UNPUBLISHED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 Decided: February 7, 2013
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. Decohen v.
Capital One, N.A., F.3d , 2012 WL 6685767, at *4 (4th
Cir. Dec. 26, 2012) (No. 11-2161). “To survive a motion to
dismiss, a complaint must contain 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 an obligation to follow through on an
“approved” and “promised” loan to Appellants. But the
Conditional Commitment, by its plain language, did not bind the
CIT entities to make the loan; it obligated them only to
consider Appellants for a loan during a thirty-day 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, Appellants contend that they adequately
alleged that the CIT entities breached a contract that was
implied-in-fact from the parties’ conduct. In North Carolina, 2
“[t]he term, implied in fact contract, 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, is implied or presumed from their acts.”
Creech v. Melnik, 495 S.E.2d 907, 911 (N.C. 1998). In
2
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. First, the complaint never identifies
precisely what the CIT 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 supplying of
essential terms by the courts by implication.”). 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. § 22-5 (2011).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED
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