                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT
                          _______________

                            No. 10-2387
                          _______________

PATRICIA MITCHELL-TRACEY; MILTON D. BROWN; FRANCINE C. BYRD-
BROWN; HELEN KLATSKY,

                Plaintiffs - Appellants,

          v.

UNITED GENERAL TITLE INSURANCE COMPANY; FIRST AMERICAN TITLE
INSURANCE COMPANY,

                Defendants - Appellees.

                         ________________

Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:05-cv-01428-WDQ)
                        _________________

Submitted:   June 12, 2011               Decided:   August 2, 2011
                         _________________

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
                        _________________

Affirmed by unpublished per curiam opinion.
                        _________________

Philip S. Friedman, FRIEDMAN LAW OFFICES, PLLC, Washington,
D.C.; Martin E. Wolf, Richard S. Gordon, Benjamin H. Carney,
QUINN, GORDON & WOLF, CHTD., Towson, Maryland, for Appellants.
Charles A. Newman, Jason E. Maschmann, Michael J. Duvall, SNR
DENTON US LLP, Saint Louis, Missouri; Ira L. Oring, FEDDER &
GARTEN, P.A., Baltimore, Maryland, for Appellees.
                        __________________

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Plaintiff-Appellants              are     Maryland        homeowners           who

purchased             title     insurance          from     Defendant-Appellees                First

American          Title       Insurance      Company       and     United      General         Title

Insurance             Company     (collectively,            “defendants”)           when        they

refinanced their mortgages.                    In April 2005, plaintiffs filed a

class-action            lawsuit,       alleging,         inter    alia,     that    defendants

illegally charged higher rates than those they had filed with

the Maryland Insurance Commissioner (“MIC”).                              After plaintiffs’

class was certified, we decided Arthur v. Ticor Title Insurance

Co.,       569    F.3d    154     (4th      Cir.    2009),       which    dismissed       similar

claims           on     account        of     plaintiffs’          failure         to     exhaust

administrative            remedies       under      Maryland’s      Insurance           Code    (the

“Code”) before            proceeding         with       litigation.       In   light       of    our

decision, and plaintiffs’ own failure to exhaust administrative

remedies         before       filing     suit,      the    district       court    decertified

plaintiffs’ class and dismissed their claims.                               For the reasons

discussed below, we affirm. 1




       1
       We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.



                                                    2
                                             I.

                  We briefly review the relevant facts and procedural

history.          Defendants are both title insurance companies who do

business in Maryland. 2              Pursuant to Maryland law, each company

has filed its insurance rates with the MIC.                         See Md. Code Ann.,

Ins.       §§ 11-403,       11-404.         Both        companies    have      also     filed

discounted “reissue” rates with the MIC.                          Although the language

of their respective policies differs slightly, each company’s

reissue          rate   purports    to    offer     a     forty   percent    discount       to

consumers who apply for mortgage title insurance for property

that       the    consumer    has    had   insured         within   the    preceding       ten

years.           Maryland    law    mandates       that    both    companies      adhere    to

their rates as published.                Id. § 11-407(b).

                  Plaintiffs purchased title insurance from defendants

while       refinancing       their      homes.           Plaintiffs      claim    to   have

qualified for defendants’ discounted reissue rates, but contend

that defendants nevertheless charged them higher premiums.                                 In

April 2005, plaintiff Patricia Mitchell-Tracey filed a class-


       2
       Title insurance plays a key role in most real estate
transactions, as it “insures the buyer of real property, or a
lender secured by real property, against defects in the legal
title . . . and guarantees that, in the event a defect in title
surfaces, the insurer will reimburse the insured for losses
associated with the defect, or will take steps necessary to
correct it.” Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 66 (2d
Cir. 1999).



                                               3
action complaint in Maryland circuit court, alleging violations

of   the   Real    Estate    Settlement     Procedures   Act    (“RESPA”),   12

U.S.C.      § 2607, 3       money     had     and    received,         negligent

misrepresentation, and civil conspiracy.              The following month,

defendants removed the case to the federal district court of

Maryland.     Later that year, Mitchell-Tracey filed an amended

complaint, which included the other named plaintiffs.

            In September 2006, the district court granted class

certification for

      [a]ll persons or entities in Maryland who within 10
      years of having previously purchased title insurance
      in connection with their mortgage or fee interest,
      refinanced the identical mortgage or fee interest, and
      were charged a title insurance premium by [either of
      the defendants] that exceeded the applicable premium
      discount or “reissue rate” for title insurance on file
      with the Maryland Insurance Administration that such
      persons or entities should have been charged.

Mitchell-Tracey v. United General Title Ins. Co., 237 F.R.D.

551, 554-55 (D. Md. 2006).            The court referred the matter to a

magistrate for mediation and the parties engaged in settlement

efforts over the ensuing two-and-half years.

            In June 2009, we decided Arthur, 569 F.3d at 154, in

which we held, on facts similar to those presented here, that

Maryland     law     required       prospective     litigants     to     exhaust

      3
       The district court granted summary judgment for defendants
on plaintiffs’ RESPA claim in September 2006. We do not discuss
it further.



                                        4
administrative          remedies         made    available        by   the     Code       before

proceeding with judicial action. 4                     See id. at 161-62.            Following

Arthur, the parties concluded that further mediation would not

be productive and sought to resume litigation.                             In October 2009,

Plaintiffs          moved    to    amend    their       complaint      to    abandon        their

claims for negligent misrepresentation and civil conspiracy and

to add claims for negligence, breach of contract, and violations

of     the     Racketeer      Influenced         and       Corrupt     Organizations         Act

(“RICO”), 18 U.S.C. § 1962(d).                       The following month, plaintiffs

also         initiated        MIC        administrative           proceedings            against

defendants.          That administrative action is currently pending.

               In      February          2010,       the     district        court        denied

plaintiffs’          motion       to    amend    their       complaint,       holding        that

plaintiffs’          proposed          amendments      were     futile.            The      court

explained that, as in Arthur, each of plaintiffs’ claims relied

on a threshold determination by the MIC that plaintiffs were

correctly interpreting the rate structure that defendants had

filed        with    the     state.         As       plaintiffs      had     not     exhausted

Maryland’s mandatory administrative process, the court reasoned,

their arguments could not survive a motion to dismiss.                                   On that

basis,       the     court    denied       plaintiffs’        subsequent           motion     for


        4
       We discuss Arthur in greater detail below, as part of our
evaluation of plaintiffs’ claims on appeal.



                                                 5
reconsideration and granted defendants’ motions for judgment on

the    pleadings    and    to    decertify        plaintiffs’     class.     It    later

denied    plaintiffs’       motion     to    reconsider      those    determinations.

This appeal followed.



                                            II.

            We     review       de   novo     the      district   court’s    grant    of

judgment    on     the    pleadings,        “applying      the    same   standard    for

Federal Rule of Civil Procedure 12(c) motions as for motions

made pursuant to Rule 12(b)(6).”                       Independence News, Inc. v.

City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009).                        We review

the    district      court’s         denial       of    plaintiffs’      motions     for

reconsideration of (1) plaintiffs’ motion to amend and (2) its

dismissal of their claims for abuse of discretion.                         Robinson v.

Wix Filtration Corp. LLC, 599 F.3d 403, 407 (4th Cir. 2010);

Laber v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006).

            A discussion of Arthur, and its applicability here,

sets the stage for plaintiffs’ arguments on appeal.                         In Arthur,

we upheld the dismissal of a similar Maryland suit against title

insurers.      See 569 F.3d at 156.                 Plaintiffs in that case were

also Maryland homeowners who alleged that their title insurer

charged them higher rates than the insurer had filed with the

MIC.     Id.     We affirmed the dismissal of plaintiffs’ claims,



                                              6
relying     primarily         on     their       failure       to     exhaust          available

administrative remedies under the Code.                       See id. at 161.

             Our       decision      cited,         inter     alia,       Maryland       courts’

presumption        that       “when       the       statutory        text        creating        an

administrative          remedy      is     not       dispositive”          as     to     whether

exhaustion is mandatory, “the administrative remedy is intended

to     be   primary,      and      that    a        claimant    cannot          maintain       the

alternative        judicial         action          without     first           invoking       and

exhausting       the    administrative          remedy.”         Id.      at     161    (quoting

Zappone     v.   Liberty      Life    Ins.       Co.,   706     A.2d      1060,        1069    (Md.

1998)).      We explained that plaintiffs’ claim was “dependent on

the    Insurance       Code    because     that       claim     will      succeed       only    if

plaintiffs show that [the insurer] violated the Code.”                                   Id.     We

further     observed      that      assessment         of   plaintiffs’          claim        would

benefit from the MIC’s expertise, as the MIC “would be in a

better position than a federal court to determine, for example,

whether plaintiffs are correctly interpreting the rate structure

that [the defendant insurer] filed with the [MIC].”                              Id.

             Here,      too,       plaintiffs’         claims       for     money       had     and

received, negligent misrepresentation, and civil conspiracy turn

on the threshold question of whether defendants failed to comply

with    their    published         insurance         rates.         Plaintiffs         can     only

succeed on a showing that defendants violated the very insurance

code at issue in Arthur.                   That comprehensive state statutory

                                                7
scheme plainly gives the MIC authority to grant administrative

remedies, including restitution for any overcharge. 5                      See Md.

Code Ann., Ins. § 4-113(b), (d)(1)-(2); see also Arthur, 569

F.3d at 162.        As the district court concluded, on these facts,

Arthur mandates dismissal to allow the MIC to assess, in the

first instance, “whether the Insurance Code has been violated

and the remedy, if any, to which the Plaintiffs are entitled.”

J.A. 2458.



                                      III.

            Plaintiffs nevertheless make three distinct arguments

as to why Arthur should not compel dismissal here.                   First, they

urge that the Supreme Court’s decision in Shady Grove Orthopedic

Associates v. Allstate Insurance Co., 130 S. Ct. 1431 (2010),

superseded       Arthur.   Second,    they   assert    that   even    if    Arthur

remains good law, the district court erred by dismissing their

case rather than staying it pending exhaustion of administrative

proceedings.       Finally, plaintiffs argue that the district court

erroneously denied their motion to amend, which, they allege,

would     have    insulated   their    complaint      from    dismissal      under

Arthur.    We consider each contention in turn.

     5
       Indeed, the MIC accepted jurisdiction over plaintiffs’
case   when   they   belatedly filed   their   November  2009
administrative complaint.



                                       8
                                           A.

               Plaintiffs’      argument        that    Shady     Grove        superseded

Arthur    is    unpersuasive.         In   Shady       Grove,    the   Supreme        Court

considered whether a New York plaintiff could file a federal

class action lawsuit for statutory penalties despite a state

statute    that        prohibited     “class       actions       in    suits        seeking

penalties or statutory minimum damages.”                        130 S. Ct. at 1436

(citing N.Y. Civ. Prac. Law Ann. § 901).                        The Court held that

the New York statute did not trump Fed. R. Civ. P. 23, which,

“[b]y its terms . . . creates a categorical rule entitling a

plaintiff whose suit meets the specified [class-action] criteria

to   pursue      his    claim    as   a    class       action.”        Id.     at     1437.

Plaintiffs       interpret      the   decision         as   creating      an     absolute

entitlement to proceed with a class action lawsuit regardless of

whether pertinent state procedural steps have been completed.

We disagree.

               Plaintiffs read Shady Grove at a level of generality

that is simply unsupported by its text.                     Shady Grove addressed

an   explicit     state-law     prohibition        on    class-action        suits     that

expressly contradicted Fed. R. Civ. P. 23.                       Id. at 1437, 1441.

The Supreme Court did not consider exhaustion or similar state-

mandated intermediate procedures.                 Nor can we discern any basis

on which to read it as excusing named class-action plaintiffs

from the threshold procedural requirements that they would face

                                           9
as    individual      litigants.         Cf.       Broussard     v.   Meineke      Discount

Muffler Shops, Inc., 155 F.3d 331, 345 (4th Cir. 1998).                             We are

loathe to “lightly infer that a prior panel decision has been

overruled,” Cent. W. Va. Energy, Inc. v. Bayer Cropscience LP,

Nos. 10-1706, 10-1934, 2011 WL 2725819 at *7 n.7 (4th Cir. July

14, 2011), and see no cause to do so here.



                                              B.

               Plaintiffs’      abbreviated          argument     that     the     district

court       should    have    stayed    their       claim     pending      exhaustion   is

similarly unavailing.               Under Maryland law, the decision to stay

judicial      proceedings      pending       the    exhaustion        of   administrative

remedies is a discretionary one.                   See, e.g., Md.-Nat’l Cap. Park

& Planning Comm’n v. Crawford, 511 A.2d 1079, 1087-88 (1986);

cf. Mardirossian v. Paul Revere Life Ins. Co., 286 F.3d 733, 735

(4th Cir. 2002) (noting that, to the extent the Code “requir[es]

that    a    claimant    first       invoke    and     exhaust    the      administrative

remedies,” a plaintiff who fails to do so “is improperly before

the    court    and    the    court    should       dismiss    for     lack   of    subject

matter jurisdiction” (emphasis added)).                        Nothing in the record

suggests       that    the    district        court    abused     its      discretion    by

determining that dismissal, rather than a stay, was warranted.

To the contrary, plaintiffs’ failure to initiate administrative

proceedings      until       four    years     after    filing    suit      supports    the

                                              10
court’s          discretionary         determination          that        dismissal            was     the

proper course of action. 6



                                                   C.

                  Finally,      we    are    not    persuaded        by    plaintiffs’               claim

that       the    district       court      abused      its   discretion            by       dismissing

their complaint rather than granting them leave to amend.                                               A

district          court    may       deny    leave      to    amend        a    complaint            when

amendment         would    be     futile     or    would      not    survive             a    motion   to

dismiss.          U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525

F.3d       370,    376    (4th       Cir.    2008).          Here,   each           of       the   claims

plaintiffs sought to add--breach of contract, negligence, and

RICO violations--suffered from the same defect as plaintiffs’

original          causes     of       action:           dependence             on        a    threshold

determination that defendants violated the Code.                                     Consequently,

       6
        The Court of Appeals of Maryland’s recent decision in
Carter v. Huntington Title & Escrow, LLC, No. 116, 2011 WL
2721926 (Md. July 14, 2011), which prompted Fed. R. App. P.
28(j) letters from both parties, only reinforces our conclusion.
The Court of Appeals explicitly found that the MIC has primary
jurisdiction over title-insurance overcharge claims. See id. at
*1.    Although the majority found that a stay, rather than
dismissal, was warranted on Carter’s facts, it did not revisit
its settled precedent that the choice of whether to grant a stay
is   discretionary,   noting  that   a  “court   may   stay  its
consideration of the invoked judicial remedy and await the
result of the administrative proceedings before addressing the
appropriateness of the relief sought in the litigation.” Id. at
*16 (quoting Converge Servs. Group, LLC v. Curran, 860 A.2d 871,
881 (Md. 2004)) (emphasis added).



                                                   11
the district court did not abuse its discretion by denying leave

to amend.

               As    discussed    above,     Arthur    mandates     administrative

exhaustion when plaintiffs’ claims are “dependent” on the Code.

569 F.3d at 161.            By its terms, plaintiffs’ proposed breach of

contract claim turns on the allegation that defendants “fail[ed]

to charge them the discounted refinance rate in accordance with

Defendants’         filed   and   approved      rates.”      J.A.   2269   (emphasis

added).        This claim inescapably relies on an initial finding

that defendants were, in fact, statutorily obligated to charge

plaintiffs the discounted rate--a determination that should be

made in the first instance by the MIC.                    See Arthur, 569 F.3d at

161.       Even if plaintiffs are correct that their implied contract

with       defendants   incorporated       any    statutory    obligations,    that

does not obviate the need for a threshold assessment of whether

those obligations were fulfilled. 7




       7
       Neither of the Maryland cases on which plaintiffs rely
compels a different result.    See Mardirossian v. Paul Revere
Life Ins. Co., 831 A.2d 60, 64 (Md. 2003); Zappone, 706 A.2d at
66-67.    Unlike the plaintiffs' claims in Mardirossian and
Zappone, which were “wholly independent” of the Code, Zappone,
706 A.2d at 67, here, under plaintiffs' implied contract theory,
the terms of the contract are statutorily-derived.           See
Appellants’ Br. at 26 (“Critically, the implied contract
incorporates Appellees' statutory obligation to charge a premium
in accord with its filed rates.”).    In other words, plaintiffs
explicitly invoke the Code.



                                           12
               Plaintiffs’    proposed       negligence         claim    is    similarly

flawed.        In   Maryland,   as   elsewhere,          “[i]t     is   axiomatic      that

actionable negligence is the breach of a duty that is owed to

another.”       Harrison v. Harrison, 285 A.2d 590, 592 (Md. 1972).

Absent a duty, “no action can be sustained.”                            Id.; see also

Green v. N.B.S., Inc., 976 A.2d 279, 289 (Md. 2009).                            The sole

duty that plaintiffs identify as a basis for their negligence

claim     is    defendants’     alleged          statutory      obligation      “not       to

collect a premium or charge for insurance that exceed[ed] the

premium or charge to which [plaintiffs] were entitled.”                                J.A.

2352.      Once     again,    the    existence       of    a     duty   depends       on    a

threshold determination by the MIC that defendants were required

to charge plaintiffs a particular rate.

               Plaintiffs’    RICO    claims       are     also    dependent     on     the

Code.     As the district court explained, in order to succeed on

these claims, plaintiffs must substantiate their allegation that

they “were induced ‘to unwittingly pay excessive and illegal

fees in respect [of] mortgage loan transactions.’”                             J.A. 2398

(quoting       plaintiffs’      proposed         amended       complaint)      (emphasis

added); see also Am. Chiropractic Ass’n v. Trigon Healthcare,

Inc.,   367     F.3d   212,   233    (4th    Cir.     2004)       (noting     civil    RICO

claims’ injury requirement).                Accordingly, the appropriateness

of defendants’ rates presents a threshold question for the MIC.



                                            13
            In sum, plaintiffs’ proposed new claims rely on the

same    underlying   determination    as    their      earlier   allegations--

namely, that defendants charged plaintiffs fees in excess of

their filed insurance rates.        As a result, plaintiffs’ causes of

action    “explicitly   depend[]    on     the   statute      that   also   makes

administrative remedies available to plaintiffs.”                    Arthur, 569

F.3d at 161.      On these facts, the district court did not abuse

its discretion by finding that amendment would be futile, as

each new claim “requires proof of a violation of the Maryland

Insurance Code.”     J.A. 2398.



                                     IV.

            For   the   foregoing    reasons     we    affirm    the    district

court’s denial of plaintiffs’ motions for reconsideration, grant

of     defendants’   motion   for   judgment      on    the    pleadings,    and

decertification of plaintiffs’ class.

                                                                        AFFIRMED




                                     14
