintiffs’
conclusion that Mr. Duffort was unduly influenced by Ellis & Winters is
unwarranted. Instead, the evidence supports the conclusion that Mr. Duffort was
and is independent.
57. Next, Plaintiffs argue that Mr. Duffort’s inquiry was not reasonable in
scope or he would have discovered that the Company was failing, as evidenced by the
loss reported on Finley’s projected 2025 K-1. However, Mr. Duffort was not appointed
to determine whether Bridges Experience would show a profit or loss in 2025.
Further, Plaintiffs have not explained why the fact that Bridges Experience may have
reported a loss for 2025 means Mr. Duffort’s investigation was inadequate.
Consequently, Plaintiffs fail to meet the burden required for the Court to reconsider
its ruling.
58. Similarly, Plaintiffs argue that the Special Litigation Committee’s
inquiry was not reasonable in scope or it would have uncovered the fact that the
company planned to discontinue a portion of its business. Plaintiffs contend that they
only recently discovered this information by way of a social media post leading them
to the company’s webpage, which announces the closing of Bridges Experience’s
clinical placement solution (Bridges EXPTM) business. (Finley Aff. ¶¶ 8–9.) They
point to statements in the Duffort Report describing Bridges Experience as a “going
concern” and argue that, to the extent Mr. Duffort based his conclusion that
maintaining the derivative claims would not be in the company’s best interest on his
assumption that Bridges Experience intended to continue to operate, his inquiry was
not reasonable.
59. In his report Mr. Duffort said: “Following the sale of Castle Branch to
DISA, Bridges Experience [the Company] remains a going concern, and the
Company’s priority is the growth of the Bridges Experience business. Substantial funds from the DISA transaction were set aside for this specific purpose.” (Duffort
Report 78.) As for the closing, Bridges Experience, through counsel, has confirmed
that the information on which Plaintiffs rely pertains only to the Company’s “clinical
placement solution,” Bridges EXPTM, and not to the Company generally. (Ex. B –
May 8, 2026 Letter, ECF No. 261.2.) Thus, this newly discovered information does
not provide a sufficient basis for reconsideration of the Court’s earlier ruling.
60. Finally, Plaintiffs rely on a set of documents that they received in midDecember from Truist Bank. Having received the documents on the eve of the Duffort
Report, Plaintiffs argue that they lacked sufficient time to review them and
determine their relevance to the Special Litigation Committee’s work before it issued
its report. However, Plaintiffs do not explain why, after receiving these documents,
they did not promptly bring the matter to the Court’s attention and request an
extension of time to determine the significance of this information. “Rule 54(b)
motions should not be used to raise new arguments or evidence that could have been
raised previously.” Wade v. JMJ Enters., LLC, No. 1:21CV506, 2025 U.S. Dist. LEXIS
168576, at *6 (M.D.N.C. Aug. 29, 2025) (citation modified)). In addition, Plaintiffs
fail to present evidence to support a conclusion that Mr. Duffort lacked access to this
information before completing his report or that he believes the information would
have influenced the outcome.
61. In short, Plaintiffs present no basis for the Court to reconsider its ruling
that Mr. Duffort is independent, conducted a reasonable investigation, and acted in
good faith. The fact that Plaintiffs disagree about how the inquiry was conducted and how it turned out is not enough to satisfy their burden. “It is hard to imagine a less
efficient means to expedite the resolution of cases than to allow the parties unlimited
opportunities to seek the same relief simply by conjuring up a new reason to ask for
it.” W4 Farms, Inc., 2017 NCBC LEXIS 99, at *12 (quoting Potter, 199 F.R.D. at 553).
Accordingly, to the extent Plaintiffs’ motion is one for reconsideration, it shall be
DENIED.
62. Even if the proposed new derivative claims were not futile, they come
too late. This matter has been pending since 27 December 2024. The complaint has
already been amended once. A second motion to amend was filed, and then mooted,
by this one. The pending motion is Plaintiffs’ fourth attempt at a complaint.
63. Meanwhile, Plaintiffs consented to the appointment of Mr. Duffort to
investigate the derivative claims in the First Amended Complaint and then consented
to his investigation of the derivative claims in the proposed Second Amended
Complaint. The Court extended some deadlines and stayed others to allow this
process to occur. Plaintiffs then waited more than three months after the Duffort
Report was filed to pursue their latest set of amendments.
64. In addition, the individual Defendants argue persuasively that financial
information regarding the Oak Island Transactions, Thin Space, and Studio ILM was
available to Plaintiffs well before they initiated this action. (Defs. Brett Halna du
Fretay and William Joseph Stewart’s Resp. Opp’n Pls.’ Mot. Extension Time & Leave
File Second Am. Compl. 12–16, ECF No. 129.)
65. The Court concludes that, even if the proposed derivative claims were
not futile, unlike Plaintiffs’ motion with respect to their direct claims, Plaintiffs have
waited too long, and the case has progressed too far, to address the derivative claims
a third time. See Draughon v. Harnett Cnty. Bd. of Educ., 166 N.C. App. 464, 467
(2004) (“In deciding if there was undue delay, the trial court may consider the relative
timing of the proposed amendment in relation to the progress of the lawsuit.” (citation
omitted)); see also Wilkerson v. Duke Univ., 229 N.C. App. 670, 679 (2013) (same).
66. Accordingly, the Motion to File Third Amended Complaint shall be
DENIED as to the derivative claims.
III. CONCLUSION
67. WHEREFORE, the Court, in its discretion, ORDERS as follows:
a. The Court GRANTS in part the Motion to Dismiss and
DISMISSES WITH PREJUDICE Plaintiffs’ derivative claims in the
First Amended Complaint, including Plaintiffs’ request for a constructive
trust as to those claims. The Court DENIES the Motion to Dismiss to the
extent it seeks dismissal of any other claim or remedy.
b. The Court DENIES as moot the Motion to File Second
Amended Complaint.
c. The Court DENIES as moot the individual Defendants’ Motion
for Supplemental Briefing.
d. The Court GRANTS in part the Motion to File Third Amended
Complaint to the extent it seeks to add direct claims but DENIES the
Motion to File Third Amended Complaint to the extent it seeks to add
derivative claims, a new paragraph 30, and facts and relief related only to
derivative claims.
e. Plaintiffs may file their Amended Complaint, in form and
substance consistent with this Order and Opinion, on or before 31 July
2026.
f. All stays in this matter are lifted. The parties shall confer and
submit a proposed Amended Case Management Order for the Court’s
consideration no later than 31 July 2026.
SO ORDERED, this the 23rd day of July, 2026.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases