E.I. DuPont De Nemours & Co. v. Park ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
E. I. DUPONT DE NEMOURS & 
COMPANY,
Plaintiff-Appellee,
v.
ANDREW D. PARK,  No. 01-2044
Defendant-Appellant,
and
PARK TECHNOLOGY, INCORPORATED,
Defendant.

E. I. DUPONT DE NEMOURS & 
COMPANY,
Plaintiff-Appellee,
and
3TEX, INCORPORATED,
Plaintiff,
v.  No. 02-1328
ANDREW D. PARK,
Defendant-Appellant,
and
PARK TECHNOLOGY, INCORPORATED,
Defendant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-01-451-3)
2 E. I. DUPONT DE NEMOURS
Argued: June 3, 2002
Decided: August 1, 2002
Before WIDENER and TRAXLER, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Derrick Edward Rosser, DERRICK E. ROSSER, P.C.,
Ashland, Virginia, for Appellant. Elizabeth Butterworth Stutts,
MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellee. ON
BRIEF: Thomas M. Beshere, MCGUIREWOODS, L.L.P., Rich-
mond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In August 1998, the appellant, Andrew D. Park, entered into a con-
tract with the United States Navy to supply it with military flak vests.
Park arranged for E. I. DuPont de Nemours (DuPont) to supply ballis-
tic material for use in manufacturing the vests. A dispute arose when
Park stopped paying DuPont for the ballistic material it supplied, and
DuPont responded by refusing to continue shipping fabric. Park then
diverted to his attorney’s trust account payments from the Navy,
which were supposed to be delivered in part to DuPont. DuPont sued
E. I. DUPONT DE NEMOURS 3
Park, and Park countersued for tortious interference. The district court
granted summary judgment in favor of DuPont, and dismissed Park’s
counterclaims. For the reasons stated below, we affirm.
I.
We review an award of summary judgment de novo. JKC Holding
Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). Summary judgment is appropriate when "the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). In reviewing an award of sum-
mary judgment, we view the facts in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
II.
Park first contends that the district court erred in granting summary
judgment in favor of DuPont on his claim for tortious interference
with a business expectancy. In early 2001, Park had engaged in busi-
ness discussions with Glen Raven, a North Carolina corporation,
about assigning his unrelated patent rights to the company. Glen
Raven eventually decided not to do business with Park. In his coun-
terclaim, Park asserted that DuPont tortiously interfered with the busi-
ness expectancy, relying solely on his contention that DuPont
representatives threatened Glen Raven that it would not sell its Kevlar
fiber to Glen Raven if the company hired Park.
We find that Park did not establish the necessary elements of tor-
tious interference under Virginia law. See Maximus, Inc. v. Lockheed
Info. Mgmnt. Sys. Co., 493 S.E.2d 375, 378 (Va. 1997) (setting forth
the elements of the tort under Virginia law). Park failed to show that
a business expectancy existed at the time of the alleged threatening
statements. The only evidence he offered was a letter of intent written
by Glen Raven and mailed nearly two weeks after the alleged interfer-
ence took place. That is, according to Park’s own evidence, the busi-
ness expectancy arose after the alleged interference. Second, Park
failed to show that DuPont used improper means of interference. The
4 E. I. DUPONT DE NEMOURS
affidavits simply do not support a finding that threats or otherwise
improper statements were made. Finally, Park failed to show that
DuPont’s actions caused his loss.
Park next asserts that the district court erred in dismissing his
breach of contract claim. He argues that there is a material factual dis-
pute as to whether DuPont agreed to supply Park with all of the fabric
ordered under the Navy contract. He asserts the existence of a con-
tract by way of incorporating the terms under the Navy contract.
According to Park, the payment schedule incorporated the terms of
the Navy contract because the Navy contract was attached to it. Park’s
argument, however, fails to deal with dispositive issues of contract
enforceability under Virginia law.
To satisfy Virginia’s Statute of Frauds, Park needed to provide evi-
dence of a contract for the sale of the fabric, signed or authenticated
by DuPont, specifying a quantity of fabric. Va. Code Ann. § 8.2-206(Michie 2002). Neither the payment schedule nor the Navy contract
indicates the quantity of fabric to be sold; the Navy contract merely
references the quantity of vests to be sold. Thus, even if a contract
existed between DuPont and Park, it is not enforceable because there
is no writing reflecting a specific agreement as to the quantity of Kev-
lar fabric to be supplied by DuPont.
Park also failed to establish a requirements contract, an alternative
to satisfying the statute of frauds, in which a specific quantity is not
necessary. See Barber & Ross Co. v. Lifetime Doors, Inc., 810 F.2d
1276, 1280-81 (4th Cir. 1987). Park offered no evidence of a require-
ments contract with DuPont, aside from his own unsubstantiated affi-
davit stating that DuPont had verbally agreed to fulfill all of Park’s
Kevlar needs for the Navy contract. More than this blanket assertion
is required to prevail on a motion for summary judgment. See Bar-
wick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).
Park also argues that the district court erred in denying his request
to amend his counterclaim and in awarding DuPont prejudgment
interest. As to the denial of his motion to amend, we find that the dis-
trict court did not abuse its discretion. See Davis v. Virginia Common-
wealth Univ., 180 F.3d 626, 628 (4th Cir. 1999). With respect to the
prejudgment interest, state law applies in determining the rate of
E. I. DUPONT DE NEMOURS 5
interest in diversity suits. Amoco Transport Co. v. Dietze, Inc., 582
F. Supp. 804, 808 n.5 (S.D.N.Y. 1984). Under Virginia law, where
there is no jury verdict, the court has discretion in determining when
interest accrues. Va. Code Ann. §§ 8.01-382 (Michie 2002); Hannon
Armstrong & Co. v. Sumitomo Trust & Banking Co., 973 F.2d 359,
369 (4th Cir. 1992). We find that the district court did not abuse its
discretion in awarding DuPont prejudgment interest at the rate of 9%.
For the reasons stated above, we affirm.
AFFIRMED