Abulkhair v. Citibank and Associates, 062811 FED3, 11-2059

Docket Nº:11-2059
Opinion Judge:PER CURIAM
Judge Panel:Before: SLOVITER, JORDAN AND GREENAWAY, JR., Circuit Judges
Case Date:June 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 11-2059

United States Court of Appeals, Third Circuit

June 28, 2011


Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 16, 2011

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




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.


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 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.


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 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, 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 [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...

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