James Dunlap v. Todd Leff
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-00272-AWA-DEM Copies to all parties and the district court/agency. [999381700].. [11-2327]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2327
JAMES M. DUNLAP,
Plaintiff - Appellant,
v.
COTTMAN TRANSMISSIONS SYSTEMS, LLC; TODD P. LEFF,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda Wright Allen, District
Judge. (2:11-cv-00272-AWA-DEM)
Argued:
May 14, 2013
Decided:
June 24, 2014
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and WYNN and
DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED:
Crystal M. Johnson, UNIVERSITY OF GEORGIA SCHOOL OF
LAW,
Appellate
Litigation
Clinic,
Athens,
Georgia,
for
Appellant. James C. Rubinger, PLAVE KOCH PLC, Reston, Virginia,
for Appellees.
ON BRIEF:
Peter B. Rutledge, Paula Briceno,
Brittany Cambre, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Appellate
Litigation Clinic, Athens, Georgia, for Appellant.
Benjamin B.
Reed, PLAVE KOCH PLC, Reston, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The background of this case is discussed in more detail in
our prior order.
See Dunlap v. Cottman Transmission Sys., LLC,
539 Fed. Appx. 69 (4th Cir. 2013).
James Dunlap, the plaintiff-
appellant, has operated two AAMCO Transmissions, Inc. franchises
in Virginia for over 30 years.
Cottman Transmission Systems,
LLC, the first defendant-appellee, is an AAMCO competitor.
Leff,
the
second
defendant-appellee,
became
the
Todd
president
of
AAMCO when it was acquired by an asset-management company that
also held a large interest in Cottman.
Cottman
and
including
Leff,
Joseph
along
with
Truskowski
some
and
of
Dunlap alleges that
his
Robert
local
Biller,
competitors,
conspired
to
force him out of business.
He maintains that their actions
resulted
in
irreparable
to
deprived
of
marketing
franchise
agreement.
harm
benefits
his
business
that
Accordingly,
because
typically
Dunlap’s
it
flow
from
complaint
was
a
names
Cottman and Leff as defendants in a suit for: (1) violation of
Virginia’s
18.2-500,
business
(2)
conspiracy
tortious
statute,
interference
Va.
with
Code
§§ 18.2-499,
contract,
and
(3)
tortious interference with business expectancy.
The district court dismissed Dunlap’s suit.
With respect
to the statutory business conspiracy claim, it concluded that
Dunlap
had
predicate
failed
for
the
to
allege
a
conspiracy
2
valid
“unlawful
because
act”
neither
as
a
tortious
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interference
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with
contract
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nor
tortious
interference
business expectancy qualifies as such an act.
with
And with respect
to the common law tortious interference claims, the district
court determined that they were untimely because Virginia’s twoyear statute of limitations for suits for personal injury, Va.
Code
§ 8.01-243(A),
governs
them,
not
Virginia’s
five-year
statute of limitations for suits for injury to property rights,
Va. Code § 8.01-243(B).
Recognizing that Dunlap’s challenge to the district court’s
decision turns on the correct interpretation of Virginia law, we
certified to the Supreme Court of Virginia, pursuant to its Rule
5:40, the following questions:
1.
May a plaintiff use tortious interference with contract or
tortious
interference
predicate
unlawful
with
act
for
business
a
claim
expectancy
under
the
as
the
Virginia
business conspiracy statute, Va. Code §§ 18.2-499, 18.2500?
2.
Does a two-year or five-year statute of limitations apply
to
claims
of
tortious
interference
with
contract
and
tortious interference with business expectancy under Va.
Code § 8.01-243?
Dunlap, 539 Fed. Appx. at 70.
The Supreme Court of Virginia accepted our certification
request and
answered
both
questions.
3
See
Dunlap
v.
Cottman
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Transmission Sys., LLC, 287 Va. 207 (2014).
first
question,
interference
it
with
“examine[d]
contract
the
and
With respect to the
nature”
tortious
of
the
tortious
interference
with
business expectancy causes of action and determined that they
“are
intentional
torts
predicated
on
the
common
law
duty
to
refrain from interfering with another’s contractual and business
relationships.”
Id. at 216, 218.
Because “[t]hat duty does not
arise from the contract itself but is, instead, a common law
corollary of the contract,” the Court held that both causes of
action “qualify as the requisite unlawful act to proceed on a
business conspiracy claim under [Va.] Code §§ 18.2-499 and 500.”
Id. at 211, 218.
With respect to the second question, the Supreme Court of
Virginia
determined
that
tortious
interference
“[t]he
with
dispositive
contract
and
issue
tortious
is
interference
with business expectancy allege injury to property.”
219.
whether
Id. at
Pointing to the requirement in both causes of action of
“intentional
interference
termination
of
the
expectancy,”
the
Court
inducing
or
causing
contractual
relationship
reasoned
“[s]uch
that
a
breach
or
or
business
interference
is
directed at and injures a property right, i.e., the right to
performance of a contract and to reap profits and benefits not
only from the contract but also from expected future contracts
or otherwise advantageous business relationships.”
4
Id. at 221.
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Accordingly, it held that “the five-year statute of limitations
in
[Va.]
Code
interference
with
§ 8.01-243(B)
contract
business expectancy.”
applies
and
to
tortious
both
tortious
interference
with
Id. at 222.
In light of the Supreme Court of Virginia’s answers to the
certified questions, it is now clear that the district court’s
dismissal of Dunlap’s statutory business conspiracy and common
law tortious interference claims on the grounds stated in its
opinion is incorrect.
Cottman and Leff, however, advance an additional ground for
affirming
the
district
court’s
dismissal
of
one
claims -- the statutory business conspiracy claim.
of
Dunlap’s
They contend
that Dunlap cannot prevail on that claim because he alleges a
conspiracy between AAMCO, Cottman, and Leff, all of whom are
legally
incapable
intracorporate
district
of
conspiring
immunity
court’s
with
doctrine.
dismissal
of
a
each
Since
claim
“on
other
we
the
under
may
affirm
basis
of
the
a
any
ground supported by the record even if it is not the basis
relied upon by the district court,” Ostrzenski v. Seigel, 177
F.3d 245, 253 (4th Cir. 1999), we consider Cottman and Leff’s
contention here.
The
intracorporate
immunity
doctrine
originates
in
antitrust law and holds that a corporation cannot, with certain
exceptions,
conspire
with
its
5
officers,
wholly-owned
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subsidiaries,
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and
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commonly-owned
affiliates.
See
Copperweld
Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 771 (1984);
Advanced Health-Care Servs., Inc. v. Radford Cmty. Hosp., 910
F.2d 139, 146 (4th Cir. 1990).
We need not decide whether the
doctrine applies to claims under Virginia’s business conspiracy
statute because Dunlap does not limit his conspiracy allegation
to AAMCO, Cottman, and Leff.
Cottman
and
Leff
“along
Rather, his complaint alleges that
with
AAMCO,
Truskowski
and
Biller
conspired with each other to injure Dunlap in his businesses.”
J.A.
20.
That
allegation
brings
the
claim
outside
the
intracorporate immunity doctrine because Truskowski and Biller,
Dunlap’s local competitors, lack the requisite relationship to
AAMCO, Cottman, and Leff.
We
therefore
vacate
the
district
court’s
judgment
dismissing Dunlap’s suit and remand for further proceedings.
VACATED AND REMANDED
6
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