                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1495


CYNTHIA DONN TESSLER,

                  Plaintiff - Appellant,

             v.

NATIONAL BROADCASTING COMPANY, INCORPORATED,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cv-00234-RAJ-TEM)


Submitted:    December 16, 2009             Decided:   February 4, 2010


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Duncan G. Byers, DUNCAN G. BYERS, P.C., Norfolk, Virginia, for
Appellant. Stephen E. Noona, R. Johan Conrod, Jr., KAUFMAN &
CANOLES, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Cynthia   Donn     Tessler       appeals     the   district   court’s

order   dismissing    her    complaint        against    National    Broadcasting

Company, Incorporated (“NBC”) for failure to state a claim, Fed.

R. Civ. P. 12(b)(6).         Tessler, an independent producer residing

in Norfolk, Virginia, developed a program entitled “Parenting

Your Parent,” which relates to issues involving adult children

caring for their elderly parents.                 Tessler asserts that an NBC

Nightly News segment entitled “Trading Places” directly copied,

without    authorization,       Tessler’s         original      “Parenting    Your

Parent” materials.      In her complaint, Tessler alleged copyright

infringement    (“Count      I”),   breach        of   contract   (“Count    II”),

breach of implied contract (“Count III”), and conversion (“Count

IV”).     On appeal, Tessler challenges only the district court’s

disposition of Counts I and II.               For the following reasons, we

affirm.

            This   court     reviews         de   novo    a    district   court’s

dismissal pursuant to Fed. R. Civ. P. 12(b)(6).                     Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008).                    “The purpose of a

Rule 12(b)(6) motion is to test the sufficiency of a complaint

. . . .”     Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th

Cir. 1999).    To survive a Rule 12(b)(6) motion, a plaintiff must

“‘give the defendant fair notice of what the claim is and the

grounds upon which it rests.’”           Erickson v. Pardus, 551 U.S. 89,

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93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)) (alterations omitted).                  The facts alleged must “raise a

right to relief above the speculative level,” and the complaint

must contain “enough facts to state a claim to relief that is

plausible on its face.”               Twombly, 550 U.S. at 555, 570.

              The     district         court       properly          considered     material

contained on MSNBC.com in dismissing Count I because the website

was referenced in Tessler’s complaint.                        A court may consider a

document that the defendant attaches to its motion to dismiss if

the document “was integral to and explicitly relied on in the

complaint      and       if     the     plaintiffs         do        not    challenge    its

authenticity.”           Am.    Chiropractic         Ass’n      v.    Trigon    Healthcare,

Inc.,   367    F.3d      212,   234     (4th    Cir.      2004)      (internal      quotation

marks   and    alterations        omitted).          Nor     did      the   district    court

abuse its discretion in rejecting Tessler’s challenge to the

authenticity        of   the    material       contained        on    the   website.     See

General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) (holding a

district court’s evidentiary rulings are reviewed for abuse of

discretion).

              We    further      find     that      the    district         court   properly

dismissed Count II.             A federal court sitting in diversity must

apply the choice of law rules of the forum state.                              CACI Int’l,

Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th

Cir. 2009).         Under state law, “Virginia adheres to the use of

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traditional      rules    applicable       to   conflicts      of    laws[:]     .    .    .

questions of substantive law are governed by the law of the

place    of    the     transaction    or    the   place     where     the   right         is

acquired.”       Frye v. Commonwealth, 345 S.E.2d 267, 272 (Va. 1986)

(citations omitted).

              As the district court noted, “[i]t is not clear where

the offer was made; however, both New York and Virginia law

essentially require the same elements for a legally enforceable

contract.”       To establish a breach of contract claim, a plaintiff

must    prove:    “(1)    a   legally      enforceable      obligation      of       [the]

defendant to [the] plaintiff; (2) the defendant’s violation or

breach   of     that    obligation;     and     (3)   injury    or   damage      to   the

plaintiff caused by the breach of obligation.”                      Filak v. George,

594 S.E.2d 610, 614 (Va. 2004); see also Clearmont Prop., LLC v.

Eisner, 872 N.Y.S.2d 725, 728 (N.Y. App. Div. 2009).                           In order

to prove a contract, a party must prove an offer and acceptance

of that offer.          Snyder-Falkinham v. Stockburger, 457 S.E.2d 36,

39 (Va. 1995); Kowalchuck v. Stroup, 873 N.Y.S.2d 43, 46 (N.Y.

App. Div. 2009).           Because Tessler failed to allege that she

accepted NBC’s offer to use her materials, the district court

correctly dismissed Count II.

              Accordingly, we affirm the judgment of the district

court.        We dispense with oral argument because the facts and

legal    contentions       are   adequately       presented     in    the   materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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