Beydoun v. Clark Construction International, LLC ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ISSAM A. BEYDOUN; WAFA A. 
ABDALLAH,
Plaintiffs-Appellants,
v.
CLARK CONSTRUCTION INTERNATIONAL,
LLC, a Maryland limited liability
company; JAMES A. HOOFF; LARRY J.
KELLER,
Defendants-Appellees,
and  No. 02-2154
THE CLARK CONSTRUCTION GROUP,
INCORPORATED, a Maryland
corporation; DEWBERRY & DAVIS,
INCORPORATED, a North Carolina
corporation; THE DEWBERRY
COMPANIES, INCORPORATED, a
Virginia corporation; SIDNEY
DEWBERRY; JAMES CLARK,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-02-851-A)
Argued: June 5, 2003
Decided: July 25, 2003
Before MICHAEL, MOTZ, and KING, Circuit Judges.
2 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephen F. Wasinger, WASINGER, KICKHAM & HAN-
LEY, Royal Oak, Michigan, for Appellants. Stephen Michael Sayers,
HUNTON & WILLIAMS, McLean, Virginia; Michael Evan Jaffe,
THELEN, REID & PRIEST, L.L.P., Washington, D.C., for Appel-
lees. ON BRIEF: David B. Albo, ALBO & OBLON, L.L.P., Spring-
field, Virginia, for Appellants. Jill Marie Dennis, HUNTON &
WILLIAMS, McLean, Virginia; Gerald Zingone, THELEN, REID &
PRIEST, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this diversity action, Issam A. Beydoun and his wife, Wafa A.
Abdallah, allege a number of state law claims against Clark Construc-
tion International, LLC, one of its officers, and the officer of another
company, arising out a "Joint Venture" between the parties for design
and construction projects in the Middle East. The district court dis-
missed their amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. For the reasons discussed herein, we affirm.
I.
The amended complaint asserts the following basic facts, which on
review of a district court order granting a motion to dismiss under
Rule 12(b)(6), we "accept[ ] as true[,] . . . view[ing] them in the light
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 3
most favorable to the plaintiff[.]" Ostrzenski v. Seigel, 177 F.3d 245,
251 (4th Cir. 1999) (citation omitted).
During the 1990s, Beydoun, an American citizen of Lebanese
descent, formed a joint venture with the Clark Group, represented by
James Hooff, and the Dewberry Group, represented by Larry Keller
("Hooff and Keller"). The purpose of the joint venture was to "pursue
design and construction business in the Middle East." Beydoun,
"[p]ursuant to the Joint Venture," opened offices in Beirut and "ex-
pended substantial sums to conduct business" for the joint venture.
Keller and Hooff reimbursed Beydoun for some of the expenses by
transferring funds both to joint venture entities and Beydoun’s per-
sonal account. Throughout 1997 and 1998, the parties "met regularly
and had constant communications about the Joint Venture and its
business opportunities."
Beydoun and his family moved to Beirut. By the end of 1997, Bey-
doun wanted "some financial protection" in the event that Keller and
Hooff "chose to move forward in the Middle East without him." The
parties negotiated a "Severance Monetary Compensation Clause,"
signed by Beydoun, and (assertedly) Hooff for Clark Construction
International and Keller for Dewberry and Davis. The Clause pro-
vided that, if Clark and Dewberry severed relations with Beydoun, he
was entitled to a lump-sum payment of "a minimum" of $5 million
and "a maximum" of $20 million. The following conditions applied
for the Clause to be valid and payable: (1) Beydoun did not request
and ask for the severance; (2) he quitclaimed and relinquished his
rights to all money he was entitled to in specific countries and proj-
ects; and (3) he did not cause and warrant the severance.
Beydoun began arranging for subcontractors to work on a project
in Doha, Qatar, the West Bay Complex, "which was being solicited
by the Joint Venture." Subcontractors included Golden Light Com-
pany of Beirut ("Golden Light") and General Company for Wood-
work and Decoration ("General"). Beydoun alleges that Keller and
Hooff knew of the joint venture’s relationships with both companies.
In August 1998, Golden Light "delivered $100,000 to the joint ven-
ture for use as a bid bond, or security deposit, on plans provided to
Golden Light so that Golden Light could bid for work on a potential
4 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
[J]oint [V]enture project in Qatar." In October 1998, General deliv-
ered a $50,000 bid bond for the same purpose.
By the end of 1998, Beydoun "had almost completely exhausted
his personal assets, including funds borrowed from his family, to pay
the expenses of the Joint Venture." Beydoun made "repeated
requests" to Hooff and Keller to provide funds to the joint venture.
In response, "Hooff and Keller repeatedly assured Beydoun that
monies would be forthcoming and they urged Beydoun, in the
interim, to use monies provided by Golden Light and General to tide
the Joint Venture over until the Clark Group and the Dewberry Group
funded operations." Beydoun then used the bid bonds for joint venture
operations.
Hooff and Keller did not "fund[ ] the monies necessary to allow the
Joint Venture to honor its financial commitments, including the com-
mitments to Golden Light and General." When the joint venture did
not repay Golden Light and General, they filed complaints against a
joint venture entity and Beydoun as its representative. Golden Light
alleged that one of the joint venture entities fraudulently induced it to
submit a $100,000 bid bond. General alleged that one of the joint ven-
ture entities issued a $50,000 check that did not clear. Beydoun
alleges that "[n]either the Golden Light complaint nor the General
complaint is based on the use of the bid bond monies as such. Rather,
each uses the failure to repay the bid monies, as the basis for com-
plaining that the Joint Venture, and Beydoun as its representative, had
engaged in fraudulent conduct." That fraudulent conduct included
Beydoun’s creation of a sham entity and rental of expensive offices
"to create a false impression designed to fraudulently solicit funds
from unsuspecting Lebanese businesses."
Beydoun was convicted of fraud and issuing a check without suffi-
cient funds to cover it under the Lebanese Criminal Code. He spent
two years in a Lebanese prison. During the pendency of this appeal,
the Lebanese courts affirmed the convictions, which both sides agree
are now final. Beydoun alleges that the "claims of fraud could have
been readily disproved" if Hooff and Keller "had appeared in Bey-
doun’s defense, confirmed the substantial nature of the Joint Venture,
confirmed that Beydoun had been acting in accordance with direc-
tions from Hooff and Keller, and paid the monies due to Golden Light
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 5
and General." He alleges that Keller and Hooff’s "abandon[ment]"
caused Beydoun’s false imprisonment.
In March 1999, Hooff and Keller both wrote letters to Beydoun in
the Lebanese prison advising him that, although they had authorized
him to use the bid bond monies for company-related expenses, Bey-
doun had also used the money on personal expenses. Keller and Hooff
severed relations with Beydoun, asserted that he had "caused and war-
ranted the severance to happen," and concluded that he was not enti-
tled to any Severance Monetary Compensation under the agreement.
(Keller and Hooff assert that their signatures on all documents,
including these letters, are forgeries. However, they assume their
validity for purposes of the motion to dismiss. Brief of Appellees at
17 n.5.) Beydoun also asserts that, while he was in prison, Hooff and
Keller went to the joint venture’s offices and took papers belonging
to both the joint venture and Beydoun personally.
On February 19, 2002, Beydoun and Abdallah ("Beydoun") filed
a law suit against the defendants in the present action, as well as other
entities and officers of Clark and Dewberry, in the Eastern District of
Michigan, where Beydoun and his wife reside. That court dismissed
the action against all defendants, except the present defendants, for
lack of personal jurisdiction, and then transferred the action to the
Eastern District of Virginia, pursuant to 28 U.S.C.A. § 1404(a).1 After
the transfer of the case, Hooff and Keller moved to dismiss the com-
plaint. The district court granted the motion, with leave to file an
amended complaint.
On August 1, 2002, Beydoun filed an amended complaint alleging,
inter alia, the above facts and asserting that they gave rise to claims
of (1) breach of the severance agreement, (2) breach of fiduciary
duties, (3) intentional infliction of emotional distress, (4) negligent
infliction of emotional distress, (4) tortious interference with advanta-
geous business relationships, (5) civil conspiracy, (6) statutory con-
spiracy under the Virginia Code, and (7) tortious interference with
advantageous business relationships. On September 4, 2002, the dis-
trict court granted Hooff and Keller’s motion to dismiss the amended
1
The other entities are subject to a second proceeding pending in the
Eastern District of Virginia.
6 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
complaint for failure to state a claim. Beydoun now appeals that dis-
missal.
II.
We review dismissal of a claim by the district court under Rule
12(b)(6) de novo. See Ostrzenski, 177 F.3d at 251 (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). We "may
affirm the dismissal by the district court on the basis of any ground
supported by the record even if it is not the basis relied upon by the
district court." Id. (citing United States v. Swann, 149 F.3d 271, 277
(4th Cir. 1998)).2
As an initial matter, Beydoun argues that Michigan law governs his
substantive claims. Although Hooff and Keller cite cases from both
Michigan and Virginia, they do not challenge Beydoun’s contention.
The federal court in Michigan transferred this action to the Eastern
District of Virginia pursuant to 28 U.S.C.A. § 1404(a), which permits
a transfer for the convenience of the parties and witnesses to "any
other district or division where [the civil action] might have been
brought." After a transfer under § 1404(a), "the transferee court must
follow the choice-of-law rules that prevailed in the transferor court."
Ferens v. John Deere Co., 494 U.S. 516, 519 (1990) (citing Van
Dusen v. Barrack, 376 U.S. 612 (1964)). When resolving a choice-of-
law question, Michigan courts "apply Michigan law unless a rational
reason to do otherwise exists." Frydrych v. Wentland, 652 N.W.2d
483, 485 (Mich. Ct. App. 2002) (citing Sutherland v. Kennington
Truck Serv., Ltd., 562 N.W.2d 466 (Mich. 1997)). Beydoun and
Abdallah are residents of Michigan, and Beydoun asserts that Keller
and Hooff dealt with him in Michigan when the parties created the
joint venture. Brief of Appellant at 23. Accordingly, we agree with
Beydoun that Michigan law controls the disposition of his claims.
2
Because we affirm the dismissal of some counts on grounds differing
from those relied upon by the district court, we do not discuss all of the
district court’s alternative grounds for dismissal.
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 7
III.
A.
Beydoun first alleges that Hooff and Keller breached the Severance
Monetary Compensation Clause ("the Clause"). Hooff and Keller
argue, inter alia, that this claim fails as a matter of law because the
Clause "provides no mechanism to determine [the] actual amount . . .
due to Beydoun in the event of a ‘severance[,]" and, therefore, the
Clause constitutes an unenforceable agreement to agree. Brief of
Appellees at 33-34.
The Clause, dated January 22, 1998 and signed by Beydoun, and
(assertedly) Hooff (for Clark) and Keller (for Dewberry), provides:
In consideration and acknowledgment of the efforts, time,
money, and high level relations and contacts that have been
put by Issam A. Beydoun in our endeavor and quest in the
Arab world for 5 years, specifically in the Republic of Leba-
non, Kingdom of Saudi Arabia, Hashimit Kingdom of Jor-
dan, State of Qatar, Republic of Yemen. Taken into
consideration also that we are in the process of negotiating
and estimating the design and construction costs of the three
projects: International Medical Center in Beirut, Lebanon
(estimated at approximately 65 million U.S. dollars), Beirut
Trade Center in Beirut, Lebanon (estimated at 65 million
U.S. dollars), and the West Bay Complex in Doha, Qatar
(estimated at 150 million dollars). If Clark Construction
International INC. [sic] and Dewberry & Davis decide to
sever relations and discontinue collaborating with Issam A.
Beydoun in the Arab world, specifically in the countries
mentioned above, Issam A. Beydoun is eligible and entitled
to be paid by the two Corporations jointly, a lump sum Sev-
erance Monetary Compensation at a minimum of
$5,000,000.00, five million U.S. dollars, and a maximum of
$20,000,000.00, twenty million U.S. dollars.
The Severance Monetary Compensation Clause will be valid
and payable to Issam A. Beydoun under these terms:
8 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
1. He did not request and ask for the severance.
2. He quitclaim and relinquished his rights to all the
money he is entitled to in all projects in the countries
mentioned above at the time of severance. Specifically,
the International Medical Center, Beirut Trade Center in
Beirut, Lebanon, and the West Bay Complex in Doha,
Qatar.
3. He did not cause and warrant the severance.
Hooff and Keller argue that the Clause provides only a broad range
of compensation, a "minimum" of $5 million and a "maximum" of
$20 million, and left for future negotiations the material terms of the
amount of compensation, if any, and the performance criteria to deter-
mine that compensation. The complaint concedes, at least implicitly,
the omission of those terms by acknowledging that the parties "specif-
ically agreed that the ultimate severance compensation would be
determined based on the stage of the Joint Venture and the projects
(identified in the Severance Agreement) which had been developed."
Amend. Compl. ¶ 47.
Under Michigan law, "[t]o be enforceable, a contract to enter into
a future contract must specify all its material and essential terms and
leave none to be agreed upon as the result of future negotiations."
Socony-Vacuum Oil Co., Inc. v. Waldo, 286 N.W. 630, 632 (Mich.
1939) (internal quotation marks omitted). "‘If the document or con-
tract that the parties agree to make is to contain any material term that
is not already agreed on, no contract has yet been made; and the so-
called "contract to make a contract" is not a contract at all.’" Hansen
v. Catsman, 123 N.W.2d 265, 266 (Mich. 1963) (quoting 1 Corbin on
Contracts § 29, currently found in § 2.8 (1993 ed.)).
In this case, the Clause does not specify the material terms of
(1) the actual amount of compensation or (2) the method to calculate
it. Rather, it only provides a broad range of $5 million to $20 million,
tethered to no performance criteria. The Clause provides only that the
parties "are in the process of negotiating and estimating the design
and construction costs of the three projects," which in no way pro-
vides a method or formula for a fact-finder to compensate Beydoun
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 9
for the alleged breach. Moreover, the Clause’s "consideration and
acknowledgment of the efforts, time, money, and high level relations
and contacts" by Beydoun in the prior five years does not save the
indefiniteness because it constitutes inadequate past consideration.
Easley v. Mortensen, 121 N.W.2d 420, 422 (Mich. 1963) ("[P]ast
consideration . . . [cannot] support the claimed promises or con-
tract."). Finally, the complaint itself concedes that the Clause does not
contain an agreement on the amount of compensation or a method for
calculating it. Amend. Compl. ¶ 47 ("Hooff, Keller and Beydoun spe-
cifically agreed that the ultimate severance compensation would be
determined based on the stage of the Joint Venture and the projects
(identified in the Severance Agreement) which had been devel-
oped."). Thus, the breach of severance agreement count fails to state
a claim.3
B.
Beydoun next alleges that Hooff and Keller "owed fiduciary duties
to Beydoun as their fellow joint venturer" and that they breached
those fiduciary duties by "abandon[ing] Beydoun and refus[ing] to
offer evidence in his behalf." Amend. Compl. ¶¶ 199, 201. Hooff and
Keller argue, inter alia, that the complaint does not allege all of the
requisite elements of a joint venture, the relationship on which the
complaint bases the breach of fiduciary duties.
A joint venture under Michigan law has six elements: (1) "an
agreement indicating an intention to undertake a joint venture," (2) "a
joint undertaking of," (3) "a single project for profit," (4) "a sharing
of profits as well as losses," (5) "contribution of skills or property by
the parties," and (6) "community interest and control over the subject
matter of the enterprise." Berger v. Mead, 338 N.W.2d 919, 922
3
Opdyke Investment Company v. Norris Grain Company, 320 N.W.2d
836 (Mich. 1982), on which Beydoun relies, does not undermine this
conclusion. Opdyke, which cited with approval Hansen and Socony-
Vacuum, involved a "Letter of Intent" and the question of whether the
parties "[i]ntended to be bound only by a formally written and executed
final document[.]" Id. at 838. In the instant case, we address the different
question of whether what Beydoun maintains is the parties’ formal, final
written document lacks material terms.
10 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
(Mich. Ct. App. 1983) (internal quotation marks omitted). "Whether
or not a joint venture exists is a legal question for the trial court to
decide." Id. (citation omitted).
First, the amended complaint does not allege that the parties agreed
to a "sharing of profits as well as losses" by the parties. See Meyers
v. Robb, 267 N.W.2d 450, 454 (Mich. Ct. App. 1978) (affirming dis-
missal of complaint because "no provision for the mutual sharing of
profits and losses"). In his brief, Beydoun fails to point to any allega-
tion of his complaint asserting this element, and our review of the
complaint similarly finds none.
Second, the complaint does not allege that the parties shared "con-
trol" over "the subject matter" of the joint venture. Berger, 338
N.W.2d at 922. Rather, the complaint’s explanation of the reason for
the Severance Monetary Compensation Clause belies any joint con-
trol, placing total control in the hands of Keller and Hooff: "[Bey-
doun] wanted some financial protection in the event that the Clark
Group or the Dewberry Group chose to move forward in the Middle
East without him." Amend. Compl. ¶ 41.
Finally, the alleged joint venture did not involve "a single project."
Berger, 338 N.W.2d at 922; Summers v. Hoffman, 69 N.W.2d 198,
201 (Mich. 1955) ("A single project was involved, namely, the devel-
opment and sale of two large parcels of real estate."). The complaint
alleges that the parties formed the joint venture "to pursue design and
construction business in the Middle East," and acknowledges that spe-
cific projects (and parties) had not been identified at the time of the
formation of the joint venture. Amend. Compl. ¶¶ 22, 27.
Because the complaint does not allege all of the requisite elements
of a joint venture, we must affirm the district court’s dismissal of the
breach of fiduciary duties claim.
C.
Beydoun also alleges a claim for intentional infliction of emotional
distress. Amend. Compl. ¶¶ 160-68. He asserts that "Hooff and Keller
engaged in outrageous conduct which caused the imprisonment of
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 11
Beydoun and destroyed Beydoun’s reputation," with the conduct
including the failure to assist Beydoun by providing truthful evidence
and funding "admitted obligations," abandonment of Beydoun, and
secretion of evidence. Id. We agree with the district court that this
claim fails as a matter of law.4
As an initial matter, the Michigan courts have expressed doubt as
to whether intentional infliction of emotional distress even exists as
a cause of action in Michigan. See Smith v. Calvary Christian Church,
614 N.W.2d 590, 686 n.7 (Mich. 2000) ("We have not been asked to,
and do not, consider whether the tort of intentional infliction of emo-
tional distress exists in Michigan."); see id. 690 (Weaver, C.J., con-
curring) ("As to the plaintiff’s tort claim of intentional infliction of
emotional distress, I note that this Court has not recognized or
adopted that tort, see Roberts v. Auto-Owners Ins. Co., 422 Mich.
594, 374 N.W.2d 905 (1985), and does not do so here.").
To the extent Michigan does recognize intentional infliction of
emotional distress, the required elements are: (1) extreme and outra-
geous conduct, (2) intent or recklessness, (3) causation, and (4) severe
emotional distress. Graham v. Ford, 604 N.W.2d 713, 716 (Mich. Ct.
App. 1999) (citation omitted). "[I]t is initially for the court to deter-
mine whether the defendant’s conduct reasonably may be regarded as
so extreme and outrageous as to permit recovery." Doe v. Mills, 536
N.W.2d 824, 834 (Mich. Ct. App. 1995) (citation omitted).
We agree with the district court that Beydoun has not alleged the
requisite extreme and outrageous conduct. "Liability for the inten-
tional infliction of emotional distress has been found only where the
conduct complained of has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious and utterly intolerable in a civilized
community." Graham, 604 N.W.2d at 674 (citation omitted). More-
over, "[i]t is not enough that the defendant has acted with an intent
that is tortious or even criminal, or that he has intended to inflict emo-
tional distress, or even that his conduct has been characterized by
4
Beydoun did not appeal the dismissal of his negligent infliction of
emotional distress claim.
12 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
‘malice,’ or a degree of aggravation that would entitle the plaintiff to
punitive damages for another tort." Id. (citation omitted).
Beydoun alleges that Hooff and Keller did not "offer[ ] to assist
Beydoun by providing truthful evidence which would have exoner-
ated Beydoun and secured his freedom from imprisonment," "secreted
evidence which would have assisted Beydoun’s defense," "retained a
lawyer who urged Beydoun not to implicate Clark International or
Dewberry & Davis," and "did not fund admitted obligations with full
knowledge that funding those obligations would allow Beydoun to be
freed from prison." Amend. Compl. ¶ 162. Hooff and Keller had no
duty to assist Beydoun in his effort to exonerate himself, even assum-
ing that the facts alleged would constitute outrageous conduct in the
face of such a duty. Having failed to sufficiently allege a joint ven-
ture, the parties had only a contractual relationship, and Beydoun
points to no contractual obligation to assist him. Thus, we affirm the
district court’s dismissal of this claim because Beydoun fails to allege
conduct "regarded as atrocious and utterly intolerable in a civilized
community." Graham, 604 N.W.2d at 674 (citation omitted).
D.
In addition, Beydoun asserts a claim for tortious interference with
advantageous business relationships. In support of that claim, he
alleges that he had "established a substantial network of important
business contacts and relationships throughout the Middle East," that
these relationships were "with some of the most prosperous and
prominent persons in the Middle East," including, inter alia, Prince
Khaled Bin Turki Bin Abdul of Saudi Arabia and Queen Noor, that
"[t]hese relationships were not limited to relationships which would
result in construction and engineering contracts that were subject to
the Joint Venture Agreement," that Keller and Hooff "allowed Bey-
doun to be imprisoned and convicted," and that the "imprisonment
and conviction had the effect of substantially impairing Beydoun’s
relationships with business contacts and relationships in the Middle
East." Amend. Compl. ¶¶ 206-11.
The elements of a claim for tortious interference are: (1) the exis-
tence of a valid business relationship or expectancy; (2) knowledge of
the relationship or expectancy on the part of the defendant;
BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL 13
(3) intentional interference causing or inducing a termination of the
relationship or expectancy; and (4) resultant actual damage. See Lucas
v. Monroe County, 203 F.3d 964, 978-79 (6th Cir. 2000) (citing
Wilkerson v. Carlo, 300 N.W.2d 658, 659 (Mich. Ct. App. 1980)); see
also N. Plumbing & Heating, Inc. v. Henderson Bros., Inc., 268
N.W.2d 296, 299 (Mich. Ct. App. 1978).
The amended complaint merely alleges that Beydoun had a "sub-
stantial network of important business contacts and relationships
throughout the Middle East," and identifies some of those business
contacts. The complaint does not identify, even in vague or conclu-
sory fashion, any expectancy or future contract arising out of these
contacts. Under Michigan law, "‘[t]he [business relationship or expec-
tancy of a relationship] must be a reasonable likelihood or a probabil-
ity, not mere wishful thinking.’" Lucas, 203 F.3d at 979 (quoting
Trepel v. Pontiac Osteopathic Hosp., 354 N.W.2d 341, 348 (Mich. Ct.
App. 1984)). "To demonstrate such a realistic expectation, Plaintiffs
must prove an anticipated business relationship with an identifiable
class of third parties." Id. (reasonable expectancy of an economic
relationship with stranded motorists who arranged for towing services
via the call list maintained by the Sheriff’s Department) (citation
omitted); see also Trepel, 354 N.W.2d at 344, 348 (valid expectancy
of approval of hospital’s application for a bond issue from the Michi-
gan State Hospital Finance Authority and Municipal Finance Com-
mission). Given the insufficiency of the amended complaint, we
affirm the district court’s dismissal of this claim.
E.
Finally, Beydoun asserts a civil conspiracy claim, alleging that
Hooff and Keller "conspired for the unlawful purpose of causing Bey-
doun to be exposed to false imprisonment and financial ruin." Amend.
Compl. ¶ 180. He alleges that, as part of the conspiracy, Keller and
Hooff "withheld material evidence, refused to offer truthful evidence
which would have exonerated Beydoun, . . . secreted evidence which
would have exonerated Beydoun," and "mis[led] Beydoun into plac-
ing himself in a position where Defendants could allow him to be
imprisoned and later deny he was entitled to the millions of dollars
in compensation he had already earned." Amend. Compl. ¶¶ 181, 184.
14 BEYDOUN v. CLARK CONSTRUCTION INTERNATIONAL
The essential elements of a civil conspiracy are (1) a concerted
action, (2) by a combination of two or more persons, (3) to accom-
plish an unlawful purpose, (4) or a lawful purpose by unlawful means.
Mays v. Three Rivers Rubber Corp., 352 N.W.2d 339, 341 (Mich. Ct.
App. 1984).
We agree with the district court that the complaint fails to allege
that Keller and Hooff acted in concert. "[M]ere conclusions that fail
to offer direct or circumstantial evidence of an unlawful agreement
between the alleged conspirators" are insufficient. Sankar v. Detroit
Bd. of Educ., 409 N.W.2d 213, 218 (Mich. Ct. App. 1987). In addi-
tion, the Michigan courts have held that "a claim for civil conspiracy
may not exist in the air; rather, it is necessary to prove a separate
actionable tort." Early Detection Ctr. v. New York Life Ins. Co., 403
N.W.2d 830, 836 (Mich. Ct. App. 1987). When a plaintiff "fail[s] to
state any actionable tort theories in [his] . . . amended complaint, the
conspiracy theory must also fail." Id. Because we affirm the district
court’s dismissal of Beydoun’s other claims, the civil conspiracy
claim also fails as a matter of law.5
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
5
Despite Beydoun’s position that Michigan law governs his claims, the
amended complaint also alleges a claim for violation of Virginia’s busi-
ness conspiracy statute, Va. Code Ann. § 18.2-500, which permits a suit
for civil relief based on a violation of § 18.2-499, which provides for a
misdemeanor conviction for conspiring to injure others in their reputa-
tion, trade, business, or profession. As an initial matter, the text of
§ 18.2-500 requires a violation of § 18.2-499, and the complaint alleges
none. See § 18.2-500 ("Any person who shall be injured in his reputation,
trade, business or profession by reason of a violation of § 18.2-499, may
sue therefor and recover three-fold the damages by him sustained[.]"). In
any event, because we agree with Beydoun that Michigan law governs
his complaint, we affirm the dismissal of this Virginia law claim.