The Humane Society of the US v. National Union Fire Insurance

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2299
THE HUMANE SOCIETY OF THE UNITED STATES,
Plaintiff - Appellant,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:16-cv-02029-PWG)
Submitted: March 5, 2019 Decided: March 15, 2019
Before AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Conor B. O’Croinin, John J. Connolly, ZUCKERMAN SPAEDER LLP, Baltimore,
Maryland, for Appellant. Linda S. Woolf, Joseph B. Wolf, Derek M. Stikeleather,
GOODELL, DEVRIES, LEECH & DANN, LLP, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Humane Society of the United States (“HSUS”) appeals the district court’s
order dismissing under Fed. R. Civ. P. 12(b)(6), on res judicata grounds, HSUS’s action
to recover settlement funds pursuant to an insurance policy issued by National Union Fire
Insurance Company of Pittsburgh, Pa. (“NU”). The district court held that HSUS’s
insurance claim was barred by the final judgment in The Humane Soc’y of the U.S. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, No. 8:13-cv-01822-DKC (D. Md.) (“Humane
Society I”), in which the district court denied HSUS leave to amend its complaint to
assert the same claim against NU. See Humane Society I (D. Md. July 11, 2016). We
affirm.
Because HSUS’s opening brief does not contest any aspect of the district court’s
dispositive res judicata analysis, any such challenge is waived. See, e.g., United States v.
Cohen, 888 F.3d 667, 685 (4th Cir. 2018). HSUS argues instead that a Maryland Circuit
Court judgment, issued during the pendency of this appeal, has collateral estoppel effect
on the issue of NU’s liability to HSUS in the present matter. The Maryland judgment
held that NU improperly denied coverage under the same insurance policy to an affiliate
of HSUS, the Fund for Animals (“FFA”). The FFA action concerned the same
underlying settlement funds that HSUS seeks to recover here. Invoking the “last-in-time
rule,” HSUS contends that the Humane Society I judgment no longer bars HSUS from
recovering against NU, for the Maryland judgment in the FFA Recovery Action occurred
later in time. See Treinies v. Sunshine Mining Co., 308 U.S. 66, 76-77 (1939);
Restatement (Second) of Judgments § 15 (Am. Law Inst. 1982).
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While we take judicial notice of the Maryland judgment, see Fed. R. Evid.
201(b)(2), we disagree with HSUS about the preclusive effect of that judgment.
Collateral estoppel does not apply unless “the issue decided in the prior adjudication [is]
identical with the one presented in the action in question.” Garrity v. Md. State Bd. of
Plumbing, 135 A.3d 452, 459 (Md. 2016); see Allen v. McCurry, 449 U.S. 90, 96 (1980)
(preclusive effect of state court judgment is governed by law of state that entered
judgment). In adjudicating the FFA action, the Maryland court explicitly refrained from
reaching the issue of NU’s liability to HSUS, and therefore the issues in the two actions
do not align. Furthermore, HSUS’s reliance on the last-in-time rule is misplaced. This
rule applies only where there are “inconsistent final judgments,” Restatement (Second) of
Judgments § 15, and there is nothing inconsistent between the judgments in Humane
Society I and the FFA Recovery Action. Even if the Maryland judgment in favor of FFA
resolved the propriety of NU’s denial of coverage to HSUS, it would present no conflict
with Humane Society I, for the district court there disposed of HSUS’s insurance claim
on wholly separate grounds, specifically a lack of good cause for HSUS’s failure to assert
that claim in a timely fashion. Consequently, we find no merit in HSUS’s collateral
estoppel argument.
HSUS additionally argues that the district court’s standing motions procedure
violates Fed. R. Civ. P. 83 and the Rules Enabling Act, 28 U.S.C. § 2072 (2012).
Because HSUS did not raise this issue before the district court, reversal is appropriate
only if HSUS can demonstrate fundamental error or a denial of fundamental justice. In re
Under Seal, 749 F.3d 276, 287 (4th Cir. 2014). Because we discern no error, let alone
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fundamental error, in the district court’s motions procedure, we decline to disturb the
judgment on this ground.
Accordingly, we affirm the judgment of the district court. We grant NU’s motion
to file an addendum to its brief. 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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