                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-1394


PROJECTS MANAGEMENT COMPANY,

                Plaintiff - Appellant,

          v.

DYNCORP INTERNATIONAL LLC,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    T.S. Ellis, III, Senior
District Judge. (1:13-cv-00331-TSE-IDD)


Submitted:   September 30, 2014            Decided:   October 2, 2014


Before AGEE and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Thomas B. Kenworthy, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia,
Pennsylvania, for Appellant. John F. O’Connor, David M. Crane,
STEPTOE & JOHNSON LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Projects Management Co. (“PMC”) brought this breach of

contract    action     against    DynCorp     International      LLC    (“DynCorp”)

after    DynCorp    mistakenly     made     payments    to   the     personal     bank

account of PMC’s Managing Director, Hussein Fawaz, rather than

to PMC.     The evidence indicated that Fawaz used at least some of

the money that DynCorp deposited in his account to benefit PMC.

However, the only evidence regarding the amount of the benefit

that PMC received from these payments was a conclusory affidavit

submitted by PMC in response to DynCorp’s motion for summary

judgment.        The   district     court     granted    summary       judgment      to

DynCorp, holding that PMC had failed to prove damages because it

had not offered triable evidence of the amount of benefit it

received    from    DynCorp’s     deficient     performance.           PMC   filed    a

motion    for    reconsideration,       which   the    district      court   denied.

PMC appeals these rulings.          We affirm.

            We review a district court’s order granting summary

judgment    de   novo.     D.L.    ex   rel.    K.L.    v.   Balt.     Bd.   of   Sch.

Comm’rs, 706 F.3d 256, 258 (4th Cir. 2013).                  Summary judgment is

appropriate only where “there is no genuine [dispute] as to any

material fact and . . . the movant is entitled to judgment as a

matter of law.”          Seremeth v. Bd. of Cnty. Comm’rs Frederick

Cnty., 673 F.3d 333, 336 (4th Cir. 2012) (internal quotation

marks    omitted).       In   determining       whether      a   genuine     dispute

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exists,          we    “view[]       the       facts       and   the     reasonable          inferences

therefrom in the light most favorable to the nonmoving party.”

Bonds       v.    Leavitt,         629     F.3d    369,         380    (4th    Cir.    2011).           The

ultimate inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided         that       one    party       must       prevail      as    a     matter       of   law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

“Conclusory or speculative allegations do not suffice, nor does

a   mere         scintilla         of    evidence          in    support      of     [the    nonmoving

party’s] case.”                Thompson v. Potomac Elec. Power Co., 312 F.3d

645, 649 (4th Cir. 2002) (internal quotation marks omitted).

                  The contract’s choice-of-law provision provides that

Virginia law applies to this case. 1                              Under Virginia law, “[t]he

elements          of    a    breach      of     contract         action       are    (1)     a    legally

enforceable obligation of a defendant to a plaintiff; (2) the

defendant’s            violation         or    breach       of    that       obligation;         and   (3)

injury       or       damage    to       the    plaintiff         caused       by    the     breach     of

obligation.”                Filak v. George, 594 S.E.2d 610, 614 (Va. 2004).

“The    plaintiff            bears      the     burden      to    establish          the    element     of

damages with reasonable certainty.”                                   Sunrise Continuing Care,

        1
       The district court held that federal common law also
applies to this case and applied both Virginia law and federal
common law, finding them to be in agreement. PMC contests this
holding on appeal. Because the district court’s conclusion was
correct under Virginia law, we do not reach the question of
whether the district court erred by also applying federal law.


                                                       3
LLC v. Wright, 671 S.E.2d 132, 135 (Va. 2009).                 “The fundamental

principle    upon      which     the    rule    of   damages     is    based    is

compensation.”        Kirk Reid Co. v. Fine, 139 S.E.2d 829, 837 (Va.

1965) (internal quotation marks omitted).                 “It is not the policy

of [Virginia] law to award damages which would put a plaintiff

in a better position than if the defendant had carried out his

contract.”            Id.      (internal       quotation     marks      omitted).

Accordingly,     if     the     defendant’s     deficient     performance      has

benefited the plaintiff in some way, the plaintiff must prove

the   difference       between    the    benefit     it    received    from    the

deficient performance and the benefit it would have received had

the defendant performed properly.              Sunrise Continuing Care, 671

S.E.2d at 135-37; see also Restatement (Second) of Contracts

§ 347 & cmt. b (1981) (stating this rule). 2

            Here,     DynCorp    performed      deficiently     by    making   its

payments to the personal account of a PMC officer rather than to

PMC’s account, and it is undisputed that PMC received at least

some benefit from this deficient performance.                 The only evidence

that PMC produced regarding the amount of this benefit was a

      2
       Contrary to PMC’s arguments, the holding in Burton’s
Executor v. Manson, 129 S.E. 356 (Va. 1925), does not alter this
rule.    Burton’s Executor concerned the affirmative defense of
payment.    Id. at 358.    Here, there is no dispute regarding
payment: it is undisputed that DynCorp did not pay PMC but
instead made its payments to Fawaz’s personal bank account.
Instead, the issue in this case is the amount of benefit that
PMC received from DynCorp’s deficient performance.


                                           4
conclusory affidavit.    We hold that the district court concluded

correctly that PMC failed to prove its damages to a reasonable

certainty.

          Accordingly, we affirm its decisions to grant summary

judgment to DynCorp and to deny reconsideration. 3              We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.

                                                                   AFFIRMED




     3
       PMC argues that this result double-counts the benefits it
received from Fawaz’s account because the district court also
dismissed a previous case involving another contract in which
DynCorp mistakenly made payments to Fawaz’s account.         See
Projects Mgmt. Co. v. DynCorp Int’l LLC, 734 F.3d 366 (4th Cir.
2013). However, that case was dismissed as a sanction for PMC’s
discovery abuses and not on the basis of any benefit PMC
received from DynCorp’s payments to Fawaz’s account.      Id. at
377.   Moreover, the present case was dismissed due to PMC’s
failure to prove the amount of its damages and not due to a
finding that the benefits it received from Fawaz’s account
rendered its damages zero.      Accordingly, no double-counting
occurred.



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