UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. Todd
Leff, the second defendant-appellee, became the president of
AAMCO when it was acquired by an asset-management company that
also held a large interest in Cottman. Dunlap alleges that
Cottman and Leff, along with some of his local competitors,
including Joseph Truskowski and Robert Biller, conspired to
force him out of business. He maintains that their actions
resulted in irreparable harm to his business because it was
deprived of marketing benefits that typically flow from a
franchise agreement. Accordingly, Dunlap’s complaint names
Cottman and Leff as defendants in a suit for: (1) violation of
Virginia’s business conspiracy statute, Va. Code §§ 18.2-499,
18.2-500, (2) tortious interference with 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 failed to allege a valid “unlawful act” as a
predicate for the conspiracy because neither tortious
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interference with contract nor tortious interference with
business expectancy qualifies as such an act. And with respect
to the common law tortious interference claims, the district
court determined that they were untimely because Virginia’s two-
year 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 with business expectancy as the
predicate unlawful act for a claim under the Virginia
business conspiracy statute, Va. Code §§ 18.2-499, 18.2-
500?
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. See Dunlap v. Cottman
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Transmission Sys., LLC, 287 Va. 207 (2014). With respect to the
first question, it “examine[d] the nature” of the tortious
interference with contract and 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 “[t]he dispositive issue is whether
tortious interference with contract and tortious interference
with business expectancy allege injury to property.” Id. at
219. Pointing to the requirement in both causes of action of
“intentional interference inducing or causing a breach or
termination of the contractual relationship or business
expectancy,” the Court reasoned that “[s]uch 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.” Id. at 221.
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Accordingly, it held that “the five-year statute of limitations
in [Va.] Code § 8.01-243(B) applies to both tortious
interference with contract and tortious interference with
business expectancy.” 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 of Dunlap’s
claims -- the statutory business conspiracy claim. 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 of conspiring with each other under the
intracorporate immunity doctrine. Since we may affirm a
district court’s dismissal of a claim “on the basis of 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 officers, wholly-owned
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subsidiaries, and 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. Rather, his complaint alleges that
Cottman and Leff “along 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
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