USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 1 of 10

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1342

RE CARROLL MANAGEMENT COMPANY; CIP CONSTRUCTION COMPANY; CARROLL INDUSTRIAL DEVELOPMENT US, LLC; ALARIS HOMES, INC.; SNAP PUBLICATIONS, LLC; CARROLL INVESTMENT PROPERTIES, INC.,

Plaintiffs - Appellants,

v.

DUN & BRADSTREET, INC.,

Defendant - Appellee

and

DUN & BRADSTREET HOLDINGS, INC.; THE DUN & BRADSTREET CORPORATION,

Defendants.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, Chief District Judge. (1:23–cv–00483–CCE–JLW)

Submitted: December 2, 2024 Decided: February 6, 2025

Before WYNN, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Harris and Judge Quattlebaum joined. USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 2 of 10

ON BRIEF: Eric M. David, Andrew L. Rodenbough, Pearson G. Cost, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellants. Ashley I. Kissinger, Denver, Colorado, Elizabeth Schilken, Los Angeles, California, Elizabeth Seidlin-Bernstein, BALLARD SPAHR LLP, Philadelphia, Pennsylvania; Robert B. McNeill, OFFIT KURMAN, P.A., Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 3 of 10

WYNN, Circuit Judge:

Plaintiffs are six companies involved in real-estate development alleging that Dun

& Bradstreet, Inc. (“D&B”) libelously published untrue or misleading credit reports about

them. The district court dismissed Plaintiffs’ initial complaint with prejudice and denied

leave to file an amended complaint.

Plaintiffs appeal the district court’s denial order and, alternatively, the decision to

attach prejudice to the dismissal of their initial complaint. We affirm.

I.

Defendant D&B creates and maintains business credit reports used by businesses,

financial institutions, government entities, and the general public. According to Plaintiffs’

complaint, D&B “is generally accepted as being[] a thorough and scrupulously accurate

reporter of business information.” J.A. 142. 1 “D&B is so entrenched in the business

economy that certain parties, including most notably the federal government, will not do

business with a company that has not been” evaluated by it. Id. Plaintiffs—six related

entities involved in real-estate development—generally object to both the business-risk-

assessment scores D&B assigned to them as well as some of the information contained in

the credit reports themselves.

At the time Plaintiffs filed their initial complaint, D&B evaluated one of the

Plaintiffs to have an overall business-risk-assessment score of “High,” meaning that there

were “significant stability and payment behavior concerns,” “higher than average risk of

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 3 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 4 of 10

discontinued operations or business inactivity,” and a “very high potential for severely

delinquent payments.” J.A. 43 (capitalization and grammar standardized) (emphasis

omitted). D&B evaluated three of the other Plaintiffs to have an overall business-risk-

assessment score of “Moderate-High,” meaning that there were “stability concerns,” a

“higher than average risk of discontinued operations or business inactivity,” and a

“moderate potential for severely delinquent payments.” J.A. 58, 93, 103 (capitalization and

grammar standardized) (emphasis omitted). D&B gave the remaining two Plaintiffs

business-risk-assessment scores that were better, yet still lower than what Plaintiffs believe

they deserved.

Plaintiffs sued in June 2023 setting out claims against D&B 2 for appropriation of

names, libel per se, libel per quod, violations of the North Carolina Unfair and Deceptive

Trade Practices Act (“UDTPA”), and a violation of the North Carolina Racketeer

Influenced and Corrupt Organizations Act. In response, D&B filed a Rule 12(b)(6) motion

to dismiss for failure to state a claim. The district court granted the motion and dismissed

the complaint with prejudice. See RE Carroll Mgmt. Co. v. Dun & Bradstreet, Inc.,

, 543 (M.D.N.C. 2023).

Subsequently, Plaintiffs filed a Rule 59(e) motion to vacate the judgment and for

leave to file an amended complaint. They submitted a proposed amended complaint on

January 22, 2024, only seeking to pursue claims under libel per se and UDTPA.

2 Plaintiffs also named two related entities in the complaint, but after a Rule 12(b)(2) motion, the district court determined that it lacked personal jurisdiction over those entities. Plaintiffs do not appeal that decision. 4 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 5 of 10

The proposed amended complaint alleged that D&B lacked a factual basis for any

of the creditworthiness scores ascribed to Plaintiffs. As evidence that D&B lacked accurate

information about Plaintiffs, Plaintiffs pointed to allegedly untrue or misleading statements

D&B made in the credit reports.

Specifically, Plaintiffs alleged that the credit reports included eight resolved

lawsuits erroneously classified as “pending” and a satisfied judgment erroneously

classified as “unsatisfied.” J.A. 154, 156–58. They also pointed to three UCC lien filings

against a related entity that inappropriately appeared on one of Plaintiffs’ credit reports,

and two lien filings that Plaintiffs alleged, based on information and belief and “a

reasonable investigation,” did not exist at all. J.A. 154, 159.

D&B opposed Plaintiffs’ motion. As to the lien filings that Plaintiffs claimed did

not exist, D&B submitted an affidavit that attached copies of those filings from the North

Carolina Secretary of State’s office.

The district court denied Plaintiffs’ Rule 59(e) motion and denied leave to amend

on the basis that amendment would be futile. Plaintiffs timely appealed that order as well

as the district court’s decision to dismiss their initial complaint with prejudice.

II.

We review a district court’s denial of a motion for leave to amend a complaint on

grounds of futility by the same standard that we would apply in a review of a motion to

dismiss. United States ex rel. Ahumada v. NISH,

(4th Cir. 2014).

Therefore, we review de novo the district court’s legal conclusion that the proposed

amended complaint failed to state a claim on which relief can be granted.

“To survive

5 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 6 of 10

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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). We affirm because

we conclude that the proposed amended complaint failed to meet this standard.

The proposed amended complaint brings two categories of claims: four counts of

libel per se and two counts under UDTPA. For the reasons that follow, we hold that the

libel per se claims fail because Plaintiffs do not sufficiently allege that any statement or

implication in the credit reports is defamatory. The UDTPA claims fail because Plaintiffs

do not sufficiently allege actual injury.

First, Plaintiffs’ libel per se claims failed to plausibly allege that any statement or

implication in the credit reports is defamatory. Nonetheless, Plaintiffs argue that the district

court required them to prove more than plausibility. As evidence, they contend the district

court improperly considered public records submitted through an affidavit to demonstrate

that their allegations were incorrect. But courts are permitted to take judicial notice of

matters of public record to decide motions to dismiss. See, e.g., Megaro v. McCollum,

, 157 (4th Cir. 2023). And the district court repeatedly cited and followed the

appropriate plausibility standard. We find no indication that the district court applied an

incorrect legal standard.

Upon applying the correct standard, the district court appropriately concluded that

the proposed amendments were futile as to the libel per se claims because Plaintiffs are

unable to show that the alleged factual misstatements are defamatory.

6 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 7 of 10

North Carolina law instructs that “[i]n order to recover for defamation, a plaintiff

generally must show that the defendant caused injury to the plaintiff by making false,

defamatory statements.” Desmond v. News & Observer Publ’g Co.,

, 661

(N.C. 2020) (quoting Desmond v. News & Observer Publ’g Co.,

, 135 (N.C.

Ct. App. 2015)). Additionally, “the common law of libel overlooks minor inaccuracies and

focuses on substantial truth.”

(cleaned up) (quoting Masson v. New Yorker Mag.,

Inc.,

(1991)).

Here, Plaintiffs contend that their proposed amended complaint adequately

proffered false statements from the credit reports: 3 eight closed lawsuits erroneously

classified as pending and a purportedly unpaid judgment that had in fact been satisfied. But

as the district court properly concluded, even if the statements regarding the lawsuits and

unpaid judgment are outdated, the reports all include the date on which each legal event

was reported to D&B as well as a disclaimer that “[t]he public record items contained in

this report may have been paid, terminated, vacated or released prior to the date this report

was printed.” J.A. 197, 211.

North Carolina law requires that “[w]hen examining an allegedly defamatory

statement, the court must view the words within their full context and interpret them ‘as

ordinary people would understand’ them.” Boyce & Isley, PLLC v. Cooper,

(N.C. Ct. App. 2002) (quoting Renwick v. News & Observer Publ’g Co.,

(N.C. 1984)). And we conclude that an ordinary person reading the credit reports

3 These false statements only pertain to three of the six Plaintiffs. 7 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 8 of 10

would view the inclusion of the date reported and the disclaimer as signifying that the

information might be outdated.

Plaintiffs also argue that the D&B credit reports imply false and defamatory

underlying facts. Their proposed amended complaint alleges that “D&B provides little or

no information regarding” its ratings, “thereby implying D&B’s special knowledge of

undisclosed facts supporting” its ratings, J.A. 144 ¶ 24, and that “D&B’s business credit

reports arbitrarily and falsely portray each Plaintiff as financially unstable and likely to

default on its obligations to lenders and business partners,” J.A. 152 ¶ 61. Yet Plaintiffs fail

to specify a factual statement from the credit reports that gives rise to this implication. They

do marshal three lien filings that, while properly listing a related entity as the debtor, might

wrongfully be understood to refer to one of the Plaintiffs. 4 But these lien filings rightfully

attribute the debt to the related entity.

Further, in their proposed amended complaint, Plaintiffs do not allege any facts that

negate the supposed implied facts of D&B’s ratings. Instead, they allege only their own

opinion about their creditworthiness, namely that “[e]ach and every Plaintiff is an

established company with solid financials and a strong credit history that promptly satisfies

its contractual obligations.” J.A. 152. The usual pleading standards apply for defamation

cases, so Plaintiffs must plead sufficient facts to articulate a plausible claim for relief. See

Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc.,

(4th Cir. 2012)

(applying Florida libel law). We agree with the district court that Plaintiffs “have not

4 On appeal, Plaintiffs waived any argument that the two allegedly nonexistent liens created false implications regarding their creditworthiness. 8 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 9 of 10

alleged sufficient facts to draw a plausible inference that [D&B’s] reports contain or imply

false, defamatory statements.” J.A. 340 (internal quotation marks omitted). Thus, the

district court acted within its discretion when concluding that the amended complaint’s

pleading deficiencies render it futile.

Second, Plaintiffs’ UDTPA claims fail because Plaintiffs do not sufficiently allege

actual injury. In that regard, North Carolina law requires a showing of actual injury under

UDTPA. See, e.g., Pearce v. Am. Def. Life Ins. Co.,

(N.C. 1986)

(“[T]he second requisite to making out a claim under this statute is [that] . . . . [i]t must be

shown that the plaintiff suffered actual injury as a proximate result of [the] defendant’s

deceptive statement or misrepresentation.”); Belk, Inc. v. Meyer Corp., U.S.,

,

164–65 (4th Cir. 2012); Sw. Life Ins. Grp. v. Fewkes Mgmt. Corp.,

(4th Cir. 2007).

Here, Plaintiffs allege that the “invest[ment of] substantial time and money into

bringing this lawsuit” as well as into preparing an earlier cease and desist letter constitutes

actual harm. J.A. 171. But, as the district court observed, state law does not permit recovery

of attorneys’ fees in the absence of actual injury. See Mayton v. Hiatt’s Used Cars, Inc.,

(N.C. Ct. App. 1980). And while Plaintiffs also allege an injury to their

reputation, this Court has long held that parties may not use “non-reputational tort

claims”—like UDTPA—to recover damages “without satisfying the stricter . . . standards

of a defamation claim.” Food Lion, Inc. v. Cap. Cities/ABC, Inc.,

, 522 (4th

Cir. 1999). As Plaintiffs’ libel claims have not survived, neither do their UDTPA claims.

9 USCA4 Appeal: 24-1342 Doc: 41 Filed: 02/06/2025 Pg: 10 of 10

Because none of Plaintiffs’ claims in the proposed amended complaint were

sufficiently pleaded to survive review, we affirm the district court’s rejection of the

proposed amended complaint as futile.

III.

Plaintiffs also argue that the dismissal of their initial complaint should have been

without prejudice. We review the decision to dismiss a complaint with or without prejudice

for an abuse of discretion. See Cozzarelli v. Inspire Pharms. Inc.,

(4th

Cir. 2008). Because we have determined that the proposed amendment to their complaint

was futile, and futility is an appropriate basis to grant dismissal with prejudice, see

we

hold that the district court did not abuse its discretion in dismissing the original complaint

with prejudice.

IV.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

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