`WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`3:19-cv-643-RJC-DCK
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`SENSORRX, INC.,
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`Plaintiff,
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` v.
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`ELI LILLY AND COMPANY,
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`Defendant.
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`ORDER
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`THIS MATTER comes before the Court on Eli Lilly and Company’s (“Eli Lilly”)
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`Motion for Summary Judgment, (Doc. No. 96); SensorRx Inc.’s (“SensorRx”)
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`Response, (Doc. Nos. 111, 130); Eli Lilly’s Reply, (Doc. No. 135); and related pleadings
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`and exhibits. For the reasons stated below, the Court will grant the Motion for
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`Summary Judgment.
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`I.
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`BACKGROUND
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` According to the Amended Complaint, SensorRx, a corporation based in
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`Charlotte, North Carolina, began developing a mobile phone application called
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`MigrnX in 2015 to assist patients with tracking and treating migraines. (Doc. No. 36
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`at ¶¶ 1, 11). Eli Lilly, a corporation based in Indianapolis, Indiana, was also
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`developing a migraine application called Vega Migraine and expressed interest in
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`entering a potential partnership and investment in SensorRx in 2018. (Id. at ¶¶ 2,
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`12, 38).
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`After preliminary conference calls, email exchanges, and a meeting at an
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`industry conference, Eli Lilly and SensorRx agreed to meet in Indianapolis on
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`January 31, 2019, to explore partnership opportunities and demonstrate MigrnX. (Id.
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`at ¶ 51). The parties executed a Mutual Confidentiality Agreement before the
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`meeting began. (Id. at ¶ 52; Doc. No. 96-27: Ex. Z). During the meeting, Eli Lilly
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`informed SensorRx about Vega Migraine and SensorRx provided materials about
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`MigrnX. (Id. at ¶¶ 52, 53).
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`The parties exchanged a term sheet on March 21, 2019, and entered a due
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`diligence period. (Id. at ¶ 68). As part of that process, SensorRx provided confidential
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`information acquired through the development and implementation of MigrnX. (Id.
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`at ¶¶ 70-72). On May 22, 2019, Eli Lilly presented a demonstration of Vega Migraine
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`to SensorRx’s technology chief who “was stunned at how similar Vega Migraine had
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`become to MigrnX.” (Id. at ¶ 87). On May 28, 2019, Eli Lilly informed SensorRx that
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`it was terminating due diligence and would not pursue partnership, but instead
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`would continue developing Vega Migraine. (Id. at ¶ 95). Eli Lilly launched its
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`application in the Apple App Store on November 5, 2019. (Id. at ¶ 96).
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`On November 13, 2019, Eli Lilly filed a Complaint against SensorRx in the
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`United States District Court for the Southern District of Indiana, seeking declaratory
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`judgments related to alleged trade secret misappropriation and breach of contract.
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`(S.D. Ind. Case No. 1:19-cv-4550, Doc. No. 1). The Indiana case was transferred to
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`this District on June 19, 2020, upon a finding that it was an improper anticipatory
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`filing. (W.D.N.C. Case No. 3:20-cv-351, Doc. No. 65). This Court then dismissed it for
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`the same reason. (Id., Doc. No. 94: Order at 4).
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`Meanwhile, SensorRx initiated this action with the filing of a Complaint in this
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`District on November 22, 2019. (Doc. No. 1). On July 20, 2020, SensorRx filed an
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`Amended Complaint asserting causes of action for: (1) Unfair and Deceptive Practices
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`in Violation of N.C. Gen. Stat. § 75-1.1, et seq.; (2) Fraud/Fraudulent Concealment;
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`(3) Fraudulent Inducement; and (4) Unjust Enrichment. (Doc. No. 36 at 27-32).
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`SensorRx seeks damages and injunctive relief to prohibit Eli Lilly from “further using
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`SensorRx’s confidential information,” including removing Vega Migraine from the
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`Apple App Store. (Id. at 32-33). In its Answer, Eli Lilly asserted a counterclaim
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`seeking a declaratory judgment that it did not breach the Mutual Confidentiality
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`Agreement. (Doc. No. 76 at 56-57).
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`Eli Lilly moved to dismiss the Amended Complaint, arguing, in part, that
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`North Carolina choice-of-law jurisprudence requires the application of Indiana law,
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`which preempts SensorRx’s claims. (Doc. No. 45: Motion at 1). That motion was
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`denied without prejudice pending the completion of discovery. (Doc. No. 72:
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`Memorandum and Recommendation; Doc. No. 73: Order). At the completion of
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`discovery, Eli Lilly filed the instant Motion for Summary Judgment, (Doc. No. 94),
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`which has been fully briefed and argued before the Court.
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`II.
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`STANDARD OF REVIEW
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`Summary judgment shall be granted “if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine “if the evidence is
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`such that a reasonable jury could return a verdict for the nonmoving party.”
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if
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`it might affect the outcome of the suit under governing law. Id. The movant has the
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`“initial responsibility of informing the district court of the basis for its motion, and
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`identifying those portions of the pleadings, depositions, answers to interrogatories,
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`and admissions on file, together with the affidavits, if any, which it believes
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`demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
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`477 U.S. 317, 323 (1986) (internal citations omitted). “The burden on the moving
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`party may be discharged by ‘showing’ . . . an absence of evidence to support the
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`nonmoving party’s case.” Id. at 325.
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`Once this initial burden is met, the burden shifts to the nonmoving party. The
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`nonmoving party “must set forth specific facts showing that there is a genuine issue
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`for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations
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`or denials of allegations in his pleadings to defeat a motion for summary judgment.
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`Id. at 324. The nonmoving party must present sufficient evidence from which “a
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`reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
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`at 248; accord Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir. 1995).
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`When ruling on a summary judgment motion, a court must view the evidence
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`and any inferences from the evidence in the light most favorable to the nonmoving
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`party. Anderson, 477 U.S. at 255. “Where the record taken as a whole could not lead
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`a rational trier of fact to find for the nonmoving party, there is no genuine issue for
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`trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal citations omitted). The
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`mere argued existence of a factual dispute does not defeat an otherwise properly
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`supported motion. Anderson, 477 U.S. at 248. If the evidence is merely colorable, or
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`is not significantly probative, summary judgment is appropriate. Id. at 249-50.
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`III. DISCUSSION
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`A.
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`Subject Matter Jurisdiction
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`SensorRx, a Delaware corporation with its principal place of business in
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`Charlotte, North Carolina, alleges that Eli Lilly, an Indiana corporation with its
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`principal place of business in Indianapolis, Indiana, misappropriated SensorRx’s
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`confidential business information to develop its own competing mobile phone
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`application. (Doc. No. 36: Amended Complaint at 4). Accordingly, the parties agree
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`that this Court has jurisdiction under the general diversity statute, 28 U.S.C. §
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`1332(a). (Id.; Doc. No. 76: Answer at ¶ 14).
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`B. North Carolina Choice of Law
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`“A federal court exercising diversity jurisdiction must apply the choice of law
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`rules of the state in which it sits.” Perini/Tompkins Joint Venture v. Ace Am. Ins.
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`Co., 738 F.3d 95, 100 (4th Cir. 2013). This Court sits in North Carolina, and,
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`therefore, must apply this state’s choice-of-law doctrine.
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`The North Carolina Supreme Court has held that its jurisprudence favors the
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`lex loci delecti commissi (lex loci) test in cases involving tort or tort-like claims.
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`SciGrip v. Osae, 838 S.E.2d 334, 343 (N.C. 2020) (citing Boudreau v. Baughman, 368
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`S.E.2d 849, 853-54 (N.C. 1988)). “According to the lex loci test, the substantive law
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`of the state ‘where the injury or harm was sustained or suffered,’ which is, ordinarily,
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`‘the state where the last event necessary to make the actor liable or the last event
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`required to constitute the tort takes place,’ applies.” Id. (quoting Harco Nat’l Ins. Co.
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`v. Grant Thornton LLP, 698 S.E.2d 719, 724 (N.C. Ct. App. 2010) (quoting 16 Am Jur.
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`2d Conflict of Laws § 109 (2009)). The parties agree that lex loci is the appropriate
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`choice-of-law test, but differ on its application to the claims and facts in this case.
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`(Doc. No. 96-1: Memorandum at 16-17; Doc. No. 111: Response at 21).
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`1.
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`Unfair and Deceptive Trade Practices
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`SensorRx’s first claim for relief alleges that Eli Lilly committed unfair and
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`deceptive trade practices in violation of N.C. Gen. Stat. § 75-1.1, et seq. (Doc. No. 36:
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`Amended Complaint at 27-28). Specifically, SensorRx charges that Eli Lilly acquired
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`SensorRx’s confidential business information under the guise of engaging in business
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`negotiations to develop its own competing application. (Id. at ¶ 123). SensorRx argues
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`that it felt injury in North Carolina because it did not receive any payment for its
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`valuable knowledge and information. (Doc. No. 130: Response at 23; Doc. No. 147: Tr.
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`at 64).
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`North Carolina courts have applied lex loci to actions under § 75-1.1 and held
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`the law of the state where the last act occurred giving rise to a party’s injury governs.
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`United Virginia Bank v. Air-Lift Associates, Inc., 339 S.E.2d 90, 94 (N.C. Ct. App.
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`1986) (citing Lloyd v. Carnation, 301 S.E.2d 414, 418 (N.C. Ct. App. 1983)). Courts
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`in North Carolina and this District have been critical of decisions simply applying the
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`law of the state where corporate headquarters are located and economic injuries are
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`subsequently felt. Harco, 698 S.E.2d at 725-26 (citing United Dominion Industries,
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`Inc. v. Overhead Door Corp., 762 F. Supp. 126, 130-31 (W.D.N.C. 1991)). Rather, a
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`court must determine the state where the plaintiff “actually suffered harm,” Harco,
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`698 S.E.2d at 726, “which is, ordinarily, the state where the last event necessary to
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`make the actor liable” takes place, Environmental Holdings Group LLC v. Finch, 21
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`CVS 14019, 2022 WL 1538787, at *4 (N.C. Bus. Ct. May 16, 2022) (quoting SciGrip,
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`838 S.E.2d at 343).
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`As detailed above, the harm alleged by SensorRx in its UDTPA claim was the
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`deceptive acquisition and use of its confidential business information. After
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`discovery, SensorRx has not shown any last act or event in North Carolina making
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`Eli Lilly liable under § 75-1.1. (Doc. No. 130: Response at 5-20 (Statement of the
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`Facts)). In contrast, the team responsible for the development of Eli Lilly’s
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`application was based in Indiana. (Doc. No. 96-2: Rao-Mirmira Dep. Tr. at 5).
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`Alexander Dzeda, SensorRx’s Chief Technology Officer, discovered that its
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`application was being used by individuals at Eli Lilly’s headquarters in Indiana
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`between November 2018 and October 2019. (Doc. No. 119: Dzeda Dec. ¶ 2; Doc. No.
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`119-1: Ex. A). Dzeda was shown an updated version of Eli Lilly’s application at a
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`meeting in Indiana in May 2019. (Doc. No. 119: Dzeda Dec. ¶ 10). He opined that it
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`had undergone “huge change” and followed the approach that SensorRx had shown
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`them. (Id.).
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`In the circumstances of this case, North Carolina’s lex loci test requires any
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`claim based on unfair and deceptive conduct to be brought under Indiana law;
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`therefore, SensorRx’s first cause of action under N.C. Gen. Stat. § 75-1.1, et seq. will
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`be dismissed. Accord 3A Composites USA, Inc. v. United Industries, Inc., 5:14-cv-
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`5147, 2015 WL 5437119, at *3-4 (W.D. Ark. Sept. 15, 2015) (dismissing North
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`Carolina UDTPA claim where alleged acts of misappropriation and use of trade
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`secrets took place in Arkansas and plaintiff felt loss from that conduct in North
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`Carolina).
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`2.
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`Fraud/Fraudulent Concealment and Inducement
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`SensorRx’s second and third claims for relief charge that Eli Lilly fraudulently
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`concealed material facts and fraudulently induced SensorRx to disclose confidential
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`information that Eli Lilly intended to use in further development of its competing
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`application, Vega Migraine. (Doc. No. 36: Amended Complaint at 28-31). The lex loci
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`test addressed above applies to cases with tort claims. SciGrip, 838 S.E.2d at 343.
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`However, “[t]he ‘last act’ for a fraud claim is the reasonable reliance on the false
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`representation which causes the injury.” M-Tek Kiosk, Inc. v. Clayon, 1:15-cv-866,
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`2016 WL 2997505, at *12 (M.D.N.C. May 23, 2016) (quoting Jordan v. Shaw
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`Industries, Inc., 131 F.3d 134, at *3 (4th Cir. 1997) (unpublished) (internal quotation
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`marks omitted)). Thus, a court must determine where a plaintiff was when it
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`reasonably relied on a defendant’s representations.
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`The pivotal event in this case took place on January 31, 2019, when the parties
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`met in Indianapolis, Indiana, and executed the Mutual Confidentiality Agreement.
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`(Doc. No. 96-27: Ex. Z). Eli Lilly had not previously disclosed it was developing a
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`competing application, but an Eli Lilly executive mentioned Vega Migraine at the
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`following meeting, representing it was not very far along. (Doc. No. 130: Response at
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`4-5). According to the Amended Complaint:
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`SensorRx relied upon the representations in the mutual confidentiality
`agreement and Eli Lilly’s oral assurances that Vega Migraine was not
`very far along in terms of development in deciding to continue with the
`business negotiations, including providing information and documents
`at the January 31 meeting.
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`(Doc. No. 36 at ¶ 54). SensorRx alleges Eli Lilly executives had no intent to abide by
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`the agreement, but rather intended to provide SensorRx’s confidential information to
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`the Vega Migraine development team. (Id. at ¶ 3). Therefore, Indiana law governs
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`SensorRx’s claims of fraud/fraudulent concealment and fraudulent inducement.
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`3.
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`Unjust Enrichment
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` SensorRx asserts unjust enrichment as its final claim for relief. (Id. at 32).
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`The law imposes a claim where there is not a contract to prevent unjust enrichment
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`of one party at the expense of another. Booe v. Shadrick, 369 S.E.2d 554, 555-56 (N.C.
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`1988). “In order to recover on a claim of unjust enrichment, a party must prove that
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`it conferred a benefit on another party, that the other party consciously accepted the
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`benefit, and that the benefit was not conferred gratuitously or by an interference in
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`the affairs of the other party.” Southeastern Shelter Corp. v. BTU, Inc., 572 S.E.2d
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`200, 206 (N.C. Ct. App. 2002). The lex loci test applies to such claims. Arabian
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`American Oil Co. v. Anderson, 873 F.2d 1437, at *1 (4th Cir. 1989) (unpublished)
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`(citing Boudreau v. Baughman, 368 S.E.2d 849 (N.C. 1988)).
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`Here, the last act triggering liability alleged in the Amended Complaint is Eli
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`Lilly’s use of SensorRx’s confidential information to develop Vega Migraine without
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`paying for it, decreasing Eli Lilly’s costs in developing the competing application and
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`generating revenue. (Doc. No. 36 at 32). As detailed above, any utilization of
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`SensorRx’s confidential information would have occurred in Indiana, as would the
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`receipt of any benefit from the information. Accordingly, Indiana law controls
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`SensorRx’s claim of unjust enrichment.
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`C.
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`Preemption by Indiana’s Uniform Trade Secrets Act
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`Having decided that North Carolina choice-of-law jurisprudence requires the
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`application of Indiana law to SensorRx’s claims of fraud/fraudulent concealment,
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`fraudulent inducement, and unjust enrichment, the Court must consider whether
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`they are viable in light of Indiana’s Uniform Trade Secrets Act. Indiana adopted the
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`Uniform Trade Secrets Act (UTSA) in 1982 substantially as promulgated by the
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`National Conference of Commissioners on Uniform State Laws.1 Amoco Production
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`Co. v. Laird, 662 N.E.2d 912, 917 (Ind. 1993). To accomplish the Act’s general purpose
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`of making the law regarding misappropriation of trade secrets uniform among the
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`adopting jurisdictions, Indiana Code § 24-2-3-1(c) states that the IUSTA “displaces
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`all conflicting law of this state pertaining to the misappropriation of trade secrets,
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`except contract law and criminal law.” This “preemption provision” is stronger than
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`the model statute’s at the time and is designed to cover duties imposed by law. AGS
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`Captial Corp., Inc. v. Product Action Intern., LLC, 884 N.E.2d 294, 306-07 (Ind. Ct.
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`App. 2008) (citing Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1034 (Ind.
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`2004)). Thus, there is “a single cause of action for misappropriation of a trade secret.”
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`BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., Inc., 235 P.3d 310, 318 (2010) (cited
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`1 Indiana recognizes decisions by other adopting jurisdictions as precedential.
`Amoco, 662 N.E.2d at 918.
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`with approval in HDNet LLC v. North American Boxing Council, 972 N.E.2d 920, 924
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`(Ind. Ct. App. 2012)).
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`To decide whether a plaintiff’s claim is preempted or displaced by the Act,
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`courts apply a standard of proof which has been described as:
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`a “same proof” standard under which a claim will be preempted when it
`necessarily rises or falls based on whether the defendant is found to
`have “misappropriated” a “trade secret” as those two terms are defined
`in the UTSA. Stated another way, if proof of a non-UTSA claim would
`also simultaneously establish a claim for misappropriation of trade
`secrets, it is preempted irrespective of whatever surplus elements or
`proof were necessary to establish it.
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`HDNet, 972 N.E.2d at 926 n. 4 (quoting Hauck Mfg. Co. v. Astec Industries, Inc., 375
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`F. Supp. 2d 649, 658 (E.D. Tenn. 2004)). The Supreme Court of Hawai’i has
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`recognized that the majority of courts applying the UTSA examine “the factual
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`allegations underlying each claim to determine whether a claim, whatever its label,
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`is based upon misappropriation of a trade secret.”2 BlueEarth Biofuels, LLC, 235 P.3d
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`at 316-17).
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` Here, the causes of action in the Amended Complaint “rise or fall” and are
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`“based” on Eli Lilly’s alleged misappropriation and use of SensorRx’s confidential
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`business information to develop its competing application. (Doc. No. 36 at 27-32).
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`SensorRx claims Eli Lilly fraudulently misrepresented its intentions to enter a
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`business relationship and concealed its use of SensorRx’s information. (Id. ¶¶ 130,
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`132, 141 (Fraud/Fraudulent Concealment)). SensorRx claims Eli Lilly caused it to
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`2 That court also found the Act protects “confidential and/or commercially valuable
`information” whether or not meets the statutory definition of “trade secret.”
`BlueEarth, 235 P.3d at 324.
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`share confidential information for Eli Lilly’s use in developing and marketing its own
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`application. (Id. ¶¶ 148, 149 (Fraudulent Inducement)). SensorRx claims Eli Lilly
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`decreased its costs and generated revenue through its competing application utilizing
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`SensorRx’s confidential information. (Id. ¶ 156 (Unjust Enrichment)).
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`At oral argument, however, counsel for SensorRx stated that this case does not
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`involve misappropriation because SensorRx “had no problem” with Eli Lilly using its
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`information if they paid for it. (Doc. No. 147: Tr. at 59). Yet, in its Answer to Eli
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`Lilly’s counterclaim, SensorRx asserted that “Lilly’s actions constituting a misuse of
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`SensorRx’s confidential
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`information breached
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`the Mutual Confidentiality
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`Agreement” and that “Lilly fraudulently induced SensorRx” to enter the Agreement,
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`with which “Lilly had no intent to comply.” (Doc. No. 78 at ¶ 6). “Misappropriation”
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`under the Indiana statute involves the acquisition of protected information by
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`“improper means.” Indiana Code § 24-2-3-2. “Improper means” includes theft and
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`misrepresentation. Id. Accordingly, whether Eli Lilly used SensorRx’s confidential
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`information without paying for it, as stated in oral argument, or fraudulently
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`misrepresented that the confidential information would not be used to develop its
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`competing application, as alleged in the Amended Complaint, the factual allegations
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`bring this case squarely under the IUTSA.
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`The absence of a trade secrets cause of action is irrelevant because SensorRx
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`is “confined to the single cause of action provided by the UTSA” based on its
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`allegations of theft or misuse of its “ideas, data, or other commercially valuable
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`information.”3 Hauck, 375 F. Supp. 2d at 659 (finding preemption of unjust
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`enrichment claim); see also Infinity Headwear & Apparel, LLC v. Coughlin, 447
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`S.W.3d 138, 142-43 (Ark. Ct. App. 2014) (tort claim preempted even though trade
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`secrets claim was abandoned in amended complaint). Accordingly, SensorRx’s
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`fraud/fraudulent concealment, fraudulent inducement, and unjust enrichment causes
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`of action are preempted by the IUTSA and must be dismissed. Accord BlueEarth, 235
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`P.3d at 323 (tort claims based on misappropriation of trade secrets are displaced by
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`UTSA).
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`IV. CONCLUSION
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`IT IS, THEREFORE, ORDERED that:
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`1. Eli Lilly’s Motion to for Summary Judgment, (Doc. No. 96), is
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`GRANTED;
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`2. SensorRx’s Amended Complaint, (Doc. No. 36), is DISMISSED in its
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`entirety with prejudice; and
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`3. Eli Lilly’s Counterclaim, (Doc. No. 76), is MOOT.
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`The Clerk of Court is directed to close this case.
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`SO ORDERED.
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`Signed: September 26, 2022
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`3 SensorRx’s original Complaint included a fifth claim for relief for Misappropriation
`of Trade Secrets under N.C. Gen. Stat. §§ 66-152, et seq. and a sixth claim for relief
`under the Federal Defend Trade Secrets Act, 18 U.S.C. § 1836. (Doc. No. 1 at 32-38).
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