Robert Horowitz v. Continental Casualty Company , 681 F. App'x 198 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1883
ROBERT HOROWITZ; CATHY HOROWITZ,
Plaintiffs - Appellants,
v.
CONTINENTAL CASUALTY COMPANY, d/b/a CNA; ECCLESTON & WOLF;
SELZER GURVITCH RABIN WERTHERIMER POLOTT & OBECNY, PC;
BREGMAN, BERBERT, SCHWARTZ & GILDAY, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:14-cv-03698-DKC)
Submitted: February 28, 2017 Decided: March 7, 2017
Before AGEE, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John S. Lopatto III, Washington, D.C., for Appellants. Rachel
T. McGuckian, Rachel A. Shapiro, MILES & STOCKBRIDGE P.C.,
Rockville, Maryland; Kathleen H. Warin, Helyna M. Haussler,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, Baltimore,
Maryland; Karen Ventrell, CNA COVERAGE LITIGATION GROUP,
Washington, D.C.; Shirlie Norris Lake, ECCLESTON & WOLF, P.A.,
Hanover, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiffs Robert Horowitz and Cathy Horowitz commenced
this action against three law firms and a malpractice insurance
carrier alleging that the Defendants conspired to induce them to
execute an illegal settlement agreement arising from a
malpractice action brought by the Horowitzes in a Maryland
circuit court. The Horowitzes appeal from the district court’s
order granting the Defendants’ motions to dismiss and dismissing
their complaint. We affirm.
We decline the Horowitzes’ request to declare void a state
court judgment entered against them and in favor of Selzer
Gurvitch Rabin Wertheimer Polott & Obecny, P.C. (“Selzer”). 1
Under the Rooker-Feldman doctrine, 2 “lower federal courts are
precluded from exercising appellate jurisdiction over final
state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463
(2006) (per curiam). This abstention doctrine applies to “cases
brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court
1 Because the decision of the Court of Special Appeals of
Maryland — which is the basis for this request — did not issue
until after the district court’s final order in this case, the
Horowitzes did not present this argument to the district court.
2 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983).
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proceedings commenced and inviting [federal] court review and
rejection of those judgments.” Thana v. Bd. of License Comm’rs
for Charles Cty., Md., 827 F.3d 314, 319 (4th Cir. 2016)
(internal quotation marks omitted) (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
Here, the Horowitzes lost in state court and are now
seeking to attack a judgment that preceded the instant federal
action. Accordingly, we will not exercise appellate review over
this state court judgment.
The Horowitzes next challenge the district court’s
application of res judicata and collateral estoppel to bar
several of their claims. The district court found that many of
the Horowitzes’ claims constituted an attempt to relitigate the
issue of whether a prior settlement resolving a state court
action involving the Horowitzes was legal. This issue was
raised and litigated in the prior state court action between
Selzer and the Horowitzes, and a final judgment on the merits
was entered. Therefore, we agree with the district court that
all of the Horowitzes’ claims premised on their contention that
the settlement was illegal are precluded. See Comptroller of
Treasury v. Sci. Applications Int’l Corp., 950 A.2d 766, 772
(Md. 2008) (stating elements of Maryland res judicata);
Colandrea v. Wilde Lake Cmty. Assoc., 761 A.2d 899, 909 (Md.
2000) (stating elements of Maryland collateral estoppel).
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With respect to the remaining claims, the Horowitzes argue
that the complaint properly pleaded causes of action under the
Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p
(2012) (FDCPA), the Maryland Consumer Debt Collection Act, Md.
Code Ann., Com. Law §§ 14-201 to -204 (LexisNexis 2013) (MCDCA),
the Maryland Consumer Protection Act, Md. Code Ann., Com. Law
§§ 13-101 to -501 (LexisNexis 2013) (MCPA), and 42 U.S.C. § 1983
(2012). We review de novo a district court’s grant or denial of
a Fed. R. Civ. P. 12(b)(6) motion to dismiss, taking the
complaint’s factual allegations as true and drawing all
reasonable inferences in the plaintiffs’ favor. Harbourt v. PPE
Casino Resorts Md., LLC, 820 F.3d 655, 658 (4th Cir. 2016). To
survive a motion to dismiss, a complaint must contain sufficient
facts to state a claim that is plausible on its face. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To state a cause of action under the FDCPA, a plaintiff
must allege, among other things, that the defendant was a debt
collector, which is defined as “any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed
or due another.” 15 U.S.C. §§ 1692a(6), 1692k (2012). The
complaint baldly asserted, with no additional factual
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allegations, that Defendants Continental Casualty Company
(“Continental”) and Eccleston and Wolf, P.C. (“Eccleston”),
regularly acted as debt collectors; 3 this barebones assertion
failed to state a claim under the FDCPA. See Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
The Horowitzes also sought to plead a violation of Md. Code
Ann., Com. Law § 14-202(8), which prohibits a collector from
collecting an alleged debt by “claim[ing], attempt[ing], or
threaten[ing] to enforce a right with knowledge that the right
does not exist.” The complaint explicitly conceded that the
Horowitzes were indebted to the law firm that they sued for
legal malpractice. Thus, by the Horowitzes’ admission,
Continental and Eccleston did not attempt to enforce a
nonexistent right. Thus, the district court correctly ruled
that the complaint did not adequately plead a claim under the
MCDCA.
To state a claim under § 1983, the Horowitzes were required
to allege that Selzer, acting under color of state law, deprived
them of “a right secured by the Constitution or laws of the
United States.” Thomas v. Salvation Army S. Territory, 841 F.3d
632, 637 (4th Cir. 2016) (internal quotation marks omitted). To
3 The debt collection claims against Selzer and Defendant
Bregman, Berbert, Schwartz & Gilday, LLC, were barred by res
judicata.
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be attributable to the state, “the deprivation must be caused by
the exercise of some right or privilege created by the State or
by a rule of conduct imposed by the State or by a person for
whom the State is responsible,” and “the party charged with the
deprivation must be a person who may fairly be said to be a
state actor.” Jones v. Poindexter, 903 F.2d 1006, 1010-11 (4th
Cir. 1990) (internal quotation marks omitted) (quoting Lugar v.
Edmundson Oil Co., 457 U.S. 922, 937 (1982)). “[W]here a
private party and a public official act jointly to produce [a]
constitutional violation, both parts of [this] test are
simultaneously satisfied.” Jackson v. Pantazes, 810 F.2d 426,
429 (4th Cir. 1987).
The complaint alleged that a sheriff’s deputy, at the
behest of Selzer, advised Robert Horowitz that Selzer would seek
a court order to enter the Horowitzes’ residence. The
Horowitzes characterize this action as a “threat,” but, as
pleaded, it amounts to nothing more than notice of Selzer’s
intention to enforce their state court judgment through lawful
procedures. Such conduct does not rise to the level of a
constitutional deprivation under § 1983.
Finally, we conclude that the district court did not abuse
its discretion in denying the Horowitzes’ request for a stay or
to amend the complaint. Accordingly, the district court’s
dismissal of the Horowitzes’ complaint is affirmed. We dispense
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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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