Poly-Med, Inc. v. Novus Sci. Pte.

1

POLY-MED, INC., Plaintiff - Appellant, v. NOVUS SCIENTIFIC PTE. LTD.; NOVUS SCIENTIFIC, INC.; NOVUS SCIENTIFIC AB, Defendants - Appellees.

No. 19-1957

United States Court of Appeals, Fourth Circuit

January 18, 2023

UNPUBLISHED

Argued: October 27, 2020

Appeal from the United States District Court for the District of South Carolina, at Anderson. J. Michelle Childs, District Judge. (8:15-cv-01964-JMC)

ARGUED:

Stephen Lynwood Brown, YOUNG CLEMENT RIVERS, LLP, Charleston South Carolina, for Appellant.

Jennifer L. Mallory, NELSON MULLINS RILEY &SCARBOROUGH, LLP, Columbia, South Carolina, for Appellees.

ON BRIEF:

Russell G. Hines, YOUNG CLEMENT RIVERS, LLP, Charleston, South Carolina; Paul Peter Nicolai, Marwan S. Zubi, NICOLAI LAW GROUP, P.C., Springfield, Massachusetts, for Appellant.

Mark C. Dukes, A. Mattison Bogan, Robert H. McWilliams, Jr., NELSON MULLINS RILEY &SCARBOROUGH, LLP, Columbia, South Carolina, for Appellees.

Before KING and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Remanded by unpublished per curiam order.

ORDER

PER CURIAM:

This appeal involves a dispute over alleged violations of a contract between PolyMed, Inc., and three entities - Novus Scientific Pte., Ltd.; Novus Scientific, Inc.; and Novus Scientific AB - which we refer to collectively as "Novus." The district court granted summary judgment to the defendants on the ground that Poly-Med's breach of contract claims were time-barred under South Carolina law, and Poly-Med appealed. To assist our resolution of that appeal, we certified two questions to the South Carolina Supreme Court. See Poly-Med, Inc. v. Novus Sci. Pte. Ltd., 841 Fed.Appx. 511 (4th Cir. 2021). The South Carolina Supreme Court has answered those questions, see Poly-Med, Inc. v. Novus Sci. Pte. Ltd., 878 S.E.2d 896 (S.C. 2022), and we now remand this case to the district court for further proceedings consistent with that opinion.

Before the district court, the timeliness of Poly-Med's contract claims appeared to turn on whether South Carolina recognized a "continuing breach" theory, under which Poly-Med could recover for "fresh breaches" of its contract with Novus, committed or discovered within the governing three-year limitations period, even if recovery would be barred for older "stale breaches" outside the limitations period. See Poly-Med, 841 Fed.Appx. at 515-16. The district court predicted that the Supreme Court of South Carolina would not recognize Poly-Med's "continuing breach" theory in this context, and on that basis, held Poly-Med's claims time-barred and granted summary judgment to Novus. Id. at 514.

Poly-Med appealed, and we certified two questions to the South Carolina Supreme Court, asking whether and under what circumstances South Carolina law recognized this continuing breach theory. See id. at 512. In response, the South Carolina Supreme Court issued an opinion making two key points. First - as the district court correctly predicted -South Carolina law does not recognize a "continuing breach" theory for breach of contact claims. The two cases in which it has recognized some version of that theory, the state Supreme Court clarified, are limited to their contexts, and do not apply to the statute of limitations for a breach of contact action. See Poly-Med, 878 S.E.2d at 899-900 (discussing State ex rel. Wilson v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 777 S.E.2d 176 (S.C. 2015), and Marshall v. Dodds, 827 S.E.2d 570 (S.C. 2019)).

But second, the South Carolina Supreme Court held, the absence of a generally applicable "continuing breach" doctrine does not resolve this case. Id. at 901-02. Rather whether Poly-Med can recover for newer and putatively separate breaches occurring within the limitations period turns on the parties' intent, primarily as reflected in the terms of their...