Hirshauer et al v. Ross et al
MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 8/25/2015. (c/m 8/26/15 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHIRLEY A. HIRSHAUER, et al.
THOMAS G. ROSS, et al.
Civil No. CCB-15-832
Plaintiffs Shirley Hirshauer; James Gerben, Jr.; Randy Gerben; and Jason Gerben sue
Judge Thomas Ross; Brook Schumm, III; the estate of Geraldine Gray; Terry Brumwell; Alice
Hall; and Elizabeth O’Shea under 42 U.S.C. §1983 for claims arising out of state court
proceedings in Anne Arundel County, Maryland. (Am. Compl. ¶¶ 1-2, ECF No. 42.) Hirshauer
and the Gerbens claim that Queen Anne’s County Circuit Court Judge Thomas Ross and the
other defendants violated various federal and state constitutional provisions by “acting in concert
to abrogate and nullify the decisions of the U.S. Bankruptcy Court and the U.S. District Court of
the Middle District of Florida” and “taking actions in violation of the Bankruptcy Court’s
automatic stay provision.” (Id.) The plaintiffs seek damages, declaratory relief, and injunctive
relief. (Am. Compl. ¶ 109.) Specifically, the plaintiffs request that the “Defendants be
permanently enjoined from engaging in any policy, program, or conduct which prevents the
Plaintiff from possessing or owning her real property in Anne Arundel County.” (Am. Compl. ¶¶
1-2, 109.) All defendants have filed motions to dismiss. (ECF Nos. 46, 53, 60.) Because the
plaintiffs are in essence seeking appellate review in a federal district court of state court
decisions in violation of Rooker-Feldman, this court will grant the defendants’ motions to
The estate and children of Geraldine Gray filed a wrongful death action against Shirley
Hirshauer and Cache House Assisted Living in the Circuit Court for Anne Arundel County,
Maryland (the “Anne Arundel Court”) in September 2004. (Am. Compl. ¶ 13.) The plaintiffs in
the wrongful death case were the children of Geraldine Gray: Wanda Clemons, who also acted as
representative of the estate of Geraldine Gray; Terry Brumwell; Alice Hall; Elizabeth O’Shea;
Patrick Plews; Christine Laumann; Michael Gray; and Wayne Gray. (Am. Compl. ¶¶ 7, 13.) On
November 5, 2004, Hirshauer transferred 47 acres of real property located on Busic Church Road
in Queen Anne's County (the “Property”) to her three sons, James Gerben, Jr.; Randy Gerben;
and Jason Gerben (collectively, the “Gerbens”). (Am. Compl. ¶ 14.)
On July 14, 2006, the Anne Arundel Court ordered a $1.2 million judgment in favor of
Gray’s estate and children. (Am. Compl. ¶ 18; see also Schumm Mot. Dismiss Ex. 1 at 4, ECF
No. 53.)1 On July 18, 2006, Gray’s children filed a complaint to avoid the transfer of the
Property (the “Fraudulent Transfer Action”) in the Queen Anne's County Circuit Court (the
“Queen Anne's Court”), naming Hirshauer and the Gerbens as defendants. (Am. Compl. ¶ 19;
see also Schumm Mot. Dismiss Ex. 1 at 5.) In August 2006, Hall, O'Shea, and Brumwell
recorded their judgments in the Queen Anne's Court and filed requests for writ of execution on
real property–levy in the Queen Anne's Court, seeking an immediate writ of execution and levy
of the Property by the sheriff to satisfy their judgments against Hirshauer. (Am. Compl. ¶ 20; see
also Schumm Mot. Dismiss Ex. 1 at 5.) The Queen Anne's Court subsequently issued an order
directing the sheriff to levy the Property. (Am. Compl. ¶ 21; see also Schumm Mot. Dismiss Ex.
Although the plaintiffs did not attach all prior opinions concerning the Property to their complaint, this court may
take judicial notice of prior opinions related to the Property, both because they are a matter of public record and
because the opinions are attached to a motion to dismiss and are “integral to the complaint and authentic.” Philips v.
Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.2009).
1 at 7.) Brooke Schumm, III, an attorney in private practice, has represented Gray’s estate and
children in the levy actions. (Am. Compl. ¶¶ 6, 53, 55, 57.)
Judge Ross held a trial in the Fraudulent Transfer Action on March 16, 2007. (Am.
Compl. ¶ 25; see also Schumm Mot. Dismiss Ex. 1 at 10.) On July 27, 2007, Judge Ross issued
an opinion (the “Fraudulent Transfer Judgment”) avoiding Hirshauer’s transfer of the Property as
fraudulent. (Am. Compl. ¶ 27; see also Schumm Mot. Dismiss Ex. 5.) After the trial but before
Judge Ross issued his opinion, several of the judgment creditors from the wrongful death case
filed an involuntary bankruptcy petition against Hirshauer in the United States Bankruptcy Court
for the Middle District of Florida (“the Bankruptcy Court”). (Am. Compl. ¶ 25; see also
Schumm Mot. Dismiss Ex. 6.) On September 3, 2009, the Bankruptcy Court found that the
Fraudulent Transfer Judgment violated the automatic stay and was not valid. (Am. Compl. ¶ 30;
see also Schumm Mot. Dismiss Ex. 8.) The U.S. District Court for the Middle District of Florida
affirmed. (Am. Compl. ¶ 33; see also Schumm Mot. Dismiss Ex. 10.)
On July 22, 2011, Hirshauer filed a motion in the Queen Anne's Court seeking damages
against Gray’s children and their attorneys for the expenses she incurred in defending lawsuits
concerning the Property. (Am. Compl. ¶ 34; see also Schumm Mot. Dismiss Ex. 1 at 13-14.)
Judge Ross denied the motion on August 3, 2011, concluding that the Anne Arundel Court’s
judgments were entitled to full faith and credit, and under the bankruptcy code, “the Debtor may
discharge personal liability on those judgments, but the underlying existence of those judgments
may not be disputed. No judgment in any amount was ‘entered for [Hirshauer].’ ” (Id.) Judge
Ross ordered that the liens on the Property remained in effect. (Am. Compl. ¶ 35; see also
Schumm Mot. Dismiss Ex. 1 at 14.)
On November 14, 2011, Hirshauer and the Gerbens filed a motion to vacate the
Fraudulent Transfer Judgment. (Am. Compl. ¶ 36; see also Schumm Mot. Dismiss Ex. 11.) On
December 26, 2011, Judge Ross entered an order denying the motion to vacate the Fraudulent
Transfer Judgment, determining that Hirshauer's discharge “neither discharges her in rem
liability nor, in any way, affects the personal or in rem liability of third parties.” (Am. Compl. ¶
37; see also Schumm Mot. Dismiss Ex. 1 at 16.) He also found that the judgment liens remained
effective and the bankruptcy proceedings had no res judicata effect with respect to the liens. (Id.)
Judge Ross concluded “it is unnecessary to vacate the [Fraudulent Transfer Judgment] in order to
rule on these motions. The [Fraudulent Transfer Judgment] was determined by [the United States
Bankruptcy Court] to have been void as violating the automatic stay. The judgment liens,
however, were merely stayed, first by order of this court, and then by the bankruptcy
proceedings.” (Am. Compl. ¶ 37; see also Schumm Mot. Dismiss Ex. 1 at 17.) Hirshauer and the
Gerbens filed a motion to reconsider, which Judge Ross denied on January 31, 2012. (Am.
Compl. ¶¶ 38-39.)
On February 21, 2012, Hirshauer and the Gerbens appealed the December 2011 order to
the Court of Special Appeals of Maryland. (Am. Compl. ¶ 40; see also Schumm Mot. Dismiss
Ex. 1 at 18.) Because the appeal was timely filed only with respect to Judge Ross’s order
denying the motion for reconsideration, the appeal was dismissed as to all orders, opinions, and
matters except for Judge Ross’s order denying the motion for reconsideration. (Id.) On April 9,
2013, the Court of Special Appeals affirmed the Queen Anne's Court's order denying the motion
for reconsideration. (Am. Compl. ¶ 41; see also Schumm Mot. Dismiss Ex. 1 at p. 28.)2
The Amended Complaint states “On April 9, 2013, in a 28 page opinion, the Court of Appeals [sic] affirmed the
Queen Anne’s Court’s order denying the Motion for Reconsideration and held that the bankruptcy court proceedings
have no res judicata effect with respect to the liens.” (Am. Compl. ¶ 41.)
On March 27, 2013, James Gerben, Jr. filed a Chapter 13 bankruptcy petition. (Am.
Compl. ¶ 41.) In May 2013, Judge Ross stayed proceedings concerning James Gerben, Jr.’s onethird interest in the property. (Am. Compl. ¶ 42.) Thereafter, O’Shea, Hall, and Brumwell sought
a sheriff’s sale of the two-thirds interest in the Property of plaintiffs Randy Gerben and Jason
Gerben. (Am. Compl. ¶ 43.) On October 29, 2013, the two-thirds interests were sold at the
sheriff’s sale. (Id.) Judge Ross denied “the various motions filed . . . to stop the sheriff’s sale,”
and subsequently, on February 21, 2014, “entered Order ratifying Sheriff’s sale . . . and
overruling Plaintiff Hirshauer’s opposition.” (Am. Compl. ¶¶ 44-45.) After the sale was ratified,
plaintiffs Randy Gerben’s and Jason Gerben’s two-thirds interest in the Property was conveyed
by sheriff’s deed, and Judge Ross denied another motion to stay further action. (Am. Compl.
¶46.) Hirshauer and the Gerbens appealed from that order in the Court of Special Appeals, and
their appeal was dismissed on November 6, 2014. (Schumm Mot. Dismiss Ex. 13.) On June 20,
2014, the Bankruptcy Court rejected James Gerben, Jr.’s motion for sanctions against Brumwell,
O’Shea, Hall, and Schumm for violation of the automatic stay, ruling that because the validity of
the liens on the Property is an issue of state law that Hirshauer and the Gerbens had litigated in
Maryland state court, “[t]he Rooker Feldman doctrine precludes the Court from reviewing or
revisiting the Maryland courts' determination that the writs of levy established liens on and in
rem rights in the Property prior to the filing of Mrs. Hirshauer's bankruptcy petition.” In re
Gerben, No. 3:13-BK-1820-JAF, 2014 WL 2859248, at *6 (Bankr. M.D. Fla. June 20, 2014).
Hirshauer filed a separate action against the State of Maryland in the Circuit Court for
Queen Anne’s County alleging that Judge Ross violated her Constitutional rights and requesting
the court to void all Judge Ross’s orders, void the sale of the Property, and award Hirshauer $10
million. (Ross Mot. Dismiss Ex. 10, ECF No. 17.) The Queen Anne’s Court granted Judge
Ross’s motion to dismiss on October 9, 2014. (Ross Mot. Dismiss Ex. 14.) Hirshauer appealed,
and on June 24, 2015, the Maryland Court of Special Appeals dismissed her appeal because she
failed to file a conforming brief. (Ross Mot. Dismiss Am. Compl. Ex. 2, ECF No. 46.)
On April 7, 2015, the Bankruptcy Court ordered that the automatic stay provision
concerning James Gerben, Jr.’s one-third interest in the Property was no longer in effect. (Am.
Compl. Ex. 4 at 7-8.) The remaining one-third of the Property is scheduled to be sold by sheriff’s
sale on August 26, 2015. (ECF No. 72.) On August 11, 2015, Hirshauer filed a motion for an
expedited hearing on the motion for a restraining order and preliminary injunction (ECF No. 72),
which the defendants have opposed.
All defendants have raised the Rooker–Feldman doctrine as a bar to the present lawsuit.
Because the Rooker–Feldman doctrine is jurisdictional, the court addresses this issue first.
Friedman's, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir.2002). The Rooker-Feldman doctrine
applies “when the loser in state court files suit in federal district court seeking redress for an
injury allegedly caused by the state court's decision itself.” Davani v. Virginia Dep't of Transp.,
434 F.3d 712, 713 (4th Cir. 2006). Under the Rooker–Feldman doctrine, “ ‘lower federal courts
generally do not have [subject-matter] jurisdiction to review state-court decisions.’ ” Safety–
Kleen, Inc. v. Wyche, 274 F.3d 846, 857 (4th Cir.2001) (alteration in original) (quoting Plyler v.
Moore, 129 F.3d 728, 731 (4th Cir.1997)). The doctrine “precludes not only review of
adjudications of the state's highest court, but also the decisions of its lower courts.” Jordahl v.
Democratic Party of Va., 122 F.3d 192, 199 (4th Cir.1997). “The Rooker–Feldman bar extends
not only to issues actually decided by a state court but also to those that are ‘inextricably
intertwined with questions ruled upon by a state court.’ ” Shooting Point, L.L.C. v. Cumming,
368 F.3d 379, 383 (4th Cir.2004) (quoting Plyler, 129 F.3d at 731). A federal claim is
“inextricably intertwined” if “success on the federal claim depends upon a determination that the
state court wrongly decided the issues before it.” Id. (quotation marks omitted). Under the
Rooker–Feldman doctrine, “ ‘[a] party losing in state court is barred from seeking what in
substance would be appellate review of the state judgment in a United States district court, based
on the losing party’s claim that the state judgment itself violates the loser’s federal rights.’ ”
Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir.2000) (quoting Johnson v. De
Grandy, 512 U.S. 997, 1005–06 (1994)).
In this case, Hirshauer and the Gerbens are essentially seeking federal appellate review of
state court decisions. The injuries they complain of, the liens on and sale of the Property, were
caused by prior state court judgments. Their request “that Defendants be permanently enjoined
from engaging in any policy, program or conduct which prevents the Plaintiff from possessing or
owning her real property in Anne Arundel County” requires invalidation of the state courts’
determination that the writs of levy established liens on and in rem rights in the Property prior to
Hirshauer's bankruptcy petition and therefore the Property could be sold by sheriff’s sale.
Because Hirshauer and the Gerbens bring a federal action to contest issues that were previously
litigated and decided against them in the Circuit Court for Queen Anne’s County and the
Maryland Court of Special Appeals, their allegations in federal court are “inextricably
intertwined” with state court decisions, and the Rooker-Feldman doctrine bars their claims.
The Rooker-Feldman doctrine applies even though Hirshauer and the Gerbens failed to
join all of the defendants in one state court action prior to this case. A defendant in a federal
proceeding who was not a party in the prior state court proceeding can invoke Rooker-Feldman
against a plaintiff who was a party in the state court litigation, as long as the claims raised in
federal court are “inextricably intertwined” with the prior state court action. See Tal v. Hogan,
453 F.3d 1244, 1257 (10th Cir.2006) (noting a state court loser's “addition of new defendants in
federal court . . . does not change the nature of the underlying state court ruling”); 18B Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice And Procedure § 4469.1,
at 137 & n. 59 (2d ed. 2002) (“It has been found that even if nonmutual preclusion were not
available, a nonparty [to the prior state court proceedings] can invoke the rule that a party to the
state action cannot invoke federal jurisdiction to seek indirect review of a state judgment.”). The
plaintiffs previously litigated their claims in Maryland state court, and under Rooker-Feldman,
they cannot seek redress in federal court for harms caused by those decisions. The court lacks
subject matter jurisdiction over their claims, and the case must be dismissed.3
For the reasons stated above, the Rooker–Feldman doctrine bars the claims of Hirshauer
and the Gerbens, and the court therefore lacks subject matter jurisdiction over this case.
Accordingly, the court will grant the defendants’ motions to dismiss.
A separate order follows.
August 25, 2015
Catherine C. Blake
United States District Judge
Accordingly, the court will not address the other defenses that may be applicable in this case.
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