L. Hall v. Greystar Management Service

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-03615-JKB Copies to all parties and the district court/agency. [999739555].. [14-2145]

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UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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

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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Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
L.

Hall

Services,

brought

L.P.

(GMS),

this
PSN

suit

against

Landscaping

Greystar

Co.,

Inc.

Management
(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

Kelly,

affirm

those

we

decision.

GMS

and

portions

conversion
of

the

claim

against

district

court’s

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).
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Hall is a resident of Maryland who, between 2005 and 2011,
lived

at

131A

Versailles

Court

in

complex located in Baltimore County.
with

“post-polio

comorbidities

syndrome

including

together

the

Apartments

Hall has been diagnosed
with

dysphagia,

Versailles

specific

respiratory

and

related

deficit

and

syncope as well as post traumatic stress disorder, all of which
substantially

limit

major

requires a service dog.

life

Id.

activities.”

J.A.

208.

She

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.
2010,

GMS

informed

Hall

that

her

use

of

constituted a violation of the fire code.

the

In August

storage

unit

Hall requested that

the structure of the storage unit be altered to comply with the
fire

code,

relocate

but

her

to

GMS
a

refused.

Hall

three-bedroom

then

requested

apartment.

GMS

that
agreed

GMS
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-

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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

Maryland Commission on Civil Rights.

of

Justice

and

the

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.

availability

of

GMS,

however,

three-bedroom

advertised

apartments

at

the

online

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.

appealed to the Circuit Court for Baltimore County.

Hall

As a result

of these legal proceedings, Hall hired professional movers to
relocate

her

personal

property.

On

November

10,

2011,

Circuit Court for Baltimore County denied Hall’s appeal.
immediately

filed

a

motion

for

stay

of

enforcement

the
Hall

pending

review of the Circuit Court’s decision by another judge on the
Circuit Court for Baltimore County.
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On

or

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about

November

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22,

2011,

the

professional

movers

advised Hall that they would not be able to move her property
until

December

information

6

and

and

paid

7,

2011.

GMS

rent

Hall
for

informed

December

GMS

of

this

2011,

which

GMS

Circuit

Court

for

accepted.
On

or

about

November

30,

2011,

the

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.
Hall’s

property,

including

her

PSN also removed all of

“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
6

their

trucks,

including

the

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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.
there.

Hall’s property, however, never arrived

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.
defendants’

motions.

The

The district court granted all
district

court

dismissed

the

conversion claim based on its conclusion that, under Baltimore
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County

Code

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§ 35-3-103,

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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

district

court

dismissed

claims

based

on

converted.

its

J.A.

the

FHA

conclusion

191.

and

that

In

addition,

state-law

the

the

retaliation

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.”
Noting

that

Hall’s

amended

complaint

failed

to

J.A. 263.

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
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retaliation claim as futile.
federal

claim,

jurisdiction

the

over

J.A. 264.

district

the

the

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court

pendent

analysis”

Having dismissed Hall’s

state

required

retained
law
to

supplemental

claims

“given

resolve

the

the

simplicity

of

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

situations:

59(e)
“(1)

to

motion

may

accommodate

only
an

be

granted

intervening

in

three

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
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Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkand
v.

Brown,

478

634,

637

remedy

extraordinary

F.3d

(4th

that

should

Cir.

be

2007)).

applied

It

is

sparingly.

an
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)).
“Rule

15(a)

and

Rule

59(e)

motions

rise

and

In other words,
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.”
Rule

15(a)(2)

provides

Mayfield, 674 F.3d at 378-79.
that

“a

party

may

amend

its

pleadings only with the opposing party’s written consent or the
court’s leave.
so requires.”

The court should freely give leave when justice
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

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“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).
(4th Cir. 1995).

Perkins v. United States, 55 F.3d 910, 917

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)).

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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.

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similar

language

federal

civil

and

“are

rights

Pg: 13 of 20

part

laws

of

a

enacted

coordinated

to

end

scheme

of

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

U.S.C.

the

elements

§ 3617.

While

of

her

Hall

claim

did

of

retaliation

allege

that

she

under

42

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

accordance

regaining
with

the

possession
orders

of

of
the

the

leased

Baltimore

premises
County

in

Court.

Indeed, the consequence of allowing Hall’s claim to proceed on
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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

plausibility
allows

the

is

‘when
court

correct
the

to

that

plaintiff

draw

the

“[a]llegations
pleads

factual

reasonable

have

content

inference

defendant is liable for misconduct alleged,’”

facial

that

that
the

Tobey v. Jones,

706 F.3d 379, 386 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at
679),

no

retaliated

reasonable
against

inference
Hall

can

because

of

be
her

drawn

here

protected

that

GMS

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).
cannot,

as

Hall

asks,

infer

causation

based

on

Thus, we
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.

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The
suggests

only

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allegation

causation

is

in

the

Pg: 15 of 20

Hall’s

temporal

amended
proximity

protected activity and GMS’s adverse action.

complaint
between

that
Hall’s

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

property in December 2011.

action

of

destroying

her

“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).

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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.
court

erred

plausible

by

claim

concluding
for

conversion futile.”
A

motion

to

that

damages

J.A. 266.
dismiss

Hall contends that the district
her

“failure

[left]

her

to

amended

include
claim

a

for

We agree.

pursuant

to

Rule

12(b)(6)

–

the

standard we apply here, see Perkins, 55 F.3d at 917 – tests the
legal

sufficiency

plaintiff

has

of

properly

a

complaint
stated

a

to

determine

claim;

“it

does

whether
not

the

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.
inquiry

At the motion-to-dismiss stage, the only appropriate
for

the

district

court

is

whether

Hall’s

proposed

amended complaint contained sufficient factual matter, accepted
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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).
direction

of

GMS’s

Here, Hall alleged that PSN, at the

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

owned and operated by PSN.”

J.A. 213.

direction

that

of

GMS’s

attorney,

“on

the

trucks

It was PSN, at the

transported

all

property to a landfill where it was destroyed.

of

Hall’s

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

Accordingly,

we

to

plausible.”

find

that

the

17

Twombly,
district

550

U.S.

court

at

abused

570.
its

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discretion

in

Filed: 01/21/2016

denying

Hall’s

Pg: 18 of 20

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

Reply Br. at 2.

Kelly

executed

the

warrant

. . . .”

Hall’s

The only fact alleged by Hall is that Kelly

supervised the eviction process, which appears to be consistent
with

Kelly’s

restitution.

responsibility

to

carry

out

a

valid

warrant

of

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

3

certify

a

question

about

the

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).

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proper interpretation of Baltimore County Code § 35-3-103 to the
Maryland Court of Appeals.
below

did

Hall

request

At no point during the proceedings

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.”

(citing Hanson, 859 F.2d at 318).
the

record

that

such

Muth,

1

F.3d

at

250

We can find no evidence in

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
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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