Prousalis v. Jamgochian

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS T. PROUSALIS, JR., 
Plaintiff-Appellant,
v.
MICHAEL T. JAMGOCHIAN; DAVID G.
WHITWORTH, JR.; WHITWORTH, SMITH
& TRUNNEL, PA,  No. 02-1014
Defendants-Appellees,
and
MARK D. OLSON; WILSON, HALBROOK
& BAYARD,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-01-855-A)
Submitted: May 28, 2002
Decided: June 20, 2002
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Thomas T. Prousalis, Jr., Appellant Pro Se. Geoffrey Martin Bohn,
CUNNINGHAM & ASSOCIATES, Arlington, Virginia; Paul Dennis
2 PROUSALIS v. JAMGOCHIAN
Krause, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thomas T. Prousalis, Jr., an attorney proceeding pro se, appeals the
district court’s order dismissing his civil action for failure to state a
claim upon which relief may be granted pursuant to Fed. R. Civ. P.
12(b)(6). He also appeals the court’s denial of his motion for costs
and legal fees under Fed. R. Civ. P. 4(d)(2). We affirm in part, vacate
in part, and remand for further proceedings.
We review de novo a district court’s Rule 12(b)(6) dismissal for
failure to state a claim. See Flood v. New Hanover County, 125 F.3d
249, 251 (4th Cir. 1997). We accept the complainant’s well-pleaded
allegations as true and view the facts in the light most favorable to the
non-moving party. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993).
Prousalis’ complaint alleged malicious abuse of process, malicious
prosecution, conspiracy under the Virginia Business Conspiracy Stat-
ute, and civil conspiracy. Virginia law applies to each claim. See Erie
R.R. v. Tompkins, 304 U.S. 64 (1938). In his complaint, Prousalis
alleged the Appellees filed two frivolous complaints against him
alleging, inter alia, legal malpractice in a malicious effort to "humble
and embarrass" him. These actions, Prousalis further claimed, resulted
in damage to his "reputation, trade, business and profession." We find
Prousalis failed to state a claim upon which relief may be granted
under any of the legal theories advanced in his complaint. See Ross
v. Peck Iron & Metal, Co., 264 F.2d 262, 268 (4th Cir. 1959) (holding
regular use of process cannot constitute abuse of process); Ely v.
PROUSALIS v. JAMGOCHIAN 3
Whitlock, 385 S.E.2d 893 (Va. 1989) (holding damage to an attor-
ney’s livelihood is a natural consequence of disciplinary proceedings
and, as such, cannot satisfy the special injury requirement of a mali-
cious prosecution claim stemming from a civil proceeding); Fox v.
Deese, 32 S.E.2d 699 (Va. 1987) (holding an attorney is an agent of
the client and therefore cannot conspire with the client). Accordingly,
we affirm the district court’s order dismissing these claims for failure
to state a claim upon which relief may be granted.
Prousalis next contends the district court erred in denying his Rule
4 motion for costs and attorney’s fees. Rule 4 provides:
If a defendant located within the United States fails to com-
ply with a request for waiver made by a plaintiff located
within the United States, the court shall impose the costs
subsequently incurred in effecting service on the defendant
unless good cause shown . . . . The costs to be imposed
. . . for failure to comply with a request to waive service of
a summons shall include the costs subsequently incurred in
effecting service . . . together with the costs, including a rea-
sonable attorney’s fee, of any motion required to collect the
costs of service.
Rule 4(d)(2), (5). We find attorney’s fees are not available under Rule
4(d)(2) or (5) to an attorney proceeding pro se. Accordingly, we
affirm the district court’s order denying Prousalis’ Rule 4 motion as
to attorney’s fees. See Kay v. Ehrler, 499 U.S. 432 (1991); Falcone
v. IRS, 714 F.2d 646 (6th Cir. 1983).
Prousalis’ pro se status does not, however, affect his entitlement to
collect the costs of personal service if taxing of such costs is other-
wise appropriate under Rule 4. Prousalis claimed Appellees failed to
waive service of process after receiving proper notice and request for
waiver. The Appellees claim good cause supports their failure to
waive service. The district court denied Prousalis’ motion for costs
without making factual or legal findings on Prousalis’ motion for
costs and the Appellees’ defense of good cause. Because the record
is insufficient for appellate review as to the denial of costs, we vacate
the district court’s order denying Prousalis’ Rule 4 motion for costs
and remand for further proceedings on this issue.
4 PROUSALIS v. JAMGOCHIAN
We dispense with oral argument because the facts and legal conclu-
sions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED