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George A. Maib, et al. v. Federal Deposit Insurance Corporation

March 23, 2011


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


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.


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.)

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 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 claims*fn1 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)*fn2 to dismiss the complaint, arguing that the complaint fails to state any viable claim for relief. (Def.'s Mem. at 2.) The plaintiffs oppose.


"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, 657 F. Supp. 2d 180, 185 (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, 657 F. Supp. 2d 123, 129 (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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (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 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, 226 F. Supp. 2d 191, 196 (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., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations[.]" Twombly, 550 U.S. at 555. 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, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).


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 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 ...

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