                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1671



SPACE TECHNOLOGY DEVELOPMENT CORPORATION;
EARTH    SEARCH    SCIENCES, INCORPORATED;
ACCUPROBE, INCORPORATED,

                                             Plaintiffs - Appellants,

           versus


THE BOEING COMPANY,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-05-411-1)


Argued:   September 19, 2006             Decided:    December 12, 2006


Before MICHAEL and GREGORY, Circuit Judges, and Thomas E. JOHNSTON,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Johnston wrote the opinion,
in which Judge Michael and Judge Gregory joined.


ARGUED: Jan Ingham Berlage, BALLARD, SPAHR, ANDREWS & INGERSOLL,
L.L.P., Baltimore, Maryland, for Appellants. Amy Berman Jackson,
TROUT CACHERIS, P.L.L.C., Washington, D.C., for Appellee.       ON
BRIEF: Constantinos George Panagopoulos, BALLARD, SPAHR, ANDREWS &
INGERSOLL, L.L.P., Washington, D.C., for Appellants. John Thorpe
Richards, Jr., TROUT CACHERIS, P.L.L.C., Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
JOHNSTON, District Judge:

       Appellants, Space Technology Development Corporation (“STDC”),

Earth    Search      Sciences,     Inc.    (“ESSI”),   and    Accuprobe,    Inc.

(“Accuprobe”), appeal the district court’s dismissal of their

breach of contract claim and breach of covenant of good faith and

fair dealing claim against Defendant Appellee The Boeing Company

(“Boeing”).     For the reasons discussed below, the district court’s

ruling is affirmed.



                                          I.

       STDC and ESSI began to negotiate a joint venture with Boeing

for the completion, launch, and deployment of a Naval EarthMap

Observer Satellite (“NEMO”) in October 1999.                 NEMO contained an

onboard hyperspectral imaging system that would produce imagery

data    for   sale    to   third   parties     (“Project”).     Following    the

negotiations, Boeing conducted due diligence on the Project at the

U.S. Naval Research Laboratories where NEMO was being constructed.

       On April 3, 2000, STDC, ESSI, and Boeing executed a document

that contained two sections, one entitled “Nonbinding Provisions”

and the other entitled “Binding Provisions” (“Letter of Intent”).

The Binding Provisions of the Letter of Intent provided, among

other things, that Boeing would “lend $1 million to STDC at the

execution of this Letter and the loan agreement”, “negotiate in

good faith to arrive at a mutually acceptable LLC Agreement and


                                          3
other key contracts contemplated in this Letter”, “[o]n request of

ESSI . . . provide reasonable assistance in the negotiation of the

Navy Contract and other contracts with respect to the Project”, and

work with ESSI and STDC to “use all reasonable efforts to assist

the LLC in raising the additional equity and debt capital from

third parties required to complete the capitalization of the LLC.”1

(J.A. 18.)

     The Binding Provisions of the Letter of Intent also contained

three termination provisions.   These three provisions governed the

means by which the parties could potentially terminate their

binding obligations under the Letter of Intent.    First, Paragraph

J(I) of the Binding Provisions stated that the parties could

terminate by mutual written consent.      Second, under Paragraph

J(ii), either party could terminate “at any time prior to May 1,

2000, if the results of its due diligence investigation [were] not

reasonably satisfactory to it.”   (J.A. 19.)   Finally, either party

could terminate pursuant to Paragraph J(iii) by giving written

notice “to the other party if the Closing [had] not occurred on or

before August 1, 2000, provided, however, that the termination of

the Binding Provisions shall not affect the liability of a party




     1
      Several clauses of the Nonbinding Provisions discussed how
the parties agreed that “ESSI will cause STDC to form a limited
liability company (“LLC”)” for purposes of furthering the joint
venture. (J.A. 14.) Appellants’ complaint does not allege that
the LLC was ever formed.

                                  4
for   breach    of    any   of   the   Binding   Provisions   prior   to   the

termination.”        Id.

      On April 19, 2000, Boeing informed STDC that it intended to

abandon the Project, and two days later, sent STDC and ESSI a

letter that confirmed Boeing’s intent to terminate (“April 21

Letter”).      The April 21 Letter stated, in pertinent part, “Boeing

has decided that it has no further wish to become an investor in

NEMO or any joint venture related to that project.”           (J.A. 21.)    It

further provided that:

      The reason for this decision has nothing to do with our
      opinion of the viability of the project. Boeing has a
      limited capacity to absorb new business projects like
      this one. This project is sufficiently removed from our
      core business that it would take a significant amount of
      time to evaluate the business case for NEMO.         Our
      management has concluded that we are too occupied with
      other such activities to be able to pursue this one,
      especially in view of the Navy’s requirement for a fast
      decision.

Id.

      Approximately five years later, Appellants filed suit against

Boeing. Subsequently, Boeing filed a motion to dismiss for failure

to state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6).              The district court




                                        5
granted Boeing’s motion to dismiss on both claims,2 and Appellants

filed this appeal.



                                        II.

     This Court reviews the dismissal of an action under Rule

12(b)(6) de novo.         Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.

2002).     “A Rule 12(b)(6) motion should only be granted if, after

accepting all well-pleaded allegations in the plaintiff's complaint

as true, it appears certain that the plaintiff cannot prove any set

of facts in support of his claim entitling him to relief.”            Migdal

v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325 (4th Cir.

2001).   This Court must also accept as true the facts set forth in

the exhibits attached to the complaint. See Fed. R. Civ. P. 10(c);

Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d

175, 180 (4th Cir. 2000) (examining a lease attached to complaint).

However,    the   Court    need   not    accept   as   true   conclusions   or

inferences from the complaint that are contradicted by the attached

exhibits. See Fayetteville Investors v. Commercial Builders, Inc.,


     2
      Neither party discussed Count Two of the complaint, Breach of
the Covenant of Good Faith and Fair Dealing, in their brief.
Below, Boeing argued that when parties enter into an agreement, “an
implied covenant of good faith and fair dealing is inapplicable to
those rights.” Riggs Nat’l Bank v. Linch, 36 F.3d 370, 373 (4th
Cir. 1994); Ward’s Equip., Inc. v. New Holland N. Am., Inc., (Va.
1997). Appellants responded that Count Two was “duplicative of the
breach of contract claim.” (J.A. 89.) Accordingly, the district
court’s judgment is affirmed with respect to Count Two of the
complaint, and the Court will only address Count One, Breach of
Contract.

                                        6
936 F.2d 1462, 1465 (4th Cir. 1991) (“In the event of conflict

between the bare allegations of the complaint and any exhibit

attached pursuant to Rule 10(c) . . . the exhibit prevails.”).                    As

an important note, we would like to emphasize the rule that in a

12(b)(6) motion, this Court will only consider that which is

contained in the complaint, attached as an exhibit pursuant to Rule

10(c),   a   matter    of    public     record,   or   a   fact    that   has   been

judicially noted,3 and will not consider anything else.4

     Because    this        is    a   contract    claim    based    on    diversity

jurisdiction, Virginia law applies. See Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938).              Under Virginia law, “when the terms of a

contract are clear and unambiguous, a court is required to construe

the terms according to their plain meaning.” Golding v. Floyd, 539

S.E.2d 735, 736 (Va. 2001).           In doing so, a document’s label is not

dispositive, rather it is the parties’ intent to be bound that is

the salient issue.      Tilley v. Jessee, 789 F.2d 1074, 1075 (4th Cir.

1986) (true intent of the parties, rather than labels attached to

the agreement control the characterization of the obligation);

Donnelly v. Donatelli & Klien, Inc., 519 S.E.2d 133, 138 (Va. 1999)

     3
      See Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004)
(citing Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986)).
     4
      The parties reference a Declaration of Dr. John Peel III In
Opposition of Defendant’s Motion to Dismiss and a copy of an
unsigned loan agreement, both of which were attached to Appellants’
Memorandum In Opposition To Motion To Dismiss.       Because these
exhibits were not attached to the complaint, this Court will not
consider them. (J.A. 60-70.)

                                          7
(labels are not controlling). If an agreement, as presented in the

complaint, reflects an unambiguous intent to be bound, then a party

will be bound to its obligations.       See Beazer Homes Corp. v.

VMIF/Anden Southbridge Venture, 235 F. Supp. 2d 485, 490 (E.D. Va.

2002).     Additionally,“a condition precedent exists where ‘the

contract is made in form, but does not become operative as a

contract until some future specified act is performed . . . .’”

Hammond v. Pac. Mut. Life Ins. Co., 159 F. Supp. 2d 249, 254 (E.D.

Va. 2001) (citation omitted).   If the condition precedent does not

occur, then the defendant cannot be held liable for failure to

perform the contract.     See, e.g., Forrest Creek Assocs. Ltd. v.

McLean Sav. & Loan Ass’n, 831 F.2d 1238, 1241 (4th Cir. 1987).




                                III.

       In this case, the parties clearly intended to be bound by the

paragraphs contained in the Binding Provisions. This is evident by

the language in the paragraph preceding the Binding Provisions,

which states “[u]pon execution by ESSI and Boeing of this Letter .

. . the following lettered paragraphs . . . will constitute the

legally binding and enforceable agreement of ESSI/STDC and Boeing.”

(J.A. 17.)    See Tilley, 789 F.2d at 1075; Donnelly, 519 S.E.2d at

138.   Reading the complaint and Letter of Intent in the light most

favorable to Appellants, the Court must first decide Boeing’s



                                  8
obligations under the Binding Provisions and when those obligations

required performance. Then the Court must determine whether Boeing

was   legally   permitted    to    terminate   its      obligations    prior    to

performance.

      Appellants argue that Boeing breached the Letter of Intent by

its (1) failure to loan interim financing in the amount of $1

million; (2) failure to negotiate in good faith to arrive at a

mutually     acceptable   LLC     Agreement;   (3)      failure   to   use     all

reasonable efforts to assist the LLC in raising the additional

equity and debt capital; and (4) failure to provide reasonable

assistance in the negotiation of the Navy Contract and other

contracts with respect to the Project.

      Appellants have failed to state a claim for breach of contract

under any of these provisions.             With regard to the $1 million

interim financing, the complaint neither alleges that there was

ever a valid loan agreement, nor was a valid loan agreement

attached to it as an exhibit.        Looking at the plain meaning of the

Letter of Intent, the obligation to loan the $1 million would be

triggered “at the execution of this Letter and the loan agreement.”

(J.A. 18.)    Based on that language, the two documents needed to be

executed before Boeing could be liable for breach of contract.

Forrest    Creek   Assocs.   Ltd.,   831    F.2d   at    1241.    Furthermore,

Appellants needed to allege such facts in their complaint, and they

did not. Accordingly, because there was no loan agreement prior to

                                       9
April 21, 2000, there was no obligation on Boeing’s part to provide

the interim financing of $1 million.

     Next, Boeing’s obligation to negotiate in good faith and

arrive at an acceptable LLC Agreement is an “agreement to agree”

that is unenforceable under Virginia law.   See Beazer Homes Corp.,

235 F. Supp. 2d at 488, 490 (holding that a clause that required

the parties to “negotiate in good faith” was an agreement to

negotiate at some point in the future and unenforceable under

Virginia law). Therefore, there can be no breach of contract claim

under this paragraph.

     Additionally, the plain text of the Letter of Intent required

that there be an LLC in existence in order to trigger Boeing’s

obligation to use reasonable efforts to assist the LLC in raising

additional equity and debt capital.    Golding, 539 S.E.2d at 736.

The complaint does not allege that there was an LLC in existence

prior to Boeing’s termination.   Therefore, as of April 21, 2000,

Boeing was under no obligation to follow through on its obligation

to use reasonable efforts to assist the LLC.

     Finally, Appellants argue that Boeing was obligated to provide

reasonable assistance in the negotiation of the Navy Contract and

other contracts with respect to the Project.   Under the plain text

of the Letter of Intent, Boeing’s obligation was to be triggered by

the “request of ESSI.”   (J.A. 18.)   The complaint does not allege

that ESSI requested reasonable assistance, rather it only alleges

                                 10
that “[a]fter sending the April 21 Letter, [Boeing] failed to

comply with any of its obligations under the [Letter of Intent] .

. . .”     (J.A. 8.)   As discussed below, following the April 21

Letter, Boeing was under no obligation to perform.       Furthermore,

Boeing was obligated to negotiate these contracts on behalf of the

LLC.     Because the LLC was not formed, Boeing could not have

breached its obligation to provide reasonable assistance.

       Thus, there were several acts that needed to take place from

April 3 to April 21 before Boeing would have been obligated to

perform within that time period.       Because none of those acts took

place, Boeing did not breach the Letter of Intent before April 21.

       Having found that prior to the April 21 Letter, Boeing had not

breached its obligations to Appellants, this Court agrees with the

district court when it ruled that the April 21 Letter terminated

Boeing’s future obligations.       The April 21 Letter represented

Boeing exercising its ability to terminate, but remain liable for

damages, at any time prior to August 1, 2000 if the Closing had not

yet taken place.    Boeing exercised that right to terminate, and as

discussed above, Appellants cannot show any breach that would

render Boeing liable for damages under the Letter of Intent.




                                  11
                                IV.

     Accordingly,   the   district    court’s   ruling   to   dismiss

Appellants’ complaint for failure to state a claim upon which

relief can be granted is affirmed.

                                                              AFFIRMED




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