Robert Horowitz v. Continental Casualty Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cv-03698-DKC. Copies to all parties and the district court/agency [1000036809]. [16-1883]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

malpractice

illegal
action

circuit court.

settlement

brought

by

agreement

the

arising

Horowitzes

in

a

from

a

Maryland

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

Gurvitch

Rabin

entered

against

Wertheimer

them

Polott

&

and

in

Obecny,

favor
P.C.

of

Selzer

(“Selzer”). 1

Under the Rooker-Feldman doctrine, 2 “lower federal courts are
precluded
state-court

from

exercising

judgments.”

(2006) (per curiam).

appellate
Lance

v.

jurisdiction

Dennis,

546

over

U.S.

final

459,

463

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).

2

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proceedings commenced and inviting [federal] court review and
rejection of those judgments.”
for

Charles

Cty.,

Md.,

827

Thana v. Bd. of License Comm’rs
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

application

of

res

next

challenge

judicata

several of their claims.

and

the

district

collateral

estoppel

court’s
to

bar

The district court found that many of

the Horowitzes’ claims constituted an attempt to relitigate the
issue
action

of

whether

involving

a

prior

the

settlement

Horowitzes

was

resolving
legal.

a

state

This

court

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).
3

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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

R.

Fed.

complaint’s

Civ.

P.

12(b)(6)

factual

motion

allegations

to

as

dismiss,

true

and

reasonable inferences in the plaintiffs’ favor.

taking
drawing

the
all

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

instrumentality

is

of

defined

interstate

as

“any

commerce

person

who

or

mails

the

uses
in

any
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.”
complaint

baldly

15 U.S.C. §§ 1692a(6), 1692k (2012).
asserted,

with
4

no

additional

The

factual

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allegations,

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that

(“Continental”)

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Defendants

and

Continental

Eccleston

and

Wolf,

Casualty
P.C.

Company

(“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.

Continental

and

Thus,

Eccleston

nonexistent right.

by
did

the
not

Horowitzes’
attempt

to

admission,
enforce

a

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).
3

To

The debt collection claims against Selzer and Defendant
Bregman, Berbert, Schwartz & Gilday, LLC, were barred by res
judicata.

5

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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,

simultaneously satisfied.”

both

parts

of

[this]

test

are

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

Horowitzes

to

enter

characterize

pleaded, it

amounts

to

the

this

Horowitzes’

action

nothing

as

more

a

than

residence.
“threat,”
notice

of

The

but,

as

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

dismissal of the Horowitzes’ complaint is affirmed.
6

court’s

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

7