Horowitz et al v The Honorable Michael D. Mason et al

Filing 41

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/15/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ELIZABETH HOROWITZ, et al.
:
v.

:

Civil Action No. DKC 15-3478

:
MICHAEL D. MASON, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
the following motions: a motion to dismiss filed by Defendants
Circuit Court Judge Michael D. Mason and Sergeant Shannon Songco
of the Montgomery County Sheriff’s Department (ECF No. 12); a
motion to dismiss filed by Defendants Maury S. Epner and Patrick
J.

Kearney

injunction

(ECF
filed

No.
by

18);

and

Plaintiffs

motions
Elizabeth,

for

a

Robert,

preliminary
and

Cathy

Horowitz (collectively, the “Plaintiffs” or “Horowitzes”) (ECF
Nos. 33; 34; 35).

The relevant issues have been briefed, and

the court now rules, no hearing being deemed necessary.
Rule 105.6.
will

be

Local

For the following reasons, the motions to dismiss

granted.

Plaintiffs’

motions

for

a

preliminary

injunction will be denied as moot.
I.

Background
A.

Factual Background

Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable

to Plaintiffs.

(ECF No. 1).

in the analysis section.

Additional facts will be discussed

Although this case is just the latest

in a long string of litigation dating back many years, the facts
relevant to this action begin in November 2014.

On November 3,

2014, Judge Mason entered judgment in favor of the law firm
Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C. (“Selzer
Gurvitch”) and against Robert and Cathy Horowitz in the Circuit
Court for Montgomery County in the amount of $87,727.76.
No. 18-5).1

(ECF

Mr. and Mrs. Horowitz’s appeal of the judgment is

pending before the Court of Special Appeals of Maryland and is
not at issue in this action.

Rather, Plaintiffs brought this

suit to enjoin and collect damages stemming from certain actions
taken by Judge Mason, Sergeant Shannon Songco, and two Selzer
Gurvitch

attorneys:

Maury

S.

Epner,

and

Patrick

J.

Kearney

(collectively, the “Defendants”).
Following Judge Mason’s entry of judgment against Robert
and Cathy Horowitz, Selzer Gurvitch, appearing through Mr. Epner
and Mr. Kearney, began efforts to collect on the judgment.
No. 1 ¶ 18).

(ECF

The state court issued a writ of garnishment and

two writs of execution on the Horowitzes’ personal property.

1

At the motion to dismiss stage, a court may properly
consider documents “attached to or incorporated into the
complaint,” as well as documents attached to the defendant’s
motion, “so long as they are integral to the complaint and
authentic.”
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176,
th
180 (4 Cir. 2009).
2

(ECF No. 18-4, at 25).

On December 17, the Montgomery County

Sheriff’s Department levied on the Horowitzes’ home by posting
notice on the front door.
Plaintiffs,

“[w]hen

(ECF No. 1 ¶ 24).

levying

on

the

According to

house,

the

Sheriff’s

deputies, including Sergeant Songco, also confronted [Elizabeth]
Horowitz in the driveway.”

(Id. ¶ 25).

Plaintiffs assert that

Elizabeth Horowitz, who has been deaf since birth, “was not
shown any writ, and was only asked through passing of notes
whether her parents were home.”

(Id. ¶ 26).

believed

was

that

Sergeant

opening the door.

Songco

(Id. ¶ 27).

Elizabeth Horowitz

trying

to

trick

her

into

Plaintiffs contend that Mr.

Kearney then provided Sergeant Songco with Mr. Horowitz’s office
telephone

number

and

instructed

Sergeant

Songco

to

call

Mr.

Horowitz and “threaten forcible entry if he would not agree to
permit entry voluntarily.”

(Id. ¶ 30).

Plaintiffs allege that

Sergeant Songco instructed a subordinate to call Mr. Horowitz
and “request permission to enter the Horowitzes’ home to levy
upon

personal

property,

and

to

pass

along

the

Epner/Kearney

threat, that if he didn’t agree, those lawyers would obtain a
court

order

to

dwelling house.”
not

unequivocally

forcibly

enter

(Id. ¶ 31).
refuse

the

Horowitzes’

fee[-]owned

Mr. Horowitz contends that he did

entry,

but

“wanted

the

chance

to

respond to whatever legal authority” supported the entry of the
home.

(Id. ¶ 33).
3

On January 16, 2015, Selzer Gurvitch, through Mr. Epner and
Mr. Kearney, filed a motion for forcible entry and ancillary
relief

seeking

authorization

for

the

sheriff

to

Horowitzes’ home to levy on their personal property.
18-4, at 27-28).

enter

the

(ECF No.

On the same day, the Horowitzes filed a motion

to release their property from the levy.

They then filed an

opposition to Selzer Gurvitch’s motion on February 2.

On April

23, Judge Mason held a hearing on Selzer Gurvitch’s motion for
forcible entry.

(ECF No. 18-8).

On April 27, Judge Mason

granted the motion in part and denied it in part by holding
that, in lieu of ordering a sheriff to enter the home, the
Horowitzes “shall permit [an] appraiser identified by [Selzer
Gurvitch] access to their residence . . . for the purpose of
conducting such inventory not later than thirty (30) days from
the date of this Order and cooperate in the scheduling of such
inventory and appraisal.”

(ECF No. 18-9, at 1-2).

Mr. Epner and Mr. Kearney corresponded with the Horowitzes
and their counsel to schedule the appraisal in accordance with
Judge Mason’s order.

(ECF No. 1 ¶¶ 52-56).

to schedule the appraisal.

The parties failed

On June 9, Selzer Gurvitch filed a

motion for a show cause order seeking to hold the Horowitzes in
contempt for failure to abide by Judge Mason’s order.
18-4, at 38).

(ECF No.

On October 21, Judge Mason held a hearing on the

show cause order.

(ECF No. 18-11).
4

The following day, Judge

Mason entered an order holding the Horowitzes in contempt and
ordering

that

Mr.

Horowitz

report

to

the

Montgomery

County

Detention Center to serve a thirty-day sentence on November 20
unless he permitted the “Sheriff of Montgomery County access to
his residence . . . for the purpose of conducting an inventory
of and a levy on the personal property.”

(ECF No. 18-12).

The

Horowitzes contend that Judge Mason “acted in bad faith, solely
to harass, and with willful disregard of [their] constitutional
rights.”

(ECF No. 1 ¶ 74).

On October 26, Mr. Kearney e-mailed the Horowitzes’ counsel
stating, “I forwarded a copy [of the writ] to the Sheriff, but I
believe

that

the

onus

is

on

Mr.

Horowitz

to

convenient time with the Sheriff for the levy.”

schedule

(Id. ¶ 75).

a
On

November 5, Sergeant Songco, Mr. Kearney, the Horowitzes, and
their counsel corresponded regarding the writ.
B.

(Id. ¶¶ 76-80).

Procedural History

On November 16, 2015, Plaintiffs filed the complaint in
this court.

(ECF No. 1).

A purported motion for a temporary

restraining order and hearing was attached to the complaint.
(ECF No. 1-1).
42

U.S.C.

§

The complaint asserts that Defendants violated

1983

(Count

I)

and

the

Maryland

Consumer

Debt

Collection Act (the “MCDCA”), Md. Code, Com. Law § 14-201 et
seq. (Count II).

On November 17, the court denied Plaintiffs’

request for a hearing “because Plaintiffs [had] not shown any
5

grounds for issuance of emergency injunctive relief.”
5, at 1).

(ECF No.

On November 20, the Horowitzes filed a motion to

vacate sentence in state court, and three days later filed a
motion to disqualify Judge Mason and reverse the finding of
contempt.

(ECF No. 18-4, at 52).

On December 12, 2015, Judge Mason and Sergeant Songco filed
the

pending

motion

to

dismiss.

(ECF

No.

12).

Plaintiffs

responded (ECF No. 23), and Judge Mason and Sergeant Songco
replied (ECF No. 32).

Mr. Epner and Mr. Kearney filed their

pending motion to dismiss on December 18 (ECF No. 18), and that
motion is fully briefed (ECF Nos. 28; 31).
Plaintiffs
injunction.
II.

filed

their

pending

motions

On March 14, 2016,
for

a

preliminary

(ECF Nos. 33; 34; 35).

Younger Abstention
As a threshold matter, Defendants argue that principles of

abstention mandate that the court dismiss Plaintiffs’ claims for
injunctive relief in Count I.

Federal courts generally should

not interfere with ongoing state proceedings like those in which
Plaintiffs

are

involved.

This

doctrine,

called

Younger

abstention, recognizes that state courts are capable of deciding
federal

and

constitutional

federal courts.

issues

without

the

meddling

of

See Martin Marietta Corp. v. Maryland Comm’n on

Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994); see also

6

Younger v. Harris, 401 U.S. 37 (1971).2

Although the doctrine

began as a means to keep federal courts out of state criminal
proceedings, it has since been expanded to a limited number of
civil

proceedings,

including

court’s contempt process.

proceedings

involving

a

state

As discussed in an earlier memorandum

opinion:
[T]he Supreme Court [of the United States]
has held that federal courts should abstain
from adjudicating challenges to state court
contempt processes. Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1 (1987); Juidice v. Vail,
430
U.S.
327
(1977).
Abstention
is
appropriate because “[a] State’s interest in
the contempt process, through which it
vindicates the regular operation of its
judicial system, so long as that system
itself affords the opportunity to pursue
federal claims within it, is surely an
important interest.”
Juidice, 430 U.S. at
335.
(ECF No. 5, at 2-3).

2

Mr. Epner and Mr. Kearney focus their abstention argument
on Colorado River abstention (see ECF No. 18-1, at 8-11), while
Judge Mason and Sergeant Songco discuss Younger abstention (see
ECF No. 12-1, at 6-7).
The Colorado River doctrine may, in
fact, counsel abstention in this case. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)
(providing
for
abstention
of
parallel
actions
due
to
“considerations of wise judicial administration, giving regard
to
conservation
of
judicial
resources
and
comprehensive
disposition of litigation” (citation and internal quotation
marks omitted)).
The United States Court of Appeals for the
Fourth Circuit, however, has stated consistently that district
courts should abstain under Colorado River only in rare
exceptional circumstances.
See, e.g., Chase Brexton Health
Servs, Inc. v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005).
Accordingly, although multiple abstention doctrines may apply,
Younger abstention is most appropriate in this case.
7

Plaintiffs

argue

that

“Defendants’

Younger

abstention

arguments are invalidated by the law of void judgments in Finch
v. LVNV Funding, LLC, [212 Md.App. 748 (2013)].”
at 7).

(ECF No. 23,

In Finch, the Court of Special Appeals noted that a void

judgment “is open to attack or impeachment in any proceeding,
direct or collateral, and at any time or place, at least where
the invalidity appears upon the face of the record.
entitled to enforcement.”

Finch, 212 Md.App. at 768 (citation

and internal quotation marks omitted).
Finch

is

misguided.

It is not

Plaintiffs

are

Plaintiffs’ reliance on
not

asserting

that

any

underlying judgment is void; rather, they are arguing that Judge
Mason’s orders attempting to enforce the judgment are improper.
(See

ECF

No.

23,

at

3-4

(challenging

Judge

Mason’s

“unconstitutional/illegal orders of April 23, and October 22,
2015”)).

Moreover,

the

underlying

issue

in

Finch

was

a

collateral attack of a state district court judgment brought in
a state circuit court.

Id. at 769.

Thus, any “void judgment

rule” presented in Finch is not relevant to the current dispute
and does not preclude the application of Younger abstention in
federal court.
A federal court should abstain from interfering in state
proceedings

if

there

is

“(1)

an

ongoing

state

judicial

proceeding, instituted prior to any substantial progress in the
federal proceeding; that (2) implicates important, substantial,
8

or

vital

state

opportunity

for

interests;
the

and

(3)

plaintiff

provides

an

adequate

raise

the

federal

to

constitutional claim advanced in the federal lawsuit.”

Nivens

v. Gilchrist, 319 F.3d 151, 153 (4th Cir. 2003) (citing Middlesex
Cnty

Ethics

(1982)).3

Comm.

v.

Garden

State

Bar

Ass’n,

457

U.S.

423

If these three requirements are met, abstention is

warranted

unless

the

district

court

“finds

that

the

state

proceeding is motivated by a desire to harass or is conducted in
bad faith, or where the challenged statute is flagrantly and
patently

violative

of

express

constitutional

prohibitions

in

every clause, sentence, and paragraph, and in whatever manner
and

against

whomever

an

effort

might

be

made

to

apply

it.”

Juidice, 430 U.S. at 338 (citation and internal quotation marks
omitted).
Here, the elements warranting abstention are met.

There is

an ongoing state judicial proceeding in the Circuit Court for
Montgomery

County

and

the

Court

of

Special

Appeals.

The

proceeding implicates the important state interest of enforcing
a judicial contempt order.

The proceedings provide an adequate

3

Another circuit has noted that the Supreme Court modified
slightly the Middlesex factors in Sprint Commc’ns, Inc. v.
Jacobs, 134 S.Ct. 585 (2013) by holding that only three types of
state proceedings trigger an important state interest.
See
Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192-93 (1st Cir.
2015).
Because the Sprint court reiterated that contempt
proceedings trigger Younger abstention, the general approach in
Middlesex still applies here.
9

opportunity for Plaintiffs to raise the issues they attempt to
raise in this action.

Critically, Plaintiffs have done so in

the state court action in several briefs, at multiple hearings,
and on appeal.
Moreover, Plaintiffs’ conclusory assertions that the state
proceeding
cannot

is

motivated

overcome

Younger

by

bad

faith

abstention.

or

a

(See

desire
ECF

No.

to
1

harass
¶

74).

Plaintiffs have pleaded no facts showing that any of Defendants’
actions were motivated by bad faith or a desire to harass, or by
anything

other

Similarly,

than

a

Plaintiffs’

desire
do

to

not

enforce

sufficiently

a

court
allege

judgment.
that

the

Maryland Rule of Civil Procedure invoked by Mr. Epner and Mr.
Kearney to enforce the judgment, Md. Rule 2-651, “flagrantly”
and “patently” violates “express constitutional prohibitions” in
order to trigger the “narrow exception[]” allowing a federal
court to intervene in this case.

Huffman v. Pursue, Ltd., 420

U.S. 592, 611 (1975); see Juidice, 430 U.S. at 338.

Plaintiffs

instead assert that Defendants’ application of the rule violates
the Constitution.

See South Carolina Ass’n of Sch. Adm’rs v.

Disabato, 460 F.App’x 239, 244 (4th Cir. 2012) (noting that a
limited

constitutional

challenge

to

a

statute

“essentially

concedes” that it is not “flagrantly and patently violative of
express constitutional prohibitions in every clause, sentence
and paragraph, and in whatever manner and against whomever an
10

effort might be made to apply it” (citing Younger, 401 U.S. at
53-54)).

Plaintiffs

constitutional

are,

challenges,

of

course,

and

their

able

to

ongoing

raise

such

state

proceeding is the appropriate forum in which to do so.

court
Kaplan

v. CareFirst, Inc., 614 F.Supp.2d 587, 595 (D.Md. 2009) (“So
long as [the plaintiff] has the opportunity to raise his federal
claims in the state court, . . . the intervention of a federal
court

is

not

necessary

for

the

protection

of

his

federal

rights.” (citation and internal quotation marks omitted)).
In short, this case presents the quintessential situation
warranting the invocation of Younger abstention.

“The Younger

doctrine is founded upon principles of comity and federalism,
and rests upon the notion that ‘the National Government will
fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.’”
at 592 (quoting Younger, 401 U.S. at 44).

Id.

This doctrine arises

out of a strong preference “against the exercise of [federal]
jurisdiction where particular kinds of state proceedings have
already been commenced.”
v.

Dayton

Christian

Id. (citing Ohio Civil Rights Comm’n

Schs.,

477

U.S.

619,

626

(1986)).

Accordingly, Plaintiffs claims for injunctive relief in Count I
will be dismissed as to all Defendants.

11

III. Absolute Immunity from Suit for Judge Mason and Sergeant
Songco
Defendants

argue

that

judicial

immunity

prevents

Plaintiffs’ suit against Judge Mason and quasi-judicial immunity
prevents the suit against Sergeant Songco.

(ECF No. 12-1, at 8-

13).

is

Plaintiffs

because

Judge

counter

Mason

that

lacked

immunity

jurisdiction

for

not
his

quasi-immunity does not apply to void judgments.

appropriate
orders,

and

(ECF No. 23,

at 8-9).
“Like other forms of official immunity, judicial immunity
is an immunity from suit, not just from ultimate assessment of
damages.

Accordingly,

judicial

immunity

allegations of bad faith or malice.”
9, 11 (1991) (citations omitted).
that

judicial

circumstances.
nonjudicial

immunity

“is

is

not

overcome

by

Mireles v. Waco, 502 U.S.
The Supreme Court has held

overcome

in

only

two

sets

of

First, a judge is not immune from liability for

actions,

judicial capacity.

i.e.,

actions

not

taken

in

the

judge’s

Second, a judge is not immune for actions,

though judicial in nature, taken in complete absence of all
jurisdiction.”

Id. at 11-12 (citations omitted).

This means

that “[a] judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to liability
only

when

he

has

acted

in

12

the

clear

absence

of

all

jurisdiction.”
(emphasis

Stump v. Sparkman, 435 U.S. 349, 357 (1978)

added)

omitted).

(citation

Plaintiffs’

and

argument

internal

that

the

quotation

state

court

marks
lacked

jurisdiction over the matter misses the mark and conflates their
substantive

constitutional

arguments.

arguments

with

jurisdictional

The Supreme Court confronted a similar situation in

Mireles, when the respondent brought suit against a judge for
authorizing the excessive use of force in carrying out a court
order.
“such

The Supreme Court held that the judge was immune because
an

action

—

taken

in

the

very

aid

of

the

judge’s

jurisdiction over a matter before him — cannot be said to have
been

taken

in

the

absence

of

jurisdiction.”

Id.

at

13.

Plaintiffs’ contention that Judge Mason lacked jurisdiction to
issue an order enforcing a judgment is unpersuasive.

They may

argue, on appeal, that Judge Mason was incorrect or even that
the order exceeded his authority, but this does not mean that
the

circuit

Accordingly,

court

lacked

Plaintiffs’

jurisdiction

claims

against

to

issue

Judge

the

Mason

order.
will

be

dismissed.
Quasi-judicial

immunity

bars

Sergeant Songco in a similar manner.

Plaintiffs’

suit

As Judge Blake has noted:

Absolute quasi-judicial immunity extends to
non-judicial officers “performing tasks so
integral or intertwined with the judicial
process that those persons are considered an
arm of the judicial officer who is immune.”
13

against

Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.
1994). The basis for affording non-judicial
officials absolute immunity is to avoid the
“danger that disappointed litigants, blocked
by the doctrine of absolute immunity from
suing the judge directly [would] vent their
wrath on clerks, court reporters, and other
judicial adjuncts.”
Sindram v. Suda, 986
F.2d 1459, 1461 (D.C. Cir. 1993) (alteration
in
original)
(quoting
Dellenbach
v.
Letsinger, 889 F.2d 755, 763 (7th Cir.
1989)).
Courts have therefore extended
absolute immunity to protect, among others,
clerks of court, law enforcement officers,
and others who enforce court orders.
See,
e.g., Foster v. Walsh, 864 F.2d 416, 417-18
(6th Cir. 1988) (holding the clerk of court
to be absolutely immune for issuing an
erroneous warrant pursuant to the court’s
order); Henry v. Farmer City State Bank, 808
F.2d 1228, 1238-39 (7th Cir. 1986) (“[Police
officers, sheriffs, and other court officers
who act in reliance on a facially valid
court order are entitled to quasi-judicial
immunity from suit.”).
Kendrick v. Cavanaugh, No. CCB-10-2207, 2011 WL 2837910, at *4
(D.Md. July 14, 2011).

Here, Plaintiff alleges that Sergeant

Sognco took action to enforce Judge Mason’s orders.

She was

acting as an arm of the court, and is therefore immune from
suit.

Accordingly, Plaintiffs’ claims against Sergeant Songco

will be dismissed.4

4

Judge Mason and Sergeant Songco also have statutory
immunity under Maryland Law. Md. Code, Cts. & Jud. Proc. § 5522(b); State Gov’t § 12-101 (listing sheriff deputies and
circuit court judges as state personnel).
14

IV.

Failure to State a Claim Against Mr. Epner and Mr. Kearney
A.

Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)); Brockington v. Boykins, 637 F.3d 503, 505-06
(4th Cir. 2011).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
15

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.
604

F.2d

844,

(4th

847

United Black Firefighters v. Hirst,
Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but

it

has

relief.’”
8(a)(2)).

not

‘show[n]

Iqbal,

556

that
U.S.

the
at

pleader

679

is

entitled

(quoting

to

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

court

experience and common sense.”

to

draw

on

its

judicial

Id.

B.

Analysis

1.

Section 1983 Claim Against Mr. Epner and Mr. Kearney

Defendants argue that Plaintiffs fail to state a § 1983
claim against Mr. Epner and Mr. Kearney.
the

fact

that

Mr.

Epner

and

Mr.

Plaintiffs assert that

Kearney

“twice

directed

[]

Songco to threaten all three Horowitzes without any substitutive
[sic] legal authority, or explicit court order to do so” gives
rise to a § 1983 claim.
Plaintiffs
Sergeant

allege
Songco

that
and

(ECF No. 28, at 4).
Mr.

her

Epner

and

subordinate

Mr.
with

Specifically,

Kearney
Mr.

provided

Horowitz’s

telephone number “and instructed them to call Mr. Horowitz and
16

threaten forcible entry.”

(ECF No. 1 ¶ 30-31).

Plaintiffs also

contend that Mr. Epner and Mr. Kearney “threatened [Plaintiffs]
with further court action.”
the

complaint

ascribes

(Id. ¶ 53).

to

Mr.

The only other conduct

Epner

and

Mr.

Kearney

is

participation in court proceedings and sending correspondence in
an attempt to effectuate the court order.
Section 1983 provides that:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of
any
rights,
privileges,
or
immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress.
42

U.S.C.

grounds,

§

1983.

including

Defendants
that

Mr.

move

Epner

acting under the color of law.

and

to

dismiss

Mr.

on

Kearney

(ECF No. 18-1, at 12).

several
were

not

The only

fact in the complaint that may allege that Mr. Epner and Mr.
Kearney acted under the color of law is the allegation that they
coordinated with Sergeant Songco to communicate with Plaintiffs.
It

is

not

necessary,

however,

to

decide

this

issue

because

Plaintiffs fail to show facts plausibly stating a § 1983 claim.
Plaintiffs have not alleged how the two “threats” made by Mr.
Epner

and

Mr.

Kearney

caused

the

17

deprivation

of

Plaintiffs’

rights, privileges, or immunities protected by the Constitution
or other law.
Kearney

Conclusory assertions that Mr. Epner and Mr.

violated

Plaintiffs’

constitutional

sufficient to survive a motion to dismiss.

rights

are

not

Rather, Mr. Epner

and Mr. Kearney were merely using the state court system to
effectuate a judgment for Selzer Gurvitch in accordance with
court orders.
of

their

Nothing in the communications deprived Plaintiffs

rights,

privileges,

or

immunities

in

any

way.

Accordingly, Count I will be dismissed against Mr. Epner and Mr.
Kearney.
2.

MCDCA Claims

Plaintiffs allege that Mr. Epner and Mr. Kearney violated
three provisions of the MCDCA.
(8).

See Md. Code §§ 14-202(1), (6),

Defendants argue that the legal fees Selzer Gurvitch is

attempting
transaction”

to

Defendants

collect
covered

contend

are
by

that

violation of the MCDCA.

not

the
the

the

result

MCDCA.

In

complaint

of
the

fails

to

a

“consumer

alternative,
allege

any

Assuming arguendo that the debt is the

result of a consumer transaction and that Mr. Epner and Mr.
Kearney are “collectors,” Plaintiffs nevertheless fail plausibly
to show that either Mr. Epner or Mr. Kearney violated the MCDCA.
First, Plaintiffs have not alleged that Mr. Epner or Mr.
Kearney threatened force or violence.
202(1).

Md. Code, Comm. Law § 14-

The closest threat of force was when Sergeant Songco
18

and

her

subordinate

called

Mr.

Horowitz

“to

pass

along

the

Epner/Kearney threat, that if he didn’t agree, those lawyers
would obtain a court order to forcibly enter the Horowitzes’ fee
owned dwelling house.”

(ECF No. 1 ¶¶ 30-31).

Plaintiffs point

to Exhibit A of the complaint to show that Mr. Epner and Mr.
Kearney “threatened ‘forcible entry’ repeatedly.”
28, at 9).

(See ECF No.

Exhibit A is a motion Mr. Epner and Mr. Kearney

filed in state court requesting authorization for the sheriff to
gain access to the Horowitzes’ property by forcible entry.

Such

a motion does not run afoul of the MCDCA.
Furthermore, Plaintiffs do not plead facts showing that Mr.
Epner

and

Mr.

Kearney

“communicate[d]

with

the

debtor

or

a

person related to him . . . [in a] manner as reasonably can be
expected to abuse or harass the debtor.”
14-202(6).

Md. Code, Comm. Law §

None of Mr. Epner’s or Mr. Kearney’s alleged conduct

can reasonably be viewed as abusive or harassing.

Mr. Epner and

Mr. Kearney communicated with Plaintiffs that they would seek a
court order for forcible entry.
then

communicated

with

(ECF No. 1 ¶¶ 30-31).

Plaintiffs

and

attempt to effectuate court orders.
These

communications

fall

far

their

(Id.

short

of

counsel

They
in

an

¶¶ 52-56, 75-80).
being

abusive

or

harassing.
Finally,

Plaintiffs

do

not

plead

facts

adequately

supporting the assertion that Mr. Epner and Mr. Kearney violated
19

the

MCDCA

by

“claim[ing],

attempt[ing],

or

threaten[ing]

to

enforce a right with knowledge that the right does not exist.”
Md. Code, Comm. Law § 14-202(8).

This provision of the MCDCA

prohibits debt collectors from attempting to collect a debt they
know is invalid.

See Marchese v. JPMorgan Chase Bank, N.A., 917

F.Supp. 2d 452, 464 (D.Md. 2013).
a

claim,

the

express

language

“In order to succeed on such
of

the

MCDCA

requires

that

Plaintiffs allege that Defendants acted with knowledge as to the
invalidity of the debt.”
769

(D.Md.

2012)

Stewart v. Bierman, 859 F.Supp.2d 754,

(emphasis

in

original)

(citation

omitted).

Here, Plaintiffs do not assert the debt that Mr. Epner and Mr.
Kearney

are

attempting

to

collect

is

invalid.

Therefore,

Plaintiffs cannot assert that Mr. Epner and Mr. Kearney are
acting

with

knowledge

that

the

debt

is

invalid.

Rather,

Plaintiffs assert Mr. Epner and Mr. Kearney improperly attempted
to collect the debt.

(ECF No. 28, at 9 (“Epner and Kearney had

no basis in substantive law to threaten the Horowitzes with
forcible entry, arrest, and monetary sanctions to coerce home
invasion when collecting their debt.”)).
not

state

a

claim

under

Md.

Code,

Such allegations do

Comm.

Law

§

14-202(8).

Accordingly, Plaintiffs’ MCDCA claims against Mr. Epner and Mr.
Kearney will be dismissed.

20

V.

Conclusion
For the foregoing reasons, Defendants’ motions to dismiss

will

be

injunction

granted.
will

be

Plaintiffs’
denied

as

motions

moot.

A

for

a

separate

preliminary
order

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

21

will