BLD-211 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2059

___________

ASSEM A. ABULKHAIR,

Appellant

v.

CITIBANK AND ASSOCIATES

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 08-02548)

District Judge: Honorable Peter G. Sheridan

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 16, 2011

Before: SLOVITER, JORDAN AND GREENAWAY, JR., Circuit Judges

(Opinion filed: June 28, 2011)

_________

OPINION

_________

PER CURIAM

Assem A. Abulkhair appeals from an order of the District Court granting summary 

judgment on his Equal Credit Opportunity Act (“ECOA”) and breach of contract claims. 

Since no substantial question is presented by Abulkhair’s appeal, we will summarily 

affirm.
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I.

Abulkhair filed a pro se complaint against Citibank (South Dakota), N.A.

(“Citibank”)

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in the Superior Court of New Jersey, alleging that Citibank discriminated 

against him by closing his credit card accounts because he is a Muslim. Specifically, he

asserted a breach of contract claim and a claim under the ECOA. Citibank removed the 

action to the District Court after being served with the complaint, and moved to dismiss. 

The District Court denied that motion and referred the case to a Magistrate Judge for 

purposes of handling pretrial matters. See 28 U.S.C. § 636(b)(1)(A).

Abulkhair moved for appointment of counsel, indicating that he sought assistance

in preparing an amended complaint. The Magistrate Judge denied that motion because

the relevant factors weighed against appointing counsel, but ultimately gave Abulkhair 

permission to file a motion for leave to file an amended complaint. Abulkhair filed such 

a motion, but the Magistrate Judge denied it on the basis that Abulkhair’s proposed 

amendments were futile. Abulkhair unsuccessfully appealed that decision to the District 

Court. He attempted to appeal to this Court, but we dismissed his appeal for lack of 

jurisdiction.

While Abulkhair’s motion for leave to amend was pending, the Magistrate Judge 

resolved some discovery disputes. Primarily, Abulkhair sought to depose several of 

Citibank’s current and former employees, but the Magistrate Judge ruled that he would 

not be entitled to take oral depositions. Instead, she limited him to taking depositions by 
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written questions. Abulkhair attempted to appeal that order directly to this Court, but 

voluntarily withdrew his appeal after being notified of a potential jurisdictional defect. 

Citibank ultimately moved for summary judgment, arguing that Abulkhair’s

ECOA claim was time-barred and that both claims failed on their merits. In response, 

Abulkhair predominantly argued that summary judgment was inappropriate because 

discovery was incomplete. After hearing oral argument, the District Court granted 

summary judgment to Citibank from the bench, ruling that (1) Abulkhair’s ECOA claim 

was time-barred; (2) Abulkhair’s breach of contract claim failed because, under the 

relevant contract, Citibank had the right to close his accounts and because, regardless,

there was no evidence that Citibank closed the accounts because of Abulkhair’s religion;

and (3) no additional discovery was necessary. The District Court entered summary 

judgment in accordance with its oral opinion and Abulkhair timely appealed. 

II.

The District Court possessed jurisdiction over Abulkhair’s claims pursuant to 28 

U.S.C. § 1331 & 1367.2 We have appellate jurisdiction under 28 U.S.C. § 1291. Our 

 

1 Abulkhair improperly identified the defendant as “Citibank and Associates.”

2 Citibank removed Abulkhair’s complaint on the basis that the District Court 

possessed both federal question jurisdiction and diversity jurisdiction. Abulkhair 

moved to remand on the basis that diversity of citizenship was allegedly lacking. 

The District Court correctly denied that motion because, regardless of whether the 

parties are diverse, Abulkhair’s complaint raises a federal question under the

ECOA and supplemental jurisdiction existed over his related breach of contract 

claim. Furthermore, the fact that Citibank has offices in New Jersey, a fact that 

Abulkhair emphasizes, is inconsequential for diversity purposes because a national 

banking association is considered a citizen of “the State designated in its articles 
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review of an order granting summary judgment is plenary. Curley v. Klem, 298 F.3d 

271, 276 (3d Cir. 2002). Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether summary judgment is 

appropriate, we must “view all evidence and draw all inferences in the light most 

favorable to the non-moving party . . . .” Startzell v. City of Phila., 533 F.3d 183, 192 (3d 

Cir. 2008). However, “we review the District Court’s refusal to delay its ruling on [a]

summary judgment motion under the deferential abuse of discretion standard.” 

Renchenski v. Williams, 622 F.3d 315, 339 (3d Cir. 2010). Likewise, we review a 

district court’s denial of a motion for leave to amend a complaint for abuse of discretion. 

Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). We may summarily affirm if 

no substantial question is presented by the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 

10.6.

A. Summary Judgment

The District Court properly granted summary judgment to Citibank because

Abulkhair’s ECOA claim is clearly time-barred and his breach of contract claim fails on 

its merits. ECOA claims are generally governed by a two-year statute of limitations, 

although in some cases a three year limitations period applies. See 15 U.S.C. § 1691e(f). 

It is undisputed that the alleged ECOA violation in this case occurred in January 2003, 

 

of association as its main office.” Wachovia Bank v. Schmidt, 546 U.S. 303, 318 

(2006); see also 28 U.S.C. § 1348. 
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when Citibank closed Abulkhair’s accounts, and that Abulkhair did not file his complaint 

until over five years later, in March 2008. Furthermore, a January 29, 2003 letter that

Abulkhair sent to Citibank reflects his awareness that Citibank closed his accounts

around that time. Accordingly, the District Court correctly concluded that, regardless of 

which limitations period applies, Abulkhair’s ECOA claim is time-barred.3That the 

District Court previously denied Citibank’s motion to dismiss the ECOA claim did not, 

contrary to Abulkhair’s assertions, bar the District Court from later granting Citibank’s 

motion for summary judgment given the different standards that govern those motions.

The District Court’s grant of summary judgment on Abulkhair’s breach of contract 

claim was also warranted. To succeed on that claim, Abulkhair must establish an 

enforceable promise, a breach of that promise, and damages resulting from the breach. 

See Guthmiller v. Deloitte & Touche, LLP, 699 N.W.2d 493, 498 (S.D. 2005).4 The 

credit card agreement between Citibank and Abulkhair states that Citibank “may close 

 

3 Abulkhair’s complaint primarily contends that Citibank discriminated against 

him based on his religion, but also references his ethnicity, suggesting that he 

claimed discrimination on that basis as well. But even if the complaint could have 

been read to include claims under 42 U.S.C. § 1981, and the New Jersey Law 

Against Discrimination, N.J. Stat. Ann. § 10:5-12(i)(1), any such claims would 

also have been time-barred. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 

369, 382-84 (2004) (four-year statute of limitations governs § 1981 claims based 

on amended version of § 1981, otherwise most analogous state limitations period 

governs); Montells v. Haynes, 627 A.2d 654, 660 (N.J. 1993) (two-year statute of 

limitations governs claims under New Jersey Law Against Discrimination). 

4

South Dakota law applies to Abulkhair’s breach of contract claim since the 

relevant credit card agreement contains a choice of law provision to that effect. 

See Homa v. Am. Express Co., 558 F.3d 225, 227-28 (3d Cir. 2009) (New Jersey 

courts uphold contractual choice of law provisions unless doing so would violate 
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[the account holder’s] account or suspend [his] account privileges at any time for any 

reason without prior notice.” (Barnette Certification Ex. 1 at 13.) Accordingly, Citibank 

was entitled to close Abulkhair’s accounts even if he was in full compliance with the 

terms of the credit card agreement, as he contends he was.

5

 

Furthermore, there is simply no evidence in the record to substantiate Abulkhair’s 

claim that Citibank closed his accounts because he is a Muslim. To the contrary, the 

record reflects that Citibank closed Abulkhair’s accounts in light of “derogatory 

information” on his credit report. (Barnette Certification ¶ 5.) The January 29, 2003 

letter that Abulkhair sent to Citibank indicates that Abulkhair received notice of 

Citibank’s decision in that regard, and suggests that he had experienced prior problems 

with identity theft, which may have led to the adverse information on his credit report. 

Perhaps recognizing the absence of evidence in support of his claims, Abulkhair

opposed Citibank’s motion on the basis that summary judgment would be inappropriate 

in light of his alleged need for further discovery. He primarily challenged the Magistrate 

 

New Jersey public policy).

5 Under South Dakota law, “[e]very contract contains an implied covenant of good 

faith and fair dealing which prohibits either contracting party from preventing or 

injuring the other party’s right to receive the agreed benefits of the contract.” 

Farm Credit Servs. of Am. v. Dougan, 704 N.W.2d 24, 27 (S.D. 2005) (quotations 

omitted and alteration in original). However, the “obligation of good faith does 

not vary the substantive terms of the bargain, . . . nor does it provide a remedy for 

an unpleasantly motivated act that is expressly permitted by contract.” Id. at 29 

(quotations omitted and alterations in original). Abulkhair therefore cannot 

circumvent the credit card agreement’s clear language by alleging a breach of the 

covenant. Regardless, there is no evidence in the record that would support his 

assertion the covenant was violated. 
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Judge’s decision that he could not take oral depositions, but also argued that Citibank 

never provided him with a copy of his deposition transcript, that Citibank had not fully 

complied with his discovery requests, that the Magistrate Judge forced him to identify the 

accounts at issue to Citibank, and that the Magistrate Judge unfairly limited the scope of 

certain discovery he sought from Citibank – apparently evidence of other lawsuits against 

Citibank alleging discrimination – to a one-year time period. The District Court 

concluded that Abulkhair had already received “fair discovery” and that there was “no 

reason for any further discovery in the case.” (Mar. 21, 2011 Hr’g Tr. 17-18.) 

A party opposing summary judgment on the basis that additional discovery is 

warranted must “show[] by affidavit or declaration that, for specified reasons, it cannot 

present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).6 “Beyond the 

procedural requirement of filing an affidavit, [the Rule] also requires that a party indicate 

to the district court its need for discovery, what material facts it hopes to uncover and 

why it has not previously discovered the information.” Radich v. Goode, 886 F.2d 1391, 

1393-94 (3d Cir. 1989). Abulkhair’s failure to file an affidavit in accordance with Rule 

56(d) might alone be a sufficient reason to approve the District Court’s decision. See id.

at 1394 (“This circuit generally requires that a party file a Rule 56(f) affidavit in order to 

preserve the issue for appeal.”). However, leaving Abulkhair’s non-compliance aside in 

an effort to avoid harsh application of procedural requirements given his pro se status, see

Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993), we find no abuse of discretion in the 
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District Court’s conclusion that no additional discovery was warranted. 

Although the Magistrate Judge precluded Abulkhair from taking oral depositions, 

Abulkhair could have taken depositions by written questions.7 While we understand that

oral depositions might have been preferable to him, Abulkhair still could have acquired 

relevant information by taking advantage of that discovery tool. His failure to do so 

makes it difficult to conclude that he should have been entitled to additional time for 

discovery. We also do not see how additional discovery would have helped Abulkhair 

either establish the elements of his breach of contract claim or overcome the fact that his 

ECOA claim is time-barred. Having considered all of Abulkhair’s objections and the fact 

that discovery in this relatively straightforward case appears to have proceeded for well 

over a year, we find no abuse of discretion in the District Court’s conclusion that the 

record was sufficiently developed for summary judgment purposes. See Dowling v. City 

of Phila, 855 F.2d 136, 140-41 (3d Cir. 1988).

 

6 Rule 56(d) was formerly Rule 56(f). 

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In general, a party who fails to appeal a Magistrate Judge’s pretrial ruling to the 

District Court in accordance with Federal Rule of Civil Procedure 72(a), waives 

review of that ruling by this Court absent “exceptional circumstances.” 

Continental Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 254 (3d Cir. 

1998); see also Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008). 

Although Abulkhair never appealed the Magistrate’s discovery rulings to the 

District Court we think it is appropriate to discuss them on appeal because the 

District Court essentially addressed them in concluding that discovery proceeded 

fairly, Citibank never raised the issue of waiver, and the decisions are necessarily 

intertwined with the District Court’s order granting summary judgment. See

Tabron, 6 F.3d at 153 n.2. Abulkhair also failed to appeal the Magistrate Judge’s 

denial of counsel to District Court. However, even assuming that ruling is 

properly before this Court, we find no abuse of discretion in the Magistrate 
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B. Motion for Leave to Amend

 Albulkhair’s proposed amended complaint sought to assert claims, based on 

essentially the same factual allegations contained in his original complaint, that Citibank 

violated the New Jersey Consumer Fraud Act (“CFA”) and New Jersey Bank Parity Act, 

breached a fiduciary duty, and breached the duty of good faith and fair dealing. He also 

sought to bring claims under “all State and Federal laws and trade acts, intended and 

designated for the purpose of fair dealing for the sole benefit and interests of another, 

with loyalty to those interests for which are Anti-Discrimination.”

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 (Amended Compl. ¶ 

19.) The Magistrate Judge concluded that Abulkhair’s proposed amendments would be 

futile and denied leave to amend. We find no abuse of discretion in that conclusion.

Although “[l]eave to amend must generally be granted,” it is appropriate for a 

district court to deny leave when amendment would be futile. Arthur v. Maersk, Inc., 434 

F.3d 196, 204 (3d Cir. 2006). Abulkhair’s amended complaint failed to state a claim 

under the CFA because it did not allege any behavior that would constitute fraud under 

that statute. See N.J. Stat. Ann. § 56:8-2; see also Cox v. Sears Roebuck & Co., 647 

A.2d 454, 462 (N.J. 1994) (breach of contract does not constitute CFA violation absent 

“substantial aggravating factors”). Nor does the amended complaint state a claim under 

the New Jersey Bank Parity Act, which governs the rate of interests that New Jersey 

 

Judge’s conclusion that Abulkhair was not entitled to counsel. See id. at 155-56.

8 Although the Magistrate Judge considered the amended complaint to assert a 

new punitive damages claim, Abulkhair had already requested punitive damages 

in his original complaint. 
10

Banks can charge. See N.J. Stat. Ann. § 17:13B-1, 17:13B-2. As for Abulkhair’s broad 

invocation of state and federal law, we note that his original complaint already asserted 

claims under the relevant laws prohibiting discrimination and that those claims are timebarred.

The Magistrate Judge did not specifically address Abulkhair’s attempt to add 

claims based on breach of fiduciary duty and breach of the covenant of good faith and 

fair dealing. However, Abulkhair cannot state a claim for breach of fiduciary duty based 

solely on the allegations of his amended complaint, which reflect nothing more than a

debtor-creditor relationship between himself and Citibank. United Jersey Bank v. 

Kensey, 704 A.2d 38, 44 (N.J. Super. Ct. App. Div. 1997) (“The virtually unanimous rule 

is that creditor-debtor relationships rarely give rise to a fiduciary duty.”); see also Cowan 

Bros., L.L.C. v. Am. State Bank, 743 N.W.2d 411, 420 (S.D. 2007) (“[T]he relationship 

between a bank and its borrower is generally considered to be a debtor-creditor 

relationship which imposes no special or fiduciary duties on a bank.”) (quotations 

omitted). Assuming arguendo that the Magistrate Judge should have allowed Abulkhair 

to amend in order to pursue a claim based on breach of the covenant of good faith and 

fair dealing claim, any such error in that regard is harmless because that claim fails with 

his contract claim. See supra n. 5.

In sum, Abulkhair’s appeal presents no substantial question. Accordingly, we will

summarily affirm the judgment of the District Court.