Hall v. Greystar Management Services, L.P.

UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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
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Unpublished opinions are not binding precedent in this circuit.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 brought this suit against Greystar Management

Services, L.P. (GMS), PSN Landscaping Co., Inc. (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 GMS and conversion claim against

Kelly, we affirm those portions of the district court’s

decision. 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 the Versailles Apartments

complex located in Baltimore County. Hall has been diagnosed

with “post-polio syndrome together with specific and related

comorbidities including dysphagia, respiratory deficit and

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

substantially limit major life activities.” J.A. 208. She

requires a service dog. Id. 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. In August

2010, GMS informed Hall that her use of the storage unit

constituted a violation of the fire code. Hall requested that

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

fire code, but GMS refused. Hall then requested that GMS

relocate her to a three-bedroom apartment. GMS agreed 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-

4
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 of Justice and the

Maryland Commission on Civil Rights. 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. GMS, however, advertised online the

availability of three-bedroom apartments at 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. Hall

appealed to the Circuit Court for Baltimore County. As a result

of these legal proceedings, Hall hired professional movers to

relocate her personal property. On November 10, 2011, the

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

immediately filed a motion for stay of enforcement pending

review of the Circuit Court’s decision by another judge on the

Circuit Court for Baltimore County.

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 On or about November 22, 2011, the professional movers

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

until December 6 and 7, 2011. Hall informed GMS of this

information and paid GMS rent for December 2011, which GMS

accepted.

On or about November 30, 2011, the Circuit Court for

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. PSN also removed all of

Hall’s property, including her “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 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. Hall’s property, however, never arrived

there. 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. The district court granted all

defendants’ motions. The district court dismissed the

conversion claim based on its conclusion that, under Baltimore

7
County Code § 35-3-103, 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 converted. J.A. 191. In addition, the

district court dismissed the FHA and state-law retaliation

claims based on its conclusion that the 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.” J.A. 263.

Noting that Hall’s amended complaint failed to 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

8
retaliation claim as futile. J.A. 264. Having dismissed Hall’s

federal claim, the district court retained supplemental

jurisdiction over the pendent state law claims “given the

simplicity of the analysis” required to resolve the 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 59(e) motion may only be granted in three

situations: “(1) to accommodate an intervening 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

9
Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkand

v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). It is an

extraordinary remedy that should be applied sparingly. 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)). In other words,

“Rule 15(a) and Rule 59(e) motions rise and 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.” Mayfield, 674 F.3d at 378-79.

Rule 15(a)(2) provides that “a party may amend its

pleadings only with the opposing party’s written consent or the

court’s leave. The court should freely give leave when justice

so requires.” 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

10
present: “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). Perkins v. United States, 55 F.3d 910, 917

(4th Cir. 1995). 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 and “are part of a coordinated scheme of

federal civil rights laws enacted to end 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 the elements of her claim of retaliation under 42

U.S.C. § 3617. While Hall did allege that she 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 regaining possession of the leased premises in

accordance with the orders of the Baltimore County Court.

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

13
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 is correct that “[a]llegations have facial

plausibility ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for misconduct alleged,’” Tobey v. Jones,

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

679), no reasonable inference can be drawn here that GMS

retaliated against Hall because of her protected 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). Thus, we

cannot, as Hall asks, infer causation based on 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 only allegation in Hall’s amended complaint that

suggests causation is the temporal proximity between Hall’s

protected activity and GMS’s adverse action. 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 action of destroying her

property in December 2011. “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).

15
 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. Hall contends that the district

court erred by concluding that her “failure to include a

plausible claim for damages [left] her amended claim for

conversion futile.” J.A. 266. We agree.

A motion to dismiss pursuant to Rule 12(b)(6) – the

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

legal sufficiency of a complaint to determine whether the

plaintiff has properly stated a claim; “it does not 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. At the motion-to-dismiss stage, the only appropriate

inquiry for the district court is whether Hall’s proposed

amended complaint contained sufficient factual matter, accepted

16
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). Here, Hall alleged that PSN, at the

direction of GMS’s 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 “on the trucks

owned and operated by PSN.” J.A. 213. It was PSN, at the

direction of GMS’s attorney, that transported all of Hall’s

property to a landfill where it was destroyed. 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 to plausible.” Twombly, 550 U.S. at 570.

Accordingly, we find that the district court abused its

17
discretion in denying Hall’s 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 Kelly executed the warrant . . . .” Hall’s

Reply Br. at 2. The only fact alleged by Hall is that Kelly

supervised the eviction process, which appears to be consistent

with Kelly’s responsibility to carry out a valid warrant of

restitution. 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 certify a question about the

3
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).

18
proper interpretation of Baltimore County Code § 35-3-103 to the

Maryland Court of Appeals. At no point during the proceedings

below did Hall request 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.” Muth, 1 F.3d at 250

(citing Hanson, 859 F.2d at 318). We can find no evidence in

the record that such 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

19
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

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