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UNITED STATES DISTRICT COURT
`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,
`
`
`Defendant.
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`
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`
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`
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`
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`
`
`
`
`ORDER
`
`
`
`THIS MATTER comes before the Court on Eli Lilly and Company’s (“Eli Lilly”)
`
`Motion for Summary Judgment, (Doc. No. 96); SensorRx Inc.’s (“SensorRx”)
`
`Response, (Doc. Nos. 111, 130); Eli Lilly’s Reply, (Doc. No. 135); and related pleadings
`
`and exhibits. For the reasons stated below, the Court will grant the Motion for
`
`Summary Judgment.
`
`I.
`
`BACKGROUND
`
` According to the Amended Complaint, SensorRx, a corporation based in
`
`Charlotte, North Carolina, began developing a mobile phone application called
`
`MigrnX in 2015 to assist patients with tracking and treating migraines. (Doc. No. 36
`
`at ¶¶ 1, 11). Eli Lilly, a corporation based in Indianapolis, Indiana, was also
`
`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,
`
`12, 38).
`
`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.
`
`at ¶ 51). The parties executed a Mutual Confidentiality Agreement before the
`
`meeting began. (Id. at ¶ 52; Doc. No. 96-27: Ex. Z). During the meeting, Eli Lilly
`
`informed SensorRx about Vega Migraine and SensorRx provided materials about
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`MigrnX. (Id. at ¶¶ 52, 53).
`
`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
`
`information acquired through the development and implementation of MigrnX. (Id.
`
`at ¶¶ 70-72). On May 22, 2019, Eli Lilly presented a demonstration of Vega Migraine
`
`to SensorRx’s technology chief who “was stunned at how similar Vega Migraine had
`
`become to MigrnX.” (Id. at ¶ 87). On May 28, 2019, Eli Lilly informed SensorRx that
`
`it was terminating due diligence and would not pursue partnership, but instead
`
`would continue developing Vega Migraine. (Id. at ¶ 95). Eli Lilly launched its
`
`application in the Apple App Store on November 5, 2019. (Id. at ¶ 96).
`
`On November 13, 2019, Eli Lilly filed a Complaint against SensorRx in the
`
`United States District Court for the Southern District of Indiana, seeking declaratory
`
`judgments related to alleged trade secret misappropriation and breach of contract.
`
`(S.D. Ind. Case No. 1:19-cv-4550, Doc. No. 1). The Indiana case was transferred to
`
`this District on June 19, 2020, upon a finding that it was an improper anticipatory
`
`filing. (W.D.N.C. Case No. 3:20-cv-351, Doc. No. 65). This Court then dismissed it for
`
`the same reason. (Id., Doc. No. 94: Order at 4).
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`
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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
`
`in Violation of N.C. Gen. Stat. § 75-1.1, et seq.; (2) Fraud/Fraudulent Concealment;
`
`(3) Fraudulent Inducement; and (4) Unjust Enrichment. (Doc. No. 36 at 27-32).
`
`SensorRx seeks damages and injunctive relief to prohibit Eli Lilly from “further using
`
`SensorRx’s confidential information,” including removing Vega Migraine from the
`
`Apple App Store. (Id. at 32-33). In its Answer, Eli Lilly asserted a counterclaim
`
`seeking a declaratory judgment that it did not breach the Mutual Confidentiality
`
`Agreement. (Doc. No. 76 at 56-57).
`
`Eli Lilly moved to dismiss the Amended Complaint, arguing, in part, that
`
`North Carolina choice-of-law jurisprudence requires the application of Indiana law,
`
`which preempts SensorRx’s claims. (Doc. No. 45: Motion at 1). That motion was
`
`denied without prejudice pending the completion of discovery. (Doc. No. 72:
`
`Memorandum and Recommendation; Doc. No. 73: Order). At the completion of
`
`discovery, Eli Lilly filed the instant Motion for Summary Judgment, (Doc. No. 94),
`
`which has been fully briefed and argued before the Court.
`
`II.
`
`STANDARD OF REVIEW
`
`Summary judgment shall be granted “if the movant shows that there is no
`
`genuine dispute as to any material fact and the movant is entitled to judgment as a
`
`matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine “if the evidence is
`
`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
`
`it might affect the outcome of the suit under governing law. Id. The movant has the
`
`“initial responsibility of informing the district court of the basis for its motion, and
`
`identifying those portions of the pleadings, depositions, answers to interrogatories,
`
`and admissions on file, together with the affidavits, if any, which it believes
`
`demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
`
`477 U.S. 317, 323 (1986) (internal citations omitted). “The burden on the moving
`
`party may be discharged by ‘showing’ . . . an absence of evidence to support the
`
`nonmoving party’s case.” Id. at 325.
`
`Once this initial burden is met, the burden shifts to the nonmoving party. The
`
`nonmoving party “must set forth specific facts showing that there is a genuine issue
`
`for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations
`
`or denials of allegations in his pleadings to defeat a motion for summary judgment.
`
`Id. at 324. The nonmoving party must present sufficient evidence from which “a
`
`reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
`
`at 248; accord Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir. 1995).
`
`When ruling on a summary judgment motion, a court must view the evidence
`
`and any inferences from the evidence in the light most favorable to the nonmoving
`
`party. Anderson, 477 U.S. at 255. “Where the record taken as a whole could not lead
`
`a rational trier of fact to find for the nonmoving party, there is no genuine issue for
`
`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
`
`is not significantly probative, summary judgment is appropriate. Id. at 249-50.
`
`III. DISCUSSION
`
`A.
`
`Subject Matter Jurisdiction
`
`SensorRx, a Delaware corporation with its principal place of business in
`
`Charlotte, North Carolina, alleges that Eli Lilly, an Indiana corporation with its
`
`principal place of business in Indianapolis, Indiana, misappropriated SensorRx’s
`
`confidential business information to develop its own competing mobile phone
`
`application. (Doc. No. 36: Amended Complaint at 4). Accordingly, the parties agree
`
`that this Court has jurisdiction under the general diversity statute, 28 U.S.C. §
`
`1332(a). (Id.; Doc. No. 76: Answer at ¶ 14).
`
`B. North Carolina Choice of Law
`
`“A federal court exercising diversity jurisdiction must apply the choice of law
`
`rules of the state in which it sits.” Perini/Tompkins Joint Venture v. Ace Am. Ins.
`
`Co., 738 F.3d 95, 100 (4th Cir. 2013). This Court sits in North Carolina, and,
`
`therefore, must apply this state’s choice-of-law doctrine.
`
`The North Carolina Supreme Court has held that its jurisprudence favors the
`
`lex loci delecti commissi (lex loci) test in cases involving tort or tort-like claims.
`
`SciGrip v. Osae, 838 S.E.2d 334, 343 (N.C. 2020) (citing Boudreau v. Baughman, 368
`
`S.E.2d 849, 853-54 (N.C. 1988)). “According to the lex loci test, the substantive law
`
`of the state ‘where the injury or harm was sustained or suffered,’ which is, ordinarily,
`
`‘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.
`
`v. Grant Thornton LLP, 698 S.E.2d 719, 724 (N.C. Ct. App. 2010) (quoting 16 Am Jur.
`
`2d Conflict of Laws § 109 (2009)). The parties agree that lex loci is the appropriate
`
`choice-of-law test, but differ on its application to the claims and facts in this case.
`
`(Doc. No. 96-1: Memorandum at 16-17; Doc. No. 111: Response at 21).
`
`
`
`1.
`
`Unfair and Deceptive Trade Practices
`
`SensorRx’s first claim for relief alleges that Eli Lilly committed unfair and
`
`deceptive trade practices in violation of N.C. Gen. Stat. § 75-1.1, et seq. (Doc. No. 36:
`
`Amended Complaint at 27-28). Specifically, SensorRx charges that Eli Lilly acquired
`
`SensorRx’s confidential business information under the guise of engaging in business
`
`negotiations to develop its own competing application. (Id. at ¶ 123). SensorRx argues
`
`that it felt injury in North Carolina because it did not receive any payment for its
`
`valuable knowledge and information. (Doc. No. 130: Response at 23; Doc. No. 147: Tr.
`
`at 64).
`
`North Carolina courts have applied lex loci to actions under § 75-1.1 and held
`
`the law of the state where the last act occurred giving rise to a party’s injury governs.
`
`United Virginia Bank v. Air-Lift Associates, Inc., 339 S.E.2d 90, 94 (N.C. Ct. App.
`
`1986) (citing Lloyd v. Carnation, 301 S.E.2d 414, 418 (N.C. Ct. App. 1983)). Courts
`
`in North Carolina and this District have been critical of decisions simply applying the
`
`law of the state where corporate headquarters are located and economic injuries are
`
`subsequently felt. Harco, 698 S.E.2d at 725-26 (citing United Dominion Industries,
`
`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,
`
`698 S.E.2d at 726, “which is, ordinarily, the state where the last event necessary to
`
`make the actor liable” takes place, Environmental Holdings Group LLC v. Finch, 21
`
`CVS 14019, 2022 WL 1538787, at *4 (N.C. Bus. Ct. May 16, 2022) (quoting SciGrip,
`
`838 S.E.2d at 343).
`
`As detailed above, the harm alleged by SensorRx in its UDTPA claim was the
`
`deceptive acquisition and use of its confidential business information. After
`
`discovery, SensorRx has not shown any last act or event in North Carolina making
`
`Eli Lilly liable under § 75-1.1. (Doc. No. 130: Response at 5-20 (Statement of the
`
`Facts)). In contrast, the team responsible for the development of Eli Lilly’s
`
`application was based in Indiana. (Doc. No. 96-2: Rao-Mirmira Dep. Tr. at 5).
`
`Alexander Dzeda, SensorRx’s Chief Technology Officer, discovered that its
`
`application was being used by individuals at Eli Lilly’s headquarters in Indiana
`
`between November 2018 and October 2019. (Doc. No. 119: Dzeda Dec. ¶ 2; Doc. No.
`
`119-1: Ex. A). Dzeda was shown an updated version of Eli Lilly’s application at a
`
`meeting in Indiana in May 2019. (Doc. No. 119: Dzeda Dec. ¶ 10). He opined that it
`
`had undergone “huge change” and followed the approach that SensorRx had shown
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`them. (Id.).
`
`In the circumstances of this case, North Carolina’s lex loci test requires any
`
`claim based on unfair and deceptive conduct to be brought under Indiana law;
`
`therefore, SensorRx’s first cause of action under N.C. Gen. Stat. § 75-1.1, et seq. will
`
`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
`
`Carolina UDTPA claim where alleged acts of misappropriation and use of trade
`
`secrets took place in Arkansas and plaintiff felt loss from that conduct in North
`
`Carolina).
`
`
`
`2.
`
`Fraud/Fraudulent Concealment and Inducement
`
`SensorRx’s second and third claims for relief charge that Eli Lilly fraudulently
`
`concealed material facts and fraudulently induced SensorRx to disclose confidential
`
`information that Eli Lilly intended to use in further development of its competing
`
`application, Vega Migraine. (Doc. No. 36: Amended Complaint at 28-31). The lex loci
`
`test addressed above applies to cases with tort claims. SciGrip, 838 S.E.2d at 343.
`
`However, “[t]he ‘last act’ for a fraud claim is the reasonable reliance on the false
`
`representation which causes the injury.” M-Tek Kiosk, Inc. v. Clayon, 1:15-cv-866,
`
`2016 WL 2997505, at *12 (M.D.N.C. May 23, 2016) (quoting Jordan v. Shaw
`
`Industries, Inc., 131 F.3d 134, at *3 (4th Cir. 1997) (unpublished) (internal quotation
`
`marks omitted)). Thus, a court must determine where a plaintiff was when it
`
`reasonably relied on a defendant’s representations.
`
`The pivotal event in this case took place on January 31, 2019, when the parties
`
`met in Indianapolis, Indiana, and executed the Mutual Confidentiality Agreement.
`
`(Doc. No. 96-27: Ex. Z). Eli Lilly had not previously disclosed it was developing a
`
`competing application, but an Eli Lilly executive mentioned Vega Migraine at the
`
`following meeting, representing it was not very far along. (Doc. No. 130: Response at
`
`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.
`
`(Doc. No. 36 at ¶ 54). SensorRx alleges Eli Lilly executives had no intent to abide by
`
`the agreement, but rather intended to provide SensorRx’s confidential information to
`
`the Vega Migraine development team. (Id. at ¶ 3). Therefore, Indiana law governs
`
`SensorRx’s claims of fraud/fraudulent concealment and fraudulent inducement.
`
`
`
`
`
`
`
`3.
`
`Unjust Enrichment
`
` SensorRx asserts unjust enrichment as its final claim for relief. (Id. at 32).
`
`The law imposes a claim where there is not a contract to prevent unjust enrichment
`
`of one party at the expense of another. Booe v. Shadrick, 369 S.E.2d 554, 555-56 (N.C.
`
`1988). “In order to recover on a claim of unjust enrichment, a party must prove that
`
`it conferred a benefit on another party, that the other party consciously accepted the
`
`benefit, and that the benefit was not conferred gratuitously or by an interference in
`
`the affairs of the other party.” Southeastern Shelter Corp. v. BTU, Inc., 572 S.E.2d
`
`200, 206 (N.C. Ct. App. 2002). The lex loci test applies to such claims. Arabian
`
`American Oil Co. v. Anderson, 873 F.2d 1437, at *1 (4th Cir. 1989) (unpublished)
`
`(citing Boudreau v. Baughman, 368 S.E.2d 849 (N.C. 1988)).
`
`
`
`Here, the last act triggering liability alleged in the Amended Complaint is Eli
`
`Lilly’s use of SensorRx’s confidential information to develop Vega Migraine without
`
`paying for it, decreasing Eli Lilly’s costs in developing the competing application and
`
`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
`
`receipt of any benefit from the information. Accordingly, Indiana law controls
`
`SensorRx’s claim of unjust enrichment.
`
`
`
`
`
`C.
`
`Preemption by Indiana’s Uniform Trade Secrets Act
`
`Having decided that North Carolina choice-of-law jurisprudence requires the
`
`application of Indiana law to SensorRx’s claims of fraud/fraudulent concealment,
`
`fraudulent inducement, and unjust enrichment, the Court must consider whether
`
`they are viable in light of Indiana’s Uniform Trade Secrets Act. Indiana adopted the
`
`Uniform Trade Secrets Act (UTSA) in 1982 substantially as promulgated by the
`
`National Conference of Commissioners on Uniform State Laws.1 Amoco Production
`
`Co. v. Laird, 662 N.E.2d 912, 917 (Ind. 1993). To accomplish the Act’s general purpose
`
`of making the law regarding misappropriation of trade secrets uniform among the
`
`adopting jurisdictions, Indiana Code § 24-2-3-1(c) states that the IUSTA “displaces
`
`all conflicting law of this state pertaining to the misappropriation of trade secrets,
`
`except contract law and criminal law.” This “preemption provision” is stronger than
`
`the model statute’s at the time and is designed to cover duties imposed by law. AGS
`
`Captial Corp., Inc. v. Product Action Intern., LLC, 884 N.E.2d 294, 306-07 (Ind. Ct.
`
`App. 2008) (citing Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1034 (Ind.
`
`2004)). Thus, there is “a single cause of action for misappropriation of a trade secret.”
`
`BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., Inc., 235 P.3d 310, 318 (2010) (cited
`
`
`1 Indiana recognizes decisions by other adopting jurisdictions as precedential.
`Amoco, 662 N.E.2d at 918.
`
`
`
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`10
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`with approval in HDNet LLC v. North American Boxing Council, 972 N.E.2d 920, 924
`
`(Ind. Ct. App. 2012)).
`
`
`
`To decide whether a plaintiff’s claim is preempted or displaced by the Act,
`
`courts apply a standard of proof which has been described as:
`
`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.
`
`
`HDNet, 972 N.E.2d at 926 n. 4 (quoting Hauck Mfg. Co. v. Astec Industries, Inc., 375
`
`F. Supp. 2d 649, 658 (E.D. Tenn. 2004)). The Supreme Court of Hawai’i has
`
`recognized that the majority of courts applying the UTSA examine “the factual
`
`allegations underlying each claim to determine whether a claim, whatever its label,
`
`is based upon misappropriation of a trade secret.”2 BlueEarth Biofuels, LLC, 235 P.3d
`
`at 316-17).
`
`
`
` Here, the causes of action in the Amended Complaint “rise or fall” and are
`
`“based” on Eli Lilly’s alleged misappropriation and use of SensorRx’s confidential
`
`business information to develop its competing application. (Doc. No. 36 at 27-32).
`
`SensorRx claims Eli Lilly fraudulently misrepresented its intentions to enter a
`
`business relationship and concealed its use of SensorRx’s information. (Id. ¶¶ 130,
`
`132, 141 (Fraud/Fraudulent Concealment)). SensorRx claims Eli Lilly caused it to
`
`
`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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`11
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`share confidential information for Eli Lilly’s use in developing and marketing its own
`
`application. (Id. ¶¶ 148, 149 (Fraudulent Inducement)). SensorRx claims Eli Lilly
`
`decreased its costs and generated revenue through its competing application utilizing
`
`SensorRx’s confidential information. (Id. ¶ 156 (Unjust Enrichment)).
`
`
`
`At oral argument, however, counsel for SensorRx stated that this case does not
`
`involve misappropriation because SensorRx “had no problem” with Eli Lilly using its
`
`information if they paid for it. (Doc. No. 147: Tr. at 59). Yet, in its Answer to Eli
`
`Lilly’s counterclaim, SensorRx asserted that “Lilly’s actions constituting a misuse of
`
`SensorRx’s confidential
`
`information breached
`
`the Mutual Confidentiality
`
`Agreement” and that “Lilly fraudulently induced SensorRx” to enter the Agreement,
`
`with which “Lilly had no intent to comply.” (Doc. No. 78 at ¶ 6). “Misappropriation”
`
`under the Indiana statute involves the acquisition of protected information by
`
`“improper means.” Indiana Code § 24-2-3-2. “Improper means” includes theft and
`
`misrepresentation. Id. Accordingly, whether Eli Lilly used SensorRx’s confidential
`
`information without paying for it, as stated in oral argument, or fraudulently
`
`misrepresented that the confidential information would not be used to develop its
`
`competing application, as alleged in the Amended Complaint, the factual allegations
`
`bring this case squarely under the IUTSA.
`
`
`
`The absence of a trade secrets cause of action is irrelevant because SensorRx
`
`is “confined to the single cause of action provided by the UTSA” based on its
`
`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
`
`enrichment claim); see also Infinity Headwear & Apparel, LLC v. Coughlin, 447
`
`S.W.3d 138, 142-43 (Ark. Ct. App. 2014) (tort claim preempted even though trade
`
`secrets claim was abandoned in amended complaint). Accordingly, SensorRx’s
`
`fraud/fraudulent concealment, fraudulent inducement, and unjust enrichment causes
`
`of action are preempted by the IUTSA and must be dismissed. Accord BlueEarth, 235
`
`P.3d at 323 (tort claims based on misappropriation of trade secrets are displaced by
`
`UTSA).
`
`IV. CONCLUSION
`
`IT IS, THEREFORE, ORDERED that:
`
`1. Eli Lilly’s Motion to for Summary Judgment, (Doc. No. 96), is
`
`GRANTED;
`
`2. SensorRx’s Amended Complaint, (Doc. No. 36), is DISMISSED in its
`
`entirety with prejudice; and
`
`3. Eli Lilly’s Counterclaim, (Doc. No. 76), is MOOT.
`
`The Clerk of Court is directed to close this case.
`
`SO ORDERED.
`
`Signed: September 26, 2022
`
`
`
`
`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).
`
`
`
`Case 3:19-cv-00643-RJC-DCK Document 148 Filed 09/26/22 Page 13 of 13
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`13
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`

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