                              UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.




                                2
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).

                                              3
       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.

                                                5
     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

                                             6
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)).




                                     11
                                   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.



                                    12
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.


                                             14
       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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