Blake Van Leer, II v. Deutsche Bank Securities, Inc.
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-01076-JKB Copies to all parties and the district court/agency. [998845424].. [11-1520]
Appeal: 11-1520
Document: 33
Date Filed: 05/02/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1520
BLAKE R. VAN LEER, II,
Plaintiff – Appellant,
v.
DEUTSCHE BANK SECURITIES, INCORPORATED,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
James K. Bredar, District Judge.
(1:10-cv-01076-JKB)
Argued:
March 21, 2012
Decided:
May 2, 2012
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Duncan and Judge Keenan joined.
ARGUED: Norman Lang Smith, Jeffrey Eric Nusinov, FISHER &
WINNER, Baltimore, Maryland, for Appellant.
Sanford M.
Saunders, Jr., GREENBERG TRAURIG, LLP, Washington, D.C., for
Appellee.
ON BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG,
LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
Blake R. Van Leer, II appeals the district court’s order
dismissing
his
complaint.
Because Van Leer’s proposed amended complaint failed
to
establish
action
any
and
denying
plausible
him
claims
leave
under
to
amend
law, 1
Maryland
his
we
conclude that any amendment to his original complaint would have
been futile and the district court did not abuse its discretion
by
denying
him
leave
to
amend.
We
accordingly
affirm
the
judgment of the district court.
I.
A.
We
accept
complaint.
as
true
the
facts
alleged
in
Van
Leer’s
See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th
Cir. 2011).
Van Leer worked in the waste-handling industry, developing
solid
waste-disposal
facilities
then
selling
to
developments,
them
the
King
in
interested
George
Maryland
firms.
County
flourished in the early 1990s.
and
Landfill
Virginia
One
in
of
and
these
Virginia,
Van Leer ultimately sold the
rights to the landfill to Waste Management, Inc., which agreed
1
The parties agree that Maryland law governs adjudication
of this action.
2
Appeal: 11-1520
to
Document: 33
pay
him
Date Filed: 05/02/2012
royalties
(“Royalty
Page: 3 of 20
Stream”)
totaling
over
$1.3
million per year for roughly forty years.
Not all of Van Leer’s projects rivaled the success of the
King George County Landfill.
next
development
agreements.
caused
As
a
bankruptcy in 1999.
Indeed, a bad investment in his
him
result,
to
Van
default
Leer
on
filed
several
for
loan
chapter
11
For the next eight years, he operated his
business as a debtor in possession and used proceeds from the
Royalty Stream to cover his expenses.
Seeking to convert the Royalty Stream into enough money to
emerge from bankruptcy, Van Leer in early 2007 decided to sell
the asset or pledge it as collateral for a loan.
His broker
contacted Deutsche Bank Securities, Inc. (“Deutsche Bank”) to
gauge the firm’s interest in loaning Van Leer money secured by
the
Royalty
Stream
or
purchasing
it
outright.
After
making
progress in preliminary discussions, Van Leer and Deutsche Bank
executed a Confidentiality Agreement on April 17, 2007.
Leer
agreed
to
provide
Deutsche
Bank
“with
certain
Van
written
material containing material non-public information relating to
the
Transaction,
the
royalty
payments,
the
waste
disposal
facility and underlying transactions and participants” to permit
the firm “to evaluate the potential purchase of [the Royalty
Stream].”
the
J.A. 17.
confidential
Deutsche Bank, for its part, pledged to use
information
“for
3
the
sole
purpose
of
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determining [its] interest in participating in the Transaction.”
Id.
The Confidentiality Agreement provided that, among other
categories,
any
information
available”
or
“is
disclosure
by
known
[Van
“that
by
Leer]”
is
or
[Deutsche
is
not
becomes
Bank]
prior
considered
publicly
to
its
confidential
information and is therefore not subject to the terms of the
agreement.
Id.
Discussions continued between the parties, culminating in a
May 14 letter from Deutsche Bank to Van Leer.
Deutsche Bank
stated in the letter that, “based on [its] preliminary review of
information provided to [it] by [Van Leer], [its] understanding
of the Financing Transaction . . . and subject to satisfaction
of
all
conditions
purchasing
Id. 19.
the
outlined
Royalty
Deutsche
below,”
Stream
Bank
for
included
it
was
“interested”
approximately
a
number
of
$23
in
million.
qualifications.
First, it provided that the letter did not constitute a binding
commitment
and
any
subsequent
binding
commitment
memorialized in a separate written agreement.
Bank
subjected
conditions,
any
including
future
the
commitment
bank’s
to
would
be
Second, Deutsche
five
“completion
distinct
of,
and
satisfaction with the results of, [its] business, legal, tax,
financial, accounting, environmental and other due diligence.”
Id.
4
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After
Date Filed: 05/02/2012
sending
the
letter,
Page: 5 of 20
Deutsche
Bank
ceased
all
communication with Van Leer and did not respond to any of his
further
inquiries.
Over
a
month
later,
on
June
26,
the
Creditors’ Committee overseeing Van Leer’s bankruptcy announced
that it would auction the Royalty Stream.
from
Deutsche
Bank,
Van
Leer
was
With no commitment
unable
to
complete
transaction with a buyer to forestall the auction.
a
Deutsche
Bank submitted the high bid of $16.9 million at the auction,
obtaining
court
the
rights
confirmed
the
to
the
sale
Royalty
and
Stream.
closed
Van
The
bankruptcy
Leer’s
bankruptcy
proceedings.
B.
Almost three years after the auction of the Royalty Stream,
Van
Leer
filed
suit
against
Deutsche
complaint asserted five claims:
tortious
negligent
interference
with
misrepresentation,
Bank.
His
original
breach of contract, negligence,
prospective
and
business
opportunity,
The
of
fraud.
thrust
Van
Leer’s complaint was that Deutsche Bank shirked its obligations
to him by failing to seriously consider his application for a
loan or sale, leading him to believe that it was processing his
application
information
in
to
good
purchase
faith,
the
and
Royalty
using
his
Stream
at
lower price than the parties had negotiated.
5
confidential
auction
for
a
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Deutsche Bank responded by moving to dismiss Van Leer’s
complaint.
Finding that Van Leer’s complaint included nothing
more than conclusory allegations and baseless legal conclusions,
the district court granted Deutsche Bank’s motion and dismissed
the action.
Van Leer then filed a Rule 59(e) motion to alter or amend
the judgment, seeking leave to file an amended complaint.
part
of
complaint
this
motion,
further
Van
detailing
Leer
his
attached
a
allegations
proposed
and
As
amended
striking
his
tortious-interference claim.
Van Leer alleged that Deutsche Bank breached its contract
with him by failing to “consider and process” his loan or sale
application
in
good
faith
and
by
neglecting
to
diligence in consideration” of the application.
“conduct
J.A. 199.
due
Van
Leer stated that he relied on Deutsche Bank’s promise that it
would
evaluate
transactions
his
with
application
other
parties.
and
refrained
He
further
from
pursuing
alleged
that
Deutsche Bank “breached its contractual obligations by using the
[confidential] information that it received” from him for “its
own purchase from the bankruptcy auction.”
Id. 200.
Finally,
Van Leer claimed that Deutsche Bank breached the covenant of
good faith and fair dealing.
On the negligence count, Van Leer alleged that Deutsche
Bank, “as the holder of a public trust . . . , had a duty to
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consider and process [his] . . . application in good faith and
with reasonable diligence” and “a duty not to compete with its
customer, and not to use its favored position to his detriment.”
Id. 201.
failing
It breached that duty, according to Van Leer, by
to
process
his
application,
using
confidential
information for its own benefit in competition with him, and
failing
to
act
Royalty Stream.
“reasonably
Id.
and
honestly”
in
purchasing
the
Van Leer alleged that Deutsche Bank’s
actions prevented him from lining up another buyer.
Van
Leer’s
similar claims.
of
care
“to
negligent-misrepresentation
count
included
He alleged that Deutsche Bank owed him a duty
ensure
that
its
representations
were
truthful
concerning its intention to consider and process [his] . . .
application in good faith and with reasonable diligence.”
203.
Id.
According to Van Leer, Deutsche Bank falsely stated that
it would consider his application, prompting him to justifiably
forgo pursuing other sale options.
On the final count, raising a fraud claim, Van Leer alleged
that Deutsche Bank falsely stated that it intended to act with
due diligence in processing his application when it knew that it
did not plan to conduct any review.
Deutsche
Bank
“had
already
launched
Instead, claimed Van Leer,
a
plan
to
purchase
the
Royalty Stream from the bankruptcy, depriving Van Leer of his
opportunity to sell the Royalty Stream himself.”
7
Id. 205.
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The district court denied Van Leer’s motion to alter or
amend the judgment.
Discerning no error in its previous ruling,
it reiterated that dismissal of Van Leer’s original complaint
was appropriate.
Turning to Van Leer’s request for leave to
amend his complaint, the court found that the proposed amended
complaint contained the same fatal deficiencies as the original
complaint.
the
court,
allegations
Van Leer’s proposed amended complaint, determined
amounted
and
to
nothing
unfounded
more
than
speculation.
further
The
conclusory
court
therefore
denied leave to amend as futile.
Van Leer appeals only the district court’s denial of his
motion for leave to amend the complaint.
II.
We review the district court’s denial of leave to amend for
abuse of discretion.
US Airline Pilots Ass’n v. Awappa, LLC,
615 F.3d 312, 320 (4th Cir. 2010).
denied
only
when
the
amendment
“[L]eave to amend should be
would
be
prejudicial
to
the
opposing party, there has been bad faith on the part of the
moving party, or amendment would be futile.”
Matrix Capital
Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th
Cir.
2009).
We
adjudge
amendment
futile
amended complaint fails to state a claim.
8
when
the
proposed
United States ex rel.
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Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th
Cir. 2008).
To
survive
plaintiff
dismissal
establish
must
for
failure
“facial
to
state
plausibility”
a
claim,
by
a
pleading
“factual content that allows the court to draw the reasonable
inference
that
alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
reviewing
the
court
defendant
must
is
“ ‘take
liable
the
facts
for
in
the
the
misconduct
light
A
most
favorable to the plaintiff,’ ” but it need not accept legal
conclusions drawn from those facts or “ ‘unwarranted inferences,
unreasonable
conclusions,
or
arguments.’
”
Giarratano
v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting E. Shore
Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th
Cir. 2000)).
Indeed, a plaintiff must do more than provide
labels and conclusions--“a formulaic recitation of the elements
of a cause of action will not do.”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
A plaintiff will not successfully resist dismissal if he
provides
mere
enhancement”
“naked
or
his
assertions
devoid
allegations
of
establish
further
only
possibility that a defendant has acted unlawfully.”
factual
“a
sheer
Iqbal, 129
S. Ct. at 1949 (internal quotations and alteration omitted).
“Where
with’
a
a
complaint
defendant’s
pleads
facts
liability,
9
that
it
are
‘stops
‘merely
short
of
consistent
the
line
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between possibility and plausibility of entitlement to relief.’ ”
Id. (quoting Twombly, 550 U.S. at 557).
In the final analysis,
a
across
plaintiff
must
“nudge[]
line
from
abused
its
discretion by denying him leave to amend his complaint.
He
maintains
an
conceivable to plausible.”
[his]
claims
the
Twombly, 550 U.S. at 570.
III.
Van
Leer
argues
at
the
that
the
outset
district
that
the
court
court
applied
inappropriately demanding standard when determining whether his
proposed amended complaint could survive dismissal.
Turning to
the specifics of his allegations, Van Leer asserts that he has
included facts sufficient to establish four claims to relief
that are facially plausible.
We
conclude
that
the
discretion on this issue.
overlooks
the
significant
district
court
did
not
abuse
its
In contending otherwise, Van Leer
changes
wrought by Twombly and Iqbal.
to
the
dismissal
landscape
Applying those standards to Van
Leer’s proposed amended complaint, we find that he has failed to
“nudge[]
[his]
claims
across
the
line
from
conceivable
to
plausible,” Twombly, 550 U.S. at 570. 2
2
Deutsche Bank maintains that this court lacks jurisdiction
to adjudicate Van Leer’s action, which it characterizes as a
collateral attack on the bankruptcy court’s final order. In so
(Continued)
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A.
Van
Leer
first
alleges
that
contractual
obligations
to
him
application
for
or
Deutsche
sale,
a
loan
by
Bank
breached
its
to
consider
his
perform
due
failing
neglecting
to
diligence, and using his confidential information for its own
purposes.
These allegations grossly overstate the nature of the
contractual relationship between the parties and otherwise rely
on conclusory claims, rendering dismissal appropriate.
Although Van Leer states that Deutsche Bank operated under
a
contractual
faith
and
duty
conduct
memorializing
such
to
due
an
consider
his
diligence,
loan
he
application
to
Nor
obligation.
points
no
could
in
good
provision
he.
The
Confidentiality Agreement constitutes the sole binding contract
between
Deutsche
Van
Leer
Bank
and
agreed
Deutsche
only
Bank.
that
it
Under
would
that
use
agreement,
Van
Leer’s
doing, Deutsche Bank misinterprets Van Leer’s claims. Van Leer
is not asking the district court to invalidate the sale of the
Royalty Stream.
Rather, he is requesting money damages to
compensate him for the money that he allegedly lost when
Deutsche Bank elected not to buy the Royalty Stream directly
from him and instead purchased it for a lower price at auction.
We--and the district court--may properly resolve Van Leer’s
claims without interfering with the bankruptcy’s court’s longcompleted proceedings.
Indeed, the bankruptcy court recognized
as much.
Suggesting that “Van Leer ought to take his marbles
and go home,” J.A. 149, the court nevertheless recognized that
Van Leer could initiate a later proceeding to raise his claim
for damages stemming from the sale.
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confidential information “for the sole purpose of determining
[its] interest in participating in the Transaction.”
The
document
did
not
obligate
Deutsche
Bank
Leer’s application or conduct due diligence.
out,
Deutsche
diligence.
Bank’s
May
14
letter
to
to
J.A. 17.
consider
Van
As Van Leer points
him
mentioned
due
But it did not mandate that the firm conduct due
diligence or even consider Van Leer’s application, stating only
that
any
subsequent
formal
completion of due diligence.
expressly
indicated
that
agreement
was
subject
to
the
And, in any event, Deutsche Bank
the
letter
was
not
a
binding
commitment, which comported with Maryland law on the subject.
See Paramount Brokers, Inc. v. Digital River, Inc., 126 F. Supp.
2d
939,
945
(D.
Md.
2000)
(reasoning
that
letter
generally does not constitute a binding contract).
contract
between
the
parties
demonstrates
that
of
intent
Because no
Deutsche
Bank
agreed to either review Van Leer’s application or conduct due
diligence, his allegations on this score are legally deficient.
Van Leer’s confidentiality allegation is, however, grounded
in the text of an operative agreement between the parties.
He
alleges that Deutsche Bank used confidential information for its
own benefit, violating its duty to use the disclosures “for the
sole purpose of determining [its] interest in participating in
the Transaction,” J.A. 17.
Fatal to Van Leer’s claim is his
failure to provide any gloss on these bare assertions.
12
Indeed,
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he does not indicate what confidential information he provided
to
Deutsche
Bank
or
how
the
bank
information for its own advantage.
could
have
used
that
In omitting this critical
discussion, Van Leer engages in little more than “a formulaic
recitation of the elements of a cause of action,” Twombly, 550
U.S. at 555.
Dismissal was therefore appropriate because the
district court was not bound to accept as true his conclusory
allegations “devoid of further factual enhancement,” Iqbal, 129
S. Ct. at 1949 (internal quotations omitted).
Blending his contractual allegations into a global claim,
Van Leer alleges finally that Deutsche Bank violated its duty of
good faith and fair dealing.
Maryland
defendant
law,
requires
“act[ed]
in
a
Such a claim, though recognized by
plaintiff
such
a
to
manner
demonstrate
as
to
that
prevent
the
[the
plaintiff] from performing his obligations under the contract.”
Parker v. Columbia Bank, 604 A.2d 521, 531 (Md. Ct. Spec. App.
1992); see also E. Shore Mkts., 213 F.3d at 184 (“[T]he implied
duty of good faith and fair dealing as recognized in Maryland
requires that one party to a contract not frustrate the other
party’s performance.”).
Bank
prevented
him
Van Leer has not alleged that Deutsche
from
Confidentiality Agreement.
how
Deutsche
contravention
Bank
of
the
used
abiding
by
his
duties
under
the
And because he has failed to detail
his
confidential
Confidentiality
13
information
Agreement,
Van
Leer
in
is
Appeal: 11-1520
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unable
to
Date Filed: 05/02/2012
demonstrate
that
the
Page: 14 of 20
bank
contractual obligations in good faith.
did
not
perform
its
His proposed amended
complaint therefore fails to state a claim for a breach of the
implied covenant of good faith and fair dealing.
B.
Van Leer’s negligence claim revolves around Deutsche Bank’s
alleged breach of its duty to consider and process his loan or
sale application in good faith and with reasonable diligence.
Van Leer is unable to establish that Deutsche Bank owed him any
duty apart from its contractual obligations, and his proposed
amended complaint consequentially fails to state a claim for
negligence.
Claims of negligence under Maryland law must establish four
familiar elements:
(1) a duty owed to the plaintiff; (2) a
breach of that duty; (3) a causal relationship between breach
and harm; and (4) damages.
Jacques v. First Nat’l Bank of Md.,
515 A.2d 756, 758 (Md. 1986).
customer
generally
negligence.
do
not
Dealings between a bank and its
allow
for
claims
sounding
in
In such an instance, the relationship between the
bank and customer is contractual in nature, not giving rise to
an independent duty.
Parker, 604 A.2d at 532.
Some cases, to
be sure, present facts so unique that courts will impose an
independent duty on a bank in regard to its transactions with a
14
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customer.
Date Filed: 05/02/2012
Page: 15 of 20
See, e.g., Jacques, 515 A.2d at 759–63.
Yet this is
the exception rather than the rule.
Jacques, on which Van Leer principally relies in an effort
to establish that Deutsche Bank owed him a noncontractual duty,
involved
a
highly
irregular
court found significant.
combination
of
factors
that
the
In that case, the plaintiffs agreed to
purchase a house and applied to the defendant bank for a loan to
facilitate the transaction.
Id. at 756–57.
The bank sent them
a letter stating that the plaintiffs qualified for a $74,000
loan and that it would hold the loan’s interest rate for ninety
days.
Id.
at
757.
indicated
that
it
plaintiffs
no
more
unsatisfied
with
Shortly
had
made
than
those
thereafter,
a
mistake
$41,400.
terms,
sought
however,
and
Id.
could
The
financing
the
bank
loan
the
plaintiffs,
from
another
bank, but interest rates had skyrocketed by that time, making
the parameters of other loans unpalatable.
elected
to
accept
the
bank’s
offer
of
Id.
$41,400
They instead
and
secure
personal loans to cover the remainder of the needed financing.
Id.
The plaintiffs then filed suit against the bank, alleging
negligence.
Id.
The court began its analysis by noting that, “[w]here the
failure to exercise due care creates a risk of economic loss
only, courts have generally required an intimate nexus between
the parties as a condition to the imposition of tort liability.”
15
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Id. at 759.
Date Filed: 05/02/2012
Page: 16 of 20
Referring to the “rather extraordinary financing
provisions contained in the real estate sales contract” that
“left
the
[plaintiffs]
particularly
vulnerable
and
dependent
upon the Bank’s exercise of due care,” the court found such an
intimate nexus present in the case before it.
Id. at 762–64.
The court pointed to three elements of the relationship between
the bank and the plaintiffs that counseled imposing a tort duty
on the bank:
the requirement that the plaintiffs proceed to
loan settlement with whatever amount they could obtain at the
agreed rate of interest, the choice between accepting a loan or
forfeiting their $10,000 deposit, and the dramatic increase in
interest rates during the loan processing that precluded them
from finding another bank for financing.
The
relationship
between
Van
Id. at 762–63.
Leer
and
Deutsche
Bank
includes none of the extraordinary factors that the court found
critical to the disposition in Jacques.
We accordingly conclude
that the parties’ relationship is strictly contractual and the
district court properly found that Deutsche Bank owed no tort
duty to Van Leer.
See G&M Oil Co. v. Glenfed Fin. Corp., 782 F.
Supp. 1078, 1084 (D. Md. 1989) (finding no duty of care and
distinguishing
fairly
standard
plaintiffs
apart).
case
were
before
business
exposed
to
it,
in
which
plaintiff
sought
loan,”
from
Jacques,
in
risk
deal
extraordinary
if
“a
which
fell
Van Leer simply alleges no facts that would convert his
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relationship with Deutsche Bank from the standard bank–customer
variety into something so unique as to compel a court to impose
a noncontractual duty on the bank.
Establishing no duty of care
on the part of Deutsche Bank, Van Leer fails to state a claim
for negligence. 3
C.
Turning to Van Leer’s claim of negligent misrepresentation,
we conclude that it fails for the same reason as his negligence
claim.
Under
Maryland
law,
a
plaintiff
alleging
negligent
misrepresentation must show that the defendant owed a duty of
care to the plaintiff.
Walpert, Smullian & Blumenthal, P.A. v.
Katz, 762 A.2d 582, 588 (Md. 2000).
3
Van Leer is unable to
Van Leer also relies on an Oklahoma case, Djowharzadeh v.
City National Bank & Trust Co., 646 P.2d 616 (Okla. Civ. App.
1982).
This case is inapposite, for at least two reasons.
First,
we
are
applying
Maryland
law,
so
Oklahoma’s
pronouncements that contradict Maryland precedent are not
relevant.
Second, the plaintiff in that case pled compelling
facts not at issue here--namely, that the plaintiff had
disclosed
confidential
information
about
a
bargain-priced
property that was not yet on the market in conjunction with his
loan application, the bank denied the loan, and the wives of two
of the bank’s executives used the plaintiff’s confidential
information and bought the property, id. at 617–18.
Here,
however,
Van
Leer
has
not
described
what
confidential
information he provided Deutsche Bank or how the bank used that
information to its advantage.
Indeed, in contrast to the
secretive deal at issue in Djowharzadeh, the public record of
the bankruptcy court revealed that the Creditors’ Committee
planned to auction the Royalty Stream.
17
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establish that Deutsche Bank owed him a duty of care, see supra
Section III.B, so he has failed to state a claim for negligent
misrepresentation.
D.
Van Leer alleges finally that Deutsche Bank committed fraud
by falsely stating that it was carrying out due diligence when
it actually did not intend to perform such due diligence.
Van
Leer claims that Deutsche Bank “launched a plan to purchase the
Royalty
Stream
opportunity
to
from
the
sell
bankruptcy,
the
Royalty
depriving
Stream
[him]
himself.”
of
J.A.
his
205.
Given the heightened pleading standards governing allegations of
fraud, we find that Van Leer’s proposed amended complaint fails
to state an actionable fraud claim.
Fraud under Maryland law includes five elements:
(1) the
defendant made a false representation to the plaintiff; (2) the
defendant either knew that the representation was false or made
it with reckless indifference as to its truth; (3) the defendant
made the misrepresentation for the purpose of defrauding the
plaintiff;
(4)
the
misrepresentation;
and
plaintiff
(5)
justifiably
the
relied
plaintiff
suffered
resulting from the misrepresentation.
A.2d 769, 791 (Md. 2008).
mandate
that
a
on
the
damages
Gourdine v. Crews, 955
The Federal Rules of Civil Procedure
plaintiff
alleging
18
fraud
“state
with
Appeal: 11-1520
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Date Filed: 05/02/2012
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particularity the circumstances constituting fraud.”
Fed. R.
Civ. P. 9(b).
Van Leer’s general allegations are insufficient to satisfy
Rule
9’s
heightened
therefore
proper.
particularity
pleading
He
the
eschews
standard,
the
circumstances
and
injunction
dismissal
to
constituting
“state
fraud,”
is
with
id.,
instead asserting conclusorily that Deutsche Bank “launched a
plan to purchase the Royalty Stream from the bankruptcy,” J.A.
205.
Van
Leer’s
allegations
are
all
the
more
lacking
when
viewed with reference to the public record of the bankruptcy
proceedings,
which
revealed
that
the
Creditors’
Committee
planned to auction the Royalty Stream and that the highest bid
submitted to that point was only $11.5 million.
Van Leer puts
forth labels and conclusions in an effort to convert Deutsche
Bank’s
purchase
decision--based
the
nefarious.
factual
Royalty
But
on
Stream
these
enhancement,”
publicly
at
“naked
Iqbal,
available
auction
assertions
129
S.
Ct.
into
information--to
something
devoid
at
1949
of
more
further
(internal
quotations and alteration omitted), are not enough to counter
dismissal, particularly when viewed through the prism of Rule 9.
19
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Page: 20 of 20
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
20
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