author: JORDAN, Circuit Judge.

text:
    Steven PAPP, individually and as Executor and Executor as Prosequendum of the Estate of Mary Sue Papp v. FORE-KAST SALES CO., INC.; Honeywell International, Inc., f/k/a Allied Signal, Inc., as successor-in-interest to the Bendix Corporation; New Brunswick Plating Co., f/k/a New Brunswick Nickel and Chrome Plating; Union Carbide Corporation; John Doe Corporations 1-50; John Doe Corporations 51-100; Goodrich Corp., f/k/a B.F. Goodrich Co.; The Goodyear Tire & Rubber Co.; The Boeing Company, individually and as successor by merger to the McDonnell Douglas Corporation The Boeing Company, Appellant
    No. 15-2851
    United States Court of Appeals, Third Circuit.
    Argued September 9, 2016
    (Filed: November 22, 2016)

      Amaryah K. Bocchino, Jason A. Cincilla, Bryan P. Smith, Manion Gaynor & Manning, 1007 N. Orange Street, Tenth Floor, Wilmington, DE 19801, Martin F. Gaynor, III [ARGUED], Nicholas D. Stellakis, Manion Gaynor & Manning, 125 High Street, Boston, MA 02110, Brian D. Gross, Manion Gaynor & Manning, One-Citizens Plaza, Suite 620, Providence, RI 02903, Marc S. Gaffrey, Hoagland Longo.Moran Dunst & Doukas, 40 Paterson Street, P.O. Box 480, Room 301, New Brunswick, NJ 08903, Counsel for Appellant, Boeing Co.
    Jeffrey P. Blumstein [ARGUED], Robert E, Lytle, Robert G. Stevens, Jr., Szaf-erman Lakind Blumstein & Blader, 101 Grovers Mill Road, Suite 200, Lawrence-ville, NJ 08649, Joseph J. Mandia, Levy Konigsberg, 800 Third Avenue, 13th Floor, New York, NY 10022, Counsel for Appel-lee
    Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.
   OPINION OF THE COURT

JORDAN, Circuit Judge.

Steven Papp filed this failure-to-warn product liability suit against The Boeing Company in the Superior Court of New Jersey, alleging that his late wife, Mary, was made ill by exposure to asbestos from a Boeing aircraft. Boeing removed Papp’s failure-to-warn suit to the United States District Court for the District of New Jersey on the basis of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). According to Boeing, it was acting as a government contractor when it engaged in the allegedly tortious conduct. After removal, Papp filed a motion to remand the case to state court, which the District Court granted. -The District- Court ruled that Boeing had -failed to meet a “special burden” of establishing that a federal officer or agency affirmatively prohibited Boeing from warning third parties of the dangers of asbestos found in.planes manufactured in the mid-twentieth century. Because wé conclude- that the federal officer removal statute extends to contractors who possess a colorable federal defense, and that Boeing made a sufficient showing -of such a defense at the time of removal, we will reverse.

1. Background

Papp, individually and on behalf of Mary’s estate, alleges that Mary suffered secondary “take home” asbestos exposure while washing the work clothes of her first husband, Robert Keck. Keck had several jobs that exposed him to asbestos, including one-for the New Brunswick Plating Co. (“New Brunswick”) in the late 1970s. While working for New Brunswick, Keck sandblasted the landing gear of World War II military cargo planes to prepare the gear for repairs. Papp contends that that process resulted in Keck having airborne asbestos fibers adhere to .his clothing so that Mary, who handled the clothes, inhaled the asbestos.

On August 12, 2013, Papp sued a host of companies in New Jersey, alleging injuriés to Mary from exposure to asbestos. He filed his First Amended Complaint (the “Complaint”) on August 16, 2013, adding Boeing as a defendant, both individually and as successor-by-merger to the McDonnell Douglas Corporation. The Complaint did not indicate which Boeing or Douglas aircraft was claimed to have been the source of Mary’s asbestos exposure. At her deposition taken on September 5, 2013, however, Mary specified that the landing gear Keck sandblasted was for a military cargo plane called the C-47. The C-47 was built by the Douglas Aircraft Company, a predecessor company to Boeing, for the United States Navy and Air Force during World War II. Once Boeing learned the identity of the aircraft, it promptly removed the case to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). That statute permits a defendant to remove a case to federal court from the state court where suit was originally filed, provided the allegedly culpable behavior took place while the defendant was acting under the direction of a federal officer or agency. 28 U.S.C. § 1442(a)(1).

The federal officer removal statute requires that the defendant possess a col-orable federal defense. In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila., 790 F.3d 457, 466 (3d Cir. 2015) (“Defender Ass’n”), cert. denied — U.S. —, 136 S.Ct. 980 & 994, — L.Ed.3d —(2016). Boeing asserted that it was entitled to the federal defense of government contractor immunity because the C-47 was produced for, and under the specific supervision of, the United States military. More specifically, Boeing argued that the government’s oversight extended to labels and warnings for all parts of the aircraft, including those parts laden with the asbestos to which Keck, and in turn Mary, would later be exposed. Boeing also states that, to the extent that the dangers of asbestos were known at the time, the government’s knowledge of those dangers was superior to that of Boeing. As part of its notice of removal, Boeing included the declaration of Larry Fogg (the “Fogg Declaration”). Fogg was a longtime employee of Douglas, who attested, based on his experience and review of the company’s contracts and records, to the factual underpinnings of Boeing’s legal position.

Papp moved to remand the case back to state court, and, of course, Boeing opposed remand. The District Court granted the motion. It held that, because Boeing was a contractor and not a federal officer, it had a “special burden” to demonstrate that it was acting under the control of the federal government. (App. at 6.) The Court said that, to prove removal jurisdiction, Boeing was required to show that it performed “the complained-of activity at the direction of official federal authority.” (App. at 8 (quotation marks and citation omitted)). Because the allegedly wrongful behavior was the failure to warn third parties of asbestos, the Court concluded that Boeing must show “that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties ... worked or otherwise provided services.” (App. at 11.) Using that standard, the Court decided that Boeing did not meet its special burden and that remand to state court was proper.

Boeing timely appealed.

II. Discussion

A. The Federal Officer Removal Statute

“We review de novo whether the District Court had subject matter jurisdiction^]” including a court’s decision to remand for a lack of jurisdiction. Defender Ass’n, 790 F.3d at 465. At the heart of the present jurisdictional dispute is the federal officer removal statute, 28 U.S.C. § 1442(a)(1). As with any removal from state court, removal under § 1442(a)(1) begins with the filing of a notice “containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). Because a motion to remand shares an essentially identical procedural posture with a challenge to subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), it is properly evaluated using the same analytical approach. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.), cert. denied, — U.S. —, 135 S.Ct. 361, 190 L.Ed.2d 252 (2014); see also Defender, Ass’n, 790 F.3d at 466 (applying same 12(b)(1) framework to challenge of jurisdiction after removal).

“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack “challenges subject matter jurisdiction without disputing the facts alleged in the [notice of removal], and it requires the court to consider the allegations ... as true.” Id. (internal quotation marks and citation omitted). A factual attack, in contrast, disputes “the factual allegations underlying the [ ] assertion of jurisdiction,” and involves the presentation of competing facts. Id. Because Papp challenges jurisdiction facially, “we construe the facts in the removal notice in the light most favorable to [Boeing].” Defender Ass’n, 790 F.3d at 466.

The federal officer removal statute has existed in varying forms for some two-hundred years. Its central aim is protecting officers of the federal government from interference by litigation in state court while those officers are trying to carry out their duties. Willingham v. Morgan, 395 U.S. 402, 405-06, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). The statute has been amended over the years to permit removal in a broader set of circumstances. As currently framed and codified at 28 U.S.C. § 1442(a)(1), it provides, in relevant part:

A civil action ... commenced in a State court and that is against ... any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office ...

The “or any person acting under that officer” language effects an expansion of coverage that is relevant here. But the statute itself constitutes a break with tradition. “Section 1442(a) is an exception to the well-pleaded complaint rule, under which (absent diversity), a defendant may not remove a case to federal court unless the plaintiffs complaint establishes that the case arises under federal law.” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (internal quotation marks and citation omitted). “Unlike the general removal statute, the federal officer removal statute is to be ‘broadly construed’ in favor of a federal forum.” Defender Ass’n, 790 F.3d at 466-67 (quoting Sun Buick, Inc. v. Saab Cars USA Inc., 26 F.3d 1259, 1262 (3d Cir. 1994)); see also Willingham, 395 U.S. at 406, 89 S.Ct. 1813 (noting that the scope of the federal officer removal statute “is not narrow or limited”).

We have held that, in order to properly remove a case under § 1442(a)(1), a defendant must meet four requirements:

(1) [the defendant] is a “person” within the meaning of the statute; (2) the [plaintiffs] claims are based upon the [defendant’s] conduct “acting under” the United States, its agencies, or its officers; (3) the [plaintiffs] claims against [the defendant] are “for, or relating to” an act under color of federal office; and (4) [the defendant] raises a colorable federal defense to the [plaintiffs] claims.

Defender Ass’n, 790 F.3d at 467 (citation omitted). We address each requirement in turn.

1. Boeing is a “person” within ■ the meaning of the statute

Boeing’s status as a “person” within the meaning of the statute is undisputed. Because § 1442(a)(1) does not itself define the term “person,” we look to § 1 of Title I of the United States Code, which defines “person” to “include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Under this definition, Boeing, a corporation, is in legal fact a person.

2. Boeing was “acting under” a federal officer or agency

The District Court’s decision to remand this case was based on its conclusion that Boeing had failed to demonstrate that it was “acting under” a federal officer or agency when it did not warn of the dangers associated with asbestos. That conclusion was predicated on two errors. First, the Court wrongly believed that, because Boeing was a federal contractor and not a federal officer, it faced a “special burden” to demonstrate that it was acting under the control of the federal government. (App. at 6.) Second, the Court mistakenly posited that the only way Boeing could show it acted under a federal officer was to show “that a federal officer or agency directly prohibited Boeing” from warning third-parties of asbestos risks. (App. at 11.)

The “acting under” requirement, like the federal removal statute overall, is to be “liberally construe[d]” to cover actions that involve “an effort to assist, or to help carry out, the federal supervisor’s duties or tasks.” Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012). (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007)); see also Defender Ass’n, 790 F.3d at 468 (construing “acting under” liberally). The classic case of such assistance as it relates to government contractors is when “the private contractor acted under a federal officer or agency because the contractors ‘help[ed] the Government to produce an item that it need[ed].’” Defender Ass’n, 790 F.3d at 468 (quoting Watson, 551 U.S. at 153, 127 S.Ct. 2301). When, as occurred in this instance, “the, federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete,” that contractor is “acting under” the authority of a federal officer. Ruppel, 701 F.3d at 1181; see also Defender Ass’n, 790 F.3d at 468-70 (discussing different ways in which an entity might “act under” a federal officer). Thus, the proposition that contractors bear some additional “special burden” is inconsistent with both precedent and the underlying objectives of the removal statute.

Further, we have explicitly rejected the notion that a defendant could only be “acting under” a federal officer if the complained-of conduct was done at the specific behest of the federal officer or agency. See Defender Ass’n, 790 F.3d at 470 (“[W]e disagree that the [defendant] is required to allege that'the complained-of conduct itself was at the behest of a federal agency.”). Instead, we have held that “[i]t is sufficient for the ‘acting under’ inquiry that the allegations are directed at the relationship between the [defendant] and the [federal officer or agency].” Id.

Considered under the proper standard, it is plain that the allegations against Boeing all involve conduct that occurred when it was “acting under” the direction of a federal officer or agency. In fact, we are presented here with an archetypal case. Papp’s allegations are directed at actions Boeing took while working under a federal contract to produce an item the government needed, to wit, a military aircraft, and that the government otherwise would have been forced to produce on its own. That being so, Boeing easily satisfies the “acting under” requirement of the § 1442(a)(1) inquiry. ■ '

3. The Complaint rests on ads done ‘for or relating to” a federal officer or agency

The next requirement, often referred to as the “nexus” or “causation” requirement, demands that the alleged conduct have been undertaken “for or relating to” a federal office. Under the prior version of the statute, which required a showing that a defendant had been sued “for any act under color of [federal] office,” 28 U.S.C. § 1442(a)(1) (2011), a defendant had to “show a nexus, a causal connection between the charged conduct and asserted official authority.” Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quoting Willingham, 395 U.S. at 409, 89 S.Ct. 1813 (internal quotation marks omitted)). But given the addition of the words “or relating to” in the 2011 revision of the statute—a change that was intended to “broaden the universe of acts that enable Federal officers to remove [suits] to Federal court,” H.R. Rep. No. 112-17, pt. 1, at 6 (2011)— we have taken a more permissive view of this requirement. Specifically, we have held that, in order to meet the “for or relating to” requirement, “it is sufficient for there to be a connection or association between the act in question and the federal office.” Defender Ass’n, 790 F.3d at 471 (internal quotation marks omitted).

Here, there is indeed a connection or association between the acts complained of by Papp and the federal government. At the heart of Papp’s claim against Boeing is the failure to provide sufficient warning about the dangers of asbestos in the landing gear of the C-47 aircraft. In its notice of removal, Boeing asserts that the C-47 was manufactured “for the United States Armed Forces under the direct supervision, control, order, and directive of federal government officers acting under the color of federal office,” (App. at 39), and that that control extended to “the content of written materials and warnings associated with such aircraft,” (id. at 41). Those alleged facts alone satisfy the- “for or relating to” requirement, as they demonstrate a direct connection or association between the federal government and the failure to warn described by Papp, As a result,. Boeing has satisfied the third requirement of § 1442(a)(1).

4. Boeing raises a colorable federal defense

The fourth and final requirement to demonstrate removal jurisdiction under § 1442(a)(1) is that the defendant raise a “colorable federal defense.” Defender Ass’n, 790 F.3d at 467. Boeing asserted in its notice of removal that it was entitled to the “military contractor defense” announced in Boyle v. United Techs. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Under Boyle, a federal contractor cannot be held liable for a state tort if, in the context of the work at issue, “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Id. at 512, 108 S.Ct. 2510. Because Papp’s claim against Boeing is predicated on a failure-to-warn theory, the Boyle test could be rephrased to cover Boeing’s actions as follows: (1) the government approved specifications for the C-47, including certain warnings for the plane; (2) Boeing provided the warnings required by the government; and (3) Boeing told the government about any asbestos hazards that were then known to it but not to the government. See Leite, 749 F.3d at 1123 (noting that the government contractor defense is established by the defendant showing that “(1) the [government] exercised its discretion and approved certain warnings for [the defendant’s products, (2) [the defendant] provided the warnings required by the [government], and (3) [the defendant] warned the [government] about any asbestos hazards that were known to [the defendant] but not to the [government]”).

Taking the undisputed facts from the notice of removal, including the Fogg Declaration, as true, Boeing has stated sufficient facts to make out a colorable defense. As to the first element of the Boyle test, Boeing asserted that the government exercised complete control over “any markings or labels on [Boeing] aircraft or aircraft components,” that in-person meetings occurred between Boeing and government personnel where warnings were discussed, and that “[t]he contents, including any warnings, of any technical manuals.,. were directed, reviewed, and approved by” the government. (Opening Br. at 19-20.)

As to the second element, Boeing’s notice of removal and the attached Fogg Declaration are explicit that Boeing followed every specification set forth by the government when building the C-47 aircraft.

Finally, as to the third element, the Fogg Declaration states that, at the time the C-47 aircraft was being built, Boeing was not aware of the health hazards of asbestos. Furthermore, some of the documents produced by Boeing suggest that the government had a superior understanding of the risks of asbestos. Because we are bound to accept Boeing’s assertion that the risks were not known to it, Boeing did not have any superior knowledge that it withheld from the government.

The District Court took issue with several points in the Fogg Declaration, in particular Fogg’s assertion that the government had oversight of the warnings related to the aircraft. The Court seemed especially troubled that Fogg did not provide thorough citations to the documents delivered with his declaration. Given the posture of the case though, that objection is misplaced. A defendant “need not win his case before he can have it removed.” Willingham, 395 U.S. at 407, 89 S.Ct. 1813. At the removal stage, Boeing needed only show that its asserted Boyle defense was “colorable,” which is to say that the defense was “legitimate and [could] reasonably be asserted, given the facts presented and the current law.” Colorable Claim, Black’s Law Dictionary (10th ed. 2014); see also Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 782-83 (E.D. Pa. 2010) (“[A] defense is colorable for purposes of determining jurisdiction under Section 1442(a)(1) if the defendant asserting it identifies facts which, viewed in the light most favorable to the defendant, would establish a complete defense at trial.”). It has done so and, not insignificantly, the facts presented were not contested in the District Court. If Boeing is able to prove at trial by a preponderance of the evidence the facts alleged in its notice of removal, including the facts asserted in the Fogg Declaration, it will have established a prima facie defense under Boyle and may prevail on the merits. That is sufficient to constitute a “colorable” federal defense. Boeing’s notice of removal thus met the fourth and final requirement of § 1442(a)(1).

Having satisfied all of § 1442(a)(l)’s requirements, Boeing established its entitlement to proceed in federal court, but Papp makes one further statement to forestall that result. ,

B. Timeliness

In addition to challenging the merits of Boeing’s removal argument, Papp asserts, in the alternative, that Boeing did not timely seek removal. That assertion, made in a footnote, reads as follows:

Because the Court below determined that remand was jurisdictionally required under the second grounds, it did not deem it necessary to address the timeliness issue. However, since the issue of jurisdiction[] is de novo before this Court, should [the District Court’s] stated rationale for remand not be accepted, it is respectfully submitted that the issue of timeliness, which was fully briefed by both parties below, would be an appropriate subject for consideration.

(Ans. Br. at 5 n.4 (internal citations to the record omitted).) It is well established that “[fjederal courts of appeals refuse to take cognizance of arguments that are made in passing without proper development.” Johnson v. Williams, — U.S. —, 133 S.Ct. 1088, 1095, 185 L.Ed.2d 105 (2013); see also Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument consisting of no more than a conclusory assertion ... will be deemed waived.”). The footnote, standing alone, does not sufficiently present Pápp’s argument on the issue of timeliness. Indeed, it is not even phrased as an argument, but rather simply states that the issue would be “appropriate for consideration.” (Ans. Br. at 5 n.4.) The only sense in which Papp makes an argument at all is by reference-to what he said somewhere else, trying to incorporate arguments he made before the District Court. To permit parties to present arguments in that fashion would effectively nullify the page or word limits imposed by the appellate and local rules. See Gaines-Tabb v. ICI Explosives, USA Inc., 160 F.3d 613, 623-24 (10th Cir. 1998) (“Allowing litigants to adopt district court filings would provide an effective means of circumventing the page limitations on briefs set forth in the appellate rules.”). That cannot be permitted, and we join our fellow Circuits in declining to do so. See id. (collecting cases). Papp has therefore forfeited any argument as to timeliness.

III. Conclusion

For the foregoing reasons, we will reverse.

      , For clarity, and intending no disrespect by undue familiarity of address, throughout this opinion we refer to Mary Papp as "Mary” and to Steven Papp as "Papp.”

      . For ease of reference, and as the District Court did, we refer to the Douglas Aircraft Company, McDonnell Douglas Corporation, and The Boeing Company collectively as "Boeing,” unless otherwise specified.

      . The District Court’s jurisdiction is squarely at issue in this case, as discussed below. We have jurisdiction to review the District Court’s order to remand pursuant to 28 U.S.C. §§ 1291 and 1447(d).

      . While a factual attack on jurisdiction after removal is permissible, such a challenge should only be considered to the extent that the facts presented, if persuasive, would directly undermine one of the four elements of Section 1442 that must be present to confer jurisdiction. See infra at n.5 and related text. To the extent that such a challenge bleeds into the merits of the case, the District Court ought not address it in terms of jurisdiction. See Davis, 824 F.3d at 348; see also Cuomo v. .Crane Co., 771 F.3d 113, 116 (2d Cir. 2014) (“To the extent that [a plaintiff’s] competing testimony challenges the accuracy or reliability of [a defendant’s] evidence, it does not undercut [the defendant’s] right to removal, but rather raises the very type of factual dispute about the validity of the defense that should be submitted to the judgment of a federal court.”).

      . Although the District Court’s opinion seemed to elide the distinction between the "acting under” and "for or relating to” requirements, we address them separately, in keeping with the test we announced in Defender Ass’n, 790 F.3d at 467.

      . We are not alone in permitting defendants to raise the government contractor defense from Boyle in failure-to-warn cases; the Second, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits have all allowed the defense in such cases. See In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629-30 (2d Cir. 1990); Ripley v. Foster Wheeler LLC, 841 F.3d 207, 210-11, No. 15-1918, 2016 WL 6441049, at *2 (4th Cir. Nov. 1, 2016); Perez v. Lockheed Corp. (In re Air Disaster at Ramstein Air Base, Germany, on 8/29/90), 81 F.3d 570, 576 (5th Cir.), modified on other grounds, 88 F.3d 340 (5th Cir. 1996) (per curiam); Tate v. Boeing Helicopters (Tate II), 140 F.3d 654, 656 (6th Cir. 1998); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996); Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749-50 (9th Cir. 1997); Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487, 1489 (11th Cir. 1990).

      . Examples of that may be found in bulletins, pamphlets, and technical manuals provided in the record.

      . Though not necessary to the resolution of this issue, it bears mention that timeliness of removal under the federal officer removal statute is not, in fact, a jurisdictional issue. See Farina v. Nokia Inc., 625 F.3d 97, 114 (3d Cir. 2010) ("It is well settled that § 1446(b)’s thirty-day time limit for removal is a procedural provision, not a jurisdictional one,”).

      , As noted by the Tenth Circuit in Gaines-Tabb, the First, Fourth, Fifth, Seventh, and Eighth Circuits have already endorsed this rule, 160 F.3d at 623-24. Since the time that Gaines-Tabb was decided, the rule has also been adopted by the Second, Frank v. United-States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997); and Sixth Circuits, Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 453 (6th Cir. 2003). Cf. Sandgathe v. Maass, 314 F.3d 371, 380 n.8 (9th Cir. 2002) (admonishing counsel for incorporating arguments by reference, but rejecting those arguments on the merits).

      , Even were that issue preserved, it would not change our conclusion on the matter. Papp's principal argument relies on the notion that Boeing's removal was untimely because it came 45 days after the filing of the Complaint, outside of the 30 day window provided by the statute. The statute also provides, however, that, "if the case stated by the initial pleading is not removable” the notice of removal may be filed within 30 days following receipt of "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). Here, Boeing asserts that it was not aware that Papp was making a claim related to Boeing’s role as a federal contractor until the deposition of Mary Papp, during which Boeing learned for the first time that the allegations.against it related to its production of the C-47-aircraft.
      Papp concedes that answers to deposition questions “can constitute ‘other paper’ for purposes of triggering the time for removal under 28 U.S.C. § 1446(b).” (App. at 120). He argues, however, that Boeing should have been able to ascertain from its own records what specific aircraft Keck was working on based on Keck’s place and timing of employment, and therefore determine whether there was a federal defense available. Setting aside the fact that nothing in the record supports the assertion that Boeing could have made such a deduction, Boeing simply was not required to do so. See In re Asbestos Prod. Liab. Litig. (No. VI), 770 F.Supp.2d 736, 740 (E.D. Pa. 2011) (citing Foster v. Mutual Fire Marine & Inland Ins. Co., 986 F.2d 48, 53 (3d Cir. 1993), rev'd on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (noting that we look only to the "four corners of the pleading” to. see. if it "informs the reader, to a substantial degree of specificity, that all elements of federal jurisdiction are present,” and ask "not what the defendant knew, but what the relevant document said.”)). As a result, the relevant date for determining the timeliness of Boeing’s motion to remove was the September 5, 2013 deposition of Mary Papp, and Boeing’s October 4, 2013 filing was therefore timely.


source: Caselaw Access Project

author: NIEMEYER, Circuit Judge:

license: Public Domain

text:
    NCO FINANCIAL SYSTEMS, INC., now known as EGS Financial Care, Inc., Plaintiff-Appellee, v. MONTGOMERY PARK, LLC, Defendant-Appellant. NCO Financial Systems, Inc., now known as EGS Financial Care, Inc., Plaintiff-Appellant, v. Montgomery Park, LLC, Defendant-Appellee.
    No. 15-1988, No. 15-2071
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: November 29, 2016

      ARGUED: Howard G. Goldberg, Goldberg & Banks, P.C., Baltimore, Maryland, for Appellant/Cross-Appellee. Andrew David Levy, Brown Goldstein & Levy, LLP, Baltimore, Maryland, for Ap-pellee/Cross-Appellant. ON BRIEF: John E. McCann, Jr., Ranak K. Jasani, Miles & Stockbridge P.C., Baltimore, Maryland, for Appellant/Cross-Appellee. Joshua R. Treem, Kevin D. Docherty, Brown Gold-stein & Levy, LLP, Baltimore, Maryland, for Appellee/Cross-Appellant.
    Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.
   NIEMEYER, Circuit Judge:

This appeal involves disputes between parties to a 12-year commercial lease of office space in Baltimore, Maryland. NCO Financial Systems, Inc., the lessee, contends that it properly exercised a right of early termination of the lease and that, during the course of the lease, it was overcharged for rent based on erroneous calculations of the space’s square footage. Montgomery Park, LLC, the lessor, contends that NCO failed to satisfy the lease’s specific conditions for early termination and that NCO now owes rent for the remainder of the lease term.

The district court concluded that NCO effectively exercised its right to terminate the lease early. It also concluded that NCO was not overcharged or, in any event, that its overcharge claim was barred by Maryland’s three-year statute of limitations.

On appeal, we reverse the district court’s ruling that NCO effectively exercised the right of early termination, and we affirm its ruling rejecting NCO’s overcharge claims. Accordingly, we remand for further proceedings on Montgomery Park’s claim that NCO breached the lease agreement in failing to pay rent.

I

Beginning on March 15, 2003, Montgomery Park leased “approximately 106,267” square feet of office space to NCO in a building located on Washington Park Boulevard in Baltimore, Maryland. The base rent for the first year was $15- per square foot, or $1,594,005 per year, which thereafter would increase as determined by a formula tied to inflation. The rent also included NCO’s proportionate share of real estate taxes and operating expenses for the common areas of the building.

The initial term of the lease was 12 years, subject to renewal for an additional 8 years. The lease, however, gave NCO a limited right to terminate the lease after 8 years, provided that NCO gave timely notice and made timely payment of a termination fee. More specifically, the lease provided:

§ 1.05 Limited Right of Early Termination. Tenant shall have a one-time, conditional right to terminate this Lease (the “Termination Right”), effective on that date which is eight years after the Commencement Date (the “Termination Effective Date”), upon Tenant’s strict compliance with all of the following requirements: (a) Tenant shall deliver to Landlord (not later than ten (10) months prior to the Termination Effective Date (such notice deadline, the “Termination Notice Deadline”)) a written notice (the “Termination Notice”) stating that Tenant elects to exercise this Termination Right; and (b) Tenant shall pay to Landlord (50% simultaneously with delivery of the Termination Notice and the remaining 50% balance at least three (3) months prior to the Termination Effective Date), a termination fee (the “Termination Fee”) equal to ten (10) times the monthly installment (which will be in effect as of the Termination Effective Date) of Rent (including, without limitation, all Additional Rent on account of Taxes or Operating Expenses). If (and only if) Tenant both timely delivers the Termination Notice and timely pays the Termination Fee as required above,' then the Lease will be terminated effective on the Termination Effective Date. Tenant shall not have the right to terminate this Lease if it fails either timely to deliver the Termination-Notice or timely to pay the Termination Fee.

By letter dated May 12, 2010, NCO gave Montgomery Park notice that it was exercising its right of early termination, effective March 15, 2011. At the same time, it remitted $779,964.15, representing 50% of the termination fee, which § 1.05 of the lease specified was equal to 10 months’ rent.

On December 15, 2010, NCO remitted the second payment of the termination fee, but the amount it remitted was only $697,100.55, which was $79,067.70 less than the first payment that it had made the previous May. NCO explained the discrepancy, stating that it had reduced the termination fee by the amount of a janitorial services credit described elsewhere in the lease. Under that provision, if NCO elected to hire its own janitorial service in lieu of using Montgomery Park’s service for NCO’s own leased premises—as distinct from such services that Montgomery Park provided for the common areas—Montgomery Park would provide NCO with an annual allowance of up to $1.00 per square foot per year.

Montgomery Park responded to the discrepancy, stating that because NCO had failed to remit the second half of the termination fee on December 15, 2010, it had not satisfied the specified condition for early termination and therefore had not terminated the lease. Montgomery Park stated that it would, upon NCO’s acknowledgment of this fact, return to NCO the payments that NCO had made in May and December.

NCO disagreed with Montgomery Park’s position, asserting that it had “timely and completely fulfilled all of the requirements set forth in Section 1.05 of the Lease,” and it considered the lease properly terminated. Accordingly, it vacated the premises on May 31, 2011, and did not pay rent thereafter. Montgomery Park advised NCO that it considered NCO to be in default of the lease for the failure to pay rent.

In 2010, after NCO had first provided notice, of early termination, the parties discussed the alternative possibility of reducing the size of rented space, and, in furtherance of those discussions, Montgomery Park provided NCO with computer-generated drawings of the building containing the leased space. Receipt of those drawings prompted NCO to question the amount of rent that it had 'been paying under the lease. It disputed the calculation of “usable square feet,” which, when multiplied by a factor of 1.12, determined “rent-able square feet,” the basis for computing the rent. NCO contended that it should have .paid rent for only 100,800 rentable square feet instead of “approximately 106,-267” rentable square feet, a difference of 6,467 square feet. To make its claim, NCO relied on standards published by the Building Owners and Managers Association (“BOMA”), which would exclude from “usable square feet” restrooms within NCO’s leased space, areas holding mechanical equipment serving NCO’s space, a 13-square-foot room holding fire protection equipment, and an elevator lobby used by NCO within its leased space. NCO also disputed the inclusion in its leased space of a 562-square-foot area called the “Bridge.”

NCO commenced this diversity action against Montgomery Park in February 201Í, alleging breach of contract, unjust enrichment, and fraud based on the allegation that NCO had been overcharged for rent. NCO also sought a judgment declaring that the lease had been effectively terminated under the early termination right contained in § 1.05. Montgomery Park filed a counterclaim, seeking a judgment declaring that the lease was still in effect and demanding contract damages for NCO’s failure to pay rent after May 31, 2011.

After the completion of discovery, NCO and Montgomery Park filed cross-motions for partial summary judgment. NCO sought a partial summary judgment on its claims that the premises did not include the Bridge; that NCO had properly terminated-the lease; and that “usable square footage” should be determined according to the standards published by BOMA. Montgomery Park sought a partial summary judgment dismissing NCO’s overcharge claims on the ground that they were barred under Maryland’s three-year statute of limitations.

The district court granted NCO’s motion in part, agreeing that the leased premises did not include the Bridge and that NCO had effectively exercised the early termination right. It denied NCO’s motion on its overcharge claim, deferring that issue to trial of disputed facts. It also deferred to trial Montgomery Park’s motion claiming that NCO’s overcharge claim was barred by the applicable ’ statute of limitations.

In granting a partial summary judgment to NCO on the early termination issue, the court concluded, as a matter of law, that the janitorial allowance claimed by NCO was not a credit properly applied against the early termination fee because it was not a component of rent that defined the fee. Therefore, NCO’s deduction of the allowance from the termination fee was improper. Nonetheless, the court found that NCO had properly exercised its early termination option, Even though the court recognized that the words of the early termination provision “clearly and unambiguously provide[d]” that exercising the option required “strict compliance with specified conditions precedent,” it determined that the payment amount required was not a condition but instead a . “non-material covenant” that did not need to be strictly satisfied. The court reasoned that, while parts of the lease made full payment of the termination fee a condition, other phrases were less clear. At bottom it held that it would be unreasonable to require NCO to correctly calculate the termination fee in order to exercise its early termination right.

Following a bench trial on the overcharge claim, the court held that “usable square feet” included the square footage of internal restrooms, the area holding mechanical equipment, the room holding fire protection, and the elevator lobby. The court reasoned that the word “usable” wás not ambiguous in the context of the lease, and it accordingly applied the normal meaning of that term, finding that NCO had exclusively possessed and used the areas that BOMA would, if applied, have deemed unusable. Additionally, the court found that NCO had had inquiry notice of its overcharge claim for more than three years before it commenced this action, such that its claim was barred by Maryland’s three-year statute of limitations. The court thus dismissed NCO’s overcharge claim by judgment dated August 19, 2015.

Montgomery Park filed this appeal, contending that the district court erred in concluding that NCO had effectively terminated the lease under the early termination provision, and NCO filed a cross-appeal, challenging the district court’s denial of. its overcharge claim.

II

With respect to Montgomery Park’s appeal, both parties accept the- district court’s conclusion that the lease’s early termination provision required NCO to provide timely notice and to pay in two equal payments a termination fee equal to 10 months’ rent. Both parties also accept the district court’s conclusion that, • although NCO gave timely notice and made its first payment in the correct amount, NCO failed to make the second of these equal payments in the correct amount because it improperly deducted $79,067.70 for a janitorial services credit. Montgomery Park, however, challenges the court’s conclusion that NCO had nonetheless exercised its right of early termination on the reasoning that, under the lease, payment in the correct amount was a covenant with which strict compliance was not required. Montgomery Park contends that payment in full was an express condition of the option’s exercise and NCO’s attempt to terminate early was therefore ineffective. It argues that the district court’s contrary interpretation, based on its conclusion that the correct amount of the termination fee was not part of the condition for early termination but merely a non-material covenant, ignored the plain language, of the early termination provision and violated key principles of contract construction under Maryland law.

NCO contends that the district court “correctly analyzed the language of the lease to conclude that matching precisely Montgomery Park’s calculation of the termination fee was not a condition precedent to NCO’s exercise of its option.” Relying on Beckenheimer’s Inc. v. Alameda Associates Limited Partnership, 327 Md. 536, 611 A.2d 105 (1992), it asserts that the inadequate payment of the termination fee was a breach of a covenant, not the failure to satisfy a condition, and that the district court therefore properly applied principles of equity to conclude that NCO effectively terminated the lease early under § 1.05, even though it did not pay the full early termination fee.

Under Maryland law, which applies in this diversity case, when the terms of an option impose conditions on its exercise, those conditions must be exactly matched for exercise to be effective. See Elderkin v. Carroll, 403 Md. 343, 941 A.2d 1127, 1133 (2008). In determining whether an option has been exercised, the Elderkin court articulated a three-part test to be applied. Id. at 1135. First, a court must evaluate whether the exercise exactly matched the terms specified by the offer. Second, if the match is not exact, the court must consider whether any variance is covered by a number of highly specific exceptions, none of which applies to the present case. Finally, the court must determine whether any breach was of a covenant or of a condition. Id. The determination of whether requirements for exercising an option are conditions or covenants is a question “of construction dependent on the intent of the parties to be gathered from the words they have employed.” Chesapeake Bank of Md. v. Monro Muffler/Brake, Inc., 166 Md.App. 695, 891 A.2d 384, 391 (2006) (quoting Chirichella v. Erwin, 270 Md. 178, 310 A.2d 555 (1973)). The Chesapeake Bank court noted that conditions are indicated by words and phrases such as “if,” “provided that,” and “when.” Id.

Applying these principles to the lease before us, the language could hardly be more clear that § 1.05 reveals an intent to impose two conditions on the exercise of the right of early termination: (1) that the lessee give 10 months’ notice prior to the specified early termination date; and (2) that the lessee make payment—in two equal installments—of a “termination fee” defined to equal 10 months’ rent. As § 1.05 states, the right to early termination can be exercised only “upon strict compliance” with the two requirements. And the lease then uses language indicative of a condition when describing how early termination can be effected. The lease states that termination will be effective “[i]f (and only if) Tenant both timely delivers the Termination Notice and timely pays the Termination Fee as required above.” (Emphasis added). And thereafter, it makes unmistakably clear that the lease is imposing conditions by stating the obverse—that early termination is not exercised “if [Tenant] fails either timely to deliver the Termination Notice or timely to pay the Termination Fee.” (Emphasis added). Applying Maryland law, which provides that the use of the word “if’ is indicative of a condition, we therefore conclude that § 1.05 of the lease imposes conditions, as it uses “if’ three different times when referring to the two requirements and, on one of those occasions, uses “if’ with “only if’ to emphasize the conditional nature of the requirements.

In short, we conclude that the lease unambiguously imposes two conditions on NCO’s exercise of its right of early termination—timely notice and timely payment of the termination fee. Because NCO un-disputedly failed to make full payment of the termination fee, it did not satisfy those conditions and therefore did not successfully exercise the right of early termination.

The district court expressed a concern that reading the requirement of full payment as a condition to early termination would be potentially unreasonable as it would require NCO to properly calculate the termination fee. Following this vein, NCO argues that it satisfied the requirement of payment even though it did so in the wrong amount, because paying the proper amount was not part of the condition. It asserts that because the calculation of the termination fee could be difficult, any inadequate payment, regardless of its cause, must therefore be excused as the failure to satisfy a covenant, not treated as the failure to satisfy the condition. The flaw in this argument is its underlying assumption that the calculation of the amount of the termination fee was somehow at issue. But it never was. When NCO paid the first 50% installment, it remitted $779,964.15, and Montgomery Park never expressed any reservation or disagreement with the accuracy of that amount. Similarly, the second installment differed only because NCO made the decision, as it explained, to set off against that amount the janitorial services credit, as if it were rendering an account, not paying a specifically defined fee. It thus reduced the second installment to $697,100.55, contrary to the condition that required payment of the defined fee in equal parts. Because NCÓ’s underpayment derived not from any mis-, calculation but from NCO’s deliberate decision to offset an unrelated payment, any concerns about the posited difficulty of calculation are irrelevant.

In sum, the clear and unambiguous language of the lease agreement made payment in full of the termination fee a condition, and NCO failed to satisfy it.

Ill

Because NCO failed effectively to exercise its right of early termination, the lease continued in force after March 15, 2011, and Montgomery Park is thus .entitled to pursue its counterclaim against NCO for breach of the lease agreement for failing to pay rent. In response to this conclusion, NCO argues that Montgomery Park’s claim for rent should be barred by the equitable doctrine of election of remedies because, after the district court found that NCO had properly exercised its early termination option, Montgomery Park pursued the unpaid balance of the termination fee, rather than refusing that, remedy in the hope that a favorable holding on appeal would enable it to pursue the unpaid rent.

The doctrine of election of remedies, however, has no application here because Montgomery Park did not have multiple remedies available from which to choose when it pursued the balance of the termination fee. To interpret the doctrine as NCO urges would force claimants to fore-go the only remedy made available to them by the court in hopes of obtaining a favorable result on appeal. This harsh interpretation is inconsistent with Maryland law.

Maryland law recognizes that “[t]he doctrine of election of remedies is quite technical and should not be lightly employed by a court.” Surratts Assocs. v. Prince George’s Cnty, 286 Md. 555, 408 A.2d 1323, 1330 (1979). Moreover, the doctrine is available only “where there are two or more coexistent remedies available to the litigant at the time of election which are repugnant and inconsistent.” Shoreham Developers, Inc. v. Randolph Hills, Inc., 269 Md. 291, 305 A.2d 465, 472 (1973) (emphasis added) (quoting 25 Am. Jur. 2d, Election of Remedies §§ 10-12 (1966)).

In this case, when Montgomery Park pursued the balance of the termination fee, the district court had already found that NCO had validly exercised its right to terminate the lease early. At that point, Montgomery Park had ho remedy other than claiming the balance of the termination fee that NCO had failed to remit. Because Montgomery Park did not have two or more coexistent remedies from which to make an election, the doctrine has no applicability.

IV

In its counterclaim, NCO contends that Montgomery Park misrepresented or misstated in the lease the usable-square-footage portion of the total space for which NCO paid rent. The lease used 94,881 as the number of “usable square feet” and then applied to that number a factor of 1.12 to calculate the “rentable square feet” of 106,267 square feet. The rentable square footage was then used to determine the rent. NCO argues that 94,881 overstated the usable square footage of the premises because it included internal restrooms, areas holding mechanical equipment serving NCO space, a room holding fire protection equipment, and the elevator lobby used by NCO within its offices. NCO argues that those areas should not have been included in the total number of usable square feet, as they were not “usable” under standards published by the Building Owners and Managers Association or BOMA. When those areas are excluded from “usable square feet,” NCO contends, the “rentable square footage” becomes 100,800, instead of the leases’ provision of “approximately 106,267/’ a difference of 5,467 square feet. In furtherance of this argument, NCO introduced at trial parol evidence from several witnesses who testified that they understood the lease to be measuring “usable square feet” under the standards published by BOMA.

Even though the district court heard the parol evidence at. trial, it did not apply the BOMA standards to define “usable” because it found that the term “usable,” “in the context of the agreement, [was] unambiguous,” and therefore it could not use parol evidence to overcome the unambiguous contract terms. See Sy-Lene of Wash., Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 829 A.2d 540, 544 (2003).. In addition, the court noted that the lease’s integration clause suggested that the parties were not relying on a technical meaning not defined in the lease. The court concluded, “using its own common sense and everyday experience as a finder of fact[,] ... that the term ‘usable’ means to use, occupy, or possess.” And when it applied that meaning to the facts, it found that NCO “certainly possessed and occupied and used exclusively the bathroom areas, the mezzanine area, and as well the valve room.” In addition, it noted that NCO’s use and possession of the bathrooms was further evidenced by NCO’s taking over the janitorial services for the bathroom areas of which it had exclusive use.

We conclude that the district court did not err in its construction of the lease and that its finding that the disputed areas were used and possessed exclusively by NCO was not clearly erroneous. When these disputed areas are included in the usable square feet, as the court concluded, the lease did not misrepresent or misstate that the premises constituted “approximately 106,267” rentable square feet.

NCO argues that this conclusion is erroneous because it ignores the parol evidence NCO offered to show that BOMA should be consulted to supply the meaning of “usable” in the lease. This argument, however, misunderstands the court’s position on that evidence. The district court, in fact, received the parol evidence as to the BOMA standards during trial but concluded not to 'use it in light of the court’s conclusion that the term “usable” was an-ambiguous. This was not error. See Sy-Lene, 829 A.2d at 544.

At bottom,; we .conclude that the district court did not err in concluding that.NCO was properly charged for “approximately 106,267” square' feet. In reaching this conclusion, we do not address NCO’s claim that the district court erred in applying Maryland’s three-year statute of limitations as an alternative basis for denying NCO’s overcharge claim,

* * ⅜

For the reasons given, we reverse the district court’s ruling that NCO satisfied the lease’s conditions for early termination; we affirm its ruling rejecting NCO’s overcharge claims; and we remand for further proceedings on Montgomery Park’s claim that NCO breached the lease agreement .by failing to pay rent after May 31,2011.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

       NCO also argues that the inclusion of some 562 square feet for the area called the Bridge was improper. The district court agreed, ruling that the Bridge’s square footage should not háve been included in the definition of the leased premises. But the court also ruled that in the context of a 106,000-square-foot premises, the Bridge area was not material, especially in light of the lease's use of "approximately 106,267” square feet, as well as the testimony of NCO’s witnesses that 562 square feet was not material. We agree with the district court's ruling.


author: PAMELA HARRIS, Circuit Judge:

text:
    DREAMSTREET INVESTMENTS, INC., d/b/a DS Builders, a North Carolina Corporation, Plaintiff-Appellant, v. MIDCOUNTRY BANK, a Federal Savings Bank, Defendant-Appellee.
    No. 15-2104
    United States Court of Appeals, Fourth Circuit.
    Argued: October 25, 2016
    Decided: November 30, 2016

      ARGUED: Rachel Marie Stevens, Dreamstreet Investments, Inc., Raleigh, North Carolina, for Appellant. Robert Eli Levin, Haywood, Denny & Miller, L.L.P., Durham, North Carolina, for Appellee. ON BRIEF: Matthew Ivan Van Horn, Law Office of Matthew I. Van Horn, PLLC, Raleigh, North Carolina, for Appellant.
    Before WILKINSON, KING, and HARRIS, Circuit Judges.
   Affirmed by published opinion. Judge HARRIS wrote the opinion, in which Judge WILKINSON and Judge KING joined.

PAMELA HARRIS, Circuit Judge:

This case arises from a “seller holdback” agreement between Dreamstreet Investments, Inc., which was selling a vacant lot for home construction, and MidCountry Bank, which was financing the lot’s purchase by a third party. Under the agreement; part of the purchase price owed to Dreamstreet instead would be retained by MidCountry, pending completion of the home and subject to certain conditions.

On June 16, 2009, Dreamstreet contacted MidCountry, challenging the propriety of the seller holdback agreement and threatening to sue. Over four years later, Dreamstreet made good on its threat. In a complaint filed on June 28, 2013, Dream-street alleged that MidCountry fraudulently induced it to enter into the seller holdback agreement, in violation of North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”). A subsequent amendment added a claim under the common-law doctrine of constructive fraud.

The district court granted summary judgment to MidCountry. Dreamstreet’s UDTPA claim, the court held, was barred by the applicable four-year statute of limitations. And on the undisputed record facts, the court concluded, Dreamstreet could not establish the necessary elements of a constructive fraud claim. We agree, and for the reasons given below, we affirm the district court’s decision.

I.

A.

At issue in this case is an agreement between two commercial entities: Dream-street, a real estate investment corporation; and MidCountry, a bank. The terms of that agreement are not contested. What is disputed is how the agreement came to be, and whether MidCountry has lived up to its obligations to Dreamstreet.

The case began when' Jason Pittman, through his company Dreamstreet Investments, entered into a purchasing agreement to sell an unimproved lot to Carl Ingraham for $115,000. Ingraham hoped to build a home on the property, and to fund his purchase, he applied for an owner-builder loan from MidCountry. An owner-builder loan would allow Ingraham to borrow the purchase price of the lot, and then, acting as his own general contractor, to make additional draws on the remaining loan amount to fund the construction of his home.

Under MidCountry’s underwriting standards, Ingraham was required to make a down-payment of approximately $43,000 to qualify for the loan. But Ingraham was unable to meet this requirement, and so Dreamstreet and MidCountry entered into the seller holdback agreement (the “Agreement”) at issue here. Under the Agreement, Dreamstreet would forgo immediate receipt of $43,200 of the purchase price of the lot. That money instead would be retained by MidCountry, ensuring—according to MidCountry—that there would be sufficient funds to complete construction of Ingraham’s home. Upon completion of the home, the money would be released to Dreamstreet.

Additional conditions of the Agreement were memorialized in an email sent and signed by Pittman on June 12, 2008, which the parties agree establishes the terms of their agreement. Under those terms, the $43,200 would hot be disbursed to Dream-street if Ingraham defaulted on his Mid-Country loan or failed to complete construction on his home. Specifically, the email stated: “I [Dreamstreet] understand that the only reason the holdback would not be available was if [Ingraham] was in default or unable to complete construction on the home and at that point MidCountry would use those remaining funds, to complete construction on the home.” J.A. 80.

After sending the June 12 email, Pittman contacted his attorney, his banker, and a real estate appraiser to discuss the seller holdback. agreement because it did not “sound right” to him. J.A. 195. Pittman concluded that he would complete the transaction and sell the Dreamstreet lot to Ingraham only if Ingraham provided him with a promissory note to cover the hold-back, secured by a deed of trust on the property. On June 19, 2008, Ingraham and Dreamstreet executed a promissory note for $49,450, secured by a deed of trust, and closed on the sale of the lot.

A year later, shortly before the promissory note was due and after several unsuccessful attempts to contact MidCountry, Dreamstreet sent a lengthy email to Mid-Country demanding immediate return of what it now viewed as the improper $43,200 holdback. According to the June 16, 2009 email, Pittman had consulted with his attorney, and it was their view that the holdback actually had “nothing to d[o]” with ensuring the availability of funds for Ingraham’s construction project, and“never should have been held back in the first place.” J.A. 86. Pittman promised to report MidCountry to the North Carolina Banking Commission and also to file a lawsuit against MidCountry: “[I] have already paid my attorney $1,000 to initiate this process,” and “[w]e will be sending out complaints via certified mail on the 26th.” Id.

For over four years, Dreamstreet failed to follow through on its threat. During that time, Ingraham defaulted on his loan with MidCountry. On February 26, 2010, Mid-Country notified Ingraham that his mortgage loan had come due on September 19, 2009; that his failure to make payments on the loan in December 2009 and January and February 2010 had put him in default; and that MidCountry intended to commence foreclosure proceedings. At around the same time, on December 10, 2009, the county inspection department certified the construction on Ingraham’s land as compliant with building and zoning regulations. And on March 30, 2012, MidCountry foreclosed on Ingraham’s home. Although Dreamstreet’s promissory note against Ingraham was secured by a deed of trust on the property,' it appears that Dream-street did not assert any security interest in connection with the foreclosure.

B.

Dreamstreet finally filed the promised suit against MidCountry on June 28, 2013. Alleging that MidCountry fraudulently induced it to enter into the Agreement and never intended to release the $43,200 hold-back, Dreamstreet raised claims under North Carolina’s Unfair and Deceptive Trade Practices Act and for common-law constructive fraud. MidCountry moved for summary judgment. Dreamstreet’s UDT-PA claim, it asserted, was barred by the applicable four-year statute of limitations. And the constructive fraud claim failed, MidCountry argued, because as a matter of law, Dreamstreet could not show the required element of a fiduciary relationship between the parties.

The district court granted MidCountry’s motion for summary judgment in an oral ruling. It agreed with MidCountry that the four-year statute of limitations barred the UDTPA claim. On the constructive fraud claim, the district court assumed without deciding that there was a fiduciary relationship between MidCountry and Dream-street. But because Ingraham defaulted on his loan, the court concluded, the Agreement’s conditions on release of the hold-back were not satisfied, and thus Mid-Country did not breach any fiduciary duty it may have owed to Dreamstreet. Dream-street timely appealed.

II.

We review de novo the district court’s grant of summary judgment. Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). Summary judgment is appropriate only if no material facts are disputed and the moving party is entitled to judgment as a matter of law. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

A.

Dreamstreet’s first contention on appeal is that the district court erred in holding that its UDTPA claim is time-barred. Under North Carolina law, UDT-PA claims are governed by a four-year statute of limitations, and that limitations period begins to run when an alleged violation occurs. See N.C. Gen. Stat. § 75-16.2 (setting out limitations period); Hinson v. United Fin. Servs., Inc., 128 N.C.App. 469, 473 S.E.2d 382, 386-87 (1996) (applying UDTPA limitations period). And when, as in this case, a UDTPA claim is based on alleged fraudulent conduct, then the violation occurs—and the limitations clock starts running—“at the time that the fraud is discovered or should have been discovered with the exercise of reasonable diligence.” Rothmans Tobacco Co., Ltd. v. Liggett Grp., Inc., 770 F.2d 1246, 1249 (4th Cir. 1985) (citing Wilson v. Crab Orchard Dev. Co., 276 N.C. 198, 171 S.E.2d 873, 884 (1970)).

The parties do not dispute this governing framework. Instead, they disagree as to whether Dreamstreet discovered or should have discovered the fraud of which it complains more than four years before it filed suit on June 28, 2018. According to Dreamstreet, the earliest date on which it could have discovered or been expected to discover MidCountry’s alleged fraud was December 10, 2009—within the four-year limitations period—when Ingraham received the certificate of compliance on his home. It was not until then, Dreamstreet argues, that MidCountry was required to make good on the Agreement by releasing the holdback to Dreamstreet, and thus not until then that Dreamstreet could have known that MidCountry did not intend to honor the Agreement.

What that position fails to account for is the undisputed fact that on June 16, 2009—approximately two weeks outside the four-year limitations period—Dream-street itself announced that it planned to sue MidCountry on the same theory it advances in this litigation; that the seller holdback was a sham. In its June 16 email, Dreamstreet explained that the extensive documents it had shared with its attorney—“all emails from [MidCountry] during the initial closing, along with my note, deed of trust, and a budget spreadsheet from [MidCountry] regarding Carl Ingraham’s house budget”—were enough to convince both Dreamstreet and its counsel that the holdback funds were not intended for Ingraham’s construction budget and “never should have been held back in the first place.” J.A. 86.

By June 16, 2009, in other words, Dreamstreet and its attorney were privy to information that led it to accuse Mid-Country of fraud and threaten to “get a judge ... to force the release of those funds.” Id. Dreamstreet cannot now claim that it lacked “capacity and opportunity to discover” that fraud, Grubb Props., Inc. v. Simms Inv. Co., 101 N.C.App. 498, 400 S.E.2d 85, 88 (1991), until six months later, when Ingraham received a certificate of compliance. The limitations period on Dreamstreet’s UDTPA claim began running by June 16, 2009, see, e.g., Newton v. Barth, — N.C.App. —, 788 S.E.2d 653, 662 (2016) (UDTPA claim triggered when party discovers or should discover facts constituting alleged fraud), more than four years before Dreamstreet filed suit. With respect to the UDTPA claim, the district court properly granted summary judgment to MidCountry on statute of limitation grounds.

B.

We turn next to Dreamstreet’s constructive fraud claim, on which the district court also granted summary judgment to MidCountry. Under North Carolina law, the key to a constructive fraud claim is a fiduciary relationship between plaintiff and defendant. It is that relationship of “special confidence” that gives rise to a special duty to “act in good faith and with due regard to the interests of the one reposing confidence.” Branch Banking & Trust Co. v. Thompson, 107 N.C.App. 53, 418 S.E.2d 694, 699 (1992) (internal quotation marks and citation omitted). When such a fiduciary relationship exists—and only when it exists—a plaintiff need not bear the “exacting” burden of proving actual fraud, but may instead rely on a presumption of constructive fraud that arises under equity “when the superior party obtains a possible benefit.” Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C.App. 192, 528 S.E.2d 372, 380 (2000); see also White v. Consol. Planning, Inc., 166 N.C.App. 283, 603 S.E.2d 147, 156 (2004) (constructive fraud plaintiff need not prove intent to deceive).

MidCountry argues that Dreamstreet cannot show such a relationship in this case, and we. agree. Under North Carolina law, fiduciary relationships are characterized by “confidence reposed on one side, and resulting domination and influence on the other.” Dallaire v. Bank of America, N.A., 367 N.C. 363, 760 S.E.2d 263, 266 (2014) (internal quotation marks and citation omitted). Lawyers and their clients, for instance, or trustees and their beneficiaries, share such relationships, with a “heightened level of trust” matched with a corresponding duty to “maintain complete loyalty.” Id. By contrast, parties to a contract—like the Agreement between MidCountry and Dreamstreet—generally do not bec.ome each other’s fiduciaries; what they owe each other is defined by the terms of their contracts, with no special duty of loyalty. Branch Banking, 418 S.E.2d at 699; see also Dallaire, 760 S.E.2d at 267 (borrowers and lenders, unlike fiduciaries, “are generally bound only by the terms of their contract and the Uniform Commercial Code”). As a matter of law, there can be no fiduciary relationship between “parties in equal bargaining positions dealing at arm’s length, even though they are mutually interdependent businesses.” Strickland v. Lawrence, 176 N.C.App. 656, 627 S.E.2d 301, 306 (2006).

On the record in this case, it is clear that the relationship between MidCountry and Dreamstreet was no more than the standard one between two commercial entities negotiating a contract at arm’s length. There is nothing to suggest that Dream-street “reposed any sort of special confidence,” Branch Banking, 418 S.E.2d at 699, in MidCountry; on the contrary, skeptical of MidCountry’s proposal, Pittman consulted with an attorney, a banker, and a real estate appraiser about the holdback before closing on the sale of the lot. Such consultation with outside experts, North Carolina courts have held, is inconsistent with a claim of fiduciary relationship or constructive fraud. See id. (no fiduciary relationship where complaining party con-suited with banker and accountant before entering into agreement); see also Sullivan v. Mebane Packaging Grp., Inc., 158 N.C.App. 19, 581 S.E.2d 452, 462 (2003) (evidence that complaining party obtained outside counsel rebuts presumption of constructive fraud).

Nor is there any indication that Dreamstreet was in the kind of unequal bargaining position that might qualify as an indication of a fiduciary relationship under North Carolina law. Dreamstreet emphasizes that it was MidCountry that devised the holdback arrangeihent and then proposed it to Dreamstreet. But the fact that one party proposes or advocates for a transaction is not enough to establish unequal bargaining power and a fiduciary relationship. North Carolina law makes clear, for instance, that borrowers ordinarily do not enjoy a fiduciary relationship or the protection of a special duty of loyalty when it comes to their lenders, even when those lenders encourage them to borrow. See Dallaire, 760 S.E.2d at 266-67 (assurances by bank lender regarding mortgage loan do not turn ordinary debt- or-creditor relationship into fiduciary relationship); Branch Banking, 418 S.E.2d at 699 (reliance on representations of creditor does not turn debtor-creditor relationship into fiduciary relationship). Dreamstreet was in a position to consult with an attorney before agreeing to Midcountry’s terms. If Dreamstreet had concerns, then it could have declined the holdback proposal and forgone the sale of its lot—or it could take steps to protect itself, as it did, by insisting on a promissory note with Ingraham, secured by a deed of trust.

We do not doubt, as Dreamstreet argues, that a fiduciary relationship does not depend in every case on the existence of a formal legal relationship like that between attorney and client or trustee and beneficiary. See Bumgarner v. Tomblin, 63 N.C.App. 636, 306 S.E.2d 178, 183 (1983) (finding issue of fact as to fiduciary relationship where plaintiffs • had long-term and regular dealings with defendant with special legal skills and real estate expertise). But it is clear that more is required than a “mutually interdependent” business relationship between two parties to a commercial contract. Strickland, 627 S.E.2d at 306; see Branch Banking, 418 S.E.2d at 699. The undisputed facts of this case reveal an ordinary contractual relationship, with nothing that could give rise to a special fiduciary relationship. And because the existence of a fiduciary relationship is a necessary element of constructive fraud, the district court properly granted summary judgment to MidCountry on this claim, as well.

III.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

      . On review of a grant of summary judgment to MidCountry, we view the facts in the light most favorable to Dreamstreet, as the non-moving party. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (enbanc).

      . Whether the Certificate of Compliance received by Ingraham demonstrated completion of Ingraham’s .home for purposes of the Agreement is disputed by the parties. We may assume for purposes of this appeal that the home was completed on December 10, 2009.

      . Dreamstreet originally filed suit in North Carolina state court against Carl Ingraham and his wife, as well as MidCountry. After Dreamstreet voluntarily dismissed the Ingrahams as defendants, MidCountry removed the action to federal district court, invoking diversity jurisdiction. See 28 U.S.C. § 1332.

      . Dreamstreet does suggest that it is "perhaps more appropriate” to analogize its action to one for breach of contract, in which case the limitations period would begin to run at the time of the breach. Appellant Br. at 22; see Ring Drug Co. v. Carolina Medicorp Enters., Inc., 96 N.C.App. 277, 385 S.E.2d 801, 804 (1989) overruled on other grounds by Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995). Like the district court, we disagree. In both its complaint and its brief before this court, Dreamstreet makes clear that its claim "is based on deceptive statements made by MidCountry” in order to induce Dreamstreet to enter into a "sham seller holdback scheme.” Appellant Br. at 22; see also J.A. 437 (district court explaining that "all the conduct the plaintiff is contending constitutes the [UDTPA violation] occurred back in 2008, in the inducement to enter into" the Agreement).

      . As noted above, the district court assumed the existence of a fiduciary relationship for purposes of its decision, and granted summary judgment on the ground that Dream-street could show no breach of Any fiduciary duty it was owed. See Governors Club, Inc. v. Governors Club Ltd. P'ship, 152 N.C.App. 240, 567 S.E.2d 781, 787-88 (2002) (constructive fraud plaintiff must show existence of fiduciary duty and breach of that duty). Because we hold that Dreamstreet cannot show the necessary fiduciary relationship as a matter of law, we need not address the district court’s alternative holding.