BLD-211                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 11-2059
                                       ___________

                                 ASSEM A. ABULKHAIR,
                                                 Appellant

                                             v.

                            CITIBANK AND ASSOCIATES
                        ____________________________________

                       On Appeal from the United States District Court
                                for the District of New Jersey
                                  (D.C. Civil No. 08-02548)
                        District Judge: Honorable Peter G. Sheridan
                        ____________________________________

                         Submitted for Possible Summary Action
                    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      June 16, 2011
          Before: SLOVITER, JORDAN AND GREENAWAY, JR., Circuit Judges

                               (Opinion filed: June 28, 2011)
                                        _________

                                         OPINION
                                         _________

PER CURIAM

          Assem A. Abulkhair appeals from an order of the District Court granting summary

judgment on his Equal Credit Opportunity Act (“ECOA”) and breach of contract claims.

Since no substantial question is presented by Abulkhair’s appeal, we will summarily

affirm.
                                             I.

       Abulkhair filed a pro se complaint against Citibank (South Dakota), N.A.

(“Citibank”)1 in the Superior Court of New Jersey, alleging that Citibank discriminated

against him by closing his credit card accounts because he is a Muslim. Specifically, he

asserted a breach of contract claim and a claim under the ECOA. Citibank removed the

action to the District Court after being served with the complaint, and moved to dismiss.

The District Court denied that motion and referred the case to a Magistrate Judge for

purposes of handling pretrial matters. See 28 U.S.C. § 636(b)(1)(A).

       Abulkhair moved for appointment of counsel, indicating that he sought assistance

in preparing an amended complaint. The Magistrate Judge denied that motion because

the relevant factors weighed against appointing counsel, but ultimately gave Abulkhair

permission to file a motion for leave to file an amended complaint. Abulkhair filed such

a motion, but the Magistrate Judge denied it on the basis that Abulkhair’s proposed

amendments were futile. Abulkhair unsuccessfully appealed that decision to the District

Court. He attempted to appeal to this Court, but we dismissed his appeal for lack of

jurisdiction.

       While Abulkhair’s motion for leave to amend was pending, the Magistrate Judge

resolved some discovery disputes. Primarily, Abulkhair sought to depose several of

Citibank’s current and former employees, but the Magistrate Judge ruled that he would

not be entitled to take oral depositions. Instead, she limited him to taking depositions by


                                             2
written questions. Abulkhair attempted to appeal that order directly to this Court, but

voluntarily withdrew his appeal after being notified of a potential jurisdictional defect.

       Citibank ultimately moved for summary judgment, arguing that Abulkhair’s

ECOA claim was time-barred and that both claims failed on their merits. In response,

Abulkhair predominantly argued that summary judgment was inappropriate because

discovery was incomplete. After hearing oral argument, the District Court granted

summary judgment to Citibank from the bench, ruling that (1) Abulkhair’s ECOA claim

was time-barred; (2) Abulkhair’s breach of contract claim failed because, under the

relevant contract, Citibank had the right to close his accounts and because, regardless,

there was no evidence that Citibank closed the accounts because of Abulkhair’s religion;

and (3) no additional discovery was necessary. The District Court entered summary

judgment in accordance with its oral opinion and Abulkhair timely appealed.

                                                  II.

       The District Court possessed jurisdiction over Abulkhair’s claims pursuant to 28

U.S.C. § 1331 & 1367.2 We have appellate jurisdiction under 28 U.S.C. § 1291. Our


       1
        Abulkhair improperly identified the defendant as “Citibank and Associates.”
       2
        Citibank removed Abulkhair’s complaint on the basis that the District Court
       possessed both federal question jurisdiction and diversity jurisdiction. Abulkhair
       moved to remand on the basis that diversity of citizenship was allegedly lacking.
       The District Court correctly denied that motion because, regardless of whether the
       parties are diverse, Abulkhair’s complaint raises a federal question under the
       ECOA and supplemental jurisdiction existed over his related breach of contract
       claim. Furthermore, the fact that Citibank has offices in New Jersey, a fact that
       Abulkhair emphasizes, is inconsequential for diversity purposes because a national
       banking association is considered a citizen of “the State designated in its articles
                                              3
review of an order granting summary judgment is plenary. Curley v. Klem, 298 F.3d

271, 276 (3d Cir. 2002). 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). In determining whether summary judgment is

appropriate, we must “view all evidence and draw all inferences in the light most

favorable to the non-moving party . . . .” Startzell v. City of Phila., 533 F.3d 183, 192 (3d

Cir. 2008). However, “we review the District Court’s refusal to delay its ruling on [a]

summary judgment motion under the deferential abuse of discretion standard.”

Renchenski v. Williams, 622 F.3d 315, 339 (3d Cir. 2010). Likewise, we review a

district court’s denial of a motion for leave to amend a complaint for abuse of discretion.

Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). We may summarily affirm if

no substantial question is presented by the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.

        A.    Summary Judgment

        The District Court properly granted summary judgment to Citibank because

Abulkhair’s ECOA claim is clearly time-barred and his breach of contract claim fails on

its merits. ECOA claims are generally governed by a two-year statute of limitations,

although in some cases a three year limitations period applies. See 15 U.S.C. § 1691e(f).

It is undisputed that the alleged ECOA violation in this case occurred in January 2003,



        of association as its main office.” Wachovia Bank v. Schmidt, 546 U.S. 303, 318
        (2006); see also 28 U.S.C. § 1348.
                                             4
when Citibank closed Abulkhair’s accounts, and that Abulkhair did not file his complaint

until over five years later, in March 2008. Furthermore, a January 29, 2003 letter that

Abulkhair sent to Citibank reflects his awareness that Citibank closed his accounts

around that time. Accordingly, the District Court correctly concluded that, regardless of

which limitations period applies, Abulkhair’s ECOA claim is time-barred.3 That the

District Court previously denied Citibank’s motion to dismiss the ECOA claim did not,

contrary to Abulkhair’s assertions, bar the District Court from later granting Citibank’s

motion for summary judgment given the different standards that govern those motions.

       The District Court’s grant of summary judgment on Abulkhair’s breach of contract

claim was also warranted. To succeed on that claim, Abulkhair must establish an

enforceable promise, a breach of that promise, and damages resulting from the breach.

See Guthmiller v. Deloitte & Touche, LLP, 699 N.W.2d 493, 498 (S.D. 2005).4 The

credit card agreement between Citibank and Abulkhair states that Citibank “may close


       3
         Abulkhair’s complaint primarily contends that Citibank discriminated against
       him based on his religion, but also references his ethnicity, suggesting that he
       claimed discrimination on that basis as well. But even if the complaint could have
       been read to include claims under 42 U.S.C. § 1981, and the New Jersey Law
       Against Discrimination, N.J. Stat. Ann. § 10:5-12(i)(1), any such claims would
       also have been time-barred. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
       369, 382-84 (2004) (four-year statute of limitations governs § 1981 claims based
       on amended version of § 1981, otherwise most analogous state limitations period
       governs); Montells v. Haynes, 627 A.2d 654, 660 (N.J. 1993) (two-year statute of
       limitations governs claims under New Jersey Law Against Discrimination).
       4
         South Dakota law applies to Abulkhair’s breach of contract claim since the
       relevant credit card agreement contains a choice of law provision to that effect.
       See Homa v. Am. Express Co., 558 F.3d 225, 227-28 (3d Cir. 2009) (New Jersey
       courts uphold contractual choice of law provisions unless doing so would violate
                                             5
[the account holder’s] account or suspend [his] account privileges at any time for any

reason without prior notice.” (Barnette Certification Ex. 1 at 13.) Accordingly, Citibank

was entitled to close Abulkhair’s accounts even if he was in full compliance with the

terms of the credit card agreement, as he contends he was.5

       Furthermore, there is simply no evidence in the record to substantiate Abulkhair’s

claim that Citibank closed his accounts because he is a Muslim. To the contrary, the

record reflects that Citibank closed Abulkhair’s accounts in light of “derogatory

information” on his credit report. (Barnette Certification ¶ 5.) The January 29, 2003

letter that Abulkhair sent to Citibank indicates that Abulkhair received notice of

Citibank’s decision in that regard, and suggests that he had experienced prior problems

with identity theft, which may have led to the adverse information on his credit report.

       Perhaps recognizing the absence of evidence in support of his claims, Abulkhair

opposed Citibank’s motion on the basis that summary judgment would be inappropriate

in light of his alleged need for further discovery. He primarily challenged the Magistrate



       New Jersey public policy).
       5
         Under South Dakota law, “[e]very contract contains an implied covenant of good
       faith and fair dealing which prohibits either contracting party from preventing or
       injuring the other party’s right to receive the agreed benefits of the contract.”
       Farm Credit Servs. of Am. v. Dougan, 704 N.W.2d 24, 27 (S.D. 2005) (quotations
       omitted and alteration in original). However, the “obligation of good faith does
       not vary the substantive terms of the bargain, . . . nor does it provide a remedy for
       an unpleasantly motivated act that is expressly permitted by contract.” Id. at 29
       (quotations omitted and alterations in original). Abulkhair therefore cannot
       circumvent the credit card agreement’s clear language by alleging a breach of the
       covenant. Regardless, there is no evidence in the record that would support his
       assertion the covenant was violated.
                                             6
Judge’s decision that he could not take oral depositions, but also argued that Citibank

never provided him with a copy of his deposition transcript, that Citibank had not fully

complied with his discovery requests, that the Magistrate Judge forced him to identify the

accounts at issue to Citibank, and that the Magistrate Judge unfairly limited the scope of

certain discovery he sought from Citibank – apparently evidence of other lawsuits against

Citibank alleging discrimination – to a one-year time period. The District Court

concluded that Abulkhair had already received “fair discovery” and that there was “no

reason for any further discovery in the case.” (Mar. 21, 2011 Hr’g Tr. 17-18.)

       A party opposing summary judgment on the basis that additional discovery is

warranted must “show[] by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).6 “Beyond the

procedural requirement of filing an affidavit, [the Rule] also requires that a party indicate

to the district court its need for discovery, what material facts it hopes to uncover and

why it has not previously discovered the information.” Radich v. Goode, 886 F.2d 1391,

1393-94 (3d Cir. 1989). Abulkhair’s failure to file an affidavit in accordance with Rule

56(d) might alone be a sufficient reason to approve the District Court’s decision. See id.

at 1394 (“This circuit generally requires that a party file a Rule 56(f) affidavit in order to

preserve the issue for appeal.”). However, leaving Abulkhair’s non-compliance aside in

an effort to avoid harsh application of procedural requirements given his pro se status, see

Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993), we find no abuse of discretion in the


                                               7
District Court’s conclusion that no additional discovery was warranted.

       Although the Magistrate Judge precluded Abulkhair from taking oral depositions,

Abulkhair could have taken depositions by written questions.7 While we understand that

oral depositions might have been preferable to him, Abulkhair still could have acquired

relevant information by taking advantage of that discovery tool. His failure to do so

makes it difficult to conclude that he should have been entitled to additional time for

discovery. We also do not see how additional discovery would have helped Abulkhair

either establish the elements of his breach of contract claim or overcome the fact that his

ECOA claim is time-barred. Having considered all of Abulkhair’s objections and the fact

that discovery in this relatively straightforward case appears to have proceeded for well

over a year, we find no abuse of discretion in the District Court’s conclusion that the

record was sufficiently developed for summary judgment purposes. See Dowling v. City

of Phila, 855 F.2d 136, 140-41 (3d Cir. 1988).


       6
         Rule 56(d) was formerly Rule 56(f).
       7
         In general, a party who fails to appeal a Magistrate Judge’s pretrial ruling to the
       District Court in accordance with Federal Rule of Civil Procedure 72(a), waives
       review of that ruling by this Court absent “exceptional circumstances.”
       Continental Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 254 (3d Cir.
       1998); see also Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008).
       Although Abulkhair never appealed the Magistrate’s discovery rulings to the
       District Court we think it is appropriate to discuss them on appeal because the
       District Court essentially addressed them in concluding that discovery proceeded
       fairly, Citibank never raised the issue of waiver, and the decisions are necessarily
       intertwined with the District Court’s order granting summary judgment. See
       Tabron, 6 F.3d at 153 n.2. Abulkhair also failed to appeal the Magistrate Judge’s
       denial of counsel to District Court. However, even assuming that ruling is
       properly before this Court, we find no abuse of discretion in the Magistrate
                                              8
       B.     Motion for Leave to Amend

        Albulkhair’s proposed amended complaint sought to assert claims, based on

essentially the same factual allegations contained in his original complaint, that Citibank

violated the New Jersey Consumer Fraud Act (“CFA”) and New Jersey Bank Parity Act,

breached a fiduciary duty, and breached the duty of good faith and fair dealing. He also

sought to bring claims under “all State and Federal laws and trade acts, intended and

designated for the purpose of fair dealing for the sole benefit and interests of another,

with loyalty to those interests for which are Anti-Discrimination.”8 (Amended Compl. ¶

19.) The Magistrate Judge concluded that Abulkhair’s proposed amendments would be

futile and denied leave to amend. We find no abuse of discretion in that conclusion.

       Although “[l]eave to amend must generally be granted,” it is appropriate for a

district court to deny leave when amendment would be futile. Arthur v. Maersk, Inc., 434

F.3d 196, 204 (3d Cir. 2006). Abulkhair’s amended complaint failed to state a claim

under the CFA because it did not allege any behavior that would constitute fraud under

that statute. See N.J. Stat. Ann. § 56:8-2; see also Cox v. Sears Roebuck & Co., 647

A.2d 454, 462 (N.J. 1994) (breach of contract does not constitute CFA violation absent

“substantial aggravating factors”). Nor does the amended complaint state a claim under

the New Jersey Bank Parity Act, which governs the rate of interests that New Jersey



       Judge’s conclusion that Abulkhair was not entitled to counsel. See id. at 155-56.
       8
         Although the Magistrate Judge considered the amended complaint to assert a
       new punitive damages claim, Abulkhair had already requested punitive damages
       in his original complaint.
                                              9
Banks can charge. See N.J. Stat. Ann. § 17:13B-1, 17:13B-2. As for Abulkhair’s broad

invocation of state and federal law, we note that his original complaint already asserted

claims under the relevant laws prohibiting discrimination and that those claims are time-

barred.

       The Magistrate Judge did not specifically address Abulkhair’s attempt to add

claims based on breach of fiduciary duty and breach of the covenant of good faith and

fair dealing. However, Abulkhair cannot state a claim for breach of fiduciary duty based

solely on the allegations of his amended complaint, which reflect nothing more than a

debtor-creditor relationship between himself and Citibank. United Jersey Bank v.

Kensey, 704 A.2d 38, 44 (N.J. Super. Ct. App. Div. 1997) (“The virtually unanimous rule

is that creditor-debtor relationships rarely give rise to a fiduciary duty.”); see also Cowan

Bros., L.L.C. v. Am. State Bank, 743 N.W.2d 411, 420 (S.D. 2007) (“[T]he relationship

between a bank and its borrower is generally considered to be a debtor-creditor

relationship which imposes no special or fiduciary duties on a bank.”) (quotations

omitted). Assuming arguendo that the Magistrate Judge should have allowed Abulkhair

to amend in order to pursue a claim based on breach of the covenant of good faith and

fair dealing claim, any such error in that regard is harmless because that claim fails with

his contract claim. See supra n. 5.

       In sum, Abulkhair’s appeal presents no substantial question. Accordingly, we will

summarily affirm the judgment of the District Court.


                                             10
