# Jeremy Marks v. Thomas Dann

> Court of Appeals for the Fourth Circuit · January 21, 2015 · 600 F. App'x 81

URL: https://www.frixlaw.com/law-library/cases/2771863

## Case

- **Full name:** Jeremy MARKS, Plaintiff-Appellant, v. Thomas DANN, Defendant-Appellee, and Nathan Cummings; Carlo Dinallo; Stanislav Licul; Maxtena, Inc., Defendants
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** January 21, 2015
- **Citations:** 600 F. App'x 81
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Harris
- **Judges:** Keenan, Floyd, Harris
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2771863

## How later opinions describe it (automated extraction)

- holding that district court properly refused to consider on Rule 12(b)(6) analysis “additional allegations and documents” first submitted in plaintiff’s “brief in opposition to [defendant’s] motion to dismiss,” rather than “with [plaintiff’s] original complaint,” including tra…

## Opinion text

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2491

JEREMY MARKS,

Plaintiff - Appellant,

v.

THOMAS DANN,

Defendant – Appellee,

and

NATHAN CUMMINGS; CARLO DINALLO; STANISLAV LICUL; MAXTENA,
INC.,

Defendants.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cv-00347-DKC)

Argued: December 9, 2014 Decided: January 21, 2015

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the
opinion, in which Judge Keenan and Judge Floyd joined.

ARGUED: John Da Grosa Smith, SMITH HORVATH LLC, Atlanta,
Georgia, for Appellant. Julia Doyle Bernhardt, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
ON BRIEF: Matthew A. Horvath, SMITH HORVATH LLC, Atlanta,
Georgia, for Appellant. Douglas F. Gansler, Attorney General of
Maryland, Robert N. Stokes, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PAMELA HARRIS, Circuit Judge:

Maxtena, Inc. (“Maxtena”) is a promising Maryland-based

manufacturer of custom antenna solutions. Since 2011, Maxtena’s

co-founders have been engaged in serial litigation over the

ownership stake held by Jeremy Marks (“Marks”), a co-founder and

former officer and employee of the company. In the complaint

that underlies this case, Plaintiff-Appellant Marks alleges that

his former colleagues entered into a sweetheart deal with the

Maryland Venture Fund (“MVF”), a Maryland state agency

responsible for investing in early-stage technology companies,

to dilute his stake in the company at an artificially low

valuation. In addition to Maxtena’s board members, Marks names

as a defendant Thomas Dann (“Dann”), the MVF’s managing

director. Marks alleges that Dann colluded with Maxtena’s board

members, breaching his own fiduciary duties to Maxtena and

aiding and abetting the others.

The district court dismissed Marks’s claims against Dann,

holding that Dann was entitled to immunity from personal

liability under the Maryland Tort Claims Act (“MTCA”), Md. Code

Ann., Cts. & Jud. Proc. § 5-522 (West 2000). The MTCA couples a

waiver of the state’s sovereign immunity from civil suits in

state court with protection for state officials who act without

malice and within the scope of their official duties. The

district court found that Marks’s complaint failed to plausibly

3
allege that Dann’s actions came within either the “malice” or

the “scope-of-duty” exception to the MTCA and dismissed the

complaint as against Dann under Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

For the reasons that follow, we affirm. Under the MTCA,

Marks’s remedy for the MVF’s alleged misconduct was against the

state, not against Dann in his personal capacity.

I.

A.

Marks left his position at Maxtena in July, 2010. About

one year after what Marks alleges was his “ouster,” in April,

2011, Maxtena filed suit against Marks in the district court,

alleging that Marks had surreptitiously founded a competing

venture while still employed at Maxtena. Maxtena v. Marks, Civ.

A. No. 8:11-cv-9450-DKC (D. Md. Apr. 13, 2011). In the Maxtena

litigation, Maxtena seeks to enforce contractual provisions that

it claims entitle it to repurchase Marks’s 34% stake in the

company for a nominal sum. Maxtena and Marks agreed that they

would mediate the Maxtena litigation, after first engaging in

financial and valuation discovery intended to facilitate

settlement discussions. It was through that discovery that

Marks became aware of negotiations between Maxtena and the MVF

4
regarding a potential early-stage investment by the MVF in

Maxtena (the “MVF Transaction”).

Dann did not initiate those negotiations, which began under

the MVF’s former director, Frank Dickson, before Dann joined the

MVF. But shortly after he became the MVF’s managing director in

July 2012, Dann delivered a term sheet to Maxtena proposing a

short-term bridge investment. According to the complaint, Dann

designed that proposal to “exploit” the Maxtena board’s interest

in setting a low valuation for the company in advance of its

settlement discussions with Marks, in order to secure for the

MVF “ownership in a promising and rapidly growing technology

company at an exceptionally low price.”

Specifically, the MVF proposed to purchase a one-year note,

convertible into equity, from Maxtena. If the MVF were to

exercise its option to convert, it would be able to secure a 50%

interest in Maxtena for just $500,000. The MVF’s offer also

included a new employee stock options pool, which would give

Maxtena’s board members the option to reverse the dilutive

effect of the MVF Transaction, and regain their controlling

stake in the company, by buying back in at a higher valuation.

Marks alleges that this stock-options grant was intended to

shift the cost of the dilution caused by the MVF Transaction

onto Marks, the only significant shareholder who wasn’t also a

Maxtena employee.

5
The MVF’s offer as proposed by Dann was not accepted;

Maxtena thought the terms were “very expensive” and designed to

take advantage of the company’s situation. Instead, Maxtena CEO

Stanislav Licul (“Licul”) proposed various changes to the MVF’s

term sheet, all of which Marks contends were designed to benefit

Licul and the other Maxtena board members personally, but not

Maxtena itself. For example, Marks points out that Licul asked

for a more favorable options pool, but did not seek a higher

valuation for the company. Dann rejected many of these changes.

He was willing to invest directly in Maxtena’s equity in lieu of

the convertible note, but would not agree to a cap on the MVF’s

return or accept a less favorable place in the Maxtena capital

structure. He also rejected Licul’s changes to the employee

stock options pool, which he described as already “exceptional.”

After further negotiations, Dann and Licul signed a binding

“commitment letter” on September 20, 2012. The final terms of

the MVF Transaction retained the allegedly favorable valuation

Dann proposed initially, which Marks contends was designed to

manipulate the Maxtena litigation, but also included a slightly

larger employee stock options pool. The Maxtena board approved

the MVF Transaction on October 3, 2012. Dann became the MVF’s

representative on the board that same day, and the transaction

was publicly announced on November 13, 2012.

6
B.

Marks filed his complaint on February 1, 2013, alleging

that the MVF Transaction was an elaborate “scheme” intended to

dilute his stake in the company and provide Maxtena with an

artificially low valuation to anchor the ongoing settlement

discussions in the Maxtena litigation. Count I of the complaint

alleges that Licul and the other members of the Maxtena board

negotiated for themselves, rather than Maxtena, in breach of

their fiduciary duties. Those claims against Licul and the

other board members remain pending in the district court.

Counts II and III of the complaint allege the causes of

action against Dann that are the subject of this appeal. In

Count II, Marks contends that after becoming a member of the

Maxtena board, Dann breached his fiduciary duties by approving

the expanded stock options pool, and in Count III, he asserts

that Dann aided and abetted Licul and the other Maxtena board

members’ breach of their fiduciary duties when he “sold” them a

transaction intended to provide the MVF with a stake in Maxtena

for an “exceptionally low price,” at both Marks’s and Maxtena’s

expense.

Maxtena and the other defendants filed answers on February

22, 2013, in which they denied the substance of Marks’s

allegations. Dann separately filed a motion to dismiss the

claims against him under Rule 12(b)(6). In support, Dann argued

7
that the claims against him in his individual capacity were

statutorily barred by the MTCA because the complaint did not

plausibly allege that his actions were malicious or outside the

scope of his public duties as the managing director of the MVF. 1

The district court granted Dann’s motion to dismiss on July

24, 2013. Marks v. Dann, Civ. A. No. 8:13-cv-00347-DKC (D. Md.

July 24, 2013), ECF No. 30. In a detailed memorandum opinion,

the district court held that Marks’s claims against Dann were

barred by the MTCA because the complaint did not plausibly

allege that Dann’s actions fell within either of the statutory

exceptions upon which Marks relied. Marks v. Dann, Civ. A. No.

8:13-cv-00347-DKC, 2013 WL 8292331 (D. Md. July 24, 2013).

Canvassing extensive Maryland case law defining “malice” for

purposes of the MTCA, the district court found that even

crediting Marks’s allegation that Dann took advantage of the

Maxtena board’s conflict to gain a “substantial ownership

interest in Maxtena for the MVF at an exceptionally low price,”

Marks had not provided any facts in support of his theory that

Dann did so because of an improper motive, rather than in order

to advance the MVF’s legitimate commercial interests. The

1
In the alternative, Dann argued that Marks’s claims were
properly characterized as requests for relief against the state
and therefore barred in federal court by the state’s Eleventh
Amendment immunity. The district court rejected that argument
and Dann has not appealed.

8
district court also rejected Marks’s alternative theory that

Dann’s actions were beyond the scope of his role at the MVF, an

argument the court found completely lacking in factual support

and contradicted by the complaint’s allegations that Dann acted

to secure a stake in Maxtena for the MVF at a below-market

price.

Marks did not seek reconsideration of the district court’s

decision or leave to amend. Instead, he moved for certification

of the district court’s dismissal as a final and appealable

order under Rule 54(b) of the Federal Rules of Civil Procedure.

The district court granted the motion, and Marks timely noted

this appeal.

II.

A.

We review de novo the district court’s partial dismissal of

Marks’s action under Rule 12(b)(6). Wag More Dogs, LLC v.

Cozart, 680 F.3d 359, 364 (4th Cir. 2012). Like the district

court, we must credit the well-pleaded allegations in Marks’s

complaint as true, and construe “the facts in the light most

favorable” to Marks. U.S. ex rel. Oberg v. Pa. Higher Educ.

Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). To

survive a motion to dismiss, however, Marks’s complaint must do

more than “plead facts that are ‘merely consistent with’ a

9
defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007)). Rather, the pleaded facts must “state a claim to

relief that is plausible on its face” and “allow[] the court to

draw the reasonable inference,” id., that Dann is personally

liable under the MTCA for the misconduct alleged.

B.

The parties agree that the MTCA governs the immunity issue

in this diversity action. That statute provides, in relevant

part, that a state official like Dann is immune from liability

for any “tortious act or omission that is within the scope of

the public duties of the [official] and is made without malice

or gross negligence, and for which the State [has] waived

immunity.” Md. Code Ann., Cts. & Jud. Proc. § 5-522(b) (West

2000). And in a precisely complementary provision, the MTCA

waives the state’s immunity for tort actions brought in state

court except where a tortious act or omission by state personnel

is outside the scope of their public duties or made with malice

or gross negligence. Id. at § 5-522(a); see also Md. Code Ann.,

State Gov’t § 12-104(a), (b) (West 1999). The combined effect

is that in the ordinary case, the MTCA “substitutes the

liability of the State for the liability of the state employee.”

Lee v. Cline, 863 A.2d 297, 307 (Md. 2004); see also Newell v.

Runnels, 967 A.2d 729, 763 (Md. 2009) (“If the State is liable,

10
the individual is immune; if the individual is liable, the State

is immune.”).

Two general features of this statutory scheme help to frame

the dispute here. First, § 5-522(b) is designed to provide

state officials with “broad statutory immunity” from suit, going

beyond the protections of Maryland common law. Lee, 863 A.2d at

306. State common law, for instance, would permit suits against

Maryland officials for intentional, as opposed to negligent,

torts. But under the MTCA, state officials enjoy immunity even

as to intentional torts, consistent with the statutory purpose

of insulating state employees broadly from all forms of tort

liability. Id.

Second, this expansive grant of immunity to state officials

is justified in part by its link to a reciprocal waiver of the

state’s own immunity. Id. at 307. Where a state official is

immune from suit under § 5-522(b), then under the MTCA’s

interlocking immunity and waiver provisions, “the injured party

will ordinarily be able to recover against the State as long as

he or she complies with the procedural requirements” of the

statute. Id. 2 At issue in MTCA cases like this one, in other

2
Those procedural requirements include the timely filing of
suit in state rather than federal court; Maryland’s waiver of
immunity under § 12-104(a) is restricted to tort actions in a
“court of the State.” Md. Code Ann., State Gov’t § 12-104(a)(1)
(West 1999). Section 12-104(a)(2) limits state liability to
(Continued)
11
words, is not whether a person injured by tortious state action,

as Marks alleges, will have any remedy, but whether that remedy

will lie against a state official in his or her personal

capacity or against the state itself.

C.

Marks argues that his remedy is against Dann, § 5-522(b)

notwithstanding. Because Dann specifically designed the MVF

Transaction to cause him harm, Marks contends, Dann’s actions

come within both the MTCA exception for malicious conduct and

the exception for conduct outside the scope of employment. In

response, Dann argues that there was nothing improper about his

desire to achieve the best possible economic outcome for the

MVF, and that there is no support in the complaint for Marks’s

theory that he colluded with the Maxtena board to purposefully

harm Marks. Like the district court, we agree with Dann. Read

in the light most favorable to Marks, the allegations in the

complaint fall short of what is required to show malice or

conduct outside the scope of public duties under Maryland law.

$200,000 for a single claimant and tortious incident, subject to
provisions for exceeding that cap laid out in § 12-104(c). Id.
at § 12-104(a)(2), (c).

12
1.

For purposes of the malice exception to MTCA immunity, a

state official’s conduct is “malicious” if it is “characterized

by evil or wrongful motive, intent to injure, knowing and

deliberate wrongdoing, ill-will or fraud.” Barbre v. Pope, 935

A.2d 699, 714 (Md. 2007) (citations and quotation marks

omitted); see also Lee, 863 A.2d at 311–12 (characterizing

“malice” as “affirmative intent to bring harm,” “ill will,” or

other “improper motive”). As this formulation suggests, “intent

and motive are critical” to application of the malice exception

under Maryland law. Lee, 863 A.2d at 311. The malice exception

thus differs significantly from the familiar federal qualified

immunity standard under 42 U.S.C. § 1983, asking not whether an

official’s conduct was objectively unreasonable, but instead

whether the official actually and subjectively intended to do

wrong or harm. See Newell, 967 A.2d at 763; Shoemaker v. Smith,

725 A.2d 549, 557–59 (Md. 1999) (contrasting § 1983 and state-

law malice standards). That is a high bar, as Maryland’s courts

have emphasized, requiring more than “merely reckless or wanton

conduct,” Shoemaker, 725 A.2d at 560–61, 3 and satisfied on a

3
As the Maryland Court of Appeals has explained, “reckless
or wanton conduct” is covered by a different statutory exception
to the MTCA state-official immunity for “gross negligence.”
Shoemaker, 725 A.2d at 561. At no point during this litigation
has Marks relied on the gross-negligence exception, and we thus
(Continued)
13
showing that an official acted with an “evil motive” to

“deliberately and willfully injure” a plaintiff, Thacker v. City

of Hyattsville, 762 A.2d 172, 189 (Md. Ct. Spec. App. 2000).

As the district court explained, this wrongful motive,

which is “seldom admitted,” need not be proven by direct

evidence under Maryland law, and is more commonly “inferred from

acts and circumstantial evidence.” But as the district court

also recognized, Maryland case law makes clear that inferring §

5-522(b) malice from circumstantial evidence can be especially

difficult in the commercial context, where behavior that might

be consistent with an intent to harm or some other improper

motive is often at least equally consistent with permissible

financial self-interest. See Postelle v. McWhite, 694 A.2d 529,

534 (Md. Ct. Spec. App. 1997) (inferring malice in a commercial

setting “particularly difficult because of the inherently

competitive and aggressive nature of the business environment

and the necessity to discern that conduct is motivated by malice

rather than the result of a legitimate commercial controversy”);

cf. Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 626–28 (4th

Cir. 2008) (in securities fraud case where legitimate business

do not consider whether Marks’s complaint could be construed to
allege the requisite “utter[] indifferen[ce]” to the rights of
others, Newell, 967 A.2d at 764 (quotation marks and citations
omitted), under that exception.

14
motivations could explain facts alleged in complaint, plaintiffs

have “difficult task” of establishing intent through

circumstantial allegations). That is not to say that malice can

never be inferred circumstantially in a commercial setting. But

there must be more to support the inference than the allegation

that a plaintiff has suffered economic injury as a result of

actions by a state official that advance the economic interests

of his or her state employer, because allegations as consistent

with the regular course of commercial dealings as they are with

malicious intent do not, on their own, “nudge[] [a claim] across

the line from conceivable to plausible.” Twombly, 550 U.S. at

570; see also Postelle, 694 A.2d 534–36; New Summit Assocs. L.P.

v. Nistle, 533 A.2d 1350, 1357 (Md. Ct. Spec. App. 1987).

This is where Marks’s complaint falls critically short.

Marks’s theory appears to be that Dann proposed and structured

the MVF Transaction not for the purpose of benefitting his

employer economically, but instead for the purpose of causing

harm to Marks. 4 But as support, Marks’s complaint offers only

4
As noted earlier, “malice” under § 5-522(b) is not limited
to an affirmative intent to harm, but also may take other forms,
such as “knowing and deliberate wrongdoing” or “fraud.” See
Barbre, 935 A.2d at 714. Marks rests, however, on specific
intent to injure, and does not argue, for instance, that his
complaint can be read to allege that Dann intended to defraud
Marks, or that Dann engaged in knowing and deliberate wrongdoing
by assisting Maxtena in wrongfully taking shares that he knew
belonged to Marks. In this case, that is a wise concession:
(Continued)
15
the allegation that he did indeed suffer economic injury as a

result of Dann’s commercial activities. There is nothing in the

complaint from which we could infer, even circumstantially, that

Dann’s conduct was driven by something other than ordinary

economic concerns – an effort, perhaps overzealous, to get a

good deal for the MVF.

First, most of the complaint’s allegations regarding intent

are directed not at Dann but at the Maxtena board, describing

the board’s desire to harm Marks. The few allegations bearing

directly on Dann’s intent identify only commercial motivations,

not a malicious intent to injure. Marks alleges, for instance,

that “Dann was able to secure a substantial ownership interest

in Maxtena for the MVF at an exceptionally low price,” and that

to do so he “played on the conflict of interest of [the Maxtena

board] to the detriment of Maxtena and Marks.” But under

Maryland law, there is nothing malicious about Dann’s allegedly

sharp-elbowed attempt to secure a better deal for his employer.

Marks’s complaint does not allege fraud at all, and the
transaction documentation provided by Marks expressly assumes
that Marks had no legal entitlement to any shares in the
company. But with proper support and stated with the requisite
particularity under Rule 9 of the Federal Rules of Civil
Procedure, plausible allegations of such fraud or deliberate
wrongdoing could meet the malice standard under Maryland law.
See Manders v. Brown, 643 A.2d 931, 943 (Md. Ct. Spec. App.
1994) (“corrupt or fraudulent motive” constitutes malice).

16
“A mere desire to realize commercial gain at the expense of

another does not, without more, reach the requisite mental state

for actual malice.” New Summit Assocs., 533 A.2d at 1357.

To support these insufficient allegations Marks provides

just one piece of direct evidence purported to show the

requisite malice: a series of emails in which Dann suggested

that structuring the transaction as an equity investment might

“facilitate resolution of the rogue shareholder issue.” Like

the district court, we do not think that an awareness of the

Maxtena litigation or interest in its settlement demonstrates

that Dann was motivated by anything other than a desire to

protect the MVF’s investment in Maxtena. Nor do we believe that

Dann’s characterization of Marks as a “rogue shareholder,” read

in context, is anything more than a factual description of

Marks’s status in the ongoing Maxtena litigation. Even giving

Marks the benefit of the doubt, as we must, this stray reference

alone is not enough to create a plausible inference of personal

animus.

Second, and equally important, the complaint lacks any

circumstantial evidence of malice. In the commercial context,

economically pointless or gratuitous conduct by a state official

may give rise to an inference of malice under the MTCA, because

it suggests that the official was motivated by something other

than the state’s financial interests. See Postelle, 694 A.2d at

17
534–36. But here, there is no allegation or indication that

Dann sought or agreed to terms unrelated to the economics of the

MVF Transaction. Nor has Marks alleged, for instance, that Dann

agreed to terms that are out of the ordinary for transactions of

this type; or that his stance in the negotiations, as detailed

above, was inconsistent with the MVF’s commercial interests; or

that Dann conceded more than was necessary to complete the

transaction. Whatever may be said about whether the Maxtena

board drove an appropriately hard bargain or improperly focused

on the employee stock options pool during negotiations, Dann can

hardly be faulted for failing to insist that the MVF pay a

higher price for its interest in Maxtena than Maxtena required.

In short, there is nothing in Marks’s complaint that would allow

us to “discern” from the circumstances “conduct [] motivated by

malice rather than the result of a legitimate commercial

controversy.” Id. at 534.

2.

For similar reasons, we reject Marks’s alternative argument

that Dann’s actions fall within § 5-522(b)’s exception for

conduct “outside the scope” of an official’s public duties.

Under the MTCA, conduct is outside the scope of public duties if

it is undertaken for reasons of personal ambition or

unauthorized by the state employer. See Sawyer v. Humphries,

587 A.2d 467, 470–71 (Md. 1991) (scope-of-authority exception

18
coterminous with common law of respondeat superior). As to

personal ambition, as discussed above, the complaint offers no

facts from which we could infer that Dann was acting in his own

self-interest rather than in an effort to advance the economic

interests of his state employer, the MVF. Indeed, the complaint

itself insists that Dann secured an extremely advantageous

bargain for the MVF; by all accounts, Dann did quite well by his

employer. And without belaboring the point, we note that the

transaction documentation provided by Marks, deemed integral to

his complaint, establishes that Dann served on the Maxtena board

as the MVF’s representative and not for his personal benefit.

Marks’s chief contention seems to be that intentional torts

such as breach of fiduciary duty by definition cannot be

“authorized” by a state employer. In this regard, he is simply

mistaken. It is clear that the MTCA, unlike Maryland common

law, extends state-official immunity to intentional as well as

negligent torts. See Lee, 863 A.2d at 310 (“[W]e hold that the

immunity under the [MTCA], if otherwise applicable, encompasses

constitutional torts and intentional torts.”). We cannot adopt

a reading of the scope-of-immunity exception that would

effectively swallow that rule.

As we have explained, the most that can be inferred from

Marks’s complaint is that Dann was overzealous in his attempts

to secure a good deal for his employer, not that he advanced an

19
agenda to harm Marks or to derive some personal benefit. We do

not decide whether Dann’s actions in this regard were tortious,

even intentionally so, because the malice and scope-of-

employment exceptions to the MTCA require significantly more

before a state official may be held personally liable. See Lee,

863 A.2d at 309–10. We hold only that this is the ordinary, not

the exceptional, case under the MTCA, in which broad state-

official immunity protects Dann from suit in his personal

capacity.

III.

Marks contends that certain additional allegations and

documents, not presented with his original complaint, would

allow him to show Dann’s personal animus toward him, and thus to

meet the “malice” standard under the MTCA. Marks did not seek

leave in the district court to amend his complaint to include

these materials. Instead, without explanation, he provided

those new facts and allegations – along with transcripts of

Dann’s deposition in the Maxtena litigation, all of which were

available to him when he first filed his complaint – with his

brief in opposition to Dann’s motion to dismiss. The district

20
court properly deemed these matters outside the complaint and

refused to consider them as part of its Rule 12(b)(6) analysis. 5

Though under no obligation to do so, the district court

went on to review the additional allegations and deposition

excerpts. The court concluded that even the new materials did

not give rise to a plausible inference of malice, and thus that

there was no basis to invite Marks to amend his complaint. Cf.

Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602–03

(4th Cir. 2010) (a district court may deny leave to amend if

amendment would be futile).

Although he never moved for leave to amend in the district

court, Marks now argues that the district court erred by

refusing to invite an amendment. But a district court does not

abuse its discretion by declining to grant a motion that was

never made. See Drager v. PLIVA USA, Inc., 741 F.3d 470, 474–75

(4th Cir. 2014); see also Cozzarelli, 549 F.3d at 630–31

(district court did not abuse discretion by denying motion for

leave to amend that was never properly made). The district

court’s conscientious review of Marks’s proffered materials,

even in the absence of a motion to amend, does not provide a

5
To the extent Marks argues otherwise, suggesting that the
district court improperly converted Dann’s motion to dismiss
into one for summary judgment under Rule 56 of the Federal Rules
of Civil Procedure, he is mistaken. The district court could
not have been clearer in this respect.

21
justification for appellate second-guessing. Accordingly, we do

not consider the merits of the district court’s futility

determination, holding only that the court did not abuse its

discretion by failing to provide for amendment in the absence of

a motion to amend and in dismissing Marks’s claims against Dann

with prejudice.

IV.

For the reasons stated above we affirm the district court’s

dismissal of Counts II and III of the complaint.

AFFIRMED

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2771863. Public record. Not legal advice.