UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) GEORGE A. MAIB, et al. ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-1261 (RWR) ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, ) ) Defendant. ) _____________________________ )

MEMORANDUM OPINION

Plaintiffs George Maib, Robyn Maib, and Ocean Concrete, Inc.

bring this action against the Federal Deposit Insurance

Corporation (“FDIC”) as the receiver of the Columbian Bank &

Trust Company (“CB&T”), alleging four causes of action based upon

disputes over a loan between the plaintiffs and CB&T. The FDIC

has moved to dismiss the complaint. Because the complaint fails

to state a claim for which relief can be granted, the motion will

be granted.

BACKGROUND

George Maib is the principal officer, director, and

shareholder of Ocean Concrete. (Compl. ¶ 5.) The FDIC is the

receiver for the failed institution formerly known as CB&T. (Id.

¶ 6.) Before CB&T failed, it approved a $2.7 million loan for

the Maibs to fund Ocean Concrete and to acquire real property in

Florida for the operation of Ocean Concrete. (Id. ¶ 7; Def.’s

Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 3, Ex. 1.) -2-

Under the loan agreement, CB&T agreed to make the loan “in

multiple advances as the [Maibs] complete[d] the development of

the Property.” (Def.’s Mem. Ex. 1 ¶ 3.1; see Compl. ¶ 9.) CB&T

agreed to make an initial advance of $1,389,690.00 to the Maibs,

and “the balance of the Loan [would] be advanced as work on the

Property [was] completed and inspected in accordance with

procedures developed by [CB&T].” (Def.’s Mem. Ex. 1 ¶ 3.1.) The

plaintiffs assert, though, that the loan agreement required CB&T

to advance sums “upon request” of the plaintiffs (Compl. ¶ 9),

and they complain that CB&T began conditioning the loan

distributions upon the plaintiffs classifying the proceeds in a

particular manner over the plaintiffs’ objections. (Compl.

¶ 10.)

George Maib informed CB&T that he wanted to use $300,000 of

the loan proceeds to acquire a residential dwelling. CB&T

responded that he would have to take out a new loan carrying

$169,000 in closing costs. CB&T also allegedly threatened the

plaintiffs with default and foreclosure, and forced the

plaintiffs to pay a broker’s fee of $25,000 for this new loan for

$300,000, which, according to the plaintiffs, “never came into

existence.” (Id. ¶¶ 11-12.)

According to the plaintiffs, CB&T subsequently interfered

with the business decisions and operations of the plaintiffs’

business by refusing to fund requests for distributions unless -3-

conditions CB&T dictated were fulfilled, including refusing to

distribute funds for vehicle and equipment acquisition and

leasing unless the plaintiffs used a vendor selected by CB&T.

The plaintiffs allege that CB&T’s failure to distribute the

proceeds of the loan caused “checks to bounce” and damaged their

“credit-worthiness and business reputations[.]” (Id. ¶¶ 13-14.)

The plaintiffs state that they engaged in discussions with a

separate lender who was willing to take over the CB&T loans at

their maturity, if CB&T cooperated. However, CB&T did not

cooperate with the plaintiffs and the separate lender, and the

opportunity with the separate lender ended. (Id. ¶¶ 16-17.)

The plaintiffs filed this four-count complaint alleging

Florida common law claims1 of breach of contract (Count I),

tortious interference with business relationships (Count II),

“disparagement of credit” (Count III), and fraud (Count IV). The

FDIC has moved under Federal Rule of Civil Procedure 12(b)(6)2 to

1 The loan agreement specifically stated that it and “all matters relating to the Loan shall be governed by and construed in accordance with Florida law[.]” (Def.’s Mem., Ex. 1 ¶ 8.1.) 2 The FDIC also moves under Rule 12(b)(1) to dismiss claims by Robyn Maib and Ocean Concrete arguing that their failure to first file a claim with the receiver deprives the court of subject matter jurisdiction. “Ordinarily, a federal court must first determine that it has jurisdiction over a case before ruling on its merits.” Shafi v. Palestinian Auth.,

(D.D.C. 2010) (citing Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.,

(2007) and Steel Co. v. Citizens for a Better Env’t,

(1998)). However, when a case can be resolved otherwise in favor of the party raising the jurisdictional issue, “it is not -4-

dismiss the complaint, arguing that the complaint fails to state

any viable claim for relief. (Def.’s Mem. at 2.) The plaintiffs

oppose.

DISCUSSION

“A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.” Peavey v. Holder,

(D.D.C.

2009) (citing Fed. R. Civ. P. 12(b)(6)). “A Rule 12(b)(6) motion

to dismiss tests the legal sufficiency of a complaint.”

Smith-Thompson v. Dist. of Columbia,

(D.D.C. 2009).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal,

(2009) (citing Bell

Atlantic Corp. v. Twombly,

(2007)). The

complaint must be construed in the light most favorable to the

plaintiff and “the court must assume the truth of all

well-pleaded allegations.” Warren v. Dist. of Columbia, 353 F.3d

necessary to grapple first with difficult jurisdictional questions.” Shafi,

(citing Norton v. Mathews,

(1976) and Feinstein v. Resolution Trust Corp.,

(1st Cir. 1991)). Because the complaint can be dismissed for failure to state a claim, the jurisdictional challenges need not be addressed. -5-

36, 39 (D.C. Cir. 2004). In deciding a motion brought under

Rule 12(b)(6), a court does not consider matters outside the

pleadings, but a court may consider on a motion to dismiss “the

facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint,” Gustave-Schmidt v.

Chao,

(D.D.C. 2002), or “documents ‘upon

which the plaintiff’s complaint necessarily relies’ even if the

document is produced not by the plaintiff in the complaint but by

the defendant in a motion to dismiss,” such as the loan agreement

here. Hinton v. Corr. Corp. of Am.,

(D.D.C. 2009) (quoting Parrino v. FHP, Inc.,

(9th Cir. 1998)). “[A] complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations[.]”

Twombly,

. However, “[w]here a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability,

it ‘stops short of the line between possibility and plausibility

of entitlement to relief.’” Iqbal,

(quoting

Twombly,

).

I. BREACH OF CONTRACT

The FDIC moves to dismiss the breach of contract claim in

Count I for failure to state a claim because the complaint does

not specify the provision of the contract that CB&T breached or

identify any specific conduct by CB&T that breached the

agreement. Indeed, says the FDIC, the agreement specifically -6-

allowed CB&T to condition loan advances on the progress of the

development of the underlying property, and covered purchase of

that property but not a residence. (Def.’s Mem. at 4, 9.) The

plaintiffs oppose, arguing that the complaint “alleged 20

paragraphs of jurisdictional and general factual allegations and

the requisite elements in paragraphs 22-24[.]” (Pls.’ Opp’n

at 2.) Paragraphs 22 through 24 of the complaint state:

22. This is an action for Breach of Contract, that contract being the loan documents attached hereto as Exhibit C. 23. The conduct of [CB&T] as above described herein, constitutes a breach of the loan documents which formed a contract between the Plaintiffs . . . and [CB&T]. 24. As a result of the above-described conduct of [CB&T], the plaintiffs . . . have suffered damages in excess of Seventy Five Thousand Dollars ($75,0000) together with attorneys’ fees which they have incurred and will continue to incur.

(Compl. ¶¶ 22-24.)

Under Florida law, the elements of a breach of contract

claim are (1) a valid contract; (2) a material breach; and (3)

damages. Sierra Equity Group, Inc. v. White Oak Equity, LLC,

(S.D. Fla. 2009) (citing Beck v.

Lazard Freres & Co., LLC,

(11th Cir. 1999) and

Miller v. Nifakos,

(Fla. Dist. Ct. App.

1995)). As the FDIC points out, the complaint does not specify

what provision of the loan agreement CB&T breached. The

plaintiffs do not identify any provision requiring CB&T to make

distributions to the plaintiffs “upon request.” What the loan -7-

agreement specifically states is that after CB&T made an initial

distribution, “the balance of the Loan shall be advanced as work

on the Property is completed and inspected in accordance with

procedures developed by [CB&T].” (Def.’s Mem., Ex. 1 ¶ 3.1.)

Moreover, plaintiffs identify no language in the agreement

permitting them to use the loan proceeds to acquire a residence,

nor is any such language apparent upon reading the agreement.

The complaint fails to contain sufficient factual material to

show that the breach of contract claim is plausible on its face.

To the contrary, its claim for breach of contract is contradicted

by the plain language on the face of the contract documents.

See, e.g., Ihebereme v. Capital One, N.A., Civil Action No. 10-

1106 (ESH),

(D.D.C. August 9, 2010)

(dismissing breach of contract claim where the complaint failed

to “put the defendant on notice of which terms [of the alleged

contract] it allegedly breached,” and where the court reviewed

the contract and could not find a provision that imposed the duty

upon which the plaintiff’s claim was based).

II. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

The FDIC moves to dismiss the claim for tortious

interference with business relationships that existed between the

plaintiffs and “companies and individuals with which it attempted

to do business” asserted in Count II because the complaint fails

to allege a specific relationship with a particular party, and -8-

fails to allege that CB&T knew of any specific prospective

business relationships between the plaintiffs and other

additional parties. (Def.’s Mem. at 9-11.) The plaintiffs

oppose, arguing that the FDIC “curiously does not deny” that the

plaintiffs had a specific relationship with external parties, and

arguing that the “loan documents attached to the complaint

demonstrating such relationship speak for themselves.” (Pls.’

Opp’n at 3.)

Under Florida law, the elements of a claim of tortious

interference with business relations are “1) the existence of a

business relationship, not necessarily evidenced by an

enforceable contract; 2) knowledge of the relationship on the

part of the defendant; 3) an intentional and unjustified

interference with that relationship by the defendant;

and 4) damage to the plaintiff as a result of the breach of the

relationship.” Magre v. Charles,

(Fla.

Dist. Ct. App. 1999)).

Again, the complaint lacks sufficient facts to support the

plaintiffs’ claim. To the extent that the complaint is alleging

that CB&T interfered with the plaintiffs’ relationship with the

other lender, it does not allege any facts that would show that

CB&T had knowledge of that relationship. To the extent that the

complaint alleges that CB&T interfered with the plaintiffs’

relationship with CB&T itself, “[u]nder Florida law, a claim for -9-

tortious interference cannot lie where the alleged interference

is directed at a business relationship to which the defendant is

a party. Romika-USA, Inc. v. HSBC Bank USA, N.A.,

(S.D. Fla. 2007) (citing Sobi v. Fairfield Resorts,

Inc.,

(Fla. Dist. Ct. App. 2003)).

Additionally, the complaint does not allege any behavior on

behalf of CB&T that was inconsistent with protecting its own

economic interest, and “[p]rotecting a company’s own economic

interest to reduce the risk of incurring further loss does not

constitute intent to damage within the meaning of a cause of

action for intentional interference with business relationship.”

Networkip, LLC v. Spread Enters.,

(Fla. Dist.

Ct. App. 2006). The complaint does not allege a claim of

tortious interference with business relationships that is

plausible on its face.

III. DEFAMATION OR LIBEL

The FDIC moves to dismiss the “disparagement of credit”

claim in Count III for failure to state a claim because Florida

law does not provide for a cause of action titled “disparagement

of credit,” and to the extent that Count III alleges a cause of

action for defamation or libel, the complaint does not identify

what CB&T allegedly stated, to whom it made the statement, and

what was false about the statement. (Def.’s Mem. at 11.) The

plaintiffs oppose, arguing that regardless of how the claim they -10-

allege in Count III is denominated, the United States Supreme

Court and “Florida law generally recognize[] and provide[] for

recovery of damages when another disparages or slanders any

property or rights thereto.” (Pl.’s Opp’n at 3.)

The cases cited by the plaintiffs - - Bothmann v.

Harrington,

(Fla. Dist. Ct. App. 1984),

Allington Towers Condo. North, Inc. v. Allington Towers North,

Inc.,

(Fla. Dist. Ct. App. 1982), and

Atkinson v. Fundaro,

(Fla. Dist. Ct. App.

1981), pertain to a cause of action for slander of title to real

property, a theory not supported by the facts alleged anywhere in

the complaint. “A group of torts recognized under the collective

title of ‘injurious falsehood’ are often interchangeably called

slander of title, disparagement of property, or trade libel.”

Salit v. Ruden,

(Fla. Dist. Ct. App. 1999)

(citing Sailboat Key, Inc. v. Gardner,

(Fla.

Dist. Ct. App. 1979)). “The gist of the tort of injurious

falsehood is the ‘intentional interference with another’s

economic relations.’” Salit,

(quoting Procacci

v. Zacco,

(Fla. Dist. Ct. App. 1981)). “The

basis of a disparagement of property action arises out of an

injurious falsehood or false statement concerning one’s

property.” Bothmann,

. While the plaintiffs

argue that their credit reports constitute property, the -11-

complaint and the plaintiffs’ opposition simply do not specify or

identify what statements CB&T made about the plaintiffs’ credit

reports, or about anything else for that matter, that were false.

Similarly, the complaint fails to state a cause of action

for defamation. Under Florida law, “[t]he elements of [a]

defamation claim are: (1) the defendant published a false

statement; (2) about the plaintiff; (3) to a third party; and (4)

the falsity of the statement caused injury to plaintiff.” Border

Collie Rescue, Inc. v. Ryan,

(M.D.

Fla. 2006). Nowhere in the complaint or in the opposition to the

FDIC’s motion to dismiss do the plaintiffs describe any false

statement purportedly made by CB&T, or to whom such a statement

was published. Instead, the complaint merely asserts legal

labels unaccompanied by any facts sufficient to survive a motion

to dismiss.

IV. FRAUD

The FDIC moves to dismiss the claim of fraud in Count IV

because the complaint does not allege any facts to support the

purported fraud and lacks the specificity required by Rule 9(b),

and because Florida’s economic loss rule prohibits claims such as

those asserted by the plaintiffs. The plaintiffs do not address

this argument in their opposition to the motion to dismiss, and

therefore have waived any opposition or have conceded the issue.

See CSX Transp., Inc. v. Commercial Union Ins., Co.,

, -12-

482-83 (D.C. Cir. 1986); Bonaccorsy v. Dist. of Columbia.,

(D.D.C. 2010); Felter v. Salazar,

, 4 n.2 (D.D.C. 2010).

CONCLUSION

The complaint fails to state a cause of action for breach of

contract, tortious interference with business relations,

defamation or injurious falsehood, or fraud. Therefore, the

FDIC’s motion to dismiss will be granted. An appropriate order

accompanies this memorandum opinion.

SIGNED this 23rd day of March, 2011.

/s/ RICHARD W. ROBERTS United States District Judge