MEMORANDUM OPINION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on the parties' cross motions for summary judgment. [Docs. 33; 37].

FACTUAL BACKGROUND

Both Plaintiff Flexible Foam Products, Inc., ("FFP") and Defendant Vitafoam Incorporated ("Vitafoam")1 are engaged in the manufacture of polyurethane foam products. [Id. at 1].

On November 28, 2005, Vitafoam and FFP entered into two Asset Purchase Agreements ("Agreements"). [Doc. 37-3 at 24-62; 63-97]. Pursuant to those Agreements, Vitafoam sold to FFP (and some of FFP's affiliated corporations) certain assets at Vitafoam's manufacturing facilities in High Point, North Carolina, and Tupelo, Mississippi. While each Agreement addressed the property conveyed at each plant, the operative contract language contained in both Agreements at issue in this lawsuit is identical. [Id. at 29-30; 69-70].

In pertinent part, the Agreements state that

[Doc. 37-3 at 29]. The list of assets following that paragraph included "all of the intangible rights and properties of Seller used exclusively in the Business," and "all claims of Seller against third parties related exclusively to the Business." [Id. at 29-30]. The Business is defined in the agreements as "Seller's foam manufacturing and fabrication business conducted at the High Point Facility" [Id. at 28] and the "Tupelo Facility" [Id. at 68]. The Agreements particularly define these facilities as Vitafoam's manufacturing locations in High Point, North Carolina, and Tupelo, Mississippi. [Id.].

Specifically excluded from the assets being transferred under the Agreements are "all rights arising under any Seller Contract other than the Assumed Contracts" and "all intangible rights and property of Seller not used exclusively in the Business (provided that such rights and property are not material to the conduct of the Business as conducted immediately prior to Closing)." [Id. at 30].

At issue in this case is whether portions of certain tort claims belonging to Vitafoam were transferred to FFP as part of the two asset purchase transactions memorialized in the Agreements.

As it pertains to this litigation, the parties use certain chemicals in their polyurethane foam manufacturing process, notably polyether polyols, toluene diisocyanates ("TDI"), monomeric or polymeric diphenylmethane diisocyanates ("MDI"), TDI-MDI blends, and certain polyether polyols systems (hereinafter generally referred to as the "Foam Chemicals"). [Doc. 40-1 at 5]. Both before and after the execution of the Agreements, FFP and Vitafoam, each independent of the other, procured Foam Chemicals from the various world-wide suppliers for use in their respective manufacturing facilities.

From approximately the middle 1990s, the global production of Foam Chemicals was controlled almost exclusively by a handful of businesses and their affiliates. In particular, these entities were BASF SE (and affiliates); the Dow Chemical Company; Huntsman International, LLC; Lyondell Chemical Company; and Bayer AG (and affiliates). [Doc. 40-1 at 4-6]. In November 2004, a series of price-fixing class actions were brought against these Foam Chemicals manufacturing entities. Those actions ultimately were consolidated by the Judicial Panel on Multidistrict Litigation in the District of Kansas under the heading and case number, In re Urethane Antitrust Litigation, 2:04-MD-1616-JWL (D.Kan.) (herein the "Urethane cases"). [Id. at 6].

Regarding this litigation and the Agreements, the parties have entered into a stipulation [Doc. 27] setting out the agreed operative facts of this case as follows:

STANDARD OF REVIEW

The parties have submitted cross-motions for summary judgment under Federal Rule of Civil Procedure 56, wherein each side contends that there are no factual issues for trial and that judgment may be rendered as a matter of law based upon the record. Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the case." N & O Pub. Co. v. RDU Airport Auth., 597 F.3d 570, 576 (4th Cir.2010). A "genuine dispute" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Upon review of the record before the Court, the Court concludes that the facts are adequately presented therein, and that no genuine dispute as to any material fact exists. Accordingly, summary judgment is an appropriate means by which to resolve the issues presented by the parties.

DISCUSSION

At the center of this case are two critical issues the Court must resolve. First, did Vitafoam convey its antitrust claim against the Urethane cases defendants to FFP as an asset pursuant to the Agreements? Second, if FFP purchased, received, and owned that antitrust claim under the Agreements, is this action brought by FFP barred by the applicable North Carolina2 statute of limitations period?

A. The Owner of the Antitrust Claim.

The parties agree that the terms of the Agreements are clear, that the Agreements control the determination of this cause, and that no underlying factual dispute exists. "This is a straightforward contract interpretation case, and under the unambiguous contract terms, FFP prevails as a matter of law." [Doc. 37-1 at 1]. "[U]nder the plain terms of the relevant 2005 agreements[,] Vitafoam did not sell and transfer to FFP ... its price fixing claim[.]" [Doc. 33 at 2]. Accordingly, the Court's first task is to determine whether or not the parties are correct in their assertion that the Agreements at issue are unambiguous.

Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir.1993) (citations omitted) (applying North Carolina law); accord, Atlantic and East Carolina Ry. Co. v. Wheatly Oil Co., Inc., 163 N.C. App. 748, 752, 594 S.E.2d 425, 429 (2004) ("When the language of a written contract is plain and unambiguous, the contract must be interpreted as written and the parties are bound by its terms."). The Court, having reviewed the Agreements, agrees with the parties that the Agreements are clear on their face and, therefore, summary judgment is appropriate for one side or the other in accordance with the contracts' terms.

The parties may agree on the facts underlying this case and the terms of the agreements, but unsurprisingly they rely upon different provisions of the Agreements to support their respective positions. On the one hand, Vitafoam asserts that the Urethane cases antitrust claim was an asset excluded from sale to FFP under § 2.2(c) and (e) of the Agreements. Those subsections provide, in pertinent part, that Vitafoam kept all rights, claims, and causes of action "arising under" or arising "in connection with" any contracts not assumed3 by FFP. The flaw in this argument, however, is that an antitrust claim is a tort claim. Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 848 (11th Cir.1988) (antitrust violations "sound in tort rather than contract"); In re Mid-Atlantic Toyota Antitrust Litigation, 525 F.Supp. 1265, 1270 (D.Md. 1981) ("[i]t is clear that a civil antitrust action is an action in tort"). Further, under North Carolina law, torts and statutory violations, by their very nature, are not "rights arising under" contracts. Ellen v. A.C. Schultes of Maryland, Inc., 172 N.C. App. 317, 322, 615 S.E.2d 729, 733 (2005) (claims for unfair and deceptive trade practices and other torts or statutory violations are not an assertion of "rights arising under" relevant contracts in determining scope of arbitration clause). Therefore, Vitafoam's reliance on § 2.2(c) and (e) of the Agreements is misplaced.

FFP, on the other hand, argues that the Urethane cases antitrust claim was an asset Vitafoam conveyed to it because § 2.1(g) of the Agreements specifically includes "all of the intangible rights and properties of Seller used exclusively in the Business[.]" [Doc. 37-3 at 29; 69]. Since the Urethane cases antitrust damages can be, and have been, allocated specifically to the High Point and Tupelo plants, FFP asserts these damages arise exclusively from those operations. This is where FFP goes adrift.

FFP conflates the concepts of severability and exclusivity. The Urethane cases antitrust claims exist to compensate those customers cheated by the Urethane cases defendants for unlawfully fixing the prices of Foam Chemicals. Vitafoam purchased Foam Chemicals for four of its United States plants, High Point and Tupelo being two of them. Vitafoam owned only one antitrust claim. As such, this claim could not be "exclusive" to any of its individual foam manufacturing facilities. Moreover, Vitafoam's antitrust claim was in no sense "used exclusively in the" High Point and Tupelo "Business[es]."4 In fact, the antitrust claim was not "used" at all, as the context of that term in the Agreements discloses. The antitrust claim is a chose in action arising from tortious conduct entirely unrelated to the day-to-day operations of either the High Point or Tupelo facilities. It arises from the unlawful actions of the Urethane Defendants in fixing prices. Simply because the damages occasioned by such actions can be severed and thereafter apportioned to individual plants (like the ones in High Point and Tupelo) is of no moment. The provisions on which FFP relies simply does not extend to such claims.

This brings the Court to the one provision in the Agreements that specifically addresses the asset at issue, § 2.2(n). Pursuant to § 2.2(n), Vitafoam excluded from the sale to FFP "all intangible rights and property of Seller not used exclusively in the Business (provided that such rights and property are not material to the conduct of the Business as conducted immediately prior to the Closing)." [Doc. 37-3 at 30; 70]. Vitafoam's Urethane cases antitrust claim complies with each element of § 2.2(n). First, the antitrust claim is an intangible right and property of Vitafoam. Second, as explained above, the antitrust claim was never "used" at the High Point or Tupelo facilities. Finally, the antitrust claim was "not material to the conduct of the" High Point and Tupelo plants at all, let alone immediately prior to the closing on the Agreements.

Vitafoam's Urethane cases antitrust claim falls squarely within the assets excluded from transfer to FFP under § 2.2(n) of the Agreements. Because the Agreements are unambiguous, and because Vitafoam retained ownership of the antitrust claim, Vitafoam, therefore, is entitled to summary judgment on this issue.

B. A Valid Contract Precludes an Unjust Enrichment Claim.

FFP asserts a claim for unjust enrichment in Court Two of its Complaint. An action for unjust enrichment, under North Carolina law, may be described more precisely as a request for restitution.

Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988). Adding to the unusual character of unjust enrichment, such a claim is neither an action sounding in tort nor contract but a "claim in quasi contract or a contract implied in law." Id. Its most significant feature, for purposes of this litigation, is its unavailability as a claim for damages if an express contract between the parties exists to resolve the damages dispute. Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962) (it is a well-established principle that an express contract precludes an implied contract with reference to the same matter). The rationale for this principle is self-evident: an express and an implied contract cannot exist at the same time for the same purpose. "It is only when parties do not expressly agree that the law interposes and raises a promise." Id.

In crafting Count Two of the Complaint in the manner that it has, FFP has pled itself out of court. FFP alleges that "Vitafoam has asserted ownership over Urethanes Claims that belong to FFP pursuant to the Agreements." [Doc. 1 at 8, ¶ 51 (emphasis added)]. FFP, by its own admission then, recognizes that the nature of this dispute is actually a claim for breach of an express contract. Having determined above that Vitafoam's ownership of the antitrust claim was a contractual matter addressed by the parties in the Agreements, the Court concludes that FFP's claim for unjust enrichment should be dismissed as a matter of law and judgment rendered in favor of Defendants on this claim. FFP's admission that the Agreements govern the ownership of the antitrust claim only helps to substantiate the Court's conclusion.

C. FFP's Conversion Cause of Action Fails as a Matter of Law.

Count Three of FFP's Complaint alleges that Vitafoam obtained the Urethane cases claim, and the settlement proceeds flowing therefrom, without authorization and thereafter converted the same to its own use and benefit. [Doc. 1 at 9 ¶ 58] (FFP "acquired the Urethanes Claims and all proceeds from those Claims under the Agreements."). FFP's conversion cause of action fails for two independent reasons.

First, the Court has ruled that ownership of the antitrust claim is vested in Vitafoam pursuant to the Agreements. Conversion in North Carolina is a tort. Lake Mary Ltd. v. Johnston, 145 N.C. App. 525, 531, 551 S.E.2d 546, 552 (2001). "The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner." Gallimore v. Sink, 27 N.C. App. 65, 67, 218 S.E.2d 181, 183 (1975) (citation omitted). To prevail on a conversion claim, a plaintiff must prove the following two essential elements: (1) ownership of a thing vested in the plaintiff and, (2) and a wrongful conversion of the thing by the defendant. Id. Because the Court has ruled that ownership of the antitrust claim is vested in Vitafoam pursuant to the Agreements, FFP's conversion theory of liability against Defendants legally fails. FFP cannot satisfy the first element of the conversion cause of action, its rightful ownership of the antitrust claim.

Second, North Carolina law defines conversion as "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights." Norman v. Nash Johnson & Sons' Farms, Inc., 140 N.C. App. 390, 414, 537 S.E.2d 248, 264 (2000), review denied 353 N.C. 378, 547 S.E.2d 14 (2001) (citations omitted). "In North Carolina, only goods and personal property are properly the subjects of a claim for conversion." Id. "[I]ntangible interests such as business opportunities and expectancy interests [are not] subject to a conversion claim." Id.; in accord, TSC Research, LLC v. Bayer Chemicals Corp., 552 F.Supp.2d 534, 542-43 (M.D.N.C.2008) (only tangible, not intangible, property is subject to conversion under North Carolina law). An "intangible asset" is "an asset that is not a physical object[.]" Edmondson v. American Motorcycle Ass'n, Inc., 7 Fed.Appx. 136, 148 (4th Cir. 2001) (intangible assets under North Carolina law include patents, trademarks, and goodwill). Like patents, trademarks, and goodwill, a chose in action is an intangible asset. In re Edmundson, 273 N.C. 92, 95, 159 S.E.2d 509, 511-12 (1968) (the potential right of the administrator of decedent's estate against the insurance company was a chose in action, an intangible asset of the estate); In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964) (a cause of action for wrongful death is an intangible asset).

Since FFP alleges Vitafoam converted the Urethane cases claim, and since the Urethane cases claim — a chose in action — is an intangible asset rightfully belonging to Vitafoam, it could not be subject to conversion by Vitafoam under North Carolina law. The Court concludes that judgment as a matter of law in favor of the Defendants on this claim is appropriate.

D. The Statute of Limitations.

Even if FFP were the rightful owner of the antitrust claim under the Agreements, its contract action in this Court would be barred as untimely. In North Carolina, a cause of action "[u]pon a contract, obligation or liability arising out of a contract, express or implied," must be commenced within three years. N.C. Gen. Stat. § 1-52(1); Housecalls Home Health Care, Inc. v. Dep't of Health and Human Servs., 200 N.C. App. 66, 70, 682 S.E.2d 741, 744 (2009) (the statute of limitations for bringing a cause of action for breach of contract, conversion, or unjust enrichment is three years). When ascertaining the accrual of a cause of action under North Carolina law, the general rule is that as soon as

Mast v. Sapp, 140 N.C. 533, 540, 53 S.E. 350, 352 (1906). Thus, the statute begins to run when the claim accrues. "[F]or a breach of contract action, the claim accrues upon breach." Miller v. Randolph, 124 N.C. App. 779, 781, 478 S.E.2d 668, 670 (1996).

In this matter, the crux of the dispute, as stated at the very beginning of this discussion, centers on the ownership of the Urethane cases antitrust claim. The Court has determined that Vitafoam did not sell that claim to FFP under the Agreements but retained that claim. Had Vitafoam conveyed those portions of the claim to FFP as an intangible asset pursuant to the Agreements, Vitafoam would have breached the Agreements the moment Vitafoam asserted any right to seek recovery from the Urethane cases defendants via a claim it no longer owned. Had FFP been the proper owner of the antitrust claim, Vitafoam first injured FFP — first breached the Agreements — when it asserted it was the true owner of Urethane cases antitrust claim and entitled to recover any Urethane cases antitrust damages by submitting its June 9, 2006, notice to the Bayer claims administrator.

FFP argues that the operative breach time was "not until January or May 2012 [when] Vitafoam first informed FFP that it did not intend to honor the Purchase Agreements." [Doc. 37-1 at 21]. Notice to FFP, however, was irrelevant. It is a well-settled rule in North Carolina that the statute of limitations for a breach of contract action is not tolled pending the injured party's discovery of the breach. "As this Court has stated on numerous occasions, a plaintiff's lack of knowledge concerning his claim does not postpone or suspend the running of the statute of limitations." Pearce v. N.C. State Hwy. Patrol Vol. Pledge Cmte., 310 N.C. 445, 451, 312 S.E.2d 421, 425-26 (1984).

Nevertheless, FFP maintains that it was not injured, and therefore the statute did not begin to run, until there were settlement proceeds that FFP was entitled to demand. [Doc. 37-1 at 21]. FFP's argument is based upon a false premise. FFP asserts that, "[w]hen the Purchase Agreements closed, Vitafoam had not yet breached its contract to assign the Urethanes claims to FFP, nor had FFP suffered any injury when Vitafoam filed opt-out notices and produced documents responsive to discovery requests in Urethanes." [Id. (emphasis added)]. The Urethane cases antitrust claim was not a future interest. If Vitafoam sold the claim, Vitafoam's conveyance of the antitrust claim to FFP would have occurred simultaneously with the transfer of all of the other assets to FFP upon the parties' execution of the Agreements. Therefore, Vitafoam would have breached the Agreements the instant it sought damages based on its assertion of ownership of the antitrust claim. For this reason, the cases of Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278, disc. rev. denied, 340 N.C. 260, 456 S.E.2d 830 (1995) and Glover v. First Union Nat'l Bank, 109 N.C. App. 451, 428 S.E.2d 206 (1993) cited by FFP are inapposite. [Doc. 37-1 at 21].

Alternatively, FFP asserts that North Carolina's "continuing wrong" doctrine stopped the limitations' clock. [Docs. 37-1 at 22-3; 43 at 9-10]. Concisely put, FFP contends that "Vitafoam's later affirmative actions requesting proceeds from new settlements of separate claims against different entities were continuing violations that restarted the statute of limitations." [Doc. 37-1 at 22-3]. FFP misapprehends the continuing wrong doctrine.

Once again, the North Carolina Supreme Court's decision in Mast is instructive. It sets forth the applicability of the tolling mechanism (later came to be known as the continuing wrong doctrine) as follows.

Mast, 140 N.C. at 540-41, 53 S.E. at 352 (citation omitted). The teaching of Mast, then, is that a continuing wrong presupposes a continuing obligation or continuing duty as a condition precedent, hence the opinion's examples of nuisance and trespass. In the contract action at bar, assuming FFP was the lawful owner of the Urethane cases antitrust claim, there was only one duty of performance, and thus, there could only be one such breach. As the North Carolina Supreme Court eloquently observed nearly a century after its Mast decision, "[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." Williams v. BCBS of NC, 357 N.C. 170, 179, 581 S.E.2d 415, 423 (2003), citing with approval, Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981). Had FFP been the rightful owner of the Urethane cases antitrust claim, Vitafoam's numerous requests for, and various receipts of, settlement damages from the Urethane cases defendants was nothing more than "the continual ill effects" from Vitafoam's original breach of the Agreements by asserting ownership over the antitrust claim it previously had sold.

The rightful owner of the antitrust claim is the entity entitled to receive the antitrust damages, whether those damages are paid piecemeal by some or all of the Urethane cases defendants at differing points in time, or as one lump sum. Had FFP owned the antitrust claim pursuant to the Agreements, Vitafoam would have breached the Agreements on June 9, 2006, when Vitafoam filed with the Bayer Administrator its demand for antitrust damages for the Foam Chemicals supplied to the High Point and Tupelo facilities during the antitrust damages period. Further, the statute of limitations' commencement time of June 9, 2006, due to Vitafoam's breach, would not have been suspended by the tolling mechanism of the continuing wrong doctrine because Vitafoam did not continue to breach the Agreements — it thereafter only received the benefits flowing from the fruit of such alleged breach, its enforcement of the antitrust claim. Finally, because FFP did not commence this action before June 10, 2009, it is barred by North Carolina's three year statute of limitations applicable to breach of contract claims.

CONCLUSION

Based on the foregoing, the Court concludes that Vitafoam did not convey its antitrust claim to FFP pursuant to the Agreements. FFP's claims against Vitafoam for unjust enrichment and conversion fail as a matter of law. Finally, even if Vitafoam had conveyed its antitrust claim to FFP, this action would be barred by the North Carolina statute of limitations since it was commenced well outside the applicable limitations period.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants' Motion for Summary Judgment [Doc. 33] is hereby GRANTED and the Plaintiff's Motion for Summary Judgment [Doc. 37] is hereby DENIED.

IT IS FURTHER ORDERED AND DECLARED that the two subject Asset Purchase Agreements executed between the Plaintiff and the Defendants effective December 30, 2005, are valid and binding contracts between the parties, and pursuant thereto Defendants conveyed no rights to the Plaintiff which would permit it to make any antitrust claim for damages against the Urethane cases defendants for the Foam Chemicals delivered to the manufacturing facilities subject to the Asset Purchase Agreements located in High Point, North Carolina, and Tupelo, Mississippi, during the Urethane cases damages period of 1999 to 2003.

IT IS SO ORDERED.