Dawn Perlmutter v. Trina Varone ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2289
DAWN PERLMUTTER; THOMAS M. BOLICK,
Plaintiffs – Appellants,
v.
TRINA VARONE; JEFFREY VARONE; GARY ALTMAN, ESQ.; ALTMAN &
ASSOCIATES; RABBI SHALOM RAICHIK; SCOTT PERLMUTTER;
MONTGOMERY COUNTY, MARYLAND; ISIAH LEGGETT; JUDGE STEVEN
SALANT; JUDGE TERRENCE MCGANN; MARK S. ROSEMAN; JAMES
STEPHEN MCAULIFFE, III; MILES & STOCKBRIDGE, P.C.; HOPE
VILLAGE,
Defendants – Appellees,
and
JOHN DOES, 1 through 10; JAYNE DOES, 1 through 10,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. George J. Hazel, District Judge.
(8:14-cv-02566-GJH)
Submitted: March 29, 2016 Decided: April 14, 2016
Before AGEE and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dawn Perlmutter, Thomas M. Bolick, Appellants Pro Se. James
Stephen McAuliffe, III, Rachel T. McGuckian, MILES &
STOCKBRIDGE, PC, Rockville, Maryland; Matthew W. Lee, WILSON
ELSER MOSKOWITZ EDELMAN & DICKER LLP, McLean, Virginia; Anthony
Stephen Conte, II, LAW OFFICE OF A. STEPHEN CONTE, Rockville,
Maryland; Silvia Carolina Kinch, OFFICE OF THE COUNTY ATTORNEY,
Rockville, Maryland; Michele J. McDonald, Assistant Attorney
General, Baltimore, Maryland; James R. Andersen, ROLLINS,
SMALKIN, RICHARDS & MACKIE, LLC, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dawn Perlmutter and Thomas M. Bolick appeal from the
district court’s orders granting Defendants’ motions to dismiss
the complaint and denying Appellants’ Fed. R. Civ. P. 59 motion
for reconsideration. We have reviewed the record and the
parties’ arguments on appeal, and we find that there is no
reversible error in the district court’s opinion. Accordingly,
we affirm substantially for the reasons stated by the district
court. Perlmutter v. Varone, No. 8:14-cv-02566-GJH (D. Md.
Aug. 11 & Oct. 15, 2015).
In addition, we note that, regarding numerous claims, the
district court dismissed a particular claim for more than one
reason. However, on appeal, Appellants have not challenged all
the alternative bases for the district court’s rulings. As
such, Appellants have waived consideration of many of the
alternative holdings of the district court. See 4th Cir. R.
34(b).
We address a few claims raised by the district court
separately, as the arguments raised on appeal were either not
clearly raised below or not directly addressed by the district
court. The district court dismissed Appellants’ claims arising
under the Commerce Clause as barred by the Rooker-Feldman
doctrine, and Appellants challenge this finding on appeal. In
Exxon Mobil Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280, 284
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(2005), the Supreme Court stated that the Rooker-Feldman
doctrine is confined to “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments.” In
light of Exxon, we now examine “whether the state-court loser
who files suit in federal district court seeks redress for an
injury caused by the state-court decision itself” when
considering whether federal jurisdiction offends Rooker-Feldman.
Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718 (4th Cir.
2006). However, since Appellants’ Commerce Clause claim clearly
seeks review of state court judgments, the district court
properly determined that it lacked jurisdiction over the claim.
Appellants next claim that the district court improperly
raised the issue of res judicata sua sponte. Appellants claim
that res judicata is an affirmative defense and must be raised
and proved by Defendants. We review the district court’s sua
sponte decision to consider whether res judicata bars a claim
for abuse of discretion. Clodfelter v. Republic of Sudan, 720
F.3d 199, 208 (4th Cir. 2013). While generally a defendant has
the burden of raising res judicata, we have recognized that sua
sponte consideration is appropriate in “special circumstances.”
Id. at 209. Here, the Maryland state courts have held hearings
and dealt with numerous related suits and appeals over a period
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of several years. Even in state court, Appellants have
repeatedly raised claims that were already rejected. We find
that the ongoing failure to recognize the finality of the state
court orders constitutes special circumstances permitting sua
sponte consideration of the res judicata defense. Accordingly,
the district court did not abuse its discretion in considering
whether res judicata applied.
Finally, Appellants contend that the doctrine of judicial
immunity does not bar the declaratory relief that they sought
against the judicial defendant. However, Appellants’ complaint
does not seek declaratory relief regarding the judicial
defendants. While Appellants’ Rule 59 motion stated that they
sought against the judicial defendants “only prospective
declaratory or injunctive relief to prevent a continuing
violation of federal law,” the complaint belies this contention,
and Appellants, even in their motion and on appeal, fail to
explain the basis or form of this declaratory relief. See,
e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)
(complaint must plead facts that would entitle plaintiff to
prospective declaratory or injunctive relief, i.e., likelihood
of substantial and immediate irreparable injury and inadequacy
of remedies at law, for plaintiff to have standing to seek such
relief). Because Appellants have failed to make a sufficient
showing that they properly sought anything but monetary damages
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against the judicial defendants, we find that the district court
correctly ruled that the judicial defendants were protected by
absolute judicial immunity.
Accordingly, we affirm the district court’s orders. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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