High Point BBC, LLC v. Arvelo, 2026 NCBC 79.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
WAKE COUNTY 26CV011377-910
HIGH POINT BBC, LLC,
Plaintiff,
v. ORDER AND OPINION ON
DEFENDANT’S MOTION TO DISMISS
EDDIE ARVELO,
Defendant,
v.
HIGHPOINT BBC, LLC, et al.,
Third-Party Defendants.
1. This matter is before the Court on defendant Eddie Arvelo’s motion to
dismiss plaintiff High Point BBC, LLC’s complaint for lack of standing under Rule
12(b)(1) and for failure to state a claim upon which relief can be granted under Rule
12(b)(6). (ECF No. 9).
2. The parties have fully briefed the motion, (ECF Nos. 10, 28, and 31), and the
Court dispenses with oral argument pursuant to Rule 7.4 of the Business Court
Rules.
3. Having considered the motion, the complaint, the written arguments of
counsel, and applicable law, the Court hereby GRANTS the motion and DISMISSES
WITHOUT PREJUDICE Plaintiff’s complaint as set forth in this Order and
Opinion.
Schauer & Shelton LLP, by Craig Shauer, for Plaintiff High Point BBC,
LLC.
Blanco Tackabery & Matamoros, P.A., by Chad A. Archer and Ryan
Dovel, for Defendant Eddie Arvelo.
Houston, Judge.
I. BACKGROUND
4. This matter involves an internal dispute about the operation of a gym doing
business as High Point Burn Boot Camp (the “Gym”). The Gym is a franchise gym
located in High Point, North Carolina, and provides fitness classes. (ECF No. 3).
5. Defendant Eddie Arvelo and third-party defendant Scott Tobin are partial
owners of the Gym and oversee its daily operations. (ECF No. 3, ¶¶ 1, 8).
6. The plaintiff in this action, “High Point BBC, LLC” (“Plaintiff”), alleges
that it “is a registered North Carolina limited liability company with its principal
office” in Raleigh, North Carolina. (ECF No. 3, ¶ 2). As the records of the North
Carolina Secretary of State reflect, however, “High Point BBC, LLC” is not a
registered entity with the state, and, as Plaintiff concedes, it was not a registered
assumed name (i.e., “d/b/a”) when Plaintiff commenced this action. (ECF No. 28 at 4
n.1). Instead, the most similarly named entity is “Highpoint BBC, LLC,” an entity
with a differently spaced name.1
1 In its discretion, the Court takes judicial notice that, as reflected by Defendant’s filings and
arguments, no entity under the name “High Point BBC, LLC” is registered with the North Carolina Secretary of State; however, an entity by the name “Highpoint BBC, LLC” is in fact registered. See N.C. R. Evid. 201(b)–(c) (judicial notice); Banc of Am. Merch. Servs., LLC., v. Arby’s Rest. Grp., Inc., 2021 NCBC LEXIS 60, at *5, n. 3 (N.C. Super. Ct. June 30, 2021); see Highpoint BBC, LLC Limited Liability Company Articles of Organization, SOSID: 2553091, N.C. Sec’y State (11 Jan. 2023), available at https://www.sosnc.gov/online_services/search/profile_filings/20400817.
7. Nonetheless, Plaintiff asserts that it (i.e., High Point BBC, LLC)2 “operates
Burn Boot Camp gym in High Point, North Carolina,” (ECF No. 3, ¶ 1), and that,
around March 2026, Defendant began acting unilaterally on behalf of the Gym,
allegedly in violation of the Gym’s operating agreement. (ECF No. 3, ¶¶ 10−11).
8. Without permission from Tobin or anyone at the Gym, Defendant
purportedly terminated two of the Gym’s “essential employees,” the head trainer and
an operations manager, and barred them from the facility. (ECF No. 3, ¶¶ 11(a)−(b)).
This left the Gym “without critical front-end operations and back-end operational
support.” (ECF No. 3, ¶¶ 11(a)−(b)).
9. Defendant then “took steps to conceal his unilateral actions” by removing
Tobin’s access to the “private communication page” used by the Gym and eliminating
Tobin’s access to the Mindbody fitness class online platform, preventing Tobin from
monitoring and accessing the Gym’s billing system. (ECF No. 3, ¶¶ 12(a)−(b)).
10. Plaintiff asserts that these actions violated an operating agreement
governing “the Company,” which it defines in the complaint as “Plaintiff High Point
BBC.” (ECF No. 3, ¶¶ 7–9).
11. Specifically, Plaintiff contends that the operating agreement establishes five
member-managers for the entity operating the Gym, with ownership interests of 30%
for defendant Arvelo, 30% for Scott Tobin, 20% for Joe Rawling, 10% for Bryan
Watkins, and 10% for Matthew Johnson. Each member-manager is permitted to vote
2 Plaintiff contends in its post-complaint briefing that Plaintiff is Highpoint BBC, LLC and
that High Point BBC, LLC is simply an assumed name. The complaint, however, lacks any such allegation. (See generally ECF No. 3).
in proportion to his ownership interest in the company, and “all decisions by membermanagers are by a majority interest.” (ECF No. 3, ¶¶ 8–9, 15).
12. However, the operating agreement to which Plaintiff refers in the complaint,
as incorporated therein and as attached to Plaintiff’s briefing, is an “Operating
Agreement of Burn Boot Camp High Point, NC” dated 20 May 2023 (the “Operating
Agreement”). (ECF No. 3, ¶¶ 8–9, 15; ECF No. 28 at 2, 5–6; ECF No. 28.1, Ex. B at
1).3
13. In addition to noting that it is the Operating Agreement of “Burn Boot Camp
High Point, NC” (rather than Highpoint BBC, LLC or High Point BBC, LLC), the
Operating Agreement indicates that it is “made and entered into by and between Joe
Rawling (Initial Members), Bryan Watkins (Initial Members), Matthew Johnson
(Initial Members), and High Point LLC North Carolina limited liability company (the
‘Company’),” with the individuals’ names signed rather than printed. (ECF No. 28.1,
Ex. B at 1 (emphasis added)).
14. In turn, the Operating Agreement provides that “Schedule A [to the
Operating Agreement] lists the initial Membership Interests” in that entity, with
Schedule A thereafter identifying the members as Scott Tobin and Eddie Arvelo with
a 60% combined membership interest (rather than 30% each), Joe Rawling with a
3 The Court “may properly consider documents which are the subject of a plaintiff's complaint
and to which the complaint specifically refers” regardless of the party that presents them. Turpin v. Charlotte Latin Sch., Inc., – N.C. –, 2026 N.C. LEXIS 939, at *12–13 (N.C. 2026) (internal citation omitted); Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60 (2001) (“[W]hen ruling on a Rule 12(b)(6) motion, a court may properly consider documents which are the subject of a plaintiff's complaint and to which the complaint specifically refers even though they are presented by the defendant.”).
20% interest, Bryan Watkins with a 10% membership interest, and Matthew Johnson
with a 10% membership interest. (ECF No. 28.1, Ex. B, Sch. A at 14). These
percentages differ from those alleged by Plaintiff in the complaint, as listed above.
(ECF No. 3, ¶¶ 8–9, 15).
15. In the signature block, the Operating Agreement is purportedly signed on
behalf of three LLCs: (i) “MEMBER of High Point BBC, LLC” by “Scott Tobin
Member/Manager” and by “Eddie Arvelo Member/Manager,” (ii) “Member of TEAM
Investments, LLC” by “Matthew Johnson,” and (iii) “Member of MMB Holdings, LLC”
by “Bryan Watkins,” all with the signature block indicating that “the parties hereto”
have executed the Operating Agreement. (ECF No. 28.1, Ex. B at 13).
16. Ultimately, the Operating Agreement reflects that it is for “Burn Boot Camp
High Point, NC” or “High Point LLC.” (ECF No. 28.1, Ex. B at 1).
17. In either instance, neither High Point BBC, LLC nor Highpoint BBC, LLC
is listed as the “Company” under the Operating Agreement. (See generally ECF No.
28.1, Ex. B).4
18. The Operating Agreement reflects that the “purposes of the Company [High
Point LLC] shall be to engage in the business of owning and operating a fitness center
located in High Point, NC and to engage in any other lawful business.” (ECF No. 28.1,
4 Indeed, it is at best unclear whether High Point BBC, LLC is even a member of the “Company,” as the Operating Agreement was signed by Tobin and Arvelo as members/managers, but the signature block reflects their signatures were as a “MEMBER of High Point BBC, LLC.” (ECF No. 28.1, Ex. B at 13). There is no clear indication at any point that “High Point BBC, LLC” is, in turn, a member of the “Company.” Instead, the identification of membership interests identifies Tobin and Arvelo with membership interests—not High Point BBC, LLC (or Highpoint BBC, LLC). (ECF No. 28.1, Ex. B at 13−14).
Ex. B at 1). Thus, contrary to the complaint, the Operating Agreement on which it
relies identifies the “Company” as High Point LLC, an entity that was formed in 2016
and administratively dissolved in 2018.5 (ECF No. 28.1, Ex. B at 1; see generally ECF
No. 28 (relying on the 20 May 2023 Operating Agreement as the one identified in the
complaint)).
19. In short, as Plaintiff concedes, “Plaintiff’s paperwork is ‘messy.’” (ECF No.
28 at 4 (citation omitted)).
20. Notwithstanding the discrepancies throughout the complaint and
supporting documents, Plaintiff filed suit on 23 March 2026, asserting causes of
action against Defendant for alleged breach of the Operating Agreement and for a
declaratory judgment that “Defendant has no authority to act on behalf of [Plaintiff
High Point BBC] without the consent or approval of enough member-manager[s] to
constitute a majority interest in [Plaintiff High Point BBC].” (ECF No. 3, ¶¶ 14−23).
II. ANALYSIS
a. Rule 12(b)(1) Standards
21. A Rule 12(b)(1) motion to dismiss presents “a challenge to the trial court’s
subject matter jurisdiction over a plaintiff’s claims.” Marlow v. TCS Designs, Inc., 288
N.C. App. 567, 572 (2023); N.C. R. Civ. P. 12(b)(1).
22. “Standing, put simply, is a person’s right to assert ‘a legal claim or seek
judicial enforcement of a duty or right.’ It is essential to a court’s subject matter
5 See N.C. R. Evid. 201(b)–(c) (judicial notice); Banc of Am., 2021 NCBC LEXIS 60, at *5, n.3;
see High Point LLC, SOSID: 1509521, N.C. Sec’y State, available at https://sosnc.gov/online_services/search/Business_Registration_profile/12078558. jurisdiction.” Mauck v. Cherry Oil Co., 388 N.C. 325, 331 (2025) (internal citations
omitted).
23. A plaintiff has standing if he alleges “the infringement of a legal right
arising under a cause of action at common law, a statute, or the North Carolina
Constitution.” Id. (citation omitted). Even though a plaintiff need not necessarily
allege injury in fact or actual harm to maintain standing, the plaintiff nonetheless
must allege a legal or technical injury—i.e., the infringement of a legal right—to
maintain standing and invoke the Court’s subject matter jurisdiction. Comm. to Elect
Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 607–08 (2021) (citations
omitted).
24. Ultimately, “[t]he plaintiff bears the burden of establishing subject matter
jurisdiction.” Lau v. Constable, 2022 NCBC LEXIS 75, at *10 (N.C. Super. Ct. July
11, 2022) (citations omitted). In considering a challenge to subject matter jurisdiction,
courts “may consider matters outside the pleadings.” Harris v. Matthews, 361 N.C.
265, 271 (2007).
25. “In this state, a legal proceeding must be prosecuted by a legal person,
whether it be a natural person, sui juris, or a group of individuals or other entity
having the capacity to sue and be sued, such as a corporation, partnership,
unincorporated association, or governmental body or agency.” In re Coleman, 11 N.C.
App. 124, 127 (1971) (dismissing appeal for failure to identify specific plaintiffs
asserting claims).
26. “When ruling upon a motion made pursuant to Rule 12(b)(1), where the
plaintiff is a business entity, the question of standing requires an examination of,
inter alia, whether the claims are being prosecuted by those with authority to act on
the entity’s behalf.” Queen’s Gap Cmty. Ass’n v. McNamee, 2011 NCBC LEXIS 37, at
*5 (N.C. Super. Ct. Sept. 23, 2011) (citation omitted).
27. A plaintiff lacks standing when it does not exist or otherwise have a
cognizable stake in a dispute. See Graham County Bd. of Elections v. Graham County
Bd. of Comm’rs, 212 N.C. App. 313, 320 (2011) (recognizing that, because “[s]tanding
refers to whether a party has a sufficient stake in an otherwise justiciable controversy
such that he or she may properly seek adjudication of the matter,” “if an entity does
not have the power to bring suit, it also lacks standing to bring suit” (internal
citations and quotation marks omitted)); Azure Dolphin, LLC v. Barton, 2017 NCBC
LEXIS 90, at *13−14 (N.C. Super. Ct. Oct. 2, 2017) (determining that a putative
corporate plaintiff “lack[ed] standing to bring suit because it was never
incorporated”); cf. United Daughters of the Confederacy v. City of Winston-Salem, 383
N.C. 612, 625 (2022) (“As a general matter, the North Carolina Constitution confers
standing on those who suffer harm.” (citation omitted)).
28. Further, “[t]he general rule is that one who is not a party to a contract may
not maintain an action for its breach.” Matternes v. City of Winston-Salem, 286 N.C.
1, 12 (1974).
b. Rule 12(b)(6) Standards6
29. When considering a Rule 12(b)(6) motion, the Court must determine
“whether the allegations of the complaint, if treated as true, are sufficient to state a
claim upon which relief can be granted under some legal theory.” Corwin v. Brit. Am.
Tobacco PLC, 371 N.C. 605, 615 (2018) (citation omitted); Forsyth Mem’l Hosp., Inc.
v. Armstrong World Indus., 336 N.C. 438, 442 (1994) (quoting Lynn v. Overlook Dev.,
328 N.C. 689, 692 (1991)).
30. Thus, in resolving a Rule 12(b)(6) motion, the Court treats the well-pleaded
factual allegations as true and views them “in the light most favorable to the nonmoving party.” Sykes v. Health Network Sols., Inc., 372 N.C. 326, 332 (2019) (citing
Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5 (2017)).
31. However, when the allegations of the complaint conflict with the terms of a
document that is referenced in and integral to the complaint, the Court may “credit
the document over conflicting allegations in the complaint.” Turpin, 2026 N.C. LEXIS
939, at *13 (citations and internal quotation marks omitted); Schlieper v. Johnson,
195 N.C. App. 257, 263 (2009) (“When reviewing pleadings with documentary
attachments on a Rule 12(b)(6) motion, the actual content of the documents controls,
not the allegations contained in the pleadings.” (citation omitted)).
6 In resolving a Rule 12(b)(6) motion, the Court does not make findings of fact. Deleuran v.
Thompson, 2025 NCBC LEXIS 109, at *1 (N.C. Super. Ct. Aug. 22, 2025) (addressing Rule 12(b)(1) and Rule 12(b)(6) motions); see N.C. R. Civ. P. 52(a)(2). Thus, for purposes of the Rule 12(b)(6) portions of this Order and Opinion, the Court limits its consideration to the factual allegations of the complaint, documents referenced in and integral to the complaint, and matters subject to judicial notice.
c. Dismissal of This Action Is Appropriate
32. Here, this action is appropriately dismissed under Rule 12(b)(1) for lack of
standing and lack of subject matter jurisdiction and, alternatively, under Rule
12(b)(6)—in either case without prejudice.
33. First, as Defendant argues and as the Court has taken judicial notice, the
entity “High Point BBC, LLC” does not exist, with the closest similar name being
“Highpoint BBC, LLC.” (ECF No. 10 at 5).
34. While the difference between “High Point BBC, LLC” and “Highpoint BBC,
LLC” might potentially be explained as a misnomer or typographical error, Plaintiff
has declined to pursue that route, and the Court therefore does not do so either.
35. Instead, Plaintiff’s primary response is that Defendant has “admitted . . .
that Plaintiff is a legal person” in depositions and through the Gym’s financial
transactions. (ECF No. 28 at 4). The parties cannot, however, enforceably stipulate
to the existence of an entity that does not exist as a matter of law or to subject matter
jurisdiction where it does not otherwise exist. Northfield Dev. Co. v. City of
Burlington, 165 N.C. App. 885, 887 (2004) (“[P]arties cannot stipulate to give a court
subject matter jurisdiction where no such jurisdiction exists.”).
36. Plaintiff further contends that High Point BBC, LLC and Highpoint BBC,
LLC “refer to the same entity” and that “High Point BBC, LLC” is simply an assumed
name. (ECF No. 28 at 4 & n.1). However, Plaintiff also concedes (i) that no assumed
name paperwork was filed with the “respective register of deeds” or otherwise
recorded prior to commencing this action and (ii) that it “filed the necessary paperwork with the respective register of deeds to record its use of the assumed name
High Point BBC, LLC” only after commencing this action. (ECF No. 28 at 4 & n.1).
Even then, Plaintiff neither provides any evidence of which Register of Deeds the
assumed name was allegedly documented with nor requests that the Court take
judicial notice of any such filings. (See generally ECF No. 28 at 4 & n.1).7
37. One problem with that position, of course, is that “[j]urisdiction is not a light
bulb which can be turned off or on during the course of the trial. Rather, the issue of
jurisdiction is assessed as of the time of the filing of a complaint[.]” WLAE, LLC v.
Edwards, 257 N.C. App. 251, 258 (2017) (internal citations omitted). Thus, Plaintiff
cannot manufacture subject matter jurisdiction after the filing of the complaint. Id.
38. Moreover, Plaintiff’s own allegations contradict this position, as Plaintiff
alleges directly in its complaint that “Plaintiff High Point BBC, LLC, is a registered
North Carolina limited liability company[.]” (ECF No. 3, ¶ 2). As the records of the
North Carolina Secretary of State reveal, however, there is not (and, at the time the
complaint was filed, was not) any “registered North Carolina limited liability
company” registered as “High Point BBC, LLC.”8
7 In the exercise of judicial discretion, and pursuant to Rule 201 of the North Carolina Rules
of Evidence, the Court nonetheless takes judicial notice that an “Initial Assumed Name” of “High Point BBC, LLC” was registered with the North Carolina Secretary of State and Wake County Register of Deeds on 19 May 2026—months after this action was commenced. See High Point BBC, LLC, Assumed Name ID 3303142, N.C. Sec’y State, available at https://www.sosnc.gov/Online_Services/Assumed_Name/Search_Submit.
8 The North Carolina Limited Liability Company Act governs the creation of limited liability
companies and provides that an LLC “is formed at the time the articles of organization filed by the Secretary of State become effective.” N.C. Gen. Stat. § 57D-2-20.
39. The complaint lacks any allegation or suggestion that Plaintiff is operating
under an assumed name or otherwise to suggest that Plaintiff is anything other than
what it is says it is: a “registered North Carolina limited liability company” with the
formal “registered” name of “High Point BBC, LLC.” (ECF No. 3, ¶ 2).
40. While the Court may consider matters outside the pleadings in resolving a
Rule 12(b)(1) motion, Plaintiff nonetheless may not use its briefing to backtrack on
the express allegations of its complaint. Davis v. Rigsby, 261 N.C. 684, 686 (1964) (“A
party is bound by his pleadings and, unless withdrawn, amended, or otherwise
altered, the allegations contained in all pleadings ordinarily are conclusive as against
the pleader. He cannot subsequently take a position contradictory to his pleadings.”
(citation omitted)).
41. A non-existent entity cannot use an assumed name (or any other name) and
cannot sue under either the non-existent name or the purportedly assumed name—
because it does not exist as alleged. Graham County Bd. of Elections, 212 N.C. App.
at 320; Azure Dolphin, 2017 NCBC LEXIS 90, at *13−14; cf. Carcano v. JBSS, LLC,
200 N.C. App. 162, 170 (2009) (determining that, because “deeds purported to
transfer ownership to a ‘JBSS, LLC,’ a non-existent enterprise, they are void”);
Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 34 (1994) (addressing suit
against entity that was misnamed and that was not registered as an existing
company with the North Carolina Secretary of State), aff’d, 342 N.C. 404 (1995).
42. Further, as a non-existent entity (and one that therefore could not contract),
Plaintiff is not the “real party in interest” in this action. See N.C. R. Civ. P. 17(a); see N.C. R. Evid. 201(b)–(c) (judicial notice); Banc of Am., 2021 NCBC LEXIS 60, at *5,
n.3; see Highpoint BBC, LLC Limited Liability Company Articles of Organization,
SOSID: 2553091, N.C. Sec’y State (11 Jan. 2023), available at
https://www.sosnc.gov/online_services/search/profile_filings/20400817.
43. Defendant’s motion has been pending since 13 April 2026, with these issues
identified since that time. (ECF Nos. 9, 10). Nonetheless, despite ample time and
opportunity to do so, Plaintiff has not sought leave to amend under Rule 15 or taken
the opportunity to request to substitute the real party in interest as a plaintiff
(notwithstanding its joinder as a third-party defendant). See N.C. R. Civ. P. 15
(addressing amendment); N.C. R. Civ. P. 17 (addressing parties in interest and
potential dismissal after reasonable opportunity to address deficiency); see Street v.
Smart Corp., 157 N.C. App. 303, 309−10 (2003) (affirming dismissal of action in which
plaintiff was not real party in interest and delayed in seeking joinder of real party in
interest).
44. These are sufficient bases on which to dismiss this action without prejudice
for lack of standing and lack of subject matter jurisdiction under Rule 12(b)(1).
45. Even limiting the Court’s analysis to matters properly considered in
resolving a Rule 12(b)(6) motion (i.e., the plain allegations of the complaint,
documents referenced in and integral to the complaint, and matters subject to judicial
notice) and assuming that the Court has subject matter jurisdiction, however,
dismissal is still appropriate on the alternative basis of Rule 12(b)(6).
46. Plaintiff asserts two causes of action: breach of operating agreement (i.e.,
breach of contract) and declaratory action (i.e., declaratory judgment). (ECF No. 3 at
4–5).
47. Both causes of action are premised on Plaintiff’s contentions that it—High
Point BBC, LLC (whether as the entity pleaded in the complaint or as an assumed
name)—is the entity governed by the Operating Agreement and operating the Gym
and that Defendant therefore breached the Operating Agreement by making
decisions and otherwise acting on behalf of “the Company” (i.e., High Point BBC,
LLC) without approval of a majority of the member-managers. (ECF No. 3, ¶¶ 14–
23). Thus, Plaintiff purports to sue as the “Company.”
48. The problem with these allegations, however, is that the Operating
Agreement on which Plaintiff relies is defined as the “Operating Agreement of Burn
Boot Camp High Point, NC” and separately defines the “Company” governed by the
document as “High Point LLC”—not High Point BBC, LLC and not Highpoint BBC,
LLC. (ECF No. 28.1, Ex. B at 1).
49. Under the North Carolina Limited Liability Company Act, the LLC for
which the operating agreement is made for “is deemed to be a party to the operating
agreement and, therefore, is bound by and may enforce the provisions thereunder
applicable to the LLC.” N.C. Gen. Stat. § 57D-2-31(a).
50. While members of a limited liability company can assert claims for breach
of an operating agreement, those claims must be premised on harm to the member
individually rather than to the company as a whole. See White v. Hyde, 2016 NCBC LEXIS 74, at *23−24 (N.C. Super. Ct. Oct. 4, 2016) (explaining that, to proceed with
a breach of operating agreement claim, the Plaintiff must “allege an injury peculiar
and personal to itself as a shareholder . . . separate and distinct from the injury
sustained by other shareholders or the corporation itself.” (internal quotations and
citations omitted)); 759 Ventures, LLC v. GCP Apt. Investors, LLC, 2018 NCBC
LEXIS 82, at *9−11 (N.C. Super. Ct. Aug. 13, 2018).
51. Here, however, Plaintiff pleads no harm to Plaintiff as a member of the
“Company” and instead asserts that it is the “Company” and that the harm is against
the “Company.” (See ECF No. 3, ¶ 7 (“At all relevant times, Plaintiff High Point BBC
(‘the Company’) has owned and operated a Burn Boot Camp gym[.]”); see ECF No. 3,
¶ 19).
52. In that (i) Plaintiff is not the “Company” identified as the entity governed
by the Operating Agreement, (ii) Plaintiff has failed to identify any breach as to
Plaintiff, and (iii) Plaintiff does not otherwise allege that its cause of action is
otherwise premised on being a member of the “Company” as opposed to being the
“Company,” Plaintiff’s cause of action for breach of contract fails to state a claim upon
which relief can be granted.
53. Thus, dismissal of Plaintiff’s breach of operating agreement cause of action
is appropriate on this basis.
54. Further, as to Plaintiff’s declaratory judgment request, “a motion to dismiss
a declaratory judgment claim “is appropriate only ‘when the complaint does not allege
an actual, genuine existing controversy,’” Bennett v. Bennett, 2019 NCBC LEXIS 19, at *30–31 (N.C. Super. Ct. Mar. 15, 2019) (quoting Legalzoom.com, Inc. v. N.C. State
Bar, 2012 NCBC LEXIS 49, at *9 (N.C. Super. Ct. Aug. 27, 2012)), or when the
declaratory judgment claim is duplicative of another substantive claim that the court
must already address, see, e.g., Augur v. Augur, 356 N.C. 582, 588–89 (2002)
(“[S]ection 1-257 permits a trial court, in the exercise of its discretion, to decline a
request for declaratory relief when (1) the requested declaration will serve no useful
purpose in clarifying or settling the legal relations at issue . . .”); Exencial Wealth
Advisors, LLC v. Downing, 2025 NCBC LEXIS 38, at *38 (N.C. Super. Ct. Apr. 1,
2025) (“However, a court may dismiss a claim for declaratory judgment as duplicative
if all issues concern questions that the Court will have to resolve in addressing the
parties’ claims for breach of contract.” (citation and internal punctuation omitted));
see also Port City Logistics, Inc. v. Chasewater Logistics, LLC, 2024 U.S. Dist. LEXIS
146366, at *14 (W.D.N.C. July 17, 2024) (“Many courts have previously recognized
that a declaratory judgment does not serve a useful purpose where that purpose is
only to resolve an already-existing breach of contract claim.”).
55. However, generally, “[t]he court may refuse to render or enter a declaratory
judgment or decree where such judgment or decree, if rendered or entered, would not
terminate the uncertainty or controversy giving rise to the proceeding.” N.C. Gen.
Stat. § 1-257.
56. Here, given that the Court will dismiss Plaintiff’s breach of operating
agreement cause of action without prejudice and given the standing issues noted
above, the Court determines in the exercise of its discretion that, even assuming subject matter jurisdiction, rendering a declaratory judgment under the procedural
circumstances of this action would not “terminate the uncertainty or controversy
giving rise to the proceeding.” Id.; see also Farber v. N.C. Psychology Bd., 153 N.C.
App. 1, 17 (2002) (affirming decision not to resolve declaratory judgment request).
III. CONCLUSION
57. As pleaded, Plaintiff has a standing issue, and Plaintiff does not contend
that it is a misnomer or typographical error (though it appears that it reasonably
could have done so), instead purporting to adopt an assumed name after the case was
filed. Even if that were not the case, however, neither of the entities that Plaintiff
purports to be—either High Point BBC, LLC (whether as a non-existent entity or
under a purported assumed name) or Highpoint BBC, LLC (a registered entity but
not the one Plaintiff pleaded it was in the complaint)—is identified as the “Company”
operating the Gym under the Operating Agreement or otherwise at issue in the
Operating Agreement. Under the circumstances, Plaintiff simply cannot maintain its
causes of action as pleaded, and dismissal without prejudice is appropriate to, at a
minimum, permit re-filing with clarification of the parties and pleadings.
58. Accordingly, the Court GRANTS Defendant’s motion to dismiss, (ECF No.
9), and Plaintiff’s complaint is accordingly DISMISSED WITHOUT PREJUDICE.
SO ORDERED, this 6th day of October 2026.
/s/ Matthew T. Houston
Matthew T. Houston
Special Superior Court Judge
for Complex Business Cases