UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ENGLISH BOILER & TUBE,

INCORPORATED, A Virginia

Corporation,

Plaintiff-Appellant,

v.

W.C. ROUSE & SON, INCORPORATED,

No. 97-2397

A North Carolina Corporation;

THOMAS K. ROUSE, In his official

corporate capacity and his

individual capacity; THE

BABCOCK & WILCOX COMPANY, A

Delaware Corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-96-516-5-BR)

Argued: October 30, 1998

Decided: February 23, 1999

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,

and WILSON, Chief United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Irving M. Blank, PARIS, BLANK & BROWN, P.C.,

Richmond, Virginia, for Appellant. Christopher Terry Graebe, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North

Carolina; J. Matthew Little, TEAGUE, CAMPBELL, DENNIS &

GORHAM, L.L.P., Raleigh, North Carolina, for Appellees. ON

BRIEF: William H.C. Venable, PARIS, BLANK & BROWN, P.C.,

Richmond, Virginia, for Appellant. James E.R. Rutledge, TEAGUE,

CAMPBELL, DENNIS & GORHAM, L.L.P., Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff-appellant English Boiler & Tube, Inc. ("English") brought

suit in the United States District Court for the Eastern District of

North Carolina against Defendants-appellees W.C. Rouse & Son

("Rouse") and Babcock & Wilcox Company ("B&W") for defamation, tortious interference with contract, and statutory claims based on

N.C. Gen. Stat. § 75-1.1 (1996).1 The District Court concluded that

English's amended complaint did not relate back to the filing of the

original complaint and that the one year statute of limitations barred

one of English's claims for defamation. The District Court found that

the remaining defamation claims arose out of communications on

issues of public concern, and, consequently, required fault as a component of liability. Because English could not demonstrate fault on

the part of Rouse or B&W, the District Court entered summary judg-

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1 The statutory claims encompassed claims for unfair trade practices, in

the form of civil conspiracy, tortious interference with contract, and defamation.

 2
ment for Rouse and B&W on those claims, as well. The District Court

granted summary judgment on English's claim for tortious interference with contract, concluding that the conduct of Rouse and B&W

was justified as legitimate competition. Finally, the District Court

granted summary judgment on English's statutory claims because

there was no factual basis to support them. We affirm.

I.

In 1992, Appalachian State University ("ASU") began the process

of upgrading its power plant. ASU hired Mechanical Engineers Incorporated ("MEI") to consult on portions of the project, including construction of a new boiler plant. In July 1995, ASU awarded the

contract for the mechanical portion of the project to JJ Kirlin Incorporated ("Kirlin"). Kirlin then solicited bids from English, B&W, and

others to supply the boilers. Moustafa Karmous ("Karmous"), an engineer with the Office of State Construction ("OSC"), drafted the bid

specifications for the boilers. Karmous inserted the names of B&W

and two other boiler manufacturers in these specifications as examples of the quality and workmanship that OSC expected from its

bidders.2

On July 25, 1995, during the bidding process, Graham Hobbs, an

employee of Rouse who was also a representative of B&W, sent a letter to Bryon Hamrick ("Hamrick"), president of MEI, lobbying MEI

to encourage Kirlin to select B&W. This letter contained disparaging

statements about the other bidders, including English.3 Despite the letter, however, in September 1995, Kirlin selected English. Rouse and

B&W then began to encourage Kirlin to replace English with B&W.

In a meeting with officials from the OSC and ASU, Rouse and B&W

allegedly made disparaging claims about English's financial stability,

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2 The specifications stated that"[m]inimum performance standards for

boilers shall equal or exceed those boilers manufactured by" B&W and

two other boiler manufacturers.

3 The Hobbs letter stated, among other things, that "last year, the State

of Virginia refused (3) 150,000 LB/HR English Boilers ... based on a

review of their track record for meeting ship dates, along with design and

the experience factor.... They purchased B&Ws, to[e]nsure no problems.

English has NO qualified local NC service for the ASU project."

 3
product, and timeliness. According to English, those claims caused

ASU and OSC officials to doubt English's suitability, and eventually,

an ASU official expressed his concerns in a letter to Karmous. Those

concerns prompted Kirlin to meet on November 29, 1995 with

English and Speros Fleggas, another OSC official. After airing the

concerns, Fleggas remained satisfied that English could handle the

job.

Rouse persisted. On December 6, 1995, it sent a letter to Karmous

essentially reiterating its earlier comments. Karmous forwarded this

letter to Dr. Clyde Robbins ("Robbins"), Vice Chancellor of Physical

Operations and head of the boiler upgrade project at ASU. The letter

stated that English had received poor evaluations in earlier projects

due to lateness, poor design, and inexperience. 4 The letter also

asserted that, because of its inexperience, English habitually redesigned its boilers. Rouse supported most of the allegations in the letter

with the names and phone numbers of persons Karmous could call for

confirmation.5 Where Rouse lacked information for further confirmation or could not locate its source's contact information, it so stated

in the letter.6

After Robbins refused to show the letter to Kirlin, Kirlin sought a

copy of the letter from Rouse. Rouse repackaged the allegations in a

letter to Kirlin dated December 12th and added some allegations

about English's performance on other projects.7 Kirlin scheduled a

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4 For example, the letter stated that "[w]e have heard that [English] had

trouble at the NASA facility at Langley, VA -- problems with tube

alignment and quality control on the drum intervals.... The gentleman

that I need to talk to [to confirm the information] is out until Thursday,

but I will call him back."

5 The letter stated that "[d]elivery is critical on this project. To get an

idea of how John English met his delivery when building for IBW, you

can call Jeff Beals ... [who] was President at IBW...." The letter also

included the names and phone numbers of other persons whom Karmous

could call for information concerning other allegations.

6 "Even though English boiler[sic] had a much lower price, they were

eliminated in the first round.... Pat Lawler is no longer with the state and

I was not able to attain [sic] his phone number--but I am working on it."

7 The December 12th letter alleged that "[s]ince this is not English

Boilers' [sic] standard manufacture, they installed additional tubes at all

 4
meeting to discuss the matter further. At the January 5, 1996 meeting

with ASU officials, Rouse and B&W essentially repeated what they

had said earlier. ASU then asked B&W and another interested bidder

to submit new bids for the project. The new bids were still higher than

English's original bid, and ASU retained English on the project.

On June 11, 1996, English filed its initial complaint against Rouse

and B&W, and it filed an amended complaint on March 5, 1997. The

District Court decided all claims adversely to English either on

motions to dismiss or for summary judgment. We address those rulings, in turn.

II.

English's initial complaint alleged, among other things, that Rouse

defamed English by sending the December 6th and December 12th

letters (the "Rouse letters") to Karmous and Kirlin, respectively.

English's amended complaint additionally claimed defamation arising

out of Hobbs's July 25th letter to Hamrick (the"Hobbs letter"). The

District Court concluded that the statute of limitations barred this

additional claim because English filed its amended complaint after

North Carolina's one-year statute of limitations for defamation had

run. English, nevertheless, argues that because the additional defamation alleged in its amended complaint occurred within the same time

period and under similar circumstances as the defamation alleged in

its original complaint, its amended complaint relates back to the filing

of its original complaint under Federal Rule of Civil Procedure 15(c)

so as to save those additional defamation claims from the statute of

limitations. Because English did not mention the Hobbs letter in its

original complaint or even allege a separate defamatory publication

that we could liberally construe to include the letter, we disagree. We

find, instead, that publication of the Hobbs letter does not arise out

of the same conduct, transaction, or occurrence described in the original complaint, and, therefore, that the claim does not relate back to

the filing of the original complaint. Accordingly, we agree with the

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sorts of weird angles in order to meet the intent of the specifications. The

insulation was bad, causing hot spots which had to be field service corrected. You can contact Mr. Terry Heil ... concerning this job."

 5
District Court that North Carolina's one-year statute of limitations for

defamation bars the claim.

A claim, otherwise untimely, will relate back to the date of filing

of the original pleading if "the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original pleading...." Fed.

R. Civ. P. 15(c). A claim arises out of the same conduct, transaction,

or occurrence if: (1) there is a factual nexus between the original complaint and the amendment;8 and (2) the defendants had notice of the

claim and would not be prejudiced by the amendment. See Grattan

v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983). A plaintiff may not

baldly allege a broad course of conduct over a lengthy period of time

and later sue on any act that occurred during that time period.

Because the Hobbs letter is a separate instance of defamation arising

from "facts other than those originally pleaded," a claim based on that

letter does not relate back to the original filing date. Gibson v. Mutual

Life Ins. Co., 465 S.E.2d 56, 58 (N.C. 1996). Each act of defamation

is a separate tort that, in most instances, a plaintiff must specifically

allege. See id. (stating that "each publication of defamatory material

is a separate tort."); Rickman v. Cone Mills Corp., 129 F.R.D. 181,

186 (D. Kan. 1989) (stating that "[a]n amendment will not relate back

if it sets forth a new set of operational facts" and finding no relation

back where the new counts "named new parties to whom allegedly

defamatory words were published as well as new dates of publication."); Caudle v. Thomason, 942 F. Supp. 635, 638 (D. D.C. 1996)

("in order to plead defamation, a plaintiff should allege specific

defamatory comments [including] `the time, place, content, speaker,

and listener of the alleged defamatory matter.'") (quoting Wiggins v.

Phillip Morris, Inc., 853 F. Supp. 458, 465 (D. D.C. 1994)).

The court would be nullifying the notice requirement of the relation

back doctrine if it were to permit a claim arising out of the Hobbs letter to relate back. The Hobbs letter had a different author and recipi-

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8 The District Court assumed the existence of a nexus between the

amendment and the original complaint on the theory that all of the

defamatory statements derived from the same campaign to disparage

English. See English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., No.

5:96-CV-516-BR(3) (E.D.N.C. Sept. 9, 1997). We will do the same.

 6
ent than the Rouse letters, and was published on a different date. It

is a separate act of defamation. The court would be allowing English

to leave the statute of limitations open-ended for additional acts of

defamation, even though these acts involved different parties on different dates. Because English did not plead this separate act of defamation in its original complaint, Rouse and B&W had insufficient

notice of the claim. The additional claim arising out of the Hobbs letter, therefore, does not relate back to the filing date of the original

complaint, and the statute of limitations bars it. 9

III.

We next examine whether English raised a genuine issue of fact

concerning its other defamation claims against Rouse and B&W.

These defamation claims arise from the Rouse letters, which essentially memorialize Rouse's various allegations about English

described in the initial complaint. In granting summary judgment

against English's claims, the District Court looked to the constitutional boundaries for defamation set forth in Dun & Bradstreet, Inc.

v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985), and Gertz v.

Robert Welch, Inc., 418 U.S. 323 (1974) (requiring fault as a component of liability for statements of public concern). The District Court

concluded that because Rouse's statements addressed issues of public

concern, English was required to demonstrate negligence on the part

of Rouse and B&W as a component of liability. Because English

failed to offer any evidence that raised a triable issue of fact concerning Rouse's and B&W's negligence, the District Court granted summary judgment against English's defamation claims. We agree with

much of the District Court's reasoning. However, we find it unnecessary to reach the constitutional issues that lie at the heart of the District Court's analysis. Although the District Court granted summary

judgment on a different ground, "we can affirm on any legal ground

supported by the record and are not limited to the grounds relied on

by the district court." Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.

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9 We note that even if English's defamation claim based on the Hobbs

letter is not time barred, it still suffers from the same substantive defects

as the claims relating to the Rouse letters. See infra Part III (finding that

English failed to demonstrate actual malice by Rouse and B&W, and

thus, could not pierce Rouse's and B&W's common law privilege).

 7
1993). We find, instead, that North Carolina's common law qualified

privilege provides an adequate and independent basis for affirming

the District Court's grant of summary judgment against English's

claims. This common law privilege protected Rouse's statements

because those statements addressed matters of public interest, were

published on proper occasions, and were disseminated only to proper

parties that shared a common interest with Rouse and B&W. We

affirm the entry of summary judgment against English's defamation

claims because we conclude that English failed to demonstrate actual

malice and, thus, failed to pierce Rouse's and B&W's common law

privilege.

North Carolina recognizes a common law qualified privilege for

publication of statements that are

made in good faith on any subject matter in which the person communicating has an interest, or in reference to which

he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a

manner and under circumstances fairly warranted by the

occasion and duty, right, or interest.

Troxler v. Charter Mandala Ctr., Inc., 365 S.E.2d 665, 668 (N.C. Ct.

App. 1988) (quoting Gibby v. Murphy, 325 S.E.2d 673, 676 (N.C. Ct.

App. 1985)). North Carolina courts have defined the elements of a

qualified privilege as: "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." Hanton v.

Gilbert, 486 S.E.2d 432, 437 (N.C. Ct. App. 1997) (quoting Stewart

v. Nationwide Check Corp., 182 S.E.2d 410, 415 (N.C. 1971)). A

proper occasion is "an occasion when for the public good and in the

interests of society one is freed from liability...[because of] the occasion of its publication...." Ponder v. Cobb , 126 S.E.2d 67, 78 (N.C.

1962). To prevail against this privilege, a "plaintiff is required to

show that the defendant used the privileged occasion artfully and

knowingly to falsely defame the plaintiff." Kinloch v. News &

Observer Pub. Co., 314 F. Supp. 602, 606-07 (E.D.N.C. 1969). The

appropriate standard of fault is actual malice, and the court determines whether a statement is privileged as a matter of law. See

Hanton, 486 S.E.2d at 437. If the court determines that a statement

 8
is privileged, then a "presumption arises in[the defendant's] favor

that the statements were made in good faith and without malice." Id.

A plaintiff, therefore, would have "the burden of proving both the falsity of the charge and that it was made with actual malice." Id.

Rouse and B&W were participants in a public bidding process for

a government contract, and, as such, shared a common interest with

the state officials who supervised the project. Rouse addressed its

comments solely to these officials, all of whom were"proper parties

from or through whom redress might be expected." Ponder, 126

S.E.2d at 78 (applying privilege to a party chairman's criticism of

county election officials because the party chairman had a "right to

comment" and addressed his letters only to "proper parties"). Rouse's

allegations, therefore, were published "in a proper manner and to

proper parties only." Hanton, 486 S.E.2d at 437. Similarly, Rouse's

comments were published on a proper occasion. Rouse made its statements as a bidder for a government contract seeking to promote itself,

but in a manner that also brought attention to potential shortcomings

of a competitor. More importantly, Rouse made these statements

entirely within the confines of the bidding process, and addressed an

appropriate subject matter for Rouse, B&W, and the state officials to

discuss. There is a strong public interest in allowing free comment

between potential contracting parties in a bidding process where public funds are at stake, and where statements are narrowly confined to

the merits of individual bidders.10 There is also a strong public interest

in permitting persons to reveal information about the potential use, or

misuse, of government funds. Cf. Yancey v. Gillespie, 87 S.E.2d 210,

211-12 (N.C. 1955) (applying qualified privilege to statements relating to a city's excessive expenditure of public money on a lot of property that was of questionable quality); Gattis v. Kilgo, 38 S.E. 931

(N.C. 1901) (finding the existence of a qualified privilege for statements by a college president about an investigation by the college

against him because the college "was, in one sense, a public institu-

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10 We do not intimate that a qualified privilege should apply to every

statement made about a potential government contractor by a competitor.

However, where a competitor makes a statement that addresses only

interests arising out of the bidding process, touches upon information of

potential pubic interest, and is disseminated only to the proper parties,

we are satisfied that North Carolina would apply the qualified privilege.

 9
tion."); Mauk, Stastny & Rassam, P.A. v. Bicknell, 625 P.2d 1219,

1222 (N.M. Ct. App. 1980) (applying privilege of fair comment to

statements concerning a contractor's bid for a government contract).

We find that Rouse published its allegations in appropriate contexts

and on proper occasions where "for the public good and in the interests of society one is freed from liability ...[because of] the occasion

of its publication...." Ponder, 126 S.E.2d at 78.

We are confident that North Carolina would recognize a qualified

privilege that protects a competitor's ability to tout its own product,

and, more importantly, to point out the weaknesses of others that are

competing for public funds. This is consistent with the important goal

of allowing competitors to initiate robust debate concerning a public

works project that touches upon the financial and environmental welfare of a community. To discourage the free flow of this potentially

important information would harm competition and undermine the

public's ability to hold the government accountable for public expenditures. Accordingly, we find that Rouse's statements were privileged. English, therefore, must meet "the burden of proving ... that

[the statements were] made with actual malice." Hanton, 486 S.E.2d

at 437. In the present case, the record provides uncontroverted evidence that Rouse investigated and verified its information before

making any statements about English. Rouse included contact information for its sources in its letters, and encouraged Karmous to verify

this information rather than simply to rely on Rouse's allegations.

Each of Rouse's sources was employed, or formerly employed, in a

position that provided reasonable access to information concerning

English's background and qualifications. Against this backdrop,

English was required to do more than offer bare allegations of malice.

Because English has not demonstrated malice by Rouse or B&W,11

we affirm the District Court's grant of summary judgment against

English's defamation claims.

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11 We note that, in light of Rouse's careful documentation of its sources

in its letters, English would likely fail to satisfy even the lighter burden

of demonstrating that Rouse was negligent under Dun & Bradstreet, 472

U.S. at 761, and Gertz, 418 U.S. at 323.

 10
IV.

We next consider English's claim for tortious interference with

contract. English argues that Rouse and B&W wrongfully interfered

with its contract with Kirlin by persistently lobbying to replace

English and by disparaging English in the course of competition. We

find, however, that the actions of Rouse and B&W were justified as

legitimate business activity. Accordingly, we affirm the District

Court's grant of summary judgment on the claim.

In order to succeed on a claim for tortious interference with contract, a plaintiff must show that: (1) there was a valid contract

between the plaintiff and a third person that conferred a contractual

right to the plaintiff against the third person; (2) the defendant knew

of the contract; (3) the defendant intentionally induced the third person not to perform the contract;12 (4) in doing so, acted without justification; and (5) caused actual damage to the plaintiff.13 See United

Labs., Inc. v. Kuykendall, 370 S.E.2d 375, 387 (N.C. 1988). An act

is justified, or privileged, if "the defendant is acting for a legitimate

business purpose" because "competition in business constitutes justifiable interference in another's business relations and is not actionable

so long as it is carried on in furtherance of one's own interests and

by means that are lawful." Peoples Sec. Life Ins. Co. v. Hooks, 367

S.E.2d 647, 650 (N.C. 1988). This privilege is "lost if exercised for

a wrong purpose," which "exists where the act is done other than as

a reasonable and bona fide attempt to protect the interest of the defendant which is involved." Id. In assessing whether a defendant's conduct is justified, courts examine the following factors: the

circumstances surrounding the interference, the actor's motive or conduct, the interests sought to be advanced, the social interest in protect-

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12 To satisfy this prong, the third person need not actually breach the

contract. See Lexington Homes, Inc. v. W.E. Tyson Builders, Inc., 331

S.E.2d 318, 322 (N.C. Ct. App. 1985).

13 We note that English successfully completed its contract with Kirlin,

and that, as a result, it is questionable whether English can demonstrate

any actual damage from the efforts of Rouse and B&W. We need not

reach this issue, however, because Rouse's and B&W's actions were otherwise justified.

 11
ing the freedom of action of the actor, and the contractual interests of

the other party. See id.

In the present case, B&W competed with English for a boiler

replacement contract. Rouse and B&W sent letters and initiated meetings with officials at ASU, OSC, and MEI in an attempt to convince

these entities to award them the contract. Rouse's and B&W's interference, in the form of letters and meetings, constitutes conduct that

"may be justified when the plaintiff and the defendant are competitors." Peoples Sec., 367 S.E.2d at 650. The record does not indicate

that their actions were in any way "exercised for a wrong purpose,"

or that they acted for any reason "other than as a reasonable and bona

fide attempt to protect the interest of the defendant which is

involved." Id. Absent any evidence of a wrongful purpose, we must

conclude that the conduct of Rouse and B&W was justified as legitimate business activity.

We note that, at its heart, this suit concerns the North Carolina bidding process and the ability of a bidder to supply potentially pertinent

information concerning competitors, as well as the ability of a competitor to engage in salesmanship in the course of bidding. This is a

state process that, in large part, relies on market forces as much as

judicial oversight. Absent proof that a competitor has acted maliciously or otherwise unlawfully, courts should be reluctant to impose

liability for conduct that can be characterized fairly as legitimate competition and salesmanship.14 We conclude, therefore, that, at most,

Rouse and B&W acted zealously, but lawfully, in their attempts to

procure the boiler replacement contract with Kirlin. Accordingly,

because the conduct of Rouse and B&W was justified, 15 we affirm the

judgment of the District Court.

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14 English argues that the actions of Rouse and B&W were not fair

because much of their information was untrue. English seeks to impose

a strict liability standard for truthfulness upon its competitors. This theory of liability, if applied, would harm legitimate competition.

15 English argues that the principle that competitive conduct is justifiable if exercised for a legitimate business purpose is limited to cases

involving employment contracts. However, in Carolina Water Serv., Inc.

v. Town of Atlantic Beach, 464 S.E.2d 317, 320-21 (N.C. Ct. App. 1995),

the court utilized this very concept in a case involving a dispute between

a municipality and a private company over water supply contracts.

 12
V.

Finally, we address English's statutory claims under section 75-1.1.

These statutory claims encompass claims for civil conspiracy, defamation, and tortious interference with contract. English argues that

Rouse and B&W conspired with Karmous and Robbins to"lock" the

contract bid in B&W's favor. English also asserts that Rouse and

B&W defamed English and tortiously interfered with its contract by

lobbying to replace English and disparaging English in the course of

competition. English contends that these actions were unfair and

deceptive, and, therefore, violated section 75-1.1. We agree with the

District Court, however, that even when viewed in the light most

favorable to English, the facts do not support liability under section

75-1.1. Accordingly, we affirm the District Court's grant of summary

judgment on the statutory claims.

Section 75-1.1 applies to unfair and deceptive conduct, and provides a right of action against defendants who "engage[ ] in an unfair

or deceptive trade practice, in or affecting commerce, that proximately caused actual injury to the plaintiff." Canady v. Mann, 419

S.E.2d 597, 602 (N.C. Ct. App. 1992). Under section 75-1.1,

"[c]onduct is unfair if it has the capacity or tendency to deceive." Id.

The court determines if conduct is unfair or deceptive by examining

"the surrounding circumstances of the transaction and the impact on

the marketplace ... and this determination is a question of law for the

court." Id.

A.

English argues that Rouse and B&W conspired with Karmous and

Robbins to insert B&W's brand name into the bid specifications,

thereby providing an unfair advantage to B&W in violation of N.C.

Gen. Stat. §§ 133-2 & -3.16 English contends that this conspiracy was

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16 Sections 133-2 and -3 allow the use of brand names only in certain

circumstances. When brand names are used, the statute requires the presence of certain language explaining that the use of such name brands are

not designed to restrict competition. See N.C. Gen. Stat. § 133-3 (1996).

As the District Court noted, it appears that such language was in fact

 13
unfair and deceptive, and thus violated section 75-1.1. We disagree.

To prove civil conspiracy, English must show "an agreement between

two or more individuals to do an unlawful act or to do a lawful act

in an unlawful way, resulting in injury inflicted by one or more of the

conspirators pursuant to a common scheme." Morrison-Tiffin v.

Hampton, 451 S.E.2d 650, 658 (N.C. Ct. App. 1995). English must

also demonstrate "that an overt act was committed pursuant to a common agreement and in furtherance of a common objective." Id. Notably,

Although liability may be established by circumstantial evidence, the evidence of the agreement must be more than a

suspicion or conjecture to justify submission to the

jury....An adequately supported motion for summary judgment by the defendant triggers the plaintiff's responsibility

to produce facts, as distinguished from allegations, sufficient to show that he will be able to prove his claim at trial.

Id. English argues that Karmous and Robbins must have conspired

with Rouse and B&W because Karmous and Robbins favored B&W

over English, and because Karmous used B&W's brand name in the

bid specifications to illustrate the minimum performance standards for

prospective bidders. English argues that the inclusion of B&W's

brand name in the specifications "locked" the bid in B&W's favor,

giving an unfair advantage to B&W. Based upon these simple facts,

English concludes that Karmous and Robbins must have conspired

with Rouse and B&W to rig the bidding process. In the absence of

any supporting facts, however, this allegation is nothing more than

mere "suspicion or conjecture" by English, and is insufficient "to justify submission to the jury...." Id. On the one hand, Rouse and B&W

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included in the specifications, despite English's claims to the contrary.

See English Boiler, No. 5:96-CV-516-BR(3), slip op. at 37 (E.D.N.C.

Sept. 9, 1997).

Section 133-2 provides, in pertinent part, that"[i]t shall be unlawful

for any architect, engineer, designer or draftsmen, employed on ... State

... works, to employ or allow any manufacturer, his representatives or

agents, to write, plan, draw, or make specifications for such works or any

part thereof." N.C. Gen. Stat. § 133-2 (1996).

 14
have offered testimony from several persons, including Karmous, that

no such agreement existed. English, on the other hand, has failed to

offer any testimony that either demonstrates the existence of a conspiracy or contradicts Karmous's testimony. English, therefore, is left

with speculation--a bare, factually unsupported assertion of a conspiracy to rig the bidding process. Speculation, however, is insufficient to create a triable issue of fact. See Beale, 769 F.2d at 214

(stating that the nonmoving party "cannot create a genuine issue of

material fact through mere speculation or the building one inference

upon another.").

B.

We also find that English has failed to raise a genuine issue of fact

concerning its statutory defamation and tortious interference with

contract claims.17 English's statutory claims18 fail for the same reasons

as English's common law claims. Cf. Pleasant Valley Promenade v.

Lechmere, 464 S.E.2d 47, 54 (N.C. Ct. App. 1995) (dismissing claim

for unfair trade practices that relied upon the same factual allegations

as those supporting underlying claims for civil conspiracy and tortious interference with contract, where the court directed verdict

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17 English contends that summary judgment is inappropriate because

unfair and deceptive conduct is an issue for the jury to decide. In particular, English points to a report submitted by English's expert witness stating that the Defendants' conduct was unfair and deceptive. This

argument is not persuasive, however, because although the question of

whether an act occurred is a factual issue for the jury, the question of

"[w]hether an act found by the jury to have occurred is an unfair or

deceptive practice ... is a question of law for the court." Ellis v. Northern

Star Co., 388 S.E.2d 127, 131 (N.C. 1990).

18 English's statutory defamation claim includes the Hobbs letter,

which is barred by the statute of limitations as a substantive claim on its

own, but which can still proceed as a claim under section 75-1.1. See

Ellis, 388 S.E.2d at 131 (stating that libel per se can be an unfair and

deceptive trade practice). Similar to the Rouse letters, however, Hobbs

detailed the sources of his information during deposition and offered evidence that he engaged in a diligent investigation before publishing his

statements about English. As a result, English could not demonstrate

Rouse's and B&W's fault with respect to the Hobbs letter, and thus,

failed to pierce the common law privilege.

 15
against the underlying claims for insufficient evidence). English

offered no evidence of unfair or deceptive trade practices beyond

those already detailed above. See supra Parts III, IV (discussing

English's common law claims for defamation and tortious interference with contract). As noted above, we affirmed the District Court's

grant of summary judgment against English's claims for defamation

and tortious interference with contract because English failed to raise

any triable issues of fact concerning those claims. Absent any additional evidence that the actions of Rouse and B&W were improper,

unethical, or tortious, we find, as a matter of law, that Rouse's and

B&W's actions were not unfair or deceptive. Accordingly, we affirm

the District Court's grant of summary judgment.

VI.

For the reasons stated, we affirm the judgment of the District

Court.

AFFIRMED

 16