Filed: December 9, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1130(L) (CA-94-706-1)

RPR & Associates, Incorporated,

Plaintiff - Appellee,

versus

O'Brien/Atkins Associates, P.A.,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed November 26, 1996, as

follows: On page 2, section 5, lines 4-5 -- the attorney information is

corrected to read: "Laura Broughton Russell, POYNER & SPRUILL,

L.L.P., Raleigh, North Carolina; Dailey J. Derr, DAILEY J. DERR, P.A., Durham, North Carolina , for Appellants. . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-1130

RPR & ASSOCIATES, INCORPORATED,

Plaintiff - Appellee,

versus

O'BRIEN/ATKINS ASSOCIATES, P.A.,

Defendant - Appellant,

and

TAI ASSOCIATES,

Defendant.

No. 96-1131

RPR & ASSOCIATES, INCORPORATED,

Plaintiff - Appellee,

versus

TAI ASSOCIATES,

Defendant - Appellant,

and

2 O'BRIEN/ATKINS ASSOCIATES, P.A.,

Defendant.

Appeals from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr., District Judge. (CA-94-706-1)

Argued: September 23, 1996 Decided: November 26, 1996

Before WILKINS, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John Lewis Shaw, POYNER & SPRUILL, L.L.P., Raleigh, North Carolina, for Appellants. Steven Douglas Hedges, Allen Holt Gwyn, Jr., PATTON BOGGS, L.L.P., Greensboro, North Carolina, for Appellee. ON BRIEF: Laura Broughton Russell, POYNER & SPRUILL, L.L.P., Raleigh, North Carolina; Dailey J. Derr, DAILEY J. DERR, P.A., Durham, North Carolina, for Appellants. Eric C. Rowe, PATTON BOGGS, L.L.P., Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

3 PER CURIAM:

Appellee RPR & Associates, Inc. ("RPR"), a prime contractor

for the State of North Carolina in a construction project, brought

a claim against Appellants O'Brien Associates, P.A. ("O'Brien"),

the architect working on the project, and Tai & Associates ("Tai"), the soils and foundation engineer on the project. RPR alleges that

appellants breached various duties of care owed RPR, pursuant to

North Carolina law, due to their negligent performance on the proj-

ect. Appellants moved the district court to dismiss RPR's claim under Fed. R. Civ. P. 12(b), and the district court denied their

motions. Appellants appeal from the district court's denial of

their motions to dismiss insofar as it rejected their defenses pur-

suant to the doctrines of sovereign immunity (asserted by O'Brien

and Tai) and arbitral immunity (asserted only by O'Brien).

The district court concluded that appellants are private parties and, as such, are not entitled to sovereign immunity under

North Carolina law. Additionally, the district court found that

RPR's claim was based on O'Brien's performance of its architectural

duties, and not on functions performed by O'Brien as an arbiter

between RPR and North Carolina; thus, the district court determined

that O'Brien was not entitled to assert the defense of arbitral

immunity against RPR's claim against it.

Having considered all of the arguments raised in the parties'

briefs and at oral argument and following a thorough review of the

4 record and applicable law, we affirm based on the reasoning of the

district court.

AFFIRMED

5