Cti/dc, Incorporated v.  Selective Insurance Company of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CTI/DC, INCORPORATED,
Plaintiff-Appellant,
v. No. 04-1236 
SELECTIVE INSURANCE COMPANY OF
AMERICA,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge, Presiding;
Alexander Williams, Jr., District Judge, Ordering.
(CA-03-599-RWT)
Argued: September 29, 2004
Decided: December 9, 2004
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in
which Judge Widener and Judge Traxler joined.
COUNSEL
ARGUED: Craig Alan Holman, HOLLAND & KNIGHT, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Stephen J. Annino,
KASIMER & ANNINO, P.C., Falls Church, Virginia, for Appellant.
Brandon H. Elledge, HOLLAND & KNIGHT, McLean, Virginia, for
Appellee.

-- 1 of 14 --

OPINION
GREGORY, Circuit Judge:
CTI/DC appeals an order of the district court granting Selective
Insurance Company of America’s ("Selective Insurance") motion to
dismiss under Fed. R. Civ. P. 12(b)(6). CTI/DC challenges the district
court’s finding that on the face of the pleadings it failed to satisfy the
notice requirements of the Maryland "Little Miller Act." Md. State
Fin. & Proc. Code § 17-101 et seq. Finding no error, we affirm.
I.
HR General Maintenance ("HRGM") entered into a contract with
Prince George’s County, Maryland to both renovate and add an addi-
tion to the Cheverly Health Center in Cheverly, Maryland. On Octo-
ber 12, 2000, pursuant to the dictates of the Maryland ‘Little Miller
Act, Md. State Fin. & Proc. Code § 17-101 et seq.,’ HRGM obtained
a payment bond on the project from Selective Insurance. Selective
Insurance is a New Jersey corporation principally engaged in supply-
ing payment and performance bonds on construction projects. The
payment bond named Selective Insurance as a surety on the project.
HRGM subcontracted a portion of the construction work under this
contract to Selby Construction ("Selby"). Selby then entered into a
separate contract with CTI/DC under which CTI/DC agreed to act as
a "materialman," delivering concrete supplies and other materials to
Selby for the project. CTI/DC is a Washington, D.C. corporation prin-
cipally engaged in the business of furnishing, contracting, and supply-
ing concrete and concrete related supplies for use in commercial
construction.
CTI/DC performed as promised and completed its performance on
October 1, 2002. However, Selby failed to pay CTI/DC for the mate-
rials and supplies provided, leaving a balance of $111,755.04. On
December 3, 2002, CTI/DC sent HRGM a letter requesting copies of
the payment and performance bonds for construction project number
2484200. In full, this letter stated:
RE: Cheverly Health Center
2 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 2 of 14 --

Subject: Request for Bonds
CTI/DC Inc. supplied ready mixed concrete to the refer-
enced project. We have an outstanding balance of ONE
HUNDRED TWELVE THOUSAND TWO HUNDRED
AND SIXTY ONE DOLLARS ($112,261.00) ON
INVOICES.
We respectfully request copies of the payment and perfor-
mance bonds provided by your office to the Prince George’s
County as owner of the building.
The permit issued for this construction project is no.
2484200. The building is located directly across the street
from the Prince George’s Hospital Center on Hospital Drive
in Cheverly, Maryland.
Your cooperation and prompt attention to this matter is
appreciated.
J.A. 43. CTI/DC avers that prior to the mailing of this letter, represen-
tatives from CTI/DC, HRGM, and Selby met to discuss the outstand-
ing invoices owed on the project. CTI/DC further avers that at this
meeting HRGM assured CTI/DC that it would be paid for the materi-
als supplied to Selby.
On January 10, 2003, counsel for CTI/DC sent a second letter to
both HRGM and Selective Insurance, explicitly stating that CTI/DC
supplied concrete to Selby Construction under a separate contract for
the Cheverly Health Center construction project. This second letter
further stated that CTI/DC was owed $112,263.97 by Selby, and
intended to make a claim on the payment bond provided by Selective
Insurance if immediate payment was not remitted.
When payment on the invoices was not remitted, CTI/DC filed suit
in the United States District Court for the District of Maryland, South-
ern Division on March 3, 2003. After CTI/DC filed an amended com-
plaint, Selective Insurance made a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6). The district court granted Selective Insurance’s
3 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 3 of 14 --

motion to dismiss, finding that CTI/DC failed to satisfy the notice
requirements of the Little Miller Act. Specifically, the district court
found that the first letter failed to satisfy the explicit requirements of
the Act because it did not name the subcontractor to whom the materi-
als were supplied and the second letter failed because it was untimely.
From that decision, CTI/DC brought this appeal.
II.
We review a district court’s dismissal under Fed. R. Civ. P.
12(b)(6) de novo. Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). "In general, a motion to dismiss for failure to state a claim
should not be granted unless it appears certain that the plaintiff can
prove no set of facts which would support its claim and would entitle
it to relief." Id. "In considering a motion to dismiss, the court should
accept as true all well-pleaded allegations and should view the com-
plaint in a light most favorable to the plaintiff." Id.
The contract in question was formed in Maryland, which is a lex
loci contractus jurisdiction. Ward v. Nationwide Mut. Auto. Ins. Co.,
614 A.2d 85, 88 (Md. 1992). Because we are a federal court sitting
in diversity — CTI/DC is a Washington D.C. Corporation while
Selective Insurance Company of America is a New Jersey Corpora-
tion — we apply Maryland substantive law to determine whether the
district court’s grant of a 12(b)(6) dismissal was proper. Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938). Where state law is unclear on
an issue, this court must interpret the law as it appears that the Mary-
land Court of Appeals would. See Wells v. Liddy, 186 F.3d 505, 528
(4th Cir. 1999).
III.
On appeal, CTI/DC presents several arguments challenging the dis-
trict court’s finding that on the face of the pleadings CTI/DC failed
to satisfy the notice requirements of the Maryland ‘Little Miller Act.’
Md. State Fin. & Proc. Code § 17-101 et seq. CTI/DC contends that
(1) the district court erred in failing to read the December 3, 2002 let-
ter in conjunction with HRGM’s actual knowledge of the debt to find
sufficient notice; (2) the district court erred in failing to read the
timely letter (December 3, 2002) in conjunction with the untimely let-
4 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 4 of 14 --

ter (January 10, 2003) to find sufficient notice; and (3) the complaint
alleges sufficient facts to raise a factual issue concerning the existence
of an implied-in-fact contract between CTI/DC and HRGM.
We find CTI/DC’s arguments unconvincing, and now address each
in turn.
A.
Maryland’s "Little Miller Act" requires a contractor on a public
project to post payment and performance bonds for any state contract
exceeding $100,000. Md. State Fin. & Proc. Code § 17-103. The Act
permits a supplier to:
sue on [the] payment security if the supplier:
(1) supplied labor or materials in the prosecution of work
provided for in a contract subject to this subtitle; and
(2) has not been paid in full for the labor or materials within
90 days after the day that the person last supplied labor or
materials for which the claim is made.
Id. at § 17-108. When the Act was adopted, the preamble to the Act
stated "[t]he main purpose of the Bill is to provide greater protection
to sub-contractors on contracts awarded by the state." Atlantic Sea-
Con, Ltd. v. Robert Dann Co., 582 A.2d 981, 984 (Md. 1990). "The
obvious purpose of the payment bond is to protect subcontractors and
materialmen on State or other public projects where they have no lien
on the work." Stauffer Constr. Co. v. Tate Eng’g, Inc., 407 A.2d 1191,
1193 (Md. Ct. Spec. App. 1979).
In keeping with this purpose, courts liberally interpret the "Little
Miller Act" in order to protect subcontractors and materialmen.1 See
1Given that the "Little Miller Act" was patterned after the Federal Mil-
ler Act, it is not surprising that courts interpreting the Maryland "Little
Miller Act" have occasionally looked for guidance to federal court deci-
sions construing similar provisions of the Federal Miller Act. See Atlan-
5 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 5 of 14 --

State Roads Comm’n v. Contee Sand & Gravel Co., 308 F. Supp. 650,
652 (D. Md. 1970)(holding that notice received by ordinary mail was
sufficient, despite statutory directive to use registered mail); Stauffer,
407 A.2d at 1194 (holding that the 90 day period runs from the last
day materials were supplied or from the last day work necessary to
complete the contract was performed); Westinghouse Elec. Corp. v.
Minnix, 269 A.2d 580, 583 (Md. 1970) (rejecting a restrictive inter-
pretation of the notice provision that would have required a specific
statement that the supplier was looking to the contractor for payment).
B.
CTI/DC first contends that the under the liberal construction gener-
ally afforded the "Little Miller Act," the December 3, 2002 letter
should be viewed as having substantially complied with the statute.
CTI/DC argues that as a result of the meeting that took place prior to
the mailing of the December letter, HRGM had actual knowledge of
the subcontractor to whom the concrete had been supplied. Specifi-
cally, CTI/DC asserts that the December 3rd letter and the alleged
meeting that took place between CTI/DC, Selby, and HRGM were
sufficient to provide notice to HRGM that stated the name of the sub-
contractor with "substantial accuracy." The district court ruled that the
December 3, 2002 letter was insufficient notice because it failed to
name the subcontractor to whom the supplies were provided.
In order to bring suit under the payment bond, the Little Miller Act
requires that written notice be given to the general contractor within
ninety days, and that such notice "(i) shall state with substantial accu-
tic Sea-Con, 582 A.2d at 985; Westinghouse, 269 A.2d at 582. However,
Maryland courts are not bound by Federal court decisions interpreting
the Federal Miller Act when interpreting the "Little Miller Act," and take
divergent views when such views are mandated by Maryland law. Com-
pare Montgomery County Bd. of Educ. ex rel. Carrier Corp. v. Glassman
Constr. Co., 225 A.2d 448, 455 (Md. 1967) (finding that "Little Miller
Act’s" 90 day provision was satisfied when notice was mailed, but not
received within ninety days.), with Pepper Burns Insulation, Inc. v. Arteo
Corp., 970 F.2d 1340, 1343 (4th Cir. 1992) (finding that notice provision
of Federal Miller Act required that notice be received within 90 days.).
6 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 6 of 14 --

racy the amount claimed and the person to whom the labor or material
is supplied." Md. State Fin. & Proc. Code § 17-108(b)(2)(i). In defin-
ing "substantial accuracy" as the term is used in the Federal Miller
Act, courts find it sufficient that "there exists a writing from which,
in connection with oral testimony, it plainly appears that the nature
and state of the indebtedness has been brought home to the general
contractor." Houston Fire and Cas. Ins. Co. v. United States ex rel.
Trane Co., 217 F.2d 727, 730 (5th Cir. 1954); see also United States
v. A&L Mech. Contractors Inc., 677 F.2d 583, 386-87 (4th Cir. 1982)
(noting that the statute requires substantial accuracy, not precision).
While the statute as a whole is designed to afford additional protec-
tion to subcontractors, the notice requirements aim to protect the gen-
eral contractor. Interpreting the notice provisions of the Federal Miller
Act, the First Circuit stated "[t]he notice provision serves an impor-
tant purpose: it establishes a firm date after which the general contrac-
tor may pay its subcontractors without fear of further liability to the
materialmen or suppliers of those subcontractors." United States ex
rel. Water Works Supply Corp. v. George Hyman Constr. Co., 131
F.3d 28, 32 (1st Cir. 1997). As such, although courts liberally inter-
pret the Federal Miller Act’s requirements concerning the method by
which such notice is given, the rules regarding the contents of such
notice are more rigidly applied. See Maccaferri Gabions, Inc. v.
Dynateria Inc., 91 F.3d 1431, 1437 (11th Cir. 1996).
It is plain that the December 3, 2002 letter, in and of itself, fails
to satisfy the explicit content requirements of the "Little Miller Act"
because it fails to name the subcontractor to whom the materials were
supplied. In apparent recognition of this, CTI/DC argues that the defi-
cient letter should be read in conjunction with HRGM’s actual knowl-
edge to form sufficient notice. CTI/DC cites no Maryland authority
for the proposition that an insufficient letter may be read in combina-
tion with oral testimony to constitute substantially accurate notice
under the "Little Miller Act." Instead, CTI/DC cites multiple cases
interpreting the Federal Miller Act in which courts have found written
notice that omitted the name of the subcontractor to be ‘substantially
accurate’ by reading the written notice in conjunction with prior con-
versations the parties had regarding the debt in question. See United
States ex rel. Kelly-Mohrhusen Co. v. Merle A. Patnode Co., 457 F.2d
7 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 7 of 14 --

116, 119 (7th Cir. 1972); Houston Fire and Cas. Ins. Co. v. United
States ex rel. Trane Co., 217 F.2d 727, 729-30 (5th Cir. 1954).
In our opinion, both of these cases can easily be distinguished from
the case at hand because the written notice in Kelly-Mohrusen and
Houston Fire explicitly referenced the prior conversations about the
debt owed by a particular subcontractor. See United States ex rel.
Kelly-Mohrhusen Co., 457 F.2d at 119 ("[w]e believe that the letter
in this case (which expressly referred to the telephone conversation),
together with the other facts, including the general contractor’s
knowledge of the identity of the roofing contractor, satisfied the ‘sub-
stantial accuracy’ requirement of the statute."); Houston Fire and
Casualty Insurance Co., 217 F.2d at 729-30 (holding plaintiff’s oral
notice to the principal contractor and a written acknowledgment of
that specific request was sufficient to satisfy the Federal Miller Act’s
notice requirements). In contrast, the December 3, 2002 letter in this
case makes absolutely no reference to any prior conversations held
about the debt in question.
Therefore, we hold that because CTI/DC’s notice failed to state the
name of the subcontractor or reference any conversation held about
the debt, CTI/DC failed to comply with an explicit prerequisite for
bringing suit under the "Little Miller Act." The name of the subcon-
tractor is the crucial aspect of the "Little Miller Act’s" notice require-
ments. Absent this information, the safe-guards built in by the
legislature to protect the general contractor are vitiated because the
general contractor is left to use his or her imagination to attempt to
determine which subcontractor not to pay. As the Second Circuit
stated, "[w]e think the need for exercising imagination was what the
notice provision of the Miller Act was intended to prevent." United
States ex rel. A. Edwards & Co. v. Thompson Const. Corp., 273 F.2d
873, 877 (2nd Cir. 1959).
Here, the December 3, 2002 letter fails to identify who the delin-
quent subcontractor is. It is devoid of any reference to the name of
the subcontractor. Further, it makes no reference to the conversation
CTI/DC argues provided the general contractor with actual notice. We
recognize that the Maryland Court of Appeals has repeatedly
acknowledged the need to liberally interpret the Act.2 Stauffer, 407
2Indeed, on at least one occasion the Maryland Court of Appeals has
applied a more liberal reading of the notice provisions than this Court
8 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 8 of 14 --

A.2d at 1194; Montgomery County Bd. of Educ., 225 A.2d at 455.
However, we believe that finding adequate notice in this situation
would be beyond a liberal construction. A liberal construction is not
one that contravenes the plain language of the statute. See Pepper
Burns Insulation, 970 F.2d at 1343. Where a statute requires that writ-
ten notice be given, and the written notice is entirely deficient, a find-
ing that the statutory requirements were satisfied would effectively
write the "name" requirement out of the statute. This we cannot do.
Therefore, on the facts of this case, we find that CTI/DC’s Decem-
ber 3, 2002 letter simply fails to provide such statutorily satisfactory
notice.
C.
CTI/DC next contends the district court erred by failing to consider
the letter of December 3, 2002, in conjunction with the letter of Janu-
ary 10, 2003, to determine whether adequate notice was provided.
The district court found that the January 10, 2003 letter was untimely,
and therefore could not be considered in making the determination of
whether or not adequate notice was given.
Again, the "Little Miller Act" allows a supplier to sue on a payment
security, provided that the supplier satisfies the notice requirements
of § 17-108. Specifically, the Act states that a supplier may sue on the
security "if the supplier gives written notice to the contractor within
90 days after the labor or materials for which the claim is made were
last supplied in the prosecution of work covered by the security." Md.
State Fin. & Proc. Code § 17-108(b)(1). While the main purpose of
the statute as a whole "is to provide greater protection to subcontrac-
tors on contracts awarded by the state," Atlantic Sea-Con, 582 A.2d
at 984, "[t]he obvious purpose of the ninety day provision is to protect
the prime contractor so that after the ninety days he can safely pay a
subcontractor, provided he has received no written notice from latter’s
materialmen or subcontractors." Stauffer, 407 A.2d at 1193.
was willing to apply. Compare Montgomery County Board of Education,
225 A.2d 448, with Pepper Burns Insulation, Inc., 970 F.2d 1340 (4th
Cir. 1992).
9 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 9 of 14 --

Maryland courts have never considered the exact issue of whether
or not an untimely letter may be read in combination with a timely
but deficient letter to constitute adequate notice under the "Little Mil-
ler Act." In United States ex rel. San Joaquin Blocklite, 770 F.2d 862,
865-66 (9th Cir. 1985), the Ninth Circuit faced a Federal Miller Act
claim where the first letter was deficient and the second letter was
untimely.3 There, the Ninth Circuit held that in the context of the
communications between the contractor and the materialman, the two
letters should be read together despite the fact that the second letter
was untimely. See id. at 866.
However, there is also authority for the opposite conclusion. In
United States ex rel. Jinks Lumber Co. v. Federal Insurance Co., 452
F.2d 485 (5th Cir. 1971), the Fifth Circuit refused to consider an
untimely letter in conjunction with a timely letter, stating:
The letter of 20 January arrived after that 90-day period,
while the letter and carbon of 19 December arrived well
within it. Unless the letter of 19 December provided ade-
quate notice, Jinks is barred from asserting a claim against
Dyson.
Id. at 487.4 Additionally, in United States ex rel. Carter Schneider-
Nelson v. Campbell, 293 F.2d 816 (9th Cir. 1961), a Ninth Circuit
case not cited in San Joaquin Blocklite, the Court confronted a situa-
tion where there were four deficient letters (3 timely, 1 untimely). Id.
at 820-21. There, the Court refused to read the late notice (the only
notice the Court found to be adequate) in combination with the timely
letters, ultimately holding that adequate notice had not been given. Id.
3CTI/DC cited two other cases for the proposition that the letters
should be read together. See United States ex rel. Bailey v. Freethy, 469
F.2d 1348 (9th Cir. 1972); Liles Construction Co. v. United States ex rel.
Stabler Paint Manufacturing Co., 415 F.2d 889 (5th Cir. 1969). However
in both cases, both letters appear to have been timely. See Freethy, 469
F.2d at 1350; Liles Constr., 415 F.2d at 891. Thus, these cases are far
from dispositive on the issue at hand.
4Ultimately the Court found sufficient notice by reading a letter and a
carbon, both sent on the same day, together. See United States ex rel.
Jinks Lumber Co., 452 F.2d at 488.
10 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 10 of 14 --

This Court cannot accept the proposition that the Maryland Court
of Appeals would adopt a construction of the Act that would effec-
tively vitiate the ninety-day notice protections the statute offers to
general contractors. CTI/DC did not provide adequate notice until one
hundred and one days after materials and supplies were last furnished.
As the Fifth Circuit stated, "[w]ithout a statutory period, materialmen
might delay claims unreasonably, thus frustrating the general contrac-
tor’s need to be able to commit his funds to other activities." United
States ex rel. Jinks Lumber Co., 452 F.2d at 487. Were this Court to
conclude that such a delay is acceptable, we would place the ninety-
day notice requirement on the proverbial "slippery slope," further
impairing the legislative goal of protecting the general contractor. If
one hundred and one days is acceptable, where is the logical stopping
point? Parties would be able to extend the deadline ad infinitum sim-
ply by filing a defective notice within the legislated time frame and
then seeking to relate adequate but untimely notice back to the date
of the deficient notice. Again, a liberal construction is not one that
contravenes the plain language of the statute. See Pepper Burns Insu-
lation, 970 F.2d at 1343.
The "Little Miller Act" explicitly requires that notice be given to
a contractor within ninety-days. The statute contains no provisions for
extensions or the "relating back" of any notices. As such, we refuse
to read the two letters together, and find that adequate notice was not
given.
D.
Finally, CTI/DC contends that the complaint alleges sufficient facts
to raise an issue as to whether there was an implied-in-fact contract
between themselves and HRGM. CTI/DC’s argument for an implied-
in-fact contract centers around an alleged promise made at a meeting
held prior to the mailing of the December 3, 2002 letter. Specifically,
CTI/DC alleges HRGM was aware that plaintiff was supplying Selby
with the concrete for the project and that Shelby owed CTI/DC a sub-
stantial amount of money. CTI/DC also alleges HRGM assured
CTI/DC that it would be paid for the material on the project.
"An implied contract is an agreement which legitimately can be
inferred from intention of parties as evidenced by the circumstances
11 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 11 of 14 --

and the ordinary course of dealing and the common understanding of
men." County Comm’rs of Caroline County v. J. Roland Dashiell &
Sons, Inc., 747 A.2d 600, 606 (Md. 2000); see Alternatives Unlimited,
Inc. v. New Baltimore City Bd. of School Comm’rs et al., 843 A.2d
252, 289 (Md. Ct. Spec. App. 2004)("A true implied contract or con-
tract implied in fact, does not describe a legal relationship which dif-
fers from an express contract: only the mode of proof is different.").
The formation of a contract requires mutual assent (offer and
acceptance), an agreement definite in its terms, and sufficient consid-
eration. See Peer v. First Federal Sav. and Loan Ass’n of Cumber-
land, 331 A.2d 299, 301 (Md. 1975). The Restatement Second of
Contracts defines consideration as follows:
(1) To constitute consideration, a performance or a return
promise must be bargained for.
(2) A performance or return promise is bargained for if it
is sought by the promisor in exchange for his promise and
is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a
legal relation.
(4) The performance or return promise may be given to
the promisor or to some other person. It may be given by the
promisee or by some other person.
Restatement (Second) of Contracts § 71.
Many courts, this Court included, have recognized the proposition
that a general contractor can become liable directly to a supplier of
its subcontractor in circumstances where the oral representation or
12 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 12 of 14 --

agreement works to the detriment of the supplier. For example, in
American Cas. Co. of Redding PA v. Southern Materials Co., 261
F.2d 197, 198-99 (4th Cir. 1958), the subcontractor fell delinquent in
payments to the materialman, and the materialman notified the con-
tractor of his plans to notify the bonding company and the public
works officer. The contractor requested that the materialman forego
giving such notice, continue to perform, and verbally agreed to pay
the materialman for the concrete previously delivered. See id. The
materialman performed under this new agreement and the district
court ultimately found the general contractor liable. See id.
However, in every case CTI/DC cites for this proposition, the court
in question made a specific finding that consideration had passed
from the materialman to the general contractor for the promise to
cover the subcontractor’s debt.5 For example, in American Casualty
the Court explicitly found that the materialman furnished consider-
ation for the contractor’s promise to pay the subcontractor’s debt
5See United States ex rel. Billows Electric Supply Co. Inc. v. E.J.T.
Construction Co. Inc., 517 F. Supp. 1178, 1182-83 (E.D. Pa. 1981) (The
court found a contractual relationship where a materialman notified the
contractor that it would discontinue performance until the outstanding
balance was paid, the general contractor agreed to pay both the outstand-
ing balance and for any future orders, and the materialman performed.);
United States ex rel. Keener Gravel Co. v. Thacker Constr. Co., 478 F.
Supp. 299, 301-02 (E.D. Mo. 1979) (The court found that "the job cre-
ated at the very least an implied contractual relationship" where a materi-
alman notified the contractor that he would discontinue performance if
they did not accept deliveries and pay a specified price, the contractor
verbally agreed to this arrangement, and the materialman performed);
United States ex rel. Greenwald Supon, Inc. v. Gramercy Contractors,
Inc., 433 F. Supp. 156, 160 (S.D.N.Y. 1977) (The court noted that "[i]n
consideration for this express promise from defendant, plaintiff remained
on the job at West Point and completed its contractual obligations . . .
the contractor and plaintiff were operating under, at the very least, an
implied contractual relationship."); United States ex rel. Strona et al. v.
Bussey et al., 51 F. Supp. 996, 998 (S.D. Ca. 1943) ("The evidence fur-
ther shows that there was a direct contract between the intervenor,
House, and the defendant, Bussey, whereby Bussey promised intervenor
that if he would continue his work on the Cal-Aero Airport Bussey
would pay the same").
13 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 13 of 14 --

when the materialman relinquished its right to give written notice and
continued to deliver concrete to the site after the agreement. Id.
By contrast, CTI/DC makes no allegation that any consideration
passed to HRGM for the promise to cover the debts of the subcontrac-
tor. CTI/DC last furnished materials/supplies to HRGM on or about
October 1, 2002. The meeting at which CTI/DC alleges HRGM made
the promise to pay took place on or about December 3, 2002. There
is no allegation of continued performance (or even a promise of con-
tinued performance) by CTI/DC after the alleged promise because
CTI/DC had completed its obligations in October of that year. Nor is
there any allegation that CTI/DC forewent the exercise of any rights
it held as a result of the alleged promise. In short, the amended com-
plaint is devoid of any allegation that any acceptable form of consid-
eration passed from CTI/DC to HRGM for the promise to cover
Selby’s debt.
As such, the district court correctly ruled that CTI/DC’s argument
has no basis in the factual allegations made in the amended complaint,
and thus properly dismissed the claim for failing to state a claim for
which relief could be granted.
IV.
Therefore, we find that the district court did not err in granting
Selective Insurance’s rule 12(b)(6) motion. The judgment of the dis-
trict court is hereby affirmed.
AFFIRMED
14 CTI/DC, INC. v. SELECTIVE INSURANCE CO.

-- 14 of 14 --