Muir v. Navy Federal Credit Union

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2008 Decided June 20, 2008

No. 07-7066

KRISHNA MUIR,
APPELLANT

v.

NAVY FEDERAL CREDIT UNION AND
PATRICIA L. DEARING, L.L.C.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01193)

C. Sukari Hardnett argued the cause and filed the briefs for
appellant.

Justin M. Flint argued the cause for appellee Patricia L.
Dearing, L.L.C. With him on the brief was Aaron L.
Handleman.

Kirsten E. Keating argued the cause for appellee Navy
Federal Credit Union. With her on the brief was F. Joseph
Nealon.
 2

Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Appellant Krishna Muir
deposited $29,019.55 into a joint account that he held with his
father at the Navy Federal Credit Union. The Credit Union
refused to return the funds, using them instead to satisfy a debt
owed to it by Muir’s father. Muir then sued the Credit Union
and a debt collection firm, Patricia L. Dearing, LLC, seeking
return of his deposit and additional damages. The district court
held the Credit Union liable for tortious conversion in the
amount of the deposit but denied Muir’s other claims.

Muir now appeals. We affirm the district court’s grant of
summary judgment for the Credit Union on Muir’s breach of
fiduciary duty claim, as well as its denial of his request for
punitive damages. We reverse the court’s dismissal of Muir’s
claim against the Credit Union for tortious interference with a
business expectancy, and its dismissal of his claims against
Dearing under the Fair Debt Collection Practices Act. We also
reverse the court’s summary denial of Muir’s claims for interest
and lost profits with respect to the tortious conversion.

I

In November 1986, Krishna Muir’s father opened a joint
share account at the Navy Federal Credit Union with Krishna,
who at the time was a minor. Ten years later, Muir’s father
obtained a consolidation loan of $28,705.47 from the Credit
Union, with his joint share account as collateral. He stopped
making payments on the loan after a year, at which point the
principal balance was $25,125.42 and accrued interest
approximately $12,000.
 3

On October 2, 2002, Krishna Muir deposited $29,019.55
into the joint share account. According to his complaint, Muir
needed those funds to pursue a business opportunity, and he so
advised the Credit Union agent who accepted his deposit. When
Muir later contacted the Credit Union to withdraw his funds,
however, he learned that the Credit Union had removed
$27,022.90 from the account, without notice, in order to satisfy
his father’s debt.1 Despite Muir’s repeated requests, the Credit
Union refused to return the money, and a Credit Union
employee informed him that Patricia L. Dearing, LLC, a debt
collection firm, was counseling and directing the Credit Union
in the matter.

Muir filed a complaint in the United States District Court
for the District of Columbia against the Credit Union for tortious
conversion, tortious interference with a business expectancy,
and breach of fiduciary duty; and against Dearing for tortious
conversion, tortious interference with a business expectancy,
and violation of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 et seq. For each of his tort claims,
Muir sought return of his deposit, interest, lost profits, and
punitive damages. He demanded a jury trial on all issues.

After the Credit Union moved for summary judgment on
tortious conversion and breach of fiduciary duty, and Muir filed
a cross-motion on the former, the district court granted summary
judgment for Muir on his tortious conversion claim. The court
noted the Credit Union’s argument that, because its Joint
Account Agreement provides that all deposits are owned jointly

1
When the Credit Union removed Muir’s funds, his account
balance was $27,027.90 due to an earlier cash withdrawal. The set-
off, which covered the balance of Muir’s father’s loan plus part of the
accrued interest, left only $5.00 in the account.
 4

by the account owners, Muir’s father was beneficially entitled
to the funds Muir deposited and the Credit Union was entitled to
set them off to satisfy his father’s debt. But the court further
noted that the Account Agreement, which was not signed by
Muir, also states: “[T]his agreement not valid without signature
of member-owner.” Muir v. Navy Fed. Credit Union, 2005 WL
486034, at *1 n.3 (D.D.C. Mar. 1, 2005) (quoting Credit Union
Ex. B). Because the Agreement was thus “not enforceable
against Mr. Muir,” the court held that the Credit Union had
wrongfully set off his deposit and entered judgment against it in
the amount of the set-off. Id. at *1.

Although the court entered judgment for Muir on his
tortious conversion claim, it granted summary judgment for the
Credit Union on his claim of breach of fiduciary duty,
concluding that there was no fiduciary relationship between the
parties. Id. at *2. The Credit Union then moved to dismiss
Muir’s remaining claim -- for tortious interference with a
business expectancy -- and the district court granted that motion
as well, finding that Muir had not alleged sufficient facts
regarding the business expectancy and his probability of
realizing it. Muir v. Navy Fed. Credit Union, 2005 WL
3276281, at *1 (D.D.C. Aug. 22, 2005).

Meanwhile, Dearing, the debt collection firm, moved to
dismiss all of Muir’s claims against it for lack of standing.
Without addressing Muir’s tort claims, the district court held
that Muir lacked standing to pursue his FDCPA claims. Muir v.
Navy Fed. Credit Union, 366 F. Supp. 2d 1 (D.D.C. Mar. 1,
2005). Although the court found that Muir had suffered an
injury when he was deprived of his deposit, it ruled that Muir
lacked constitutional standing because the injury could not “be
fairly traced to Defendant Dearing’s conduct.” Id. at 3. The
court further held that Muir lacked prudential standing under the
 5

FDCPA because he did not fall within the zone of interests the
statute protects. Id.

Muir then appealed, and this court remanded the case to the
district court for three reasons. Muir v. Navy Fed. Credit Union,
204 Fed. Appx. 896 (D.C. Cir. 2006). First, the court observed
that there was no final judgment with respect to Muir’s tortious
conversion claim against the Credit Union because the district
court had not considered Muir’s requests for additional
damages, each of which constituted a distinct claim. Id. at 897.
Second, the court noted that the district court had not considered
Muir’s tort claims against Dearing for conversion and
interference with a business expectancy. Id. Finally, the court
found that the judgment did not comply with Federal Rule of
Civil Procedure 58(a), which requires that each judgment be set
forth in a separate document. Id. Accordingly, the court held
that it lacked jurisdiction over the appeal and instructed the
district court to issue a final judgment.

On remand, the district court dismissed all of Muir’s claims
against Dearing, holding that Muir lacked standing to pursue his
tort claims as well as his statutory claims. Muir v. Navy Fed.
Credit Union, 2007 WL 81962, at *1 (D.D.C. Jan. 8, 2007). In
the same order, the court vacated its earlier judgment against the
Credit Union for $27,022.90 and indicated that it would “hold
a hearing to establish the damages and fees owed to plaintiff.”
Id. The court set a hearing date and ordered each party to
“submit a proposed schedule of damages” in advance. Id. In
response, Muir submitted a schedule setting out the amounts of
actual damages, interest, lost profits, and punitive damages that
he was seeking. At the hearing, Muir proffered his damages
evidence and requested a jury trial on the issue. Following the
hearing, the court again entered judgment against the Credit
Union for $27,022.90 in actual damages, but it denied Muir’s
claims for interest, lost profits, and punitive damages. Muir v.
 6

Navy Fed. Credit Union, 484 F. Supp. 2d 3 (D.D.C. Mar. 20,
2007).

Muir now appeals several of the district court’s rulings.
With respect to Dearing, Muir challenges the court’s ruling that
he lacked standing to bring his statutory claims under the
FDCPA; he does not appeal the court’s decision that he lacked
standing to bring his tort claims. With respect to the Credit
Union, Muir challenges the court’s adverse rulings on his claims
for breach of fiduciary duty, tortious interference with a business
expectancy, and additional damages for the tortious conversion
in the form of interest, lost profits, and punitive damages. The
Credit Union does not appeal the district court’s entry of
judgment for Muir on his tortious conversion claim or the award
of actual damages.

II

Muir brought claims against Dearing under four sections of
the FDCPA. He alleged that Dearing: engaged in conduct that
was harassing, oppressive, and abusive, in violation of 15 U.S.C.
§ 1692d; used false and deceptive means to collect a debt, in
violation of § 1692e; used unfair and unconscionable means to
collect a debt, in violation of § 1692f; and failed to provide Muir
the notice required by § 1692g. Based on the allegations of the
complaint alone, the district court dismissed all of Muir’s
FDCPA claims for lack of both constitutional and prudential
standing, pursuant to Federal Rule of Civil Procedure 12(b)(1).
Muir, 366 F. Supp. 2d at 3. We review a dismissal for lack of
standing de novo, Information Handling Servs., Inc. v. Defense
Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir.
2003).

1. To establish constitutional standing, a plaintiff must
show an injury in fact that is fairly traceable to the challenged
 7

conduct and that will likely be redressed by a favorable decision
on the merits. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). In “reviewing the standing question, the
court must be careful not to decide the questions on the merits
for or against the plaintiff, and must therefore assume that on the
merits the plaintiffs would be successful in their claims.” City
of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); see
Warth v. Seldin, 422 U.S. 490, 501 (1975) (“For purposes of
ruling on a motion to dismiss for want of standing, both the trial
and reviewing courts must accept as true all material allegations
of the complaint, and must construe the complaint in favor of the
complaining party.”).

Muir’s allegations are sufficient, at this pre-discovery stage,
to meet the requirements of constitutional standing. He alleges
that Dearing and the Credit Union worked together to
unlawfully remove $27,022.90 from his account (injury and
traceability), and he contends that the FDCPA provides
monetary relief for that action (redressability). Although the
district court agreed that Muir suffered an injury when he was
deprived of $27,022.90, it ruled that the injury could not “be
fairly traced to Defendant Dearing’s conduct because there are
no allegations that Defendant Dearing made any direct, or
indirect, attempt to collect the debt from Mr. Muir. To the
contrary, Defendant Dearing’s communications, according to the
complaint, were limited to the bank and Mr. Muir’s father.”
Muir, 366 F. Supp. 2d at 3. The court thus treated
communications between Dearing and Muir as necessary to
establish traceability. Given the complaint’s allegation that
Dearing and the Credit Union “worked in concert . . . to convert
[funds] from the Plaintiff’s Account,” Compl. ¶ 30, however,
Muir’s injury can be fairly traced to Dearing regardless of
whether Dearing communicated with Muir about the matter.
 8

In basing its ruling on the ground that there were no
allegations of communication between the two parties, the
district court appears to have accepted Dearing’s contention that
a plaintiff can only recover against a defendant under the
FDCPA if the defendant communicated with him. In response,
Muir points to several provisions of the FDCPA that do not
expressly require communication to establish liability. Compare
15 U.S.C. § 1692d (providing that a “debt collector may not
engage in any conduct the natural consequence of which is to
harass, oppress, or abuse any person in connection with the
collection of a debt”), and id. § 1692f (providing that a “debt
collector may not use unfair or unconscionable means to collect
or attempt to collect any debt”), with id. § 1692e(11) (specifying
what a debt collector must disclose in its initial communication),
and id. § 1692g(a) (specifying what a debt collector must
include in subsequent communications). Moreover, Muir
contends that the statute’s definition of “communication,” as
“the conveying of information regarding a debt directly or
indirectly to any person through any medium,” id. § 1692a(2),
is broad enough to cover what he says were indirect
communications from Dearing to him through the Credit Union
and his father, see, e.g., Compl. ¶¶ 29-31.

All of this, however, speaks not to standing but to the
merits. As we explained in Louisiana Energy & Power
Authority v. FERC, whether a statute has been violated “is a
question that goes to the merits . . . and not to constitutional
standing,” because a “party need not prove that the . . . action it
attacks is unlawful . . . in order to have standing to level that
attack.” 141 F.3d 364, 367-68 (D.C. Cir. 1998). Rather, in
determining whether plaintiffs have standing, we must “assume
 9

that on the merits [they] would be successful in their claims.”
City of Waukesha, 320 F.3d at 235.2

2. The district court also found that Muir lacked prudential
standing because “Dearing’s conduct does not fall within the
zone of interests protected by the FDCPA.” Muir, 366 F. Supp.
2d at 3. As we noted in National Ass’n of Home Builders v. U.S.
Army Corps of Engineers, “[p]rudential standing requires ‘that
a plaintiff’s grievance must arguably fall within the zone of
interests protected or regulated by the statutory provision.’” 417
F.3d 1272, 1287 (D.C. Cir. 2005) (emphasis added) (quoting
Bennett v. Spear, 520 U.S. 154, 162 (1997)). “The
zone-of-interest test, however, is intended to ‘exclude only those
whose interests are so marginally related to or inconsistent with
the purposes implicit in the statute that it cannot reasonably be
assumed that Congress intended to permit the suit.’” Id.
(quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399
(1987)).

The district court ruled that, because the FDCPA “was
enacted ‘to eliminate abusive debt collection practices,’” Muir,
366 F. Supp. 2d at 3 (quoting 15 U.S.C. § 1692(e)), “an
individual who is not subjected to the practices of a debt

2
On appeal, Dearing further argues that Muir lacks standing under
certain sections of the FDCPA because he “cannot sustain . . . causes
of action” under those sections that are violated by conduct toward a
“consumer.” Appellee Dearing’s Br. 11 (citing 15 U.S.C. § 1692e(11)
and § 1692g). Muir responds that, although the cited sections do
mention conduct toward a “consumer,” most FDCPA provisions do
not and that, in any event, he readily qualifies as a “consumer” under
the Act. See Appellant’s Reply Br. 3 (quoting 15 U.S.C. § 1692a(3)
(defining “consumer” as “any natural person obligated or allegedly
obligated to pay any debt” (emphasis added))). Once again, however,
whether Muir can sustain a cause of action is a merits question, not
one of standing.
 10

collector does not fall within the zone of interests intended to be
protected by the statute,” id. But the statutory purpose the
district court quoted is quite broad, and what the court meant by
the phrase “subjected to the practices of a debt collector” --
other than Dearing’s contention that there must have been
communication between the plaintiff and the defendant -- is
unclear. The statute provides for civil liability against “any debt
collector who fails to comply with any provision of [the
FDCPA] with respect to any person,” 15 U.S.C. § 1692k(a)
(emphases added), and, as noted above, several of those
provisions do not contain an express “communication”
requirement. Muir thus “arguably” falls within the statute’s
compass. While “the merits inquiry and the statutory standing
inquiry often ‘overlap,’” Louisiana Energy & Power, 141 F.3d
at 367 n.5 (quoting Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 97 n.2 (1998)), the question of whether Muir has a
cause of action under the FDCPA is a merits question, and one
that is not before us on the instant appeal.

III

Although the district court granted Muir summary judgment
on his tortious conversion claim against the Credit Union, it
found no breach of fiduciary duty to Muir and granted the Credit
Union summary judgment on that claim. Muir, 2005 WL
486034, at *2. We review de novo a grant of summary
judgment under Federal Rule of Civil Procedure 56, and we may
affirm only if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)
(quoting FED. R. CIV. P. 56(c)). “A dispute about a material fact
is ‘genuine’ if a reasonable jury, drawing all reasonable
inferences in [Muir’s] favor, could return a verdict against the
defendant[].” Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir.
2001).
 11

The district court held that a financial institution does not
generally have a fiduciary duty to its depositors. Muir, 2005
WL 486034, at *2. Muir brought his tort claims pursuant to our
diversity jurisdiction, and we must therefore apply the choice-
of-law rules of the forum state. Republican Nat’l Comm. v.
Taylor, 299 F.3d 887, 890 (D.C. Cir. 2002) (citing Klaxon Co.
v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). The
district court concluded, and the parties do not dispute, that
District of Columbia courts would apply the law of Virginia.
See Muir, 2005 WL 486034, at *1 & n.1 (noting, inter alia, that
the Credit Union’s Membership/Share Savings Disclosure
Statement states that the account is governed in accordance with
the law of Virginia). Although neither party cites any of that
state’s cases, under Virginia law “[t]he relation between a bank
and a depositor is that of debtor and creditor. The deposit
creates an ordinary debt, not a privilege or right of a fiduciary
character.” Deal’s Adm’r v. Merchs. & Mechs. Sav. Bank, 91
S.E. 135, 135 (Va. 1917); see also Daisy J., Inc. v. First Bank &
Trust Co., 50 Va. Cir. 596, 1998 WL 888946, at *4 (Va. Cir. Ct.
1998) (“[U]nder normal circumstances, the existence of the
debtor-creditor relationship does not create a privilege or right
of a fiduciary character.”). Muir contends that credit unions
should be treated differently than other financial institutions for
this purpose because their depositors are part owners of the
institutions. The law of Virginia, however, is to the contrary.
See Pleasant v. Haynes, 70 Va. Cir. 396, 2006 WL 1911401, at
*2 (Va. Cir. Ct. 2006) (holding that the relationship between an
account beneficiary and a federal credit union “is that of debtor
and creditor”); see also McCray v. Commonwealth, 556 S.E.2d
50, 51-52 (Va. Ct. App. 2001) (noting that the Virginia
Commercial Code “includes ‘credit union’ within the definition
of a ‘bank,’” and rejecting -- as “a distinction without a
difference” -- the appellant’s contention that the court should
distinguish a credit union from a bank because “a credit union
is for members only”).
 12

The district court also found that Muir had failed to allege
any other fact -- beyond the insufficient fact that he was a
depositor -- that might establish a fiduciary relationship between
him and the Credit Union. Muir, 2005 WL 486034, at *2. The
district court was again correct. Accordingly, “there is no
genuine issue as to any material fact,” and the Credit Union was
“entitled to a judgment as a matter of law.” Anderson, 477 U.S.
at 247 (quoting FED. R. CIV. P. 56(c)).

IV

The district court also granted the Credit Union’s motion to
dismiss Muir’s claim for tortious interference with a business
expectancy, pursuant to Federal Rule of Civil Procedure
12(b)(6). Muir, 2005 WL 3276281. As with summary judgment
under Rule 56, we review a dismissal for failure to state a claim
under Rule 12(b)(6) de novo. See Gilvin, 259 F.3d at 756. To
survive a motion to dismiss, a plaintiff need only include in his
complaint “a short and plain statement of the claim showing that
the pleader is entitled to relief. Specific facts are not necessary;
the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson
v. Pardus, 127 S. Ct. 2197, 2200 (2007) (alteration in original)
(internal quotation marks omitted). Moreover, “when ruling on
a defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.” Id.; see
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (“[W]e
do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its
face.”).

Muir’s complaint alleged that he “was in need of a portion
of the funds he deposited in his Account for a then existing
business opportunity,” Compl. ¶ 10, and that the Credit Union’s
withholding of the deposit caused “the loss of that business
 13

expectancy,” id. ¶ 140. As the district court acknowledged,
Muir alleged “that he had a ‘viable business expectancy with a
probability of future economic benefit,’” and he averred “to a
reasonable certainty that absent the [d]efendant’s intentional
misconduct, he would have realized that expectancy.” Muir,
2005 WL 3276281, at *1 (quoting Compl. ¶¶ 137, 139). The
court nonetheless granted the motion to dismiss, on the ground
that Muir had “not provided any additional information about
the business expectancy and his probability of realizing it.” Id.

But Muir was not required to provide specific information
regarding the business expectancy in his complaint (although he
would, of course, be required to do so in response to a motion
for summary judgment). The allegations in Muir’s complaint --
which we must take as true -- stated a cause of action for
tortious interference under Virginia law.3 He alleged that he had
an existing business opportunity with a probability of future
benefit, that he was relying on the money he deposited at the
Credit Union to pursue the opportunity, that the Credit Union
knew of the business opportunity, that he would have realized
the opportunity but for the Credit Union’s unlawful conduct, and
that by withholding the deposit the Credit Union deprived him
of that opportunity and caused him injury. Compl. ¶¶ 10-34,
136-145. Those factual allegations were sufficient to survive a

3
“To prevail on a claim of tortious interference with business
expectancy under Virginia Law, a plaintiff must prove: ‘(1) the
existence of a business relationship or expectancy, with a probability
of future economic benefit to plaintiff; (2) defendant’s knowledge of
the relationship or expectancy; (3) a reasonable certainty that absent
defendant’s intentional misconduct, plaintiff would have continued in
the relationship or realized the expectancy; and (4) damage to the
plaintiff.’” Muir, 2005 WL 3276281, at *1 (footnote omitted)
(quoting Williams v. Dominion Tech. Partners, LLC., 576 S.E.2d 752,
757 (2003)).
 14

motion to dismiss under Rule 12(b)(6). See Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002).

The district court also suggested that Muir “had an
opportunity to flesh out [his] allegations in greater detail after
receiving Defendant’s Motion to Dismiss, but failed to do so.”
Muir, 2005 WL 3276281, at *1. The Credit Union’s motion to
dismiss did not, however, dispute that Muir had sufficiently
stated a claim for tortious interference. Instead, it argued that
Muir’s claim should be dismissed because he had pled the same
damages for all of his claims, because he had filed an appeal that
terminated the case before the district court, and because he had
not sufficiently pled punitive damages. Def.’s Mot. To Dismiss
Count XII of Pl.’s Compl. at 3-4. Muir responded to all of those
arguments in his opposition. Pl.’s Opp’n to Mot. To Dismiss
Count XII of Pl.’s Compl. Nothing about the defendant’s
motion required him to proffer any additional facts in order to
show that he had sufficiently stated a claim for tortious
interference. We therefore reverse the dismissal of that claim.

V

In the final order that it issued following our remand, the
district court again entered judgment for Muir for the actual
damages he sustained because of the Credit Union’s tortious
conversion of his funds, and it directed the Credit Union to
return Muir’s withheld deposit. But it denied Muir’s claims for
interest, lost profits, and punitive damages. Under Virginia law,
whether to award interest is a matter within the trial court’s
discretion, see Skretvedt v. Kouri, 445 S.E.2d 481, 487 (Va.
1994), and we therefore review the district court’s denial of
interest for abuse of discretion.

Whether to award lost profits or punitive damages, by
contrast, is a question for the jury. See, e.g., Hamilton Dev. Co.
 15

v. Broad Rock Club, Inc., 445 S.E.2d 140, 144 (Va. 1994);
Gazette, Inc. v. Harris, 325 S.E.2d 713, 740 (Va. 1985). At the
post-remand hearing, Muir sought a jury trial on the issue of
damages, Status Hr’g Tr. 15 (Feb. 6, 2007), but the district court
ultimately disposed of Muir’s damage requests on its own, see
Muir, 484 F. Supp. 2d at 5-6. Although the court did not specify
the nature of that disposition, it appears to have granted
summary judgment for the Credit Union with regard to lost
profits and punitive damages. See id. at 5 (noting that a plaintiff
“is required to show sufficient facts and circumstances to permit
a [fact-finder] to make a reasonable estimate” of damages for
lost profits, and holding that Muir “offered no evidence of
malice or a conscious disregard for plaintiff[’]s rights” to
support punitive damages (first alteration in original) (internal
quotation marks omitted)). We review that grant de novo,
bearing in mind that summary judgment is appropriate only
when there is no genuine dispute as to material facts.

1. After this court remanded the case for the district court
to consider Muir’s additional damages claims, the court ordered
each party to “submit a proposed schedule of damages” and
indicated that it would hold a “hearing to establish the damages
and fees owed to plaintiff.” Muir, 2007 WL 81962, at *1.
Muir’s schedule stated that he sought $4,365.41 in interest,
calculated at 6% per year for 2 years, 6 months, and 25 days.
Pl.’s Schedule of Damages (J.A. 311). At the hearing, he
explained that this was the period of time his money was
withheld from him by the Credit Union. Status Hr’g Tr. 12-13
(Feb. 6, 2007). The district court denied Muir’s claim for
interest, stating that he had “provided no explanation or
argument in support of this award of interest in his pleadings, or
. . . in his Schedule of Damages.” Muir, 484 F. Supp. 2d at 6.

But there was no more that Muir needed to say. Muir
deposited money in a credit union, which was obligated to pay
 16

interest on that deposit. Instead, the credit union withheld both
the deposit and the interest. Return of the deposit alone could
not have made him whole. Muir clearly specified both the
interest rate and the time period over which it should be applied.
The Credit Union objected to neither. Under these
circumstances -- and in the absence of any further explanation
as to why interest should not be awarded -- denial of an award
of interest exceeded the scope of the court’s discretion.

2. In the same schedule of damages, Muir requested
$110,750 in lost profits. Although the Credit Union maintains
that Muir “made no proffer of evidence during [the damages]
hearing,” Appellee Credit Union’s Br. 13, that is simply not true.
At the hearing, Muir’s counsel explained that Muir had intended
to use his deposit as a downpayment on the purchase of real
estate, which he had an opportunity to fix up and resell at a
profit. Counsel further proffered that Muir had “already
engaged in an agreement with a young woman whose property
was in foreclosure,” Status Hr’g Tr. 11 (Feb. 6, 2007), and that
he had several other opportunities “lined up,” id. at 10.
Moreover, counsel advised the court that Muir had “a witness
here today” to testify in support of his claims. Id. at 10-11. The
court, however, adjourned the proceeding without hearing from
the witness. In a subsequent order, the court denied Muir’s
request for recovery of lost profits, stating that he had “failed to
provide any factual or legal grounds for any lost profits” and had
“provided no basis to demonstrate that [the Credit Union’s]
actions were the proximate cause of any lost profits.” Muir, 484
F. Supp. 2d at 5. The court indicated that the absence of
“supporting argument” in Muir’s schedule of damages meant
that he had failed to make out his claim. Id.

We disagree. Muir reasonably assumed that the schedule of
damages the court directed him to file was to contain only a list
of the types and amounts of damages he sought, and that he
 17

would have an opportunity to present supporting evidence and
argument at the hearing the court set “to establish the damages
and fees owed to plaintiff.” Muir, 2007 WL 81962, at *1.4 In
light of the offer of evidence that Muir made at that hearing, the
court could not -- without hearing that evidence -- have
concluded that there was no genuine issue of material fact on the
question of lost profits.

3. Finally, we consider the district court’s denial of Muir’s
request for punitive damages. Muir, 484 F. Supp. 2d at 5. The
court noted that, to qualify for punitive damages for a tortious
conversion under Virginia law, a plaintiff must show: (1)
“misconduct or malice, or such recklessness or negligence as
evinces a conscious disregard of the rights of others,” and (2)
that the defendant’s conduct imports “knowledge and
consciousness that injury will result.” Id. (quoting PGI, Inc. v.
Rathe Prods., Inc., 576 S.E.2d 438, 444 (Va. 2003)). The court
found that Muir could not satisfy this standard because: (1) he
offered no evidence of malice or of conscious disregard for his
rights, and (2) the facts and circumstances of the case did not
suggest that the Credit Union had the requisite knowledge or
consciousness that injury would result. Id.

We affirm the district court’s grant of summary judgment
for the Credit Union on the former ground. The court held the
Credit Union responsible for tortious conversion solely because

4
The term “schedule of damages” is not defined in any court rule.
Perhaps the closest reference is Local Civil Rule 16.5, which calls on
each party to present “an itemization of damages” in its Pretrial
Statement. D.D.C. CIV. R. 16.5. The Rule states that this itemization
“shall set forth separately each element of damages, and the monetary
amount thereof, the party claims to be entitled to recover of any other
party, including prejudgment interest, punitive damages and attorneys’
fees.” Id. That is what Muir’s schedule of damages set forth.
 18

Muir had not signed the joint account agreement that otherwise
would have permitted the Credit Union to set off his deposit to
satisfy his father’s debt. Muir, 2005 WL 486034, at *1. The
Credit Union’s normal practice was to require joint account
holders to sign an agreement allowing such set-offs, and it
simply assumed that Muir had signed such an agreement. There
was no evidence that the Credit Union knew that it did not have
a signed document from Muir when it set off his account.

At the hearing on damages, the only argument that Muir
made to support punitive damages was that the Credit Union
knew he needed the money to pursue a business opportunity
when it wrongfully withheld his funds. Status Hr’g Tr. 6-7 (Feb.
6, 2007). Although this may have been sufficient to create a
genuine issue as to the defendant’s “knowledge and
consciousness that injury w[ould] result,” it was not sufficient
to create a genuine issue on the question of malice or conscious
disregard of rights. Muir did not contend that the Credit Union
knew it did not have a signed document from Muir or otherwise
knew it was not entitled to set off his account. There was
therefore no genuine issue of material fact on the required
element of malice or conscious disregard of the rights of others,
and the district court appropriately granted summary judgment
for the Credit Union.

VI

For the foregoing reasons, we affirm the district court’s
dismissal of Muir’s claim against the Credit Union for breach of
fiduciary duty and its denial of his request for punitive damages
for tortious conversion. We reverse and remand the court’s
rulings that Muir lacked standing to bring his statutory claims
against Dearing, that Muir failed to state a claim against the
Credit Union for tortious interference with a business
 19

expectancy, and that Muir was not entitled to interest or lost
profits with respect to the Credit Union’s tortious conversion.

So ordered.