L. Hall v. Greystar Management Services , 637 F. App'x 93 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2145
L. HALL,
Plaintiff - Appellant,
v.
GREYSTAR MANAGEMENT SERVICES, L.P., d/b/a Greystar
Development and Construction, LP, d/b/a Versailles Apartment
Homes; PSN LANDSCAPING COMPANY, INCORPORATED; RICHARD KELLY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:13-cv-03615-JKB)
Argued: October 27, 2015 Decided: January 21, 2016
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Motz
and Judge Harris joined.
ARGUED: Leslie Robert Stellman, PESSIN KATZ LAW, P.A.,
Towson, Maryland, for Appellant. Michael William Skojec,
BALLARD SPAHR LLP, Baltimore, Maryland; Andrew Martin Battista,
ANDREW M. BATTISTA, P.A., Towson, Maryland; Michele J. McDonald,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees. ON BRIEF: Adam E. Konstas, PESSIN KATZ LAW,
P.A., Towson, Maryland, for Appellant. Michelle M. McGeogh,
BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee Greystar
Management Services, L.P. Brian E. Frosh, Attorney General of
Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee Richard Kelly.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
L. Hall brought this suit against Greystar Management
Services, L.P. (GMS), PSN Landscaping Co., Inc. (PSN), and
Lieutenant Richard Kelly for, among other things, retaliation in
violation of the Fair Housing Act (FHA), 42 U.S.C. § 3601, and
conversion. The defendants moved to dismiss Hall’s complaint,
and the district court granted the motion. Hall then filed
motions to reconsider and amend her complaint. The district
court denied Hall’s motions, finding that any amendment would be
futile. Hall now appeals this denial.
Because we conclude that the district court did not abuse
its discretion in denying as futile Hall’s motion to amend her
retaliation claim against GMS and conversion claim against
Kelly, we affirm those portions of the district court’s
decision. We reverse, however, the district court’s denial of
Hall’s motion to amend her conversion claim against GMS and PSN.
I.
A.
We relate the facts – as we must at this stage of the
litigation – as presented largely from Hall’s proposed amended
complaint, with inferences drawn in her favor. See Ridpath v.
Bd. of Governors Marshall Univ., 447 F.3d 292, 300 n.3 (4th Cir.
2006).
3
Hall is a resident of Maryland who, between 2005 and 2011,
lived at 131A Versailles Court in the Versailles Apartments
complex located in Baltimore County. Hall has been diagnosed
with “post-polio syndrome together with specific and related
comorbidities including dysphagia, respiratory deficit and
syncope as well as post traumatic stress disorder, all of which
substantially limit major life activities.” J.A. 208. She
requires a service dog. Id. When she moved into her apartment,
Hall “requested and was granted the accommodation of a storage
unit” in which to store “materials necessary for the maintenance
of her service dog.” Id. This accommodation was later made
part of a settlement agreement between Hall and the then-owner
of the Versailles Apartment and incorporated into Hall’s lease.
In 2009, GMS acquired the Versailles Apartments. In August
2010, GMS informed Hall that her use of the storage unit
constituted a violation of the fire code. Hall requested that
the structure of the storage unit be altered to comply with the
fire code, but GMS refused. Hall then requested that GMS
relocate her to a three-bedroom apartment. GMS agreed to
relocate Hall when a three-bedroom unit became available.
In December 2010, GMS’s agents removed Hall’s property from
the storage unit and disposed of it in dumpsters. Later that
month, GMS informed Hall that it would not renew her year-to-
4
year lease, and that she was required to vacate her apartment by
April 30, 2011.
In response to these developments, Hall, in February 2011,
filed a complaint with the U.S. Department of Housing and Urban
Development (HUD), the U.S. Department of Justice and the
Maryland Commission on Civil Rights. After Hall filed these
complaints, GMS informed Hall that she would not be permitted to
move into an accessible three-bedroom apartment because no such
unit was available. GMS, however, advertised online the
availability of three-bedroom apartments at the Versailles
Apartments.
Hall did not vacate the premises by April 30, 2011, and
continued to rent the apartment from GMS on a month-to-month
basis as she searched for a new apartment. Shortly after April
30, 2011, GMS prosecuted a successful tenant-holding-over action
against Hall and obtained a warrant of restitution (i.e., an
eviction order) in Baltimore County District Court. Hall
appealed to the Circuit Court for Baltimore County. As a result
of these legal proceedings, Hall hired professional movers to
relocate her personal property. On November 10, 2011, the
Circuit Court for Baltimore County denied Hall’s appeal. Hall
immediately filed a motion for stay of enforcement pending
review of the Circuit Court’s decision by another judge on the
Circuit Court for Baltimore County.
5
On or about November 22, 2011, the professional movers
advised Hall that they would not be able to move her property
until December 6 and 7, 2011. Hall informed GMS of this
information and paid GMS rent for December 2011, which GMS
accepted.
On or about November 30, 2011, the Circuit Court for
Baltimore County denied Hall’s motion for stay of enforcement.
The very next day – December 1, 2011 at around 10:00 a.m. –
Kelly of the Baltimore County Sheriff’s Office executed GMS’s
warrant of restitution. PSN, acting as an agent of GMS, removed
Hall’s property from her apartment. PSN also removed all of
Hall’s property, including her “purse[,] . . . computers[,]
[and] file boxes,” which was situated in and about her vehicle
outside the premises. J.A. 213. Hall’s purse, passport, and
computers were ultimately returned to her. That morning, two
deputy sheriffs who were on site informed Hall that they “had
negotiated an agreement” in which PSN would transport Hall’s
property to a portable storage unit she owned in exchange for
$600. J.A. 214. Hall immediately proceeded to her bank and
obtained a cashier’s check. Soon thereafter, however, counsel
for GMS informed Hall that the agreement was terminated and that
PSN would not transport Hall’s property to her storage unit.
Under the direction of GMS, PSN employees loaded 15,000
pounds of Hall’s property into their trucks, including the
6
property located in and around her vehicle, the vehicle of her
housekeeper, and her attorney’s vehicle. Kelly informed Hall
that PSN was taking her property to the Northern Landfill in
Westminster, Maryland. Hall’s property, however, never arrived
there. The next day, December 2, 2011, Hall learned that 5,000
pounds of her property had arrived at Blue Ridge Landfill in
Pennsylvania and had been destroyed. The remaining 10,000
pounds of Hall’s property remains unaccounted for.
Following these events, GMS returned Hall’s December 2011
rent payment and her security deposit.
B.
On November 27, 2013, Hall filed suit alleging (1)
retaliation in violation of the FHA against GMS; (2) conversion
against all defendants; (3) violation of Article 26 of the
Maryland Declaration of Rights against Kelly; and (4) violation
of Title 20 of the State Government Article of the Maryland Code
against GMS. J.A. 215-19. Hall sought “compensatory and
punitive damages in the amount of $3,000,000” for her conversion
claim. J.A. 217.
GMS and Kelly filed motions to dismiss Hall’s complaint,
and PSN moved for summary judgment, which the district court
treated as a motion to dismiss. The district court granted all
defendants’ motions. The district court dismissed the
conversion claim based on its conclusion that, under Baltimore
7
County Code § 35-3-103, Hall’s property was deemed abandoned
once it was “removed from the leased premises in accordance with
a properly issued warrant of restitution,” and that abandoned
property cannot be converted. J.A. 191. In addition, the
district court dismissed the FHA and state-law retaliation
claims based on its conclusion that the disposal of Hall’s
abandoned property “did not constitute an adverse action under
the FHA.” J.A. 191, 193-94.
On July 30, 2014, Hall filed motions to alter or amend
judgment pursuant to Federal Rule of Civil Procedure 59(e) and
for leave to file an amended complaint pursuant to Federal Rule
of Civil Procedure 15(a), which defendants opposed. In the
motion to amend, Hall sought to more specifically allege that
defendants unlawfully converted the unreturned property she
removed from the premises before the warrant of restitution was
executed; namely, her file boxes she placed in or around her
vehicle, the vehicle of her housekeeper, and her attorney’s
vehicle.
On October 1, 2014, the district court denied both motions,
finding the amended complaint “futile on all counts.” J.A. 263.
Noting that Hall’s amended complaint failed to sufficiently
allege “a causal connection between her protected activity . . .
and the adverse action,” and further failed to allege
“discriminatory intent,” the district court dismissed the FHA
8
retaliation claim as futile. J.A. 264. Having dismissed Hall’s
federal claim, the district court retained supplemental
jurisdiction over the pendent state law claims “given the
simplicity of the analysis” required to resolve the claims.
J.A. 265. The district court dismissed Hall’s conversion claim
as futile based on its conclusion that the amended complaint
failed to “include a plausible claim for damages” and failed to
identify the damages sought for the property removed prior to
eviction. J.A. 266. Hall timely appealed, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A district court’s decision to deny a motion to alter or
amend a complaint under Federal Rule of Civil Procedure 59(e)
and its determination of whether to permit the filing of an
amended complaint under Federal Rule of Civil Procedure 15(a)
are both reviewed for abuse of discretion. Matrix Capital Mgm’t
Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 192 (4th Cir.
2009).
A Rule 59(e) motion may only be granted in three
situations: “(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available
at trial; or (3) to correct a clear error of law or prevent
manifest injustice.” Mayfield v. Nat’l Ass’n for Stock Car Auto
9
Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkand
v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). It is an
extraordinary remedy that should be applied sparingly. Id.Dispositive in this case, however, is Matrix Capital’s dictate
that
the district court may not grant [a Rule
15(a)] motion unless the judgment is vacated
pursuant to Rule 59(e) or Rule 60(b). A
conclusion that the district court abused
its discretion in denying a motion to amend,
however, is sufficient grounds on which to
reverse the district court’s denial of a
Rule 59(e) motion.
Matrix Capital, 576 F.3d at 193 (quoting Laber v. Harvey, 438
F.3d 404, 427-28 (4th Cir. 2006) (en banc)). In other words,
“Rule 15(a) and Rule 59(e) motions rise and fall together.
Thus, to evaluate whether the motion to reconsider should have
been granted, we must determine whether the denial of the motion
for leave to amend was proper.” Mayfield, 674 F.3d at 378-79.
Rule 15(a)(2) provides that “a party may amend its
pleadings only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). “This directive ‘gives
effect to the federal policy in favor of resolving cases on the
merits instead of disposing of them on technicalities.’” Matrix
Capital, 576 F.3d at 193 (quoting Laber, 438 F.3d at 426). A
request to amend should only be denied if one of three facts is
10
present: “the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party,
or the amendment would have been futile.” Laber, 438 F.3d at
426.
An amendment is futile if the amended claim would fail to
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). Perkins v. United States, 55 F.3d 910, 917
(4th Cir. 1995). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). And while we must
accept all of the allegations contained in a complaint as true,
that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action - supported by
mere conclusory statements - do not suffice. Id. A complaint,
therefore, must contain “[f]actual allegations [sufficient] to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (holding that a
complaint “tender[ing] ‘naked assertion[s]’ devoid of ‘further
factual enhancement’” does not “suffice” (quoting Twombly, 550
U.S. at 557)).
11
III.
Although the conduct of GMS leading up to and during the
actual eviction concerns us 1, the law compels the conclusions we
reach below.
A.
We consider first Hall’s contention that the district court
abused its discretion in denying an amendment to her FHA
retaliation claim as futile.
The FHA makes it “unlawful to coerce, intimidate, threaten,
or interfere with any person in the exercise or enjoyment of, or
on account of his having exercised or enjoyed,” rights protected
by the FHA. 42 U.S.C. § 3617. To state a claim for retaliation
under 42 U.S.C. § 3617 of the FHA, Hall must establish that (1)
she was engaged in protected activity; (2) GMS was aware of that
activity; (3) GMS took adverse action against her; and (4) a
causal connection existed between the protected activity and the
asserted adverse action. King v. Rumsfeld, 328 F.3d 145, 150–51
(4th Cir. 2003) (citing Williams v. Cerberonics, Inc., 871 F.2d
452, 457 (4th Cir. 1989)). Because Title VII and the FHA employ
1 Specifically, despite its acceptance of Hall’s December
2011 rent with the knowledge and understanding that she could
not secure a moving company until December 6 and 7, 2011, GMS
evicted Hall on December 1, 2011. Further, it appears that PSN
and Hall entered into a verbal agreement, in which PSN would
take Hall’s property to a portable storage unit Hall secured in
exchange for $600; counsel for GMS “terminated” that agreement.
12
similar language and “are part of a coordinated scheme of
federal civil rights laws enacted to end discrimination,”
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926,
935 (2d Cir. 1988), much of our FHA jurisprudence is drawn from
cases interpreting Title VII. See, e.g., Betsey v. Turtle Creek
Assocs., 736 F.2d 983, 987 (4th Cir. 1984); Smith v. Town of
Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982).
With that understanding, we turn to Hall’s proposed amended
complaint to determine whether she has alleged facts sufficient
to state the elements of her claim of retaliation under 42
U.S.C. § 3617. While Hall did allege that she engaged in
protected activity when she filed a HUD complaint, that GMS was
aware of that protected activity, and that GMS “acted with
malice” when it disposed of her property, she did not allege
facts sufficient to show a causal connection – namely, that the
reason GMS took the actions it did was because of her protected
activity. Hall’s amended complaint leaves open to speculation
the cause for GMS’s decision to destroy her property, and the
cause that she asks us to infer – retaliation - is not plausible
in light of the “‘obvious alternative explanation,’” see Iqbal,
556 U.S. at 682 (quoting Twombly, 550 U.S. at 567), that GMS
simply was regaining possession of the leased premises in
accordance with the orders of the Baltimore County Court.
Indeed, the consequence of allowing Hall’s claim to proceed on
13
her amended complaint as stated would be that any person engaged
in a protected activity who alleges nothing more than that she
was evicted and her property destroyed would be able to survive
a Rule 12(b)(6) motion. Such a result cannot be squared with
the Supreme Court’s command that a complaint must allege “more
than a sheer possibility that a defendant has acted unlawfully.”
Id. at 678. Therefore, Hall’s failure to adequately plead facts
demonstrating a causal connection is fatal to her claim.
While Hall is correct that “[a]llegations have facial
plausibility ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for misconduct alleged,’” Tobey v. Jones,
706 F.3d 379, 386 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at
679), no reasonable inference can be drawn here that GMS
retaliated against Hall because of her protected activity.
Retaliatory conduct, by its very nature, must come after the
protected activity. Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). Thus, we
cannot, as Hall asks, infer causation based on facts that
occurred before Hall’s protected activity. 2
2 For example, GMS’s removal and destruction of the storage
unit for Hall’s service dog occurred before she filed a HUD
complaint. Likewise, GMS informed Hall that it would not renew
her lease and requested that she vacate the apartment by a date
certain occurred before she filed a HUD complaint.
14
The only allegation in Hall’s amended complaint that
suggests causation is the temporal proximity between Hall’s
protected activity and GMS’s adverse action. In evaluating a
retaliation claim, however, a court will not infer a causal link
based on temporal proximity alone unless the adverse action
occurred “very close” to, Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273-74 (2001), or “shortly after,” Price v. Thompson,
380 F.3d 209, 213 (4th Cir. 2004), the defendant became aware of
the protected activity. There was a ten-month lapse between
Hall’s protected activity of filing a HUD complaint in early
February 2011 and GMS’s adverse action of destroying her
property in December 2011. “Action taken – as here – [10]
months later suggests, by itself, no causality at all.” Clark
Cnty. Sch. Dist., 532 U.S. at 273-74; see also Hooven-Lewis v.
Caldera, 249 F.3d 259, 278 (4th Cir. 2001) (“A six month lag is
sufficient to negate any inference of causation.”); Pepper v.
Precision Valve Corp., 526 F. App’x 335, 337 (4th Cir. 2013)
(finding ten-month lapse insufficient to establish causation)
(unpublished); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir. 1997) (three–month period insufficient); Hughes v.
Derwinski, 967 F.2d 1168, 1174–1175 (7th Cir. 1992) (four–month
period insufficient).
15
For these reasons, we find that the district court did not
abuse its discretion in denying Hall’s motion to amend her
retaliation claim.
B.
Hall also appeals the district court’s denial of her motion
to amend her conversion claim. Hall contends that the district
court erred by concluding that her “failure to include a
plausible claim for damages [left] her amended claim for
conversion futile.” J.A. 266. We agree.
A motion to dismiss pursuant to Rule 12(b)(6) – the
standard we apply here, see Perkins, 55 F.3d at 917 – tests the
legal sufficiency of a complaint to determine whether the
plaintiff has properly stated a claim; “it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992). The perceived discrepancy
that the district court raised – that Hall pleaded the same
amount of compensatory and punitive damages in both her original
and amended complaints despite the court finding that some of
her property was abandoned – merely raises an issue of fact on
the question of damages that cannot be resolved on a motion to
dismiss. At the motion-to-dismiss stage, the only appropriate
inquiry for the district court is whether Hall’s proposed
amended complaint contained sufficient factual matter, accepted
16
as true, to “state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678. To determine whether Hall’s
complaint contained sufficient factual matter to state a claim
of conversion against each defendant, we must review the
elements of conversion under Maryland law and the facts alleged
against each defendant.
In Maryland, the intentional tort of conversion requires
“an exertion of ownership or dominion over another’s personal
property in denial of or inconsistent with the owner’s right to
that property.” Nickens v. Mount Vernon Realty Grp., LLC, 54
A.3d 742, 756 (Md. 2012). Here, Hall alleged that PSN, at the
direction of GMS’s attorney, removed from her possession a
number of file boxes she placed in and around her vehicle, her
housekeeper’s vehicle and her attorney’s vehicle prior to the
eviction. This property was placed directly “on the trucks
owned and operated by PSN.” J.A. 213. It was PSN, at the
direction of GMS’s attorney, that transported all of Hall’s
property to a landfill where it was destroyed. As a result of
this conduct, Hall sought compensatory and punitive damages in
the amount of $3,000,000. Certainly, these facts “nudg[e]”
Hall’s conversion claim against GMS and PSN “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
Accordingly, we find that the district court abused its
17
discretion in denying Hall’s motion to amend her conversion
claim against GMS and PSN.
There is, however, nothing alleged in Hall’s complaint that
Kelly exerted ownership or dominion over her property. As Hall
concedes, she “never contested that Kelly was carrying out a
valid warrant of restitution; rather, she takes issue with the
manner in which Kelly executed the warrant . . . .” Hall’s
Reply Br. at 2. The only fact alleged by Hall is that Kelly
supervised the eviction process, which appears to be consistent
with Kelly’s responsibility to carry out a valid warrant of
restitution. There is no allegation that Kelly was an agent of
GMS or PSN, that he removed the property personally, or that he
directed anyone else to remove the property. In fact, Hall made
clear in her complaint that it was GMS’s attorney “giving orders
to PSN.” J.A. 214. For these reasons, we find that Hall failed
to state a claim of conversion against Kelly. 3
C.
Finally, Hall asserts that the district court abused its
discretion when it refused to certify a question about the
3
Because Hall failed to address whether the district court
abused its discretion in its determination that her remaining
state law claims - as alleged in her amended complaint - were
futile, we deem these issues waived. See, e.g., Tucker v.
Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996) (stating issues
not addressed in brief or oral argument are waived).
18
proper interpretation of Baltimore County Code § 35-3-103 to the
Maryland Court of Appeals. At no point during the proceedings
below did Hall request that the district court certify the
interpretation of § 35-3-103 to the Maryland Court of Appeals.
We have repeatedly held that issues raised for the first
time on appeal generally will not be considered. See, e.g.,
Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th
Cir. 1998); Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993); Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 318 (4th
Cir. 1988). “Exceptions to this general rule are made only in
very limited circumstances, such as where refusal to consider
the newly-raised issue would be plain error or would result in a
fundamental miscarriage of justice.” Muth, 1 F.3d at 250
(citing Hanson, 859 F.2d at 318). We can find no evidence in
the record that such circumstances exist here. See, e.g.,
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974) (concluding
that certification of open questions of state law to the state
supreme court can “in the long run save time, energy, and
resources and helps build a cooperative judicial federalism,”
but “[i]ts use in a given case rests in the sound discretion of
the federal court”); Thompson v. Paul, 547 F.3d 1055, 1065 (9th
Cir. 2008) (“There is a presumption against certifying a
question to a state supreme court after the federal district
court has issued a decision.”); Enfield v. A.B. Chance Co., 228
19
F.3d 1245, 1255 (10th Cir. 2000) (“Although the issues raised by
the City are novel and somewhat difficult, the City did not seek
certification until after it received an adverse decision from
the district court. That fact alone persuades us that
certification is inappropriate.”); Perkins v. Clark Equip. Co.,
Melrose Div., 823 F.2d 207, 209–10 (8th Cir. 1987) (noting that
request for certification was not made “until after the motion
for summary judgment had been decided against them,” and stating
that this “practice . . . should be discouraged. Otherwise, the
initial federal court decision will be nothing but a gamble with
certification sought only after an adverse ruling”).
IV.
For the reasons stated, we affirm in part, reverse in part,
and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
20