UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1048

DEVIL’S ADVOCATE, LLC; JOHN W. TOOTHMAN,

Plaintiffs - Appellants,

v.

ZURICH AMERICAN INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior

District Judge. (1:13-cv-01246-TSE-TRJ)

Argued: September 21, 2016 Decided: November 22, 2016

Before WILKINSON and FLOYD, Circuit Judges, and Irene M. KEELEY, 

United States District Judge for the Northern District of West 

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John William Toothman, Great Falls, Virginia, for 

Appellants. Kelly Marie Lippincott, CARR MALONEY P.C., 

Washington, D.C., for Appellee. ON BRIEF: Sarah W. Conkright, 

CARR MALONEY P.C., Washington, D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Devil’s Advocate, LLC, and John W. Toothman (“Appellants”)

sued Zurich American Insurance Company (“Zurich”) for breach of 

contract, unjust enrichment, conversion, unauthorized use of 

name, trademark infringement, and copyright infringement. After 

the district court dismissed all of their claims, Appellants 

timely appealed.1 Finding no error, we affirm the judgment of the 

district court. 

I.

Appellant John W. Toothman is a lawyer and the founder of 

Devil’s Advocate, a consulting firm that provides expert 

testimony regarding the reasonableness of legal fees. In 2008, 

Appellee Zurich became embroiled in a coverage dispute in state 

court in Harris County, Texas (the “Texas litigation”).2 On 

October 12, 2010, Blair Dancy, a lawyer representing Zurich in 

the Texas litigation, contacted Toothman about serving as an 

expert witness regarding the reasonableness of the attorneys’

 1 The district court’s orders, the hearing transcripts, and 

the docket do not indicate whether it dismissed the claims with 

prejudice. For our purposes, we assume that the district court 

dismissed those claims with prejudice and affirm as such.

2 See Sterling Chemicals, Inc. v. Zurich American Insurance 

Co., et al., Cause No. 2008-09808 (234th Jud. Dist. Ct., Harris 

Cty., Tex.)
3

fees billed by defense counsel in the case. Toothman responded

by email, indicating his availability and attaching a copy of a 

blank form billing agreement (“Billing Agreement”), his resume, 

and additional information about Devil’s Advocate’s services. 

The Billing Agreement included no fee terms, leaving several 

blank spaces where the parties could later insert such terms

should they reach an agreement. Neither Dancy nor anyone else 

representing Zurich signed the Billing Agreement. 

Less than a month later, on November 2, 2010, Dancy asked 

Appellants to provide a proposal for services to include review

of billing records and other pertinent information relevant to 

the disputed defense fees, as well as providing potential trial 

testimony. Toothman responded with an email proposal 

(“Proposal”), which stated: “Assuming we review at least $4 

million in bills (fees and expenses) and the bill formats are 

consistent with the sample bill you provided, we are quoting a 

fee for your project of 2.1% of the gross amount of the fees we 

would review and report upon.” J.A. 314. Further, it made plain

that “[t]his proposal is preliminary, prior to our engagement 

and full review of available information.” J.A. 315. Toothman 

did not include a completed Billing Agreement with his email. 

Toothman contacted Dancy two days later to determine if he 

had received the Proposal. After confirming that he had, Dancy
4

informed Toothman that “[t]he client’s mulling it over.” J.A. 

322. Toothman followed up four days later, on November 8, 2010,

with an email inquiring whether there had been “[a]ny word yet 

from Zurich” regarding the Proposal. J.A. 294-95; J.A. 322. 

No later than November 19, 2010, Dancy informed Toothman by

telephone that Zurich would not accept the Proposal because the 

parties still needed to negotiate the price of the proposed 

services. Dancy also notified Toothman that, because the 

deadline for designating experts had passed, Zurich needed leave 

of court to designate him as an expert witness. Dancy explicitly 

stated that such designation was a condition precedent to 

Zurich’s acceptance of Toothman’s Proposal. Ultimately, although 

Toothman continued to negotiate his fee with Dancy, the parties

never reached an agreement. 

In an email update dated November 16, 2010, Dancy advised

Toothman that the court in Texas had postponed the trial and 

pre-trial conference in the litigation, a development that 

impeded Zurich’s ability to amend its expert designation to 

include Toothman. Toothman responded to this news on November 

19, 2010: “Just checking in. I’m assuming this may be shut down 

for some time, but the more time we can spend on the review, the 

better.” J.A. 408-09. Also on the 19th, Dancy served opposing 

counsel in the Texas litigation with Zurich’s proposed amended 
5

expert designation naming Toothman. Thereafter, in an email 

dated December 2, 2010, Toothman acknowledged that Zurich had 

not yet hired him. J.A. 296; J.A. 410 (“I’ll be careful, if I 

ever get hired.”). 

The next day, Dancy filed an amended motion for a Rule 1663

pretrial conference in the Texas litigation, seeking leave to 

amend Zurich’s expert designation and attaching the amended 

designation naming Toothman. 

Toothman was aware that Zurich needed court approval of his 

late designation before it could accept Appellants’ Proposal. In 

a December 8, 2010, email to Dancy, Toothman confirmed that, 

although Zurich had provided his name to the court, he knew he 

had not yet been retained to perform any work under the 

Proposal. 

On December 13, 2010, Toothman again emailed Dancy, 

advising him that “[i]n case this thing goes forward,” the total 

amount of legal fees he had received for review was just under 

$3.5 million, a difference of $500,000 from the $4 million 

originally estimated in the Proposal. J.A. 297; J.A. 422. The 

next day, he acknowledged to Dancy that Zurich had neither

 3 Rule 166 of the Texas Rules of Civil Procedure provides 

that the Court may conduct pre-trial conferences to, among other 

reasons, take up pending motions. 
6

accepted the Proposal nor retained him: “[I]s there any way to 

make sure Zurich’s ready to go right after the hearing, e.g., by 

approving our agreement and cutting the initial check?” J.A. 

297; J.A. 428.

Finally, on December 29, 2010, Toothman sent Dancy the 

following email: “Attached is the paperwork to get this project 

going once you decide what to do. . . . We would start as soon 

as we received the signed agreement and initial payment.” J.A. 

297; J.A. 430. Attached was a Billing Agreement listing a flat 

fee of $69,233.82, based on 2.0% of the gross amount of fees and 

expenses subject to review, estimated by Toothman to be at least 

$3.4 million. This was the first Billing Agreement submitted by

Toothman that included a specific fee estimate. Also attached 

was an invoice totaling $34,616.91, purportedly representing

one-half of the estimate. Dancy never signed this Billing 

Agreement and denies ever agreeing to its terms. 

On January 13, 2011, Toothman emailed Dancy, claiming

“[payment of the full fee was triggered when Zurich designated 

me as its expert on December 3, 2010.” J.A. 433. He also 

attached an account statement, with two invoices totaling 

$69,233.82. Dancy called Toothman on January 17, 2011, to 

discuss the email and invoices, but Toothman terminated the 

call. Zurich then concluded that it could not work with Toothman
7

and withdrew its request for leave to designate him as an expert 

witness in the Texas litigation. It confirmed this to Toothman

in a letter dated January 17, 2011. J.A. 438-40.

Toothman and Devil’s Advocate responded by suing Zurich in 

the Circuit Court for Fairfax County, Virginia in February 2011. 

Several days prior to trial, however, they voluntarily dismissed 

their claims pursuant to Virginia’s nonsuit statute. Later, on 

October 7, 2013, they sued Zurich in the Eastern District of 

Virginia, alleging claims of breach of contract, unjust 

enrichment, conversion, unauthorized use of name, trademark 

infringement, and copyright infringement.

The district court granted in part Zurich’s motion to 

dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), 

dismissing Appellants’ claims for unjust enrichment, conversion 

(except as to Toothman’s name and reputation), unauthorized use 

of name, trademark infringement, and copyright infringement 

(except as to Toothman’s resume). It later denied Appellants’ 

motions for reconsideration and to amend their complaint. 

Finally, after the conclusion of discovery, it granted Zurich’s 

motion for summary judgment on all remaining claims.

II. 

Appellants challenge the district court’s dismissal of 

several of their claims for failure to state a claim, its 
8

dismissal on summary judgment of their remaining claims, and its 

denial of leave to amend their complaint. We review de novo the 

district court’s dismissal for failure to state a claim, for 

which we accept the pleaded facts as true. King v. Rubenstein, 

825 F.3d 206, 214 (4th Cir. 2016). To survive dismissal, the 

complaint “must contain ‘enough facts to state a claim for 

relief that is plausible on its face.’” Id. at 214 (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

We also review de novo the district court’s decision to 

grant summary judgment, applying the same legal standards that 

guided the district court. Hoschar v. Appalachian Power Co., 739 

F.3d 163, 169 (4th Cir. 2014). Thus, “we view the facts and draw 

all reasonable inferences in the light most favorable to the 

non-moving party.” Hoschar, 739 F.3d at 169 (quoting Glynn v. 

EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013)).

Finally, we apply an abuse of discretion standard when 

reviewing the district court’s decision to deny Appellants’ 

motion for leave to amend their complaint. We turn now to each 

of Appellants’ claims and address them in order. 

A.

We begin with the district court’s dismissal of Appellants’

claim for unjust enrichment pursuant to Fed. R. Civ. P. 

12(b)(6). In order to state a claim of unjust enrichment under 
9

Virginia law, a plaintiff must sufficiently allege that “(1) he 

conferred a benefit on [the defendant]; (2) [the defendant] knew 

of the benefit and should have reasonably expected to repay [the 

plaintiff]; and (3) [the defendant] accepted or retained the 

benefit without paying for its value.” Schmidt v. Household Fin. 

Corp., II, 661 S.E.2d 834, 838 (Va. 2008). A plaintiff “must 

plead facts showing that it actually conferred a benefit.” 

Odyssey Imaging, LLC v. Cardiology Assoc. of Johnston, LLC, 752 

F.Supp.2d 721, 725 (W.D. Va. 2010) (emphasis added). 

Appellants’ complaint contained only conclusory allegations 

regarding actual benefits conferred on Zurich. Indeed, the only 

benefits alleged were items and services Appellants provided 

free of charge during the proposal process. Appellants, 

moreover, were fully apprised that Zurich intended to use some 

of that material in an effort to amend its expert witness 

designation, and that approval of the amended designation was a 

condition precedent to Zurich’s acceptance of their Proposal. 

Appellants’ assertion that the mere use of their names

could promote a better settlement for Zurich is wholly

speculative and one that, in any case, Zurich could not have 

realized, having withdrawn its motion to designate Toothman as

an expert before settling the Texas litigation. We therefore 

conclude that the allegations in Appellants’ complaint fail to 
10

state a plausible claim for unjust enrichment. Twombly, 550 U.S. 

at 570; Rubenstein, 825 F.3d at 214.

B.

The district court dismissed Appellants’ state law claims 

against Zurich for unauthorized use of Devil’s Advocate’s 

corporate name and Toothman’s personal name. Virginia Code § 

8.01-40(A), in pertinent part, provides:

Any person whose name, portrait, or picture is used 

without having first obtained the written consent of 

such person, or if dead, of the surviving consort and 

if none, of the next of kin, or if a minor, the 

written consent of his or her parent or guardian, for 

advertising purposes or for the purposes of trade, 

such persons may maintain a suit in equity against the 

person, firm, or corporation so using such person’s 

name, portrait, or picture to prevent and restrain the 

use thereof; and may also sue and recover damages for 

any injuries sustained by reason of such use. . . .

A corporate entity is not a “person” for purposes of the 

Virginia statute. The language of § 8.01-40(A) plainly includes

only natural persons, as demonstrated by its discussion of the 

ramifications of the death of the aggrieved person. See also

Silver Ring Splint Co. v. Digisplint, Inc., 567 F.Supp.2d 847, 

855 (W.D. Va. 2008) (“Although the term ‘person’ in a statute 

may often refer to both natural persons and corporations, the 

text of § 8.01–40 makes clear that this statute applies only to 

natural persons.”). Accordingly, Appellants’ claim against 
11

Zurich for unauthorized use of Devil’s Advocate’s corporate name

cannot proceed.

Toothman’s claim for the unauthorized use of his personal 

name similarly fails. “[A] name is used for advertising purposes 

when it appears in a publication which, taken in its entirety, 

was distributed for use in, or as part of, an advertisement or 

solicitation for patronage of a particular product or service.” 

Town & Country Properties, Inc. v. Riggins, 457 S.E.2d 356 (Va. 

1995); see also WJLA-TV v. Levin, 564 S.E.2d 383, 395 (Va. 2002) 

(quoting Riggins and similarly holding that use of a name for 

non-advertising purposes does not implicate § 8.01-40(A)).

Zurich’s use of Toothman’s name, in either a court filing

or email to opposing counsel, does not constitute advertising.

Nor did Zurich use Toothman’s name in the course of its own 

business to buy, sell, or barter its goods or services. Va. Code 

§ 8.01-40(A). Indeed, we are unable to discern what additional 

legal services Zurich could have intended to solicit by the mere 

use of Toothman’s name and conclude Zurich did not violate § 

8.01-40(A).

C.

In dismissing Appellants’ trademark infringement claim as 

time-barred, the district court applied Virginia’s two-year 

limitation period applicable to fraud claims. The Lanham Act, 
12

which governs Appellants’ trademark claims, does not specify a 

statute of limitations, but rather applies the analogous state 

law limitations period. See PBM Products, LLC v. Mead Johnson & 

Co., 639 F.3d 111, 121 (4th Cir. 2011)(finding false advertising 

claim under the Lanham Act analogous to Virginia fraud law and 

subject to two-year limitation).4

Devil’s Advocate, however, insists that under Virginia law 

trademarks and brand names are property subject to a five year 

statute of limitations. In Lavery v. Automation Mgmt. 

Consultants, Inc., 360 S.E.2d 336 (Va. 1987), a case dealing

specifically with the prohibition in Virginia Code § 8.01-40(A)

regarding the unauthorized use of a person’s name,5 the Supreme 

Court of Virginia held that, where a defendant uses a 

plaintiff’s name to bolster its proposal for a contract, a 

property right exists in the plaintiff’s name or likeness that 

 4 See also Teaching Co. Ltd. P’ship v. Unapix Entm’t, Inc., 

87 F. Supp. 2d 567, 585 (E.D. Va. 2000) (stating that the 

applicable limitations period for federal and common law 

trademark infringement and unfair competition claims is two 

years); Unlimited Screw Prods., Inc. v. Malm, 781 F. Supp. 1121, 

1125 (E.D. Va. 1991) (“Virginia’s statute of limitations for 

fraud most closely resembles federal policy reflected in the 

Lanham Act.”).

5 Here, Appellants pressed a separate claim for violation of 

§ 8.01-40(A), which, as we have already noted, the district 

court properly dismissed.
13

is subject to the five year property claim statute of 

limitations. Lavery simply has no bearing on federal trademark 

analysis under the Lanham Act. Accordingly, we agree with the 

district court’s conclusion that Devil’s Advocate’s trademark 

infringement claim is time-barred under Virginia’s two-year 

statute of limitations for fraud. 

D.

The district court dismissed Appellants’ claim against 

Zurich for copyright infringement, finding the Proposal lacked

substantial similarity to the designation filed by Zurich in the 

Texas litigation. A plaintiff seeking to recover on a copyright 

infringement claim must prove not only that he “owned a valid 

copyright and that the defendant copied the original elements of 

that copyright,” but also that the “defendant’s work is 

‘substantially similar’ to the protectable elements of the 

plaintiff’s work.” Building Graphics, Inc. v. Lennar Corp., 708 

F.3d 573, 577-78 (4th Cir. 2013) (quotations omitted). 

Determining “substantial similarity” involves an analysis

of extrinsic and intrinsic similarity. Humphreys & Partners 

Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 537-38 

(4th Cir. 2015) (citations omitted). We evaluate extrinsic 

similarity objectively, looking at “external criteria” to 

determine whether the alleged copy is substantially similar to
14

the “protected elements of the copyrighted work.” Id. at 538 

(quoting Universal Furniture Int’l, Inc. v. Collezione Europa 

USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010)). In contrast, we 

consider intrinsic similarity from the “perspective of the 

[works’] intended observer,” looking at the “total concept and 

feel of the works” to determine whether they are substantially 

similar. Id. (quoting Universal Furniture, 618 F.3d at 436).

The district court concluded that Appellants’ copyright 

infringement claim failed for lack of substantial similarity. 

Although Appellants contend that only a jury may determine the 

extrinsic similarity prong, we observed in Copeland v. Bieber

that 

. . . a district court may grant a motion to dismiss 

or summary judgment under the extrinsic prong alone. 

See Universal Furniture, 618 F.3d at 436 (“A court may 

grant summary judgment for defendant as a matter of 

law if the similarity between the two works concerns 

only noncopyrightable elements of the plaintiff’s 

work.” (quoting Herzog v. Castle Rock Entm’t, 193 F.3d 

1241, 1257 (11th Cir.1999))); see also Lyons, 243 F.3d 

at 803 (court decides as a “matter of law” whether 

extrinsic similarity exists).

789 F.3d 484, 490 (4th Cir. 2015). Therefore, a district court 

may properly dismiss a copyright claim in the absence of 

substantial similarity.

Our review of the extrinsic nature of the two documents 

reinforces the conclusion that they lack substantial similarity. 
15

The Proposal discusses Appellants’ conflicts, Toothman’s 

familiarity with the parties involved, his academic and

professional experience, an overview of the billing structure, 

and some observations on the Texas litigation. The expert 

designation, by contrast, generally summarizes the subject 

matter on which Zurich’s two experts would testify without 

specifying the material about which either intended to opine. 

Appellants accuse Zurich of plagiarizing the Proposal, but a

review of the two documents convinces us not only that there is 

no substantial similarity, but little if any similarity.

With regard to the intrinsic similarity prong, we find

scant similarity in the “concept and feel” between the Proposal 

and the designation Zurich submitted to the Texas court.

Humphreys, 790 F.3d at 538. The former is an offer for services, 

covering a variety of topics, the latter a court filing 

discussing the subject matter on which Zurich’s two experts

would testify. It is implausible that any intended audience 

could view these two documents as intrinsically similar.

E.

Devil’s Advocate’s breach of contract claim fails for want 

of any evidence that the parties had the necessary meeting of 

the minds to form an enforceable contract. While it concedes the 

parties never physically executed a contract, Devil’s Advocate
16

nevertheless argues that Zurich implicitly agreed to the terms 

of the Proposal. 

In Charbonnages de France v. Smith, 597 F.2d 406, 414-15 

(4th Cir. 1979), we concluded that when parties engage in 

lengthy, drawn out negotiations, which include a “jumble of 

letters, telegrams, acts, and spoken words,” it is for a jury to

decide whether they actually formed a contract. Id. at 415; see 

also Restatement (Second) of Contracts, § 20, Comment c. (1981).6

No “jumble” of contract negotiations occurred in this case, but 

rather an unequivocal rejection by Zurich of the Appellants’ 

Proposal as “unacceptable.” J.A. 353-54. Toothman, moreover, 

acknowledged that Zurich “wanted to pay less.” J.A. 373-74. 

Consequently, our holding in Charbonnages raises no bar to 

summary judgment.

Devil’s Advocate’s contract claim rests solely on its

argument that the use of its name, in either the expert 

designation or email to opposing counsel, manifested Zurich’s 

 6 See also Cabot Oil & Gas Corp. v. Daugherty Petroleum, 

Inc., 479 Fed. Appx. 524, 530 (4th Cir. 2012) (unpublished) 

(describing the contours of the holding in Charbonnages and 

finding that a similar period of negotiations, with a similar 

amount of email correspondence, did not constitute a “jumble” 

that would preclude summary judgment). 
17

assent to the contract. Dancy, however, testified that during a 

telephone call in early November he notified Toothman that 

Zurich could not retain him until allowed by the Texas Court to 

amend its expert designation. Toothman was fully aware of this

condition precedent. 

Toothman baldly asserts that this telephone call never 

happened, but the evidence in the record is otherwise.

Particularly damning is Toothman’s email of November 8, 2010,

explicitly acknowledging his understanding that although Zurich 

had disclosed his name it had not yet retained him: “Naming me 

as a witness before we were retained is likely to cause some 

issues with Gardere and Voys.”7 J.A. 425. Toothman, a lawyer,

plainly understood Zurich’s obligation to disclose his name to

the Texas court in order to obtain leave to amend its expert 

designation.

Finally, Appellants’ argument that Zurich’s designation

triggered acceptance of the contract is unavailing. The record 

is devoid of any evidence, disputed or otherwise, that Zurich 

ever assented to a contract in this case.

 7 Gardere and Voys were two attorneys involved in the 

underlying Texas litigation that led to the billing dispute.
18

F.

The district court granted summary judgment to Zurich on

Toothman’s claim for conversion of his name and reputation.8 To 

recover on a claim of conversion under Virginia law, a plaintiff

must establish (1) that he owned or had a possessory right to

the property at the time of the alleged conversion, and (2) that 

the defendant wrongfully exercised dominion or control over that 

property, thereby depriving plaintiff of its possession.9

Economopoulous v. Kolaitis, 528 S.E.2d 714, 719 (Va. 2000). A

plaintiff cannot satisfy the second prong where he has consented

to the use of the subject property. See Williams v. Reynolds, 

2006 WL 3198968, at *3 (W.D. Va. 2006) (“‘[W]rongful exercise of 

dominion or control’ cannot be established where the plaintiff 

 8 Initially, the district court granted Zurich’s motion to 

dismiss the conversion claim as to Devil’s Advocate’s trademarks

or copyrights, but denied it as to Toothman’s name and 

reputation. J.A. 180-81. Subsequently, it granted summary 

judgment to Zurich on the conversion claim as to Toothman’s name 

and reputation. Appellants have failed to address the parts of 

the conversion claim dismissed by the district court, and thus 

have waived any appeal on those claims. See Locklear v. Bergman 

& Beving AB, 457 F.3d 363, 365, n. 2 (4th Cir. 2006).

9 Although Toothman repeatedly argues that his name is a 

property right, no one, including the district court, has ever 

disputed this. For the purpose of our analysis here, we accept 

that courts may consider a name and reputation as property but 

need not address whether the mere use of a name by another 

somehow deprives the owner of its possession.
19

grants permission to the defendant to possess that property.”). 

Indeed, Virginia has long recognized that implied consent is a 

bar to conversion claims. See, e.g., Kewanee Private Utilities 

Co. v. Norfolk Southern Ry. Co., 88 S.E. 95, 99 (Va. 1916)10; see 

also Restatement (Second) of Torts § 252. The question here is 

whether Toothman consented to Zurich’s use of his name and 

reputation.

During his deposition, Toothman acknowledged that he knew

Zurich needed the court’s permission to designate him as an 

expert in the Texas litigation. J.A. 380. Furthermore, in an

email to Dancy on November 8, 2010, he acknowledged that he had 

been “named” before being retained. J.A. 245. Nonetheless, he 

insists there is a difference between simply being named by 

Zurich and being designated by it as an expert in the Texas 

litigation.

This argument is unpersuasive. The manner in which Zurich

disclosed Toothman’s name, whether in an email, a court filing, 

discovery designation, or a telephone call is immaterial. The 

 10 Other jurisdictions also have recognized implied consent 

as a bar to a conversion claim. See e.g., Bank of N.Y. v. 

Fremont Gen. Corp., 523 F.3d 902, 914 (9th Cir. 2008); Chemical 

Sales Co., Inc. v. Diamond Chem. Co., Inc., 766 F.2d 364, 369 

(8th Cir. 1985); Lawyers Title Ins. Corp. v. Dearborn Title 

Corp., 904 F. Supp. 818, 821 n.2 (N.D. Ill. 1995).
20

fact remains Toothman knew that, in order to obtain permission 

to designate him as an expert, Zurich needed to disclose his 

name to the court and opposing counsel, and he permitted such 

disclosure.

Moreover, despite having knowledge by at least December 8, 

2010, that Zurich had disclosed his name, Toothman failed to 

object until January 13, 2011.11 He disputes that he did not 

promptly object, claiming that his email to Dancy on December 8 

“expresses a lack of consent and outright concern.” Appellants’ 

Reply Brief at 21 n. 11. We are unpersuaded. Toothman’s 

statement, “[n]aming me as a witness before we were retained is 

likely to cause some issues with Gardere and Voys,” J.A. 425, 

evinces his concern about the effect disclosure of his name 

might have on his personal interactions with two of the lawyers 

involved in the case, both of whom he expected to see at an 

upcoming conference. It is not evidence of lack of consent to

the use of his name. 

 11 Dancy’s uncontroverted testimony is that Toothman

actually knew from the very beginning of the negotiations that 

Zurich had to disclose his name to the court as a condition 

precedent to Zurich’s acceptance of the contract.
21

G.

Zurich is also entitled to summary judgment on Toothman’s

claim that it infringed the copyright to his resume. The “fair 

use” doctrine allows persons to use copyrighted material in a 

reasonable manner without permission. Such use is determined on 

a case-by-case basis, using the following four factors set out 

in 17 U.S.C. § 107:

(1) the purpose and character of the use, including 

whether such use is of a commercial nature or is 

for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used 

in relation to the copyrighted work as a whole; 

and

(4) the effect of the use upon the potential market 

for or value of the copyrighted work.

In Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), where a copy 

of a manuscript had been used as evidence in a trial, we noted

that the “primary public purpose” of the Copyright Act was 

“induc[ing] release to the public of the products of [the 

author’s or artist’s] creative genius.” Id. at 393. 

Additionally, we pointed out that “copyright protection does not 

extend to ideas or facts even if such facts were discovered as 

the product of long and hard work.” Id. at 394. After weighing

the factors of 18 U.S.C. § 107, we concluded that the defendant 

had not used the manuscript for monetary gain, and that its use 

had no negative impact on its marketability. Consequently, we 
22

held that the use of the copyrighted manuscript in a court 

proceeding fell within the ambit of fair use.12 Id. at 395-97. 

The factors in Bond weigh heavily in favor of a finding of 

fair use here. Toothman’s resume employed no mode of expression,

but merely collected and restated known facts. Zurich’s use was 

not for profit or in a traditionally commercial sense. Although 

reproduced in its entirety, Toothman’s resume “was not used to 

undermine any right conferred by the Copyright Act.” Id. at 396. 

Finally, Zurich’s use of the resume did not affect its

marketability. Unlike a manuscript, or other copyrightable works

consumers might actually purchase, there is no market for 

Toothman’s resume as such, nor have Appellants credibly argued

otherwise.

 12 Several of our sister circuits also have concluded that 

use of copyrighted material in court proceedings is fair use. 

See e.g., Hollander v. Steinberg, 419 Fed. Appx. 44, 47-48 (2nd 

Cir. 2011) (affirming summary judgment on fair use where 

attorney sued opposing counsel for filing his essays in a 

judicial proceeding); Jartech, Inc. v. Clancy, 666 F.2d 403, 407 

(9th Cir. 1982) (affirming fair use where adult films were 

copied for use in judicial proceedings, were not made for 

subsequent use or enjoyment, and were not for commercial use); 

Shell v. DeVries, 2007 WL 324592 (D. Colo. Jan. 31, 2007) 

(finding fair use where a portion of a copyrighted website was 

used as an exhibit to a motion for attorney’s fees), aff’d 2007

WL 4269047 (10th Cir. 2007).
23

H.

Finally, we conclude that the district court did not abuse 

its discretion in denying as futile Appellants’ motion to amend 

the complaint. Under Fed. R. Civ. P. 15(a), the directive to 

grant leave to amend freely is not simply a suggestion, but 

rather a “mandate to be heeded.” Foman v. Davis, 371 U.S. 178, 

182 (1962). Leave to amend should be denied “only when” there is 

the presence of bad faith, futility, or prejudice to the 

opposing party. See Edwards v. City of Goldsboro, 178 F.3d 231, 

242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 85 

F.2d 503, 509 (4th Cir. 1986)).

Although a district court possesses discretion to grant or 

deny the opportunity to amend, “an outright refusal to grant the 

leave without any justifying reason appearing for the denial is 

not an exercise of discretion; it is merely abuse of that 

discretion and inconsistent with the spirit of the Federal 

Rules.” Foman, 371 U.S. at 182; see also Matrix Capital Mgmt. 

Fund LP v. BearingPoint Inc., 576 F.3d 172, 194 (4th Cir. 2009). 

Nevertheless, a detailed, explicit explanation of the reasons 

for denying leave to amend is not necessary when the reasons are 

evident. See Matrix Capital, 576 F.3d at 194. 

When it denied Appellants’ motion to amend their complaint 

to compensate for deficiencies in the counts dismissed, the 

district court noted that “leave to amend would be futile, 
24

because [Appellants’] proposed amendments to the Complaint add 

no new facts that would allow [their] claims to survive a motion 

to dismiss.” J.A. 714. Appellants’ attempt to add four 

conclusory statements, most of which had previously been alleged 

or inferred, and to increase the amount owed under the alleged 

contract from $69,233.82 to $84,000.00, added no facts that 

would have altered the district court’s earlier dismissal under

Rule 12(b)(6). We have previously held that “[t]here is no error 

in disallowing an amendment when the claim sought to be pleaded 

by amendment plainly would be subject to a motion to dismiss 

under Fed.R.Civ.P. 12(b)(6).” Frank M. McDermott, Ltd. v. 

Moretz, 898 F.2d 418, 420-21 (4th Cir. 1990). Accordingly, the 

district court did not abuse its discretion.

III. 

For the reasons discussed, the judgment of the district 

court is

AFFIRMED.