UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1969
DISCOVERY COMMUNICATIONS, LLC,
Plaintiff - Appellant,
v.
COMPUTER SCIENCES CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:12-cv-02894-DKC)
Submitted: March 31, 2014 Decided: May 1, 2014
Before KEENAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christine Nicolaides Kearns, PILLSBURY WINTHROP SHAW PITTMAN
LLP, Washington, D.C., for Appellant. M. Carter DeLorme, JONES
DAY, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Discovery Communications, LLC (“Discovery”) appeals
the district court’s order granting Computer Sciences
Corporation’s (“CSC”) motion to dismiss its complaint, in which
it alleged that CSC tortiously interfered with its employment
contract with its chief accounting officer, for failure to state
a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Finding no error, we affirm.
We review de novo the district court’s dismissal for
failure to state a claim under Rule 12(b)(6). Sec’y of State
for Defence v. Trimble Navigation, Ltd., 484 F.3d 700, 705 (4th
Cir. 2007). “[W]hen ruling on a defendant’s motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). However, “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must
contain “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570.
To state a claim for tortious interference with
contract in Maryland, a plaintiff must allege: “(1) existence of
a contract between plaintiff and a third party; (2) defendant’s
knowledge of that contract; (3) defendant’s intentional
interference with that contract; (4) breach of that contract by
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the third party; and (5) resulting damages to the plaintiff.”
Fowler v. Printers II, Inc., 598 A.2d 794, 802 (Md. Ct. Spec.
App. 1991). “It is the successful interference that is the
tort, not the breach of the contract. The latter is but proof
of the former.” Lake Shore Investors v. Rite Aid Corp., 461
A.2d 725, 730-31 (Md. Ct. Spec. App. 1983) (internal footnote
omitted).
On review, we conclude that the district court
properly dismissed the complaint for failure to state a claim.
In the complaint, Discovery alleged the existence of an
employment contract between it and Thomas Colan, that Colan
materially breached the agreement by terminating his employment
with Discovery prior to the expiration of the contract term, and
that it sustained damages. Discovery further alleged that it
put CSC on notice of the employment agreement after CSC offered
Colan employment but before the effective date of Colan’s
resignation. Significantly, Discovery failed to allege that CSC
intentionally interfered with the employment agreement between
the date Discovery put CSC on notice of the contract and Colan’s
breach of the agreement. Discovery’s complaint alleges that
CSC’s intentional interference was the act of employing Colan,
but that act occurred after Colan’s resignation. Discovery did
not allege that CSC took any earlier actions after being
informed of Colan’s contract with Discovery that constituted
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intentional interference. Thus, Discovery failed to
sufficiently allege a claim for tortious interference against
CSC.
Discovery further claims that the district court
should have sua sponte granted leave to amend the complaint. We
review for abuse of discretion the district court’s denial of a
motion for leave to amend the complaint. Equal Rights Ctr. v.
Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
Discovery did not, however, move to amend its complaint in the
district court, and the court’s failure “to grant a motion that
was never properly made” cannot constitute an abuse of
discretion. Cozzarelli v. Inspire Pharm., Inc., 549 F.3d 618,
630-31 (4th Cir. 2008). Thus, we conclude that the district
court did not err in failing to grant leave to amend sua sponte.
Accordingly, we affirm the district court’s judgment.
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
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