Marjorie Putnam v. CIT Small Business Lending Corporation, No. 12-2225 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2225 MARJORIE PUTNAM; CARL DERRY, Plaintiffs - Appellants, v. CIT SMALL BUSINESS LENDING CORPORATION; CIT GROUP/COMMERCIAL SERVICES, INC.; CIT GROUP/BUSINESS CREDIT; CIT FINANCIAL USA, INC.; CIT CREDIT FINANCE CORP., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:12-cv-00012-H) Submitted: January 30, 2013 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and February 7, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Marjorie Putnam, Carl Derry, Appellants Pro Se. Brent Alan Rosser, HUNTON & WILLIAMS, LLP, Charlotte, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marjorie Putnam and Carl Derry ( Appellants ) appeal the district court s dismissal for failure to state a claim of their complaint asserting breach of contract allegations against CIT Small Business Lending Corporation, CIT Group/Commercial Services, Inc., CIT Group/Business Credit, Inc., CIT Financial USA, Inc., and CIT Credit Finance Corp. (collectively, the CIT entities ). 1 We have reviewed the record, and we affirm. Our review of a district court s grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss is de novo. Capital One, N.A., F.3d , 2012 WL 6685767, at *4 (4th Cir. Dec. 26, 2012) (No. 11-2161). dismiss, a complaint must Decohen v. contain To survive a motion to sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In support of their claim that their complaint alleged an existing contract, Appellants argue in the alternative. First, they contend that their complaint alleged a breach of a written contract embodied in a written conditional commitment ( Conditional Commitment ). According to the complaint, the CIT 1 Although the complaint asserted other claims, as well, Appellants pursue only the breach of contract claims on appeal. 2 entities breached approved and an obligation promised loan to follow through to Appellants. on But an the Conditional Commitment, by its plain language, did not bind the CIT entities consider to make Appellants the for a loan; loan it obligated during a them only thirty-day to window. Because the Conditional Commitment clearly imposed no obligation upon the CIT entities to advance any loan to Appellants, even if, as Appellants argue, it remained in force far beyond the initial thirty days, it cannot serve as the basis of Appellants contract claim. Second, alleged that Appellants the CIT contend entities that breached implied-in-fact from the parties conduct. [t]he term, implied in fact contract, a they adequately contract that was In North Carolina, 2 only means that the parties had a contract that can be seen in their conduct rather than in any explicit set of words. Miles v. Carolina Forest Ass n, 604 S.E.2d 327, 333 (N.C. Ct. App. 2004). In other words, a contract implied in fact arises where the intent of the parties is not expressed, but an agreement in fact, creating an obligation, Creech v. is Melnik, implied 495 or S.E.2d presumed 907, 2 911 from (N.C. their 1998). acts. In The parties do not dispute that North Carolina law governs the implied-in-fact contract claim. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). 3 determining whether the relevant parties agreed to reciprocally obligate themselves so as to give rise to an implied contract, a court must look[ ] not to some express agreement, but to the actions of the parties showing an implied offer and acceptance. Id. at 912 (internal quotation marks omitted). In our view, Appellants are incorrect in asserting that their complaint alleged an implied-in-fact contract claim against the CIT entities. precisely what the CIT First, the complaint never identifies entities allegedly promised to do. Gray v. Hager, 317 S.E.2d 59, 61 (N.C. Ct. App. 1984) ( Credit transactions do not lend themselves to the essential terms by the courts by implication. ). supplying of And, second, even assuming that the complaint could be generously construed as alleging that the CIT entities conduct evidenced an obligation to advance a promised loan, any such claim would be barred by North Carolina s statute of frauds. See N.C. Gen. Stat. Ann. ยง 22-5 (2011). Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 4
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