                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-2647


                           SENIOR SETTLEMENTS, LLC,

                                                     Appellant

                                          v.

         GROWTH TRUST FUND; TRUSTEES OF THE STEINMETZ
                       GROWTH TRUST FUND;
    ABRAHAM WEINGARTEN; FAY WEINGARTEN; MICHAEL STEINMETZ;
         LEAH COHN, individually and jointly; BERNAT STEINMETZ,

                                                     Appellees



                     Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 1-05-cv-00777)
                     District Judge: Honorable Jerome B. Simandle


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 8, 2010


                Before: AMBRO, SMITH and MICHEL,* Circuit Judges


                                (Filed April 8, 2010)




      *
       Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
                                          OPINION


AMBRO, Circuit Judge

       This appeal involves a contract dispute. Senior Settlements, LLC alleges that it

entered into valid contracts with the Growth Trust Fund to purchase the beneficial rights

to the proceeds of various life insurance policies. The District Court granted the motion

of the appellees (who include the Growth Trust Fund and its Trustees) for summary

judgment, concluding that the parties never agreed to such transactions. The District

Court later denied Senior Settlements’ motion for reconsideration.1

       On appeal, Senior Settlements argues that the parties entered into valid and

enforceable contracts and that the Trustees attempted to rescind these contracts in bad

faith. In the alternative, they argue that there are genuine issues of material fact that

preclude summary judgment. We disagree, and therefore affirm.

                                              I.

       Senior Settlements is a “life settlement” company. In this capacity, it is “in the

business of purchasing life insurance policies from the owners of such policies.” App.

182. As Senior Settlements explains, “Entering into a Life Insurance Policy and Sale

Agreement with Senior Settlements . . . enables you to sell the life insurance policy which

you own . . . for cash at a discount from its face value.” Id. During the remainder of the

       1
       The District Court also denied Senior Settlements’ motion for summary
judgment.

                                               2
original policy owner’s life, Senior Settlements (or its designee) pays the premiums on

the policy. Once the initial owner passes away, Senior Settlements collects the proceeds

from the insurance policy.

       The policies at issue in this appeal were initially owned by Bernat Steinmetz. In

January 1992, Steinmetz created the Growth Trust Fund and placed his policies in this

trust. In June 2004, Senior Settlements approached the Trust about purchasing the

proceeds from these policies. At issue on appeal is whether the parties entered into valid

and enforceable contracts.

       Each of Senior Settlements’ purported offers included the following

“Performance” provision:

              This Agreement has been executed first by the Purchaser
              [Senior Settlements] as an offer to purchase the Policy
              hereunder, which offer shall be open for acceptance by Seller
              until 5:00 p.m. on 7/23/04, at which time the offer shall be
              deemed to be withdrawn unless Purchaser has received a fully
              executed counterpart to this Agreement from Seller. Time is
              of the essence in this Agreement.

Id. at 413 (emphasis added). The purported offers further provided that “[n]o

amendment, modification, termination, or waiver of any provision of this Agreement shall

be effective unless the same shall be in writing and signed by Seller and Purchaser.” Id.

Senior Settlements itself never signed the purported offers.2 Furthermore, the Trustees

       2
        Although both parties focus on this fact, we only note it in passing. “A party, who
has originally insisted that both parties sign a document before a mutually binding
agreement may come into existence, may dispense with that requirement.” Roadway
Express, Inc. v. Gen. Teamsters, Chauffeurs & Helpers Union, Local 249, 330 F.2d 859,
863-64 (3d Cir. 1964). In this case, we need not reach the issue of whether Senior

                                             3
did not attempt to accept them until August 10, 2004—over two weeks after their stated

deadline.3 Regardless, in September, the policies’ designation of ownership was changed

to Senior Settlements.4 At that time, Senior Settlements did not notify the Trustees of this

change in ownership or make any payments to them. A dispute then arose between the

parties over whether they had entered into valid and enforceable contracts.

       Due to the “Performance” provision of the purported offers, the appellees expected

to receive signed copies of the final agreements from Senior Settlements before the

transaction was finalized. None was ever sent. On October 21, 2004, Bernat Steinmetz

wrote a letter to Senior Settlements, directing it not to proceed until he received signed

copies of the agreements. However, Steinmetz was not a party to the contracts and had

no authority to speak for the Trust.

       Senior Settlements responded to Steinmetz that same day with two letters. In the

first letter, it explained that “[i]n order . . . to comply with [Steinmetz’s] request, [it]

need[ed] [his] signature notarized.” Id. at 249. They further noted that “there appear[ed]




Settlements “dispensed” with the requirement that the agreements be signed.
       3
         Indeed, the District Court correctly notes, “There is no dispute that the Trustees
did not agree to the purchase of the policies within the time limit in the purported offer.”
App. 4-5. The dispute, instead, is over whether Senior Settlements either waived the
deadline or accepted the Trustees’ counteroffer.
       4
        This was permitted because the Trustees had signed change-of-beneficiary and
ownership forms in September as a condition of entering into its agreements with Senior
Settlements. These actions were at the direct prompting of the relevant insurance
company (American General), not Senior Settlements.

                                                4
to be a discrepancy with the agreements you already signed with us.” Id.5 In the second

letter, Senior Settlements reassured Steinmetz that they were “working diligently in order

to complete this transaction in a timely and efficient manner.” Id. at 254. They also

apologized that “this particular transaction ha[d] taken considerably longer” than was

“typical,” and thanked Steinmetz for his “patience and perseverance.” Id. The letter

concluded, “I can assure you that we are doing everything possible to expedite the

transaction[,] and we look forward to a successful conclusion in the very near future.” Id.

       On October 22, 2004, Faye Weingarten (a Trustee) sent a letter to Senior

Settlements, again instructing it not to proceed with the transaction until the Trustees

received copies of the signed agreements. Senior Settlements did not respond to this

letter. On October 28, 2004, Michael Steinmetz (also a Trustee) faxed and mailed a

withdrawal letter to Senior Settlements, noting that “the Trustees and the Insured Bernat

Steinmetz hereby withdraw all of the Sale Offers for all of the Steinmetz policies,

effective immediately.” Id. at 265. By then, unbeknownst to the Trustees, Senior

Settlements had already withdrawn money from the policies.6

       In the end, Senior Settlements attempted to tender payment to the Trustees on

November 1, 2004. The Trustees returned the checks and informed Senior Settlements


       5
           Senior Settlements did not specify the nature of this “discrepancy.”
       6
        In its hearing before the District Court, Senior Settlements’ counsel admitted as
much. The District Court asked, “Did the Trustees know any time before October 28th
that Senior Settlements had taken money out of [the] policies?” App. 757. Counsel
responded, “They would not have known it, nor would they have any reason to know it. I
don’t believe there is any evidence that they knew that.” Id. at 757-58.

                                               5
that any future checks would be similarly rejected. Following a volley of letters, Senior

Settlements brought the current action.

       While Senior Settlements initially filed an action for declaratory judgment in the

Superior Court of New Jersey, the appellees removed the case to federal court. The

parties eventually filed cross-motions for summary judgment. The District Court granted

the appellees’ motion. The Court concluded,

       [I]f the New Jersey Supreme Court were faced with the issue that faces this
       Court today, it would find that there was no contract when Defendants
       attempted to accept an expired offer and (1) Plaintiffs, although beginning
       to perform, did not make their conduct known to Defendants; (2)
       Defendants had no reason, by all counts, to know that Plaintiffs were
       performing; and (3) Defendants received no benefit of Plaintiffs’ partial
       performance prior to terminating their counteroffer.

Id. at 16-17. Senior Settlements filed a timely motion for reconsideration, which the

District Court denied. Senior Settlements then filed this timely appeal.

                                              II.

       The District Court had diversity jurisdiction under 28 U.S.C. § 1332.7 We have

jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over an order granting summary judgment. See

Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). In determining whether an order

for summary judgment was entered correctly, we apply the same test used by the District

Court. Summary judgment is appropriate when, drawing all reasonable inferences in

favor of the nonmoving party, “there is no genuine issue as to any material fact and that

       7
           On appeal, neither party disputes that New Jersey law governs this dispute.

                                               6
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).8

                                               III.

       Under New Jersey law, “[a] contract arises from offer and acceptance, and must be

sufficiently definite ‘that the performance to be rendered by each party can be ascertained

with reasonable certainty.’” Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J.

1992) (quoting Borough of W. Caldwell v. Borough of Caldwell, 138 A.2d 402, 410 (N.J.

1958)). However, “a contract does not come into being unless there [is] a manifestation

of mutual assent by the parties to the same terms.” Johnson & Johnson v. Charmley Drug

Co., 95 A.2d 391, 397 (N.J. 1953). “[W]hile the manifestation of mutual assent is usually

had by an offer and an acceptance either in words or by conduct, it is elementary that

there can be no operative acceptance by acts or conduct unless the offeree’s assent to the

offer according to its terms is thereby unequivocally shown.” Id. (emphasis added). As

such, although “[c]onduct may take the place of written or spoken words in the formation

of contracts[,] silence does not ordinarily serve as an acceptance of an offer.” Id. In the

end, “[t]here . . . needs [to] be an agreement—a ‘meeting of the minds’ on the subject

matter . . . , or there is no legally enforceable obligation.” Id.

       For the following reasons, we hold that there was no agreement between Senior



       8
         “Generally, the denial of a motion for reconsideration is reviewed for an abuse of
discretion.” N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir.
1995). “Where a district court’s denial of a motion to reconsider is based upon the
interpretation of legal precepts, however, our review of the lower court’s decision is
plenary.” Id. “[T]o the extent that the district court’s order was based on a factual
conclusion, we review under a ‘clearly erroneous’ standard.” Id.

                                                7
Settlements and the Trust in this case. We therefore affirm.

                                               IV.

       The key contract term at issue here is the explicit deadline included by Senior

Settlements under each of the purported agreements’ “Performance” provision. To

repeat, this passage provided that the “offer shall be open for acceptance by Seller until

5:00 p.m. on 7/23/04.” App. 413. The provision later emphasized that “[t]ime is of the

essence in this Agreement.” 9 Id. We hold that, due to this explicit deadline, the offer was

not open when the Trustees attempted to accept it on August 10, 2004.

       “Just as the offeror is at liberty to make no offer at all, it is also at liberty to dictate

whatever terms it sees fit if it chooses to make an offer.” 1 Williston on Contracts § 5:5

(4th ed. 2009). Under New Jersey law, “[t]here is no question that an offeree must accept

an offer within the time specified in the offer . . . .” State v. Ernst & Young, LLP, 902

A.2d 338, 345 (N.J. Super. Ct. App. Div. 2006); see also Restatement (Second) of

Contracts § 41 cmt. a (1981) (“Just as the offer may prescribe the identity of the offeree

(§ 29) or the form of acceptance (§ 30), so it may prescribe a time limit for acceptance.



       9
        New Jersey courts have often noted the importance of such language. See, e.g.,
Paradiso v. Mazejy, 69 A.2d 15, 17 (N.J. 1949) (“‘[I]f it is stipulated that time is of the
essence, . . . prompt performance is essential . . . .’”) (quoting Reade v. McKenna, 134 A.
371, 372 (N.J. Ch. 1926)); Marioni v. 94 Broadway, Inc., 866 A.2d 208, 217 (N.J. Super.
Ct. App. Div. 2005) (“[I]f the contract itself provides a clear understanding that time is of
the essence, then it is well-settled that ‘prompt performance is essential . . . .’”) (quoting
Paradiso, 69 A.2d at 17); Tiedemann v. Cozine, 688 A.2d 1056, 1058 (N.J. Super. Ct.
App. Div. 1997) (“a finding that time was of the essence” required “a writing stating that
time was of the essence” and a determination “that the time allowed be reasonable and
specific”).

                                                8
Such a limitation must be complied with.”). Absent a waiver of the deadline by the

offeror, “[a]n offeree’s power of acceptance is terminated at the time specified in the

offer.” Restatement (Second) of Contracts § 41(1) (1981). Senior Settlements concedes

as much on appeal. See Appellant’s Br. 30 (“Senior Settlements recognizes the general

rule—relied upon by the District Court—that an offeree’s power of acceptance is usually

terminated by the temporal expiration of the offer.”). Since the putative agreements

stated that “[t]ime is of the essence” and the Trustees failed to execute the agreements by

the designated deadline, no contract was formed on August 10, 2004. Although Senior

Settlements is correct in arguing that an offeror may waive an explicit deadline by

assenting to late acceptance, such a waiver must have been communicated to the Trustees

(through either word or deed) for the waiver to bind them.

       Senior Settlements cites Synnex Corp. v. ADT Security Services, Inc., 928 A.2d 37

(N.J. Super. Ct. App. Div. 2007), for the argument that it waived the agreements’

deadlines by assenting to late acceptance. We conclude that Synnex is not on point.

There, an alarm company agreed to install an alarm system at a business’s warehouse.

After the system was installed, there was a burglary. The business brought suit. The

alarm company argued that it was not liable because the contract was never signed by

anyone in its home office, as per the contract’s explicit terms. The Court concluded that

there was still a valid and enforceable contract between the parties. Although the parties

did not abide by the contract’s explicit performance provision, the alarm company waived

this requirement by installing the alarm system and accepting payment for its goods and

                                             9
services. In other words, performance constituted waiver. The Court reasoned, “ADT’s

shipment and installation of the security system at the Synnex warehouse and subsequent

monitoring constituted an unequivocal acceptance of the contract.” Id. at 43. The Court

added, “Synnex’s receipt and payment for these goods and services reflected its

understanding that it had contracted with ADT in accordance with the terms of the ADT

form contract.” Id.

       Although there are similarities between Synnex and the current appeal, there are

also key differences. In this case, once the Trustees signed and returned the agreements,

they were greeted—not with an installed alarm system or some other unequivocal sign of

Senior Settlements’ assent—but with silence. Indeed, the record lacks any conclusive

evidence that Senior Settlements attempted to communicate directly to the Trustees its

unequivocal consent to late acceptance—at least prior to revocation.10 Furthermore, there

was no direct negotiation between the parties to extend the offer period and no attempt to

tender payment during this period. While it is true that Senior Settlements withdrew



       10
          Senior Settlements argues that its October 21, 2004, letter to Bernat Steinmetz
was such a direct communication. We disagree. First, this argument ignores that Senior
Settlements’ letter followed Steinmetz’s earlier instruction “not [to] proceed with any
Life Settlement until I receive a copy of my contract.” App. 247. This instruction was
reinforced a day later in a letter from Faye Weingarten (one of the Trustees).
Nevertheless, no copies of the agreements were ever sent to Steinmetz or to any of the
Trustees. Second, Senior Settlements’ argument also ignores that its letter was directed to
Bernat Steinmetz (who Senior Settlements itself notes “was not a party to the
Agreements,” Appellant’s Br. 11) rather than to the Trustees. Given this, Senior
Settlements cannot both rely on its communication with Steinmetz to support the validity
of their contract with the Trustees while also ignoring Steinmetz’s instructions “not [to]
proceed.”

                                            10
money from the policies, the Trustees were unaware of this activity—and Senior

Settlements’ counsel conceded as much before the District Court. In the end, no contract

was formed between the parties on August 10, 2004.

       At most, when the Trustees returned the signed documents to Senior Settlements

after the explicit deadline, these signed documents constituted a counteroffer. “An

expression of assent that modifies the substance of the tender, while it may be operative

as a counter-offer, is yet not an acceptance and does not consummate a contract.”

Johnson & Johnson, 95 A.2d at 397. In this case, the Trustees’ “expression of assent”

altered the sale’s explicit deadline—July 23, 2004—a deadline whose importance was

reinforced by language in the initial proposed agreements that emphasized that “time is of

the essence.” By returning the proposed agreements to Senior Settlements after the

deadline, the Trustees altered an essential contract term—the deadline itself. As noted

this constituted at most a counteroffer, one that Senior Settlements never accepted either

directly through communication or indirectly through its conduct.

       Senior Settlements never signed and returned the proposed agreements to the

Trustees. Furthermore, it never directly communicated its acceptance to the Trustees nor

did it communicate its assent through its conduct until it attempted to tender payment on

November 1, 2004.11 By then, however, the Trustees had already revoked their

       11
          Senior Settlements relies on a letter from one of the insurance companies
(American General) to the Trustees on September, 13, 2004, to argue that Senior
Settlements’ conduct created a valid and enforceable contract between the parties. This
letter pertained to problems with the Change of Ownership and Change of Beneficiary
forms that the Trustees had initially executed. American General noted that the Trustees

                                            11
counteroffer.12

                                    *   *    *   *   *

       For these reasons, we affirm the judgment of the District Court.




had previously “signed but not dated” a related form. App. 806. The letter also explained
that American General would be “unable to process” any change in ownership until the
“new owner . . . sign[ed] and date[d] the Change of Beneficiary form.” Id. On
September 21, 2004, the Trustees again signed and returned the required forms. At the
same time, they received no related communications from Senior Settlements. In the end,
we agree with the District Court that, by returning these forms to American General, the
Trustees had simply “executed all the necessary forms to facilitate the purchase of their
policies by Senior Settlements . . . , but that those executions communicated a
counteroffer to Senior Settlements that it never effectively accepted because it did not
inform Defendants, by words or deeds, of its acceptance.” Id. at 38.
       12
         The Trustees’ counteroffer was revoked by Michael Steinmetz in his October 28,
2004, letter—days before Senior Settlements attempted to tender payment to the Trustees.

                                            12
