Poly-Med, Inc. v. Novus Scientific Pte. Ltd.; Novus Scientific, Inc.; Novus Scientific Ab

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1957
POLY-MED, INC.,
Plaintiff – Appellant,
v.
NOVUS SCIENTIFIC PTE. LTD.; NOVUS SCIENTIFIC, INC.; NOVUS SCIENTIFIC
AB,
Defendants – Appellees.
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: October 27, 2020 Decided: January 18, 2023
Before KING and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Remanded by unpublished per curiam order.
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.

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ORDER
PER CURIAM:
This appeal involves a dispute over alleged violations of a contract between Poly-
Med, 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 F. App’x 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 F.
App’x 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

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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
agreement. See id. at 900–02. The dispositive question is whether the parties’ executory
contract contemplates that each alleged breach is separate and distinct, giving rise to
separate causes of action subject to new limitations periods – so that Poly-Med could
recover for at least some of the alleged breaches – or, conversely, whether the alleged
breaches are to be treated under the contract as a single breach with a single remedy, here
barred by the statute of limitations. See id. at 901–02. The resolution of the parties’

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dispute, in other words, “is not controlled by whether South Carolina has adopted the
continuing breach doctrine, but rather by a determination of what the contracting parties
intended” – and that “is a factual question for the federal court to answer[.]” Id.
Given that guidance, we conclude that further proceedings are necessary before this
case may be resolved. Accordingly, we remand the case to the district court to apply the
decision of the South Carolina Supreme Court and consider, in the first instance, the
“factual question” deemed dispositive by that Court.
REMANDED

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