                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 11-2339
                                  ________________

                              STEPHEN W. LEIBHOLZ,

                                                Appellant

                                           v.

                                  ROBERT J. HARIRI
                                  ________________

                      Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 2-05-cv-05148)
                   District Judge: Honorable Dickinson R. Debevoise
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 8, 2013

              Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges

                           (Opinion filed: January 15, 2013 )

                                  ________________

                                      OPINION
                                  ________________

AMBRO, Circuit Judge

      Stephen Leibholz appeals an order of the District Court granting summary

judgment in favor of Robert Hariri in this suit stemming from an alleged breach of

contract. We affirm.
       Because we write for the parties and in the shadow of the very thorough and well-

reasoned opinion of Judge Debevoise, we recite only those facts necessary to our

decision. In 2000, Hariri was looking for ways to generate revenue for his struggling bio-

tech company, Lifebank, Inc., when he was introduced to Leibholz, a businessman and

physicist involved in federal contracting. The two developed a professional relationship.

Leibholz suggested the creation of a non-profit organization related to Lifebank that

could seek federal funding unavailable to Lifebank, and assisted in the creation of that

organization. The two also discussed Lifebank‟s limited ability to pay Leibholz and the

possibility that Leibholz would provide consulting services for Lifebank in exchange for

stock or a stock swap with Leibholz‟s company. On September 29, 2000, Hariri wrote

Leibholz a letter that read:

       Dear Steve:

       As we have previously discussed, I have wanted to find a means for you to
       participate in LIFEBANK on an equity basis. In my mind the relationship we
       have developed is unique and should continue to be mutually rewarding for years
       to come. I see providing you with a stake in LIFEBANK as an incentive for
       further collaboration.
       Toward that end, I have come up with a package comprised of 20,000 shares of
       my personal stock which I pledge to distribute to you at the next annual meeting
       combined with 20,000 warrants to purchase common stock at $5.00/share,
       exercisable through December 31, 2005. . . .
       Obviously, there can be additional future incentive through stock options and
       warrants to reflect ongoing contributions.
       I look forward to working with you in the future.

App. at 118.

       Hariri did not transfer any stock at the next annual meeting. He and Leibholz

continued to have a relationship until early 2002 when they fell out of touch. Lifebank


                                             2
later merged with Celgene Inc., a pharmaceutical and biotech company. When Leibholz

learned about the merger in 2004, he sent Hariri a letter requesting “appropriate action”

on the September 29 letter. Hariri refused to remit the requested 40,000 shares, and

Leibholz brought this suit asserting claims for breach of contract, promissory estoppel,

equitable estoppel, common law fraud, securities fraud, and state RICO violations. The

basis of Leibholz‟s claims is that the September 29 letter either confirmed an existing oral

agreement or was an offer and acceptance that created an enforceable contract between

Hariri and himself entitling him to the Lifebank shares.

       The District Court dismissed the promissory estoppel and securities fraud claims

in 2006. It later granted summary judgment in favor of Hariri on the remainder of

Leibholz‟s claims, finding that the September 29 letter was too indefinite about the terms

of Leibholz‟s performance to be an enforceable contract. Leibholz appeals the District

Court‟s determination on the breach of contract, equitable estoppel, and common law

fraud claims.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 and we have

appellate jurisdiction under 28 U.S.C. § 1291. We review a district court‟s grant of

summary judgment de novo and apply the same test that court should have used. Post v.

St. Paul Travelers Ins. Co., 691 F.3d 500, 514 (3d Cir. 2012). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       Under the New Jersey law applicable in this case, “„[a] contract arises from offer

and acceptance, and must be sufficiently definite so that the performance to be rendered

                                             3
by each party can be ascertained with reasonable certainty.‟” Baer v. Chase, 392 F.3d

609, 618–19 (3d Cir. 2004) (quoting Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284

(N.J. 1992)). If the parties agree on the essential terms of a contract and express an intent

to be bound by those terms, courts will enforce that agreement, but generally a contract is

unenforceable if the parties failed to agree on one or more essential term(s). Id. at 619.

       The September 29 letter does not define the terms of Leibholz‟s performance, an

essential element. Leibholz argues that his performance can be inferred from the parties‟

discussions and behavior prior to September 29, 2000. Reviewing the record in a light

most favorable to Leibholz, there is no evidence that the parties agreed, among other

things on the nature, scope or duration of any of Leibholz‟s undertakings on behalf of

Lifebank, either prior to or after the letter.

       For these reasons and those given by Judge Debevoise, the District Court correctly

concluded that there was no enforceable contract because the performance to be rendered

by Leibholz in exchange for the remuneration listed in the September 29 letter cannot “be

ascertained with reasonable certainty.” Baer, 392 F.3d at 618–19. Leibholz‟s other

claims are premised on whether the September 29 letter was an agreement that Hariri

would compensate Leibholz. It was not, and summary judgment in favor of Hariri on

those claims was in order as well.

       We affirm.




                                                 4
