PACK Private Capital, LLC v. Associated Bank, N.A.; James B. Fink; Rodney Murray; Michael Waltz

United States Court of Appeals
For the Eighth Circuit
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No. 24-3467
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PACK Private Capital, LLC
Plaintiff - Appellant
v.
Associated Bank, N.A.; James B. Fink; Rodney Murray; Michael Waltz
Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 12, 2025
Filed: October 10, 2025
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
PACK Private Capital, LLC, an investment company, loaned money to Silver
Fox Energy, LLC, a North Dakota-based energy construction company, starting in
September 2021. Silver Fox had cash flow problems, so PACK gave Silver Fox
additional short-term loans, called “payroll float loans.” The understanding was that
Silver Fox would repay PACK for these loans “as soon as its accounts receivable

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became available.” There was typically no documentation of or interest on the
payroll float loans.
In October 2021, Associated Bank, N.A. agreed to provide Silver Fox with a
$2 million revolving line of credit and a $1 million term loan. As part of the deal,
PACK signed a subordination agreement, agreeing to subordinate all of Silver Fox’s
“obligations” to PACK “now existing or hereafter arising, direct or indirect, absolute
or contingent, joint or several” to Associated’s line of credit and loan. Any
collection of payment by PACK required Associated’s “prior written consent.”
PACK continued to provide payroll float loans into 2022. PACK and Silver
Fox refinanced and consolidated their debt in March 2022. Two months later, PACK
converted its debt into Silver Fox equity, giving it a 90% ownership stake.
Associated agreed to refinance and replace the earlier loan with a $4 million
revolving line of credit and a $1.5 million term loan. PACK provided a $1 million
guaranty to Associated. Despite the financing, Silver Fox continued to struggle and
PACK continued to make payroll float loans.
Associated denied Silver Fox’s request for more funding in July 2022. On
August 11, 2022, James Fink, an Associated employee who had been involved in the
initial discussions with Silver Fox and PACK, sent a letter “acknowledg[ing]” that
the payroll float loan was “intended to be a ‘temporary loan to bridge a cash
shortfall’” that Silver Fox would soon pay back. Neither Fink nor Associated
objected to these payments. PACK continued to make “unplanned” and “temporary
injections” of cash, providing an additional $4.6 million in payroll float loans after
Associated denied funding. Silver Fox made partial repayments on the loans.
Associated sued PACK, as guarantor, and Silver Fox, as borrower, in
Minnesota court. PACK then filed this case, also in state court, and Associated
removed to federal court. PACK sought a declaration that Associated had waived
its rights under the subordination agreement and that PACK’s payroll float loans had
priority over Associated’s credit and loan agreements. PACK also argued that

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Associated should be equitably estopped from seeking recovery of the payroll float
loan repayments because Associated approved of and encouraged PACK to make
the loans. 1
In its order of dismissal, the district court2 held that Minnesota’s credit
agreement statute of frauds applied, Minn. Stat. § 513.33. The court explained that
PACK’s claims were based on Associated’s oral promises and that equitable
estoppel did not save them because PACK—in effect—sought to “enforce an oral
agreement not to subordinate certain payments under the agreement, which would
qualify as a modification of the agreement.”
PACK appeals, arguing that Associated either gave written consent to the
repayment of the payroll float loans in Fink’s August 11 letter or should be equitably
estopped from arguing that repayment of the payroll float loans breached the
subordination agreement. We review the district court’s decision to grant the motion
to dismiss de novo, accepting the well-pled allegations in the complaint as true and
drawing all reasonable inferences in the plaintiff’s favor. Meardon v. Register, 994
F.3d 927, 934 (8th Cir. 2021).
PACK forfeited its written consent argument. See Dreith v. City of St. Louis,
55 F.4th 1145, 1149 (8th Cir. 2022). The complaint alleged that “Associated
expressly acknowledged [receipt of PACK’s financials] in writing via a letter from
James Fink” on August 11, 2022 and that the letter “admits that Associated knew
and encouraged PACK to continue” the payroll float loans. But PACK neither cited
nor relied on the subordination agreement’s prior written consent carveout. It did
not argue written consent in its brief opposing the motion to dismiss or during oral
argument. PACK only argued that Minnesota’s credit agreement statute of frauds
did not apply to the subordination agreement and that PACK was not a debtor.
1 PACK’s motion to take judicial notice of a complaint Associated filed in a
new action in Minnesota state court is denied.
2 The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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The district court did not address written consent because PACK never raised
it. See Pub. Water Supply Dist. No. 3 v. City of Lebanon, 605 F.3d 511, 524 (8th
Cir. 2010) (“The district courts cannot be expected to consider matters that the
parties have not expressly called to their attention, even when such matters arguably
are within the scope of the issues that the parties have raised.” (citation omitted)).
Nor was written consent encompassed in the arguments made below. We will not
allow PACK to use Fink’s letter in a way that “is materially different from [its] usage
and argument” before the district court. See Eagle Tech. v. Expander Americas, Inc.,
783 F.3d 1131, 1139 (8th Cir. 2015).
PACK also argues that the district court incorrectly treated its equitable
estoppel defense as a promissory estoppel claim. But the district court addressed
equitable estoppel and said in a footnote that the claim “may be more appropriately
viewed as a promissory estoppel claim.” And, as the district court reasoned,
although Minnesota’s credit agreement statute of frauds does not always bar
equitable estoppel, see Bracewell v. U.S. Bank Nat’l Ass’n, 748 F.3d 793, 796 (8th
Cir. 2014), it does here because PACK sought to enforce “an alleged oral promise
for modification” of a credit agreement, Sovis v. Bank of N.Y. Mellon, No. 11-2253,
2012 WL 733758, at *3 n.3 (D. Minn. Mar. 6, 2012); see also Schumacher v. KMLE,
Inc., No. 52-CV-16-553, 2020 WL 54560, at *6 (Minn. Ct. App. Jan. 6, 2020)
(unpublished). In Minnesota, “no action on a credit agreement may be maintained
unless the writing requirement is satisfied.” Figgins v. Wilcox, 879 N.W.2d 653,
659 (Minn. 2016) (citing Minn. Stat. § 513.33). “There is simply no textual basis
for creating an exception to [Minnesota’s statute of frauds] for promissory estoppel
claims.” Id. The same logic applies here to PACK’s equitable estoppel claim. See
Schumacher, 2020 WL 54560, at *6; see also Figgins, 879 N.W.2d at 658–59
(rejecting general principle that the doctrines of promissory and equitable estoppel
are exceptions to Minnesota’s statute of frauds).
Finally, PACK asks that we remand with instructions to allow leave to amend
its complaint or to dismiss without prejudice. PACK did not move for leave to

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amend the complaint, as Federal Rule of Civil Procedure 15(a) requires. Although
we have said that the failure to file a formal motion “is not necessarily fatal,” Wisdom
v. First Midwest Bank, 167 F.3d 402, 409 (8th Cir. 2009), we have also held that “[a]
district court does not abuse its discretion in denying leave to amend where a plaintiff
has not followed applicable procedural rules,” O’Neil v. Simplicity, Inc., 574 F.3d
501, 505 (8th Cir. 2009).
Nor does the amended complaint save PACK’s claims. See Pet Quarters, Inc.
v. Depository Tr. and Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009) (district
court did not abuse its discretion “in concluding that amendment would be futile and
in dismissing with prejudice” where plaintiff did not “indicate[] how it would make
the complaint viable”). Although the amended complaint added the word
“consent[],” it did not “indicate[] how [the amendment] would make the complaint
viable” and did not plead the “written consent” carveout. Id. Instead, PACK focused
on the same arguments raised below.
Affirmed.
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