                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1166


1899 HOLDINGS, LLC; STANLEY KEYSER; KEYSER DEVELOPMENT
CORPORATION;   KEYSCO   REALTY   CORPORATION;   QUEEN   ANNE
BELVEDERE      REVITALIZATION      LIMITED      PARTNERSHIP;
NINETEEN/TWENTY−ONE WEST PRESTON, LLC; IMDBOSS, LLC,

                Plaintiffs – Appellants,

           v.

1899 LIMITED LIABILITY COMPANY; SMALL DEAL FUND, LP; 1899
SPECIAL MEMBER, LLC; RALEIGH CONSULTANTS, LLC,

                Defendants – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:12-cv-00297-CCB)


Argued:   January 28, 2014                 Decided:   April 24, 2014


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Keenan joined.


ARGUED: Meighan Griffin Burton, WRIGHT, CONSTABLE & SKEEN, LLP,
Baltimore, Maryland, for Appellants.   Paul S. Caiola, GALLAGHER
EVELIUS & JONES LLP, Baltimore, Maryland, for Appellees.      ON
BRIEF: Michael I. Gordon, Robert Hesselbacher, WRIGHT, CONSTABLE
& SKEEN, LLP, Baltimore, Maryland, for Appellants.     Brian T.
Tucker, Steven G. Metzger, GALLAGHER      EVELIUS   &   JONES   LLP,
Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

     In this case, we consider whether Appellants, Plaintiffs

below, have adequately alleged claims for breach of contract and

other state-law causes of action against several of their co-

participants in a project to restore and redevelop Baltimore’s

Northern District Police Station.                 Finding that Plaintiffs had

failed to state any viable claims, the district court dismissed

their complaint.      For the reasons that follow, we affirm.



                                           I.

                                           A.

     In 2001, Stanley Keyser and Wendy Blair formed a Maryland

limited    liability       company    called      1899     LLC    (the    “Company”).

Initially, 1899 LLC had two members: Keyser Development Corp.,

controlled by Keyser, and W.L. Blair Development LLC, controlled

by Blair.        Through the Company, Keyser and Blair planned to

purchase    Baltimore’s       Northern          District    Police       Station   and

convert it into a commercial development.                        In doing so, they

sought to obtain certain state and federal tax credits available

for projects involving the restoration of historic buildings.

     The    project    quickly       ran   into       obstacles.      Environmental

hazards, among other difficulties, increased development costs

beyond    what    Keyser    and   Blair         had   anticipated.         To   ensure

adequate financing in the face of these problems, Keyser, along

                                           3
with       several    entities     controlled       by    or   affiliated    with   him

(collectively, the “Keyser entities”), 1 began contributing funds

to 1899 LLC.          These investments continued for several years, and

by 2008, Keyser and the Keyser entities had contributed at least

$3 million.

       In     2005,    to   secure    still      additional      financing    for    the

project, Keyser negotiated an agreement with John Bowman, Jr.,

the president of an investment firm called Tax Credit Capital,

LLC.       Keyser and Bowman eventually agreed that Small Deal Fund

L.P.--an       entity       affiliated      with    Bowman--would        invest     $1.9

million in the project in exchange for 99.9% of the operating

profits, as well as the tax credits the project would generate.

To facilitate this investment, Small Deal and 1899 Holdings, LLC

(one of the Keyser entities) executed an Operating Agreement,

dated January 31, 2006, through which the two firms became the

sole members of 1899 LLC.             The two previous members withdrew.

       A     number    of    the    Operating       Agreement’s       provisions     are

relevant      to     this   appeal.        First,    it    designated    Holdings     as

“Managing      Member”      and    Small    Deal    as    “Investor     Member.”      In

essence, Holdings was responsible for day-to-day management of


       1
        These   entities included   Plaintiffs-Appellants 1899
Holdings, LLC; Keyser Development Corp.; Keysco Realty Corp.;
Queen Anne Belvedere Revitalization L.P.; and Nineteen/Twenty-
One West Preston, LLC.



                                             4
the project while Small Deal agreed to provide capital.                           Per the

agreement,     however,       “[i]f    the   available         debt,    equity,      rental

income or other proceeds [were] insufficient” to complete the

project, Holdings agreed to “pay such deficiencies.”                           J.A. 152.

Relatedly,         Holdings     warranted         that    it     would       “cause     the

completion of the . . . Project substantially in accordance with

the   plans     and     specifications           . . . free      and     clear    of     all

mechanics’, materialmen’s or similar liens.”                     Id.

      The Operating Agreement also specified that any financing

Holdings provided to 1899 LLC would “be treated as a Capital

Contribution,” rather than as a loan.                    See id.       This policy had

one exception: Holdings was permitted “to make short term loans

to the Company prior to Construction Completion and such loans

[would] not be treated as a Capital Contribution” as long as

they were repaid within 120 days (or 180 days upon substantial

completion of the project).               Id. at 152-53.           At the time they

executed      the     Operating       Agreement,      Holdings         and   Small      Deal

warranted that there were no “loans or advances . . . from the

Managing      Member     or     its     Affiliates       to     the     Company        . . .

outstanding for more than 120 days” (the “Warranty Clause”).

Id. at 149.

      The Operating Agreement gave Small Deal the power to remove

Holdings      as     Managing     Member         under    certain        circumstances.

Specifically, as relevant here, Small Deal could remove Holdings

                                             5
if    it    violated    (and       failed    to    cure       within    thirty       days)   any

provision of the Operating Agreement, provided that its conduct

had a “material adverse effect on the Company or any of its

Members.”       Id. at 162.         An “uncured violation” of Holdings’ duty

to “provide funds” would be “deemed to have a material adverse

effect.”       Id. (emphasis added).

       In    addition    to    a     standard       merger      clause,       the    Operating

Agreement included one other relevant provision.                              “For services

rendered       in   connection        with        the   Company’s           development,”      a

developer, IMDBOSS, LLC, would receive a “Developer Fee . . . in

an amount equal to 20% of appropriate development costs.”                                    Id.

at 101, 160.           This fee, estimated to be $500,000, would be

“deemed earned in its entirety as of the date of Construction

Completion.”           Id.    at    160.      The       fee    was     to    be     paid   “from

available debt and equity proceeds of the Company, to the extent

such proceeds [were] not required for other Company purposes.”

Id.        The Operating Agreement provided that the “remainder” of

the fee could be “deferred” at 6% interest, but it was “in all

events” to “be [paid] by December 31, 2014.” 2                         Id.

       After     Holdings      and     Small        Deal      executed        the    Operating

Agreement, Holdings and the other Keyser entities contributed


       2
       The Amendment to the Operating Agreement, discussed below,
would later change this date to December 31, 2017.



                                              6
additional     funding      to    the    project,          consistent     with      Holdings’

duty    to   cover    any        shortfalls.              Nevertheless,       the    project

continued to struggle financially.

       On August 12, 2008, allegedly “[a]t the insistence of Small

Deal,” Holdings executed an agreement on behalf of 1899 LLC with

Raleigh Consultants, LLC.               Id. at 30.           Raleigh agreed to serve

as the “day-to-day construction manager” of the project and to

“perform cost data processing.”                      Id.      According to Holdings,

after this agreement, it was “effectively removed” from managing

the    project.      Id.         Specifically,            Holdings     alleges       that    it

repeatedly       requested       access       to    financial        records     and    other

information, but Small Deal and Raleigh “refused to respond to

those requests.”      Id.

       In    September      2008,       to     address       the     project’s       ongoing

financial     difficulties,         Holdings         and    Small     Deal     executed     an

Amendment to the Operating Agreement.                       Among other changes, the

Amendment     provided      that     Small         Deal    and    another      entity,      the

Maryland     Historic      Tax     Credit          Fund,     L.P.,    would      contribute

additional capital to the project.                        Other than with respect to

the enumerated changes, however, the Amendment stated that “the

Operating Agreement is ratified and confirmed in all respects”

(the “Ratification Clause”).                 Id. at 203.

       Shortly     after     Holdings          and        Small    Deal      executed       the

Amendment, Small Deal accused Holdings of breaching its funding

                                               7
obligation       under    the    Operating     Agreement.      In     a   letter    to

Holdings,    dated       November   13,    2008,    Small    Deal    threatened     to

remove Holdings as Managing Member, noting the existence of “no

fewer    than     17     liens    and    lawsuits       directly     affecting     the

Company.”       Id. at 206.       In response, Holdings acknowledged that

it was “unable to cause the Company to timely pay operating

expenses, or payments on the Company’s loans.”                     Id. at 55.    But,

citing various forms of alleged misconduct by Small Deal and

Raleigh, Holdings denied that Small Deal had authority to remove

it as Managing Member.            Undeterred, Small Deal formally removed

Holdings on December 15.

       As provided by the Operating Agreement, 1899 Special Member

LLC--an entity appointed by Small Deal--automatically replaced

Holdings.        Special Member acquired Holdings’ interest “for an

amount equal to the greater of (i) $100 or (ii) [Holdings’]

Capital Account balance . . . on the date of removal.”                       Id. at

163.    The Agreement made this sum payable to Holdings “upon the

earlier of fifteen years from the date of removal or the sale of

all . . . of the Company’s assets.”               Id.

       Sometime after Holdings’ removal, 1899 LLC completed the

project.

                                          B.

       In December 2011, Holdings, Keyser, the Keyser entities,

and    IMDBOSS    sued    1899    LLC,    Small    Deal,    Special    Member,     and

                                           8
Raleigh in Maryland state court, asserting a variety of state-

law claims.          Defendants removed the action to the U.S. District

Court     for        the     District     of       Maryland,         invoking     diversity

jurisdiction.

       In their amended complaint, Plaintiffs first alleged that,

prior to Holdings’ removal as Managing Member, Bowman--on behalf

of    Small     Deal--orally       “agreed         with    Stanley     Keyser     that    the

outlays that had been made and would be made by [Keyser and the

Keyser entities] . . . would be considered loans to 1899 LLC and

not     capital       contributions.”              J.A.    32-33.        As     loans,    the

complaint       explained,       the     funds       were      due     immediately       upon

completion       of    the    project.         The    complaint        alleged    that,    by

failing to repay the loans, 1899 LLC breached the terms of the

oral agreement.            In the alternative, the complaint sought return

of the funds via claims for unjust enrichment.

       The amended complaint also alleged that 1899 LLC, Small

Deal, and Special Member breached the terms of the Operating

Agreement by wrongfully removing Holdings as Managing Member.

According       to    Holding,    the    removal      was      not    authorized    by    the

Agreement and violated Defendants’ fiduciary duties and duty of

good faith.          Additionally, the complaint alleged that Defendants

breached      the      Operating    Agreement             by   wrongfully       withholding

IMDBOSS’s developer fee.                Finally, it requested that Defendants



                                               9
provide “a full accounting of the Project’s capital accounts,

income, disbursements, distributions and finances.”                             Id. at 39.

      Defendants filed a motion to dismiss, which the district

court granted.             See 1899 Holdings, LLC v. 1889 Ltd. Liab. Co.,

No. CCB-12-297, 2013 WL 142303 (D. Md. Jan. 8, 2013).                              The court

first held that the parol evidence rule barred Plaintiffs’ loan

claims.         According        to    the     court,       Plaintiffs’         counsel       had

conceded       that        the    alleged         oral    agreement        to     treat       the

contributions         as    loans     took    place      prior   to    execution         of   the

Amendment.       Moreover, the court determined that the existence of

the   loans     was    inconsistent          with     the   terms     of    the    Operating

Agreement,      as    ratified        by    the    Amendment.         Because      the    parol

evidence rule bars evidence of a prior agreement that conflicts

with the terms of a written instrument, the court held that the

loan-related contract allegations failed to state a plausible

claim.        Relatedly, the court dismissed the alternative unjust

enrichment claims.               It explained that such claims cannot lie

where    an    express       contract--here,          the   Operating       Agreement         and

Amendment--“covers the subject matter of the claim.”                             Id. at *4.

      Second,         with       respect      to      Plaintiffs’          claim    for        an

accounting,      the       district        court    noted    that     “a   demand    for       an

accounting is generally not an independent cause of action in

Maryland, but rather a remedy to another cause of action.”                                    Id.

Having already concluded that the loan claims were not viable,

                                               10
the   court   determined       that    the     claim     for   an    accounting        also

failed.

      Third, the court held that Holdings had failed to plausibly

allege a breach of contract based on its removal as Managing

Member.       Taking     judicial       notice      of    state      court     documents

indicating the entry of judgments on liens against the project,

the court determined that Holdings had violated its duty “to

cause completion of the project free from liens.”                            Id. at *5.

Accordingly,     the     court    held       that    “removal        of     Holdings    as

Managing Member complied with . . . the Operating Agreement.”

Id.

      Finally,     the    court       dismissed      IMDBOSS’s       claim      for     the

developer fee without prejudice.                 The court read the relevant

provisions as establishing that the fee was not due until 2017,

and   thus    determined       that     IMDBOSS’s        claim      for     payment    was

premature.

      Plaintiffs timely noted this appeal.



                                         II.

      Plaintiffs       argue     that     the       district        court     erred     in

dismissing each of the claims in their amended complaint, an

issue that we review de novo.                See Cioca v. Rumsfeld, 720 F.3d

505, 508 (4th Cir. 2013).              “‘To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as

                                          11
true,   to       state    a   claim    to    relief      that   is    plausible            on   its

face.’”          Id.   (quoting     Ashcroft       v.    Iqbal,      556    U.S.      662,      678

(2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).           In     assessing     the      sufficiency          of     a    plaintiff’s

allegations, the court may “consider documents attached to the

complaint, as well as those attached to the motion to dismiss,

so long as they are integral to the complaint and authentic.”

Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009) (internal citation omitted).                      Additionally, the court “may

consider matters of public record such as documents from prior

state court proceedings.”                Walker v. Kelly, 589 F.3d 127, 139

(4th Cir. 2009).

     In      a    contract      dispute,      “the       construction           of    ambiguous

contract provisions is a factual determination that precludes

dismissal on a motion for failure to state a claim.”                                       Martin

Marietta Corp. v. Int’l Telecomms. Satellite Org., 991 F.2d 94,

97 (4th Cir. 1992).             Under Maryland law, “a written contract is

ambiguous if, when read by a reasonably prudent person, it is

susceptible of more than one meaning.”                      Calomiris v. Woods, 727

A.2d 358, 363 (Md. 1999).

                                              A.

     We      first       consider     whether      the    district         court      erred     in

dismissing        Plaintiffs’         loan    claims       pursuant         to       the    parol

evidence rule.           Because we have diversity jurisdiction over this

                                              12
case, we apply Maryland’s substantive contract law.                        See Francis

v. Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 2013), cert.

denied,   134    S.   Ct.    986    (2014)      (“A   federal     court    sitting    in

diversity is required to apply the substantive law of the forum

state, including its choice-of-law rules.”); Lab. Corp. of Am.

v. Hood, 911 A.2d 841, 848 (Md. 2006) (noting that Maryland

courts “generally apply the law of the place where the contract

was made”).

     Under      Maryland     law,    the   parol       evidence     rule    “bars    the

admission of prior or contemporaneous agreements or negotiations

to vary or contradict a written contractual term.”                          Calomiris,

727 A.2d at 361.       Because “a written agreement discharges prior

agreements,”     it   “render[s]      legally         inoperative      communications

and negotiations leading up to the written contract.”                            Id. at

361-62    (internal    quotation      marks      omitted).        Plaintiffs      argue

that the rule does not apply to their loan claims because: (1)

the alleged oral agreement to treat their contributions as loans

occurred after execution of the written Amendment; and (2) the

oral agreement is not inconsistent with the terms of either the

Operating     Agreement       or     the     Amendment.           We    reject      both

contentions.

                                           1.

     With    respect    to    the    timing       issue,    Plaintiffs       point    to

language in their amended complaint stating that Small Deal, “on

                                           13
numerous occasions until the end of 2008, . . . acknowledged,

agreed to, and acquiesced in the treatment of the advances as

loans.”       J.A. 33 (emphasis added).                   Because the Amendment was

executed in September 2008, they argue, the loan agreement is

not a “prior” or “contemporaneous” agreement susceptible to the

parol evidence rule.            See Calomiris, 727 A.2d at 361.

          At the hearing on Defendants’ motion to dismiss, however,

the district court remarked that the conversations relating to

the alleged loan agreement took place “sometime in the spring

and summer of 2008, after the [Operating Agreement], but prior

to    the     [Amendment].”            J.A.    279.          In    response        to        this

observation, Plaintiffs’ counsel stated that the conversations

“were certainly after [the Operating Agreement], yes, and before

the   [Amendment].”            Id.     In    its    order    dismissing      Plaintiffs’

claims,       the   district         court    treated       this       statement        as    an

admission.       In the court’s view, Plaintiffs had “concede[d] that

the alleged agreement . . . preceded the written Amendment.”

1899 Holdings, 2013 WL 142303, at *4.

          “[A] lawyer’s statements may constitute a binding admission

of    a    party”   if    the    statements        are    “‘deliberate,      clear,          and

unambiguous.’”        Fraternal Order of Police Lodge No. 89 v. Prince

George’s Cnty., 608 F.3d 183, 190 (4th Cir. 2010) (quoting Meyer

v. Berkshire Life Ins. Co., 372 F.3d 261, 265 n.2 (4th Cir.

2004)).        When      the    district     court       treats    a   statement        as    an

                                              14
admission,       we    review      that     determination           only     for    abuse    of

discretion.       See Meyer, 372 F.3d at 264.

        On    appeal,         Plaintiffs        contend       that        their     counsel’s

statement      did     not    carry     the     significance        the     district       court

attributed to it.             They argue that “counsel was referring [only]

to the initial agreement to treat the advances as loans,” not

any further conversation confirming that agreement.                                 Reply Br.

at 26.       We find this distinction unpersuasive.

        In the colloquy, the court referred to “conversations,” in

the     plural    form,        indicating        it    had    in     mind     all     of    the

discussions regarding the loans, not just the initial agreement.

In      response,         counsel          neither        disputed           the       court’s

characterization of the conversations, nor made the distinction

on which Plaintiffs now rely.                    That counsel did not do so is

telling: as the court’s observation was clearly directed to the

issue    of    whether       the   parol       evidence      rule    barred        Plaintiffs’

claims,       counsel’s       failure     to    mention      the     distinction        likely

indicates he had no such distinction in mind.                             Moreover, counsel

himself employed a plural pronoun, and he phrased his statement

in definitive terms.               See J.A. 279 (“They [the conversations]

were certainly . . . before the [Amendment].” (emphasis added)).

        Accordingly,          we   find        both    that         the     statement        was

sufficiently          clear     and     that     the    district          court     correctly

interpreted it.              We thus hold that the court’s treatment of

                                               15
counsel’s      statement      as     an    admission          was     not     an    abuse     of

discretion.         Because Plaintiffs are bound by the admission on

appeal, see, e.g., In re McNallen, 62 F.3d 619, 625 (4th Cir.

1995),    we    reject       their      argument        that        the     loan    agreement

postdated the written Amendment.

                                            2.

       Plaintiffs also contend that the alleged loan agreement is

consistent with the Operating Agreement and Amendment.                                 Because

it does not “vary” or “contradict” the terms of the written

instruments, they argue, the parol evidence rule does not apply.

See Calomiris, 727 A.2d at 361.

       The district court found that the oral loan agreement was

inconsistent        with   the     terms     of    the     writings          based     on    the

interaction between two clauses therein: the Warranty Clause in

the    Operating     Agreement       and    the        Ratification         Clause     in    the

Amendment.      According to the district court, by ratifying the

Operating      Agreement      in     the    Amendment,          Holdings           effectively

agreed--as     of    the   date    of     the    Amendment--that            there     were    no

“outstanding loans or advances” from Holdings to 1899 LLC.                                   See

1899   Holdings,      2013    WL   142303,        at    *3.         Holdings’       allegation

regarding      the    oral     loan       agreement,          the     court     held,       thus

“directly contradicts the plain language of the later written

Operating Agreement and its Amendment.”                    Id.



                                            16
       Plaintiffs      assert     that   the    district     court     erred   by

selectively quoting the language of the Warranty Clause.                       As

they point out, the full clause states that “[t]here are no

outstanding loans or advances (excluding, for this purpose, any

loans pursuant to Section 6.11 and development advances with

respect to the Project) . . . which are outstanding for more

than 120 days.”         See J.A. 149 (emphasis added).           Based on this

language, Plaintiffs contend that the existence of the loans is

in fact consistent with the Warranty Clause in two potential

ways: first, if the loans constitute “development advances” (a

term       that   neither   the   Amendment    nor   the   Operating   Agreement

defines); and second, if they were outstanding for fewer than

120 days at the time the parties executed the Amendment. 3

       Even if the alleged loans are potentially consistent with

the Warranty Clause, however, they are nevertheless inconsistent

with other provisions of the Operating Agreement.                The Operating

Agreement explicitly provides that any payments made by Holdings

to “acquire and complete . . . the project” will “be treated as

a Capital Contribution to the Company.” 4              Id. at 152.      The only



       3
       Plaintiffs do not argue that the alleged loans were “loans
pursuant to Section 6.11.”
       4
       Plaintiffs concede that “the amounts advanced by Keyser
and his entities were, in substance, monies paid into the
Project by Holdings.” See Appellants’ Br. at 38.



                                         17
exception to this rule is for “short-term loans,” which avoid

classification as capital contributions only if they are repaid

“within 120 days of being made (or, within 180 days of being

made       upon     substantial          completion         of        construction       of    the

Project).”         See id. at 152-53.                  Plaintiffs do not dispute that

the contributions in question were for the purpose of funding

and    completing         the    project.           Nor    do    they     dispute       that   the

contributions        were       not    in    fact       repaid    within       even    180    days.

Consequently,         the       Operating         Agreement        (which       the    Amendment

ratified)          unambiguously              renders           the      payments        capital

contributions. 5

       In    any    event,       the     Operating         Agreement       also       contains   a

merger      clause.             That     clause         provides        that    the     “written

agreements         . . .    constitute            the     entire      agreement       among    the

parties      and    supersede          any   prior       agreements       or    understandings

among them.”          Id. at 176.            Because the Amendment ratified this

provision         after    the    date       of   the     alleged       oral    agreement,       it

leaves no room for treating the payments as loans.


       5
       This is no less true of the so-called “Orlo loan,” which
the amended complaint describes as “a $500,000 loan that Stanley
Keyser personally obtained from Orlo Holding NY, LLC.” J.A. 33
(emphasis added). Although the Amendment notes the existence of
the loan, it imposes no express duty on 1899 LLC to repay it.
If, as the complaint alleges, Keyser paid the proceeds of the
Orlo loan into the project, the Operating Agreement renders that
payment a capital contribution.



                                                  18
     In sum, the oral communications on which Plaintiffs rely

contradict the parties’ subsequent written agreement.                    As the

parol     evidence   rule    thus      bars     introduction       of     those

communications as evidence, the district court did not err in

dismissing Plaintiffs’ loan-related contract claims.

                                      3.

     From this conclusion, it follows that the district court

also correctly dismissed Plaintiffs’ unjust enrichment claims.

As the district court recognized, Maryland law does not permit a

claim for unjust enrichment where an express contract governs.

See Cnty. Comm’rs v. J. Roland Dashiell & Sons, Inc., 747 A.2d

600, 607-08 (Md. 2000).        “This rule,” the Maryland Court of

Appeals   has   explained,   “holds    the    contract   parties    to    their

agreement and prevents a party who made a bad business decision

from asking the court to restore his expectations.”                Id. at 610

(internal quotation marks omitted).

     Here, the parties agreed--by way of the Operating Agreement

and Amendment--that Plaintiffs’ payments to 1899 LLC would be

capital contributions rather than loans.          That agreement, as the

only one that is both “valid and enforceable,” thus “precludes

recovery in quasi contract [i.e., unjust enrichment] for events

arising out of the same subject matter.”            See MacDraw, Inc. v.

CIT Group Equip. Fin., Inc., 157 F.3d 956, 964 (2d Cir. 1998)

(per curiam) (alteration in original) (internal quotation marks

                                      19
omitted) (quoted in Cnty. Comm’rs, 747 A.2d at 607).                             For this

reason, Plaintiffs’ unjust enrichment claims fail. 6

                                              B.

      Next, we address Holdings’ claim for breach of contract

based on its removal as Managing Member of 1899 LLC.                              Holdings

makes two arguments for why its removal was not authorized by

the Operating Agreement.               First, it argues that the Operating

Agreement required it only to complete the project “free and

clear”    of    liens,   such     that    the      existence       of   liens    prior   to

completion      did   not   violate      its       obligations.         See     J.A.   152.

Second,     Holdings     argues        that    even    if     it    did    violate       the

Operating      Agreement,       that     violation      might       not    have    had    a

“material adverse effect on the Company.”                   See id. at 162.

      Holdings’       arguments    misapprehend         the    contractual        hook   on

which its removal was justified.                    Under the Agreement, it was

not   the      existence    of    the     liens       themselves        that    justified

Holdings’ removal, but rather what the liens signified: that

Holdings was not meeting its contractual obligation to cover

shortfalls in funding.           See id. at 152 (“If the available . . .

      6
       In County Commissioners, the Maryland Court of Appeals
recognized a variety of exceptions to the general rule.    These
include situations involving “evidence of fraud or bad faith,”
where “there has been a breach . . . or a mutual re[s]cission of
the contract, when re[s]cission is warranted, or when the
express contract does not fully address a subject matter.” 747
A.2d at 609. None of the exceptions apply here.



                                              20
proceeds are insufficient to . . . acquire and complete the

rehabilitation of the Project and satisfy all other obligations

. . . the Managing Member shall be responsible for and obligated

to pay such deficiencies . . . .”).                       To this point, we note that

the    state       court      documents       in    the   record     (of     which      we   take

judicial notice) reveal not merely liens against the project,

but actual judgments on those liens.                         Simply put, the existence

of such judgments is inconsistent with Holdings having fulfilled

its contractual duty. 7              In turn, the Operating Agreement provides

that       Holdings’     failure         to   fulfill     its     funding    obligation       is

“deemed       to    have      a    material        adverse      effect.”          Id.   at    162

(emphasis added).

       We     perceive        no    ambiguity       in    the     contract    language       and

conclude that Holdings’ removal by Small Deal was authorized by

the    terms       of   the       Operating    Agreement.           See    id.     (permitting

removal       of    Holdings        as   Managing        Member    based     on    an   uncured

violation of the Operating Agreement with a material adverse

effect on 1899 LLC).                Holdings has not pleaded a plausible claim

for breach. 8


       7
        Holdings’ December 11, 2008, letter to Small Deal
essentially admitted as much.    In the letter, Holdings stated
that it was “unable to cause the Company to timely pay operating
expenses, or [make] payments on the Company’s loans.” J.A. 55.
       8
       Holdings’ vague and conclusory allegations regarding bad
faith and violations of fiduciary duties do not alter our
(Continued)
                                                   21
                               C.

     We next consider IMDBOSS’s claim for breach of contract

based on Defendants’ failure to pay it the development fee.    We

agree with the district court that this claim is premature.

     Under the terms of the Operating Agreement and Amendment,

1899 LLC is to pay IMDBOSS a “developer fee” in an “amount equal

to 20% of appropriate development costs.”   J.A. 200.   The terms

of the fee’s payment are as follows:

     The Developer Fee shall be deemed earned in its
     entirety as of the date of Construction Completion and
     otherwise in accordance with the terms of the
     Development Agreement.   The Developer shall be paid
     such portion of the Developer Fee from available debt
     and equity proceeds of the Company, to the extent such
     proceeds are not required for other Company purposes.
     The remainder of the Developer Fee shall constitute a
     deferred   fee   bearing interest  at   6%  compounded
     annually, payable . . . to the Developer from Cash
     Flow and/or Net Proceeds[,] . . . but in all events
     the Deferred Developer Fee shall be [paid] by December
     31, 2017 . . . .

Id. at 200-01.




conclusion.   See J.A. 40.     We fail to comprehend how Small
Deal’s decision to exercise a right expressly provided to it by
the contract could constitute either bad faith or a breach of
fiduciary duty, especially in light of Holdings’ own breach.
See, e.g., Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125
F.3d 308, 313 (6th Cir. 1997) (noting that “a party’s acting
according to the express terms of a contract cannot be
considered a breach of the duties of good faith and fair
dealing” and collecting cases to that effect).



                               22
      Focusing    on     this    provision’s        pronouncement          that    the    fee

“shall    be   deemed    earned       in   its    entirety       as   of   the     date    of

Construction      Completion,”         IMDBOSS      asserts       that      the    fee     is

currently due.         See id. at 200.           Defendants can avoid paying it,

IMDBOSS      argues,    only     by    demonstrating          that    “there      are     not

available debt and equity proceeds to pay the fee.”                          Appellants’

Br. at 36.        As Defendants have not done so, IMDBOSS contends

that 1899 LLC’s failure to pay constitutes a breach of contract.

      We are not persuaded by IMDBOSS’s proposed construction.

Although the fee was “earned” at the time that construction of

the   project    was    completed,         it   does    not     follow     that    the    fee

simultaneously became due.              With respect to payment of the fee,

the Amendment states only that it “shall be [paid] by December

31, 2017.”      J.A. 201.        Until that date, the contract vests 1899

LLC   with     discretion       to    decide     that     the    relevant      funds      are

“required for other Company purposes.”                     Id. at 200.            While an

allegation that the company is withholding payment of the fee in

bad   faith    could    perhaps       overcome      the    discretion       this    clause

confers on 1899 LLC, IMDBOSS makes no such allegation in the

amended complaint.        For that matter, the complaint does not even

assert that there are “available debt and equity proceeds” to

pay the fee.      See id.       Accordingly, we conclude that IMDBOSS has

not adequately alleged that it is yet entitled to the fee.                                The



                                            23
district court thus did not err in dismissing IMDBOSS’s claim

without prejudice.

                                       D.

     Finally,    we    hold     that     the     district     court      correctly

dismissed Plaintiffs’ claim for an accounting.                 “In Maryland, a

claim for an accounting is available when one party is under

obligation to pay money to another based on facts and records

that are known and kept exclusively by the party to whom the

obligation is owed, or where there is a fiduciary relationship

among the parties.”         Polek v. J.P. Morgan Chase Bank, N.A., 36

A.3d 399, 418 (Md. 2012) (internal quotation marks omitted).

This case presents neither circumstance.

     First, because Plaintiffs have otherwise failed to plead

viable claims for breach of contract or unjust enrichment, we

discern no basis for concluding that any of the defendants are

under   a   current   “obligation       to     pay   money”   to   any    of     the

plaintiffs.     Although      Plaintiffs’       capital     contributions       will

ultimately be subject to repayment, such repayment is not due

until “the earlier of fifteen years from the date of removal or

the sale of all or substantially all of the Company’s assets,”

neither of which has yet occurred.             J.A. 163.

     Second,    and   for    similar    reasons,     Defendants    do     not    owe

Plaintiffs a fiduciary duty.           Regardless of whether members of a

Maryland LLC generally owe each other fiduciary duties (an issue

                                       24
on which the parties disagree), neither Holdings nor any other

plaintiff is currently a member of 1899 LLC.                    Per the Operating

Agreement, Special Member simply owes Holdings a fixed sum of

money, payable upon one of the events noted above.                         See id.

(“[T]he Special Member or its designee shall automatically . . .

acquire    the     Interest   of   the    removed      Managing   Member    for    an

amount equal to the greater of (i) $100 or (ii) the Capital

Account balance of the removed Managing Member on the date of

removal.”).        In other words, the current relationship between

Holdings and Special Member is merely that of a creditor and

debtor; Holdings has no current relationship with 1899 LLC.

      Plaintiffs      therefore     have       not   alleged    circumstances      to

support a claim for an accounting.                   See Polek, 36 A.3d at 418

(affirming the dismissal of accounting claims on the basis that

the   contractual       relationship       between      the    parties     was    not

fiduciary     in     nature   and    any        fiduciary      relationship      that

otherwise existed had “expired long ago”).



                                         III.

      For the foregoing reasons, the judgment of the district

court is

                                                                         AFFIRMED.




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