UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS T. PROUSALIS, JR., 

Plaintiff-Appellant,

v.

MICHAEL T. JAMGOCHIAN; DAVID G.

WHITWORTH, JR.; WHITWORTH, SMITH

& TRUNNEL, PA,  No. 02-1014

Defendants-Appellees,

and

MARK D. OLSON; WILSON, HALBROOK

& BAYARD,

Defendants. 

Appeal from the United States District Court

for the Eastern District of Virginia at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-01-855-A)

Submitted: May 28, 2002

Decided: June 20, 2002

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Thomas T. Prousalis, Jr., Appellant Pro Se. Geoffrey Martin Bohn,

CUNNINGHAM & ASSOCIATES, Arlington, Virginia; Paul Dennis
Krause, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER,

Washington, D.C., for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Thomas T. Prousalis, Jr., an attorney proceeding pro se, appeals the

district court’s order dismissing his civil action for failure to state a

claim upon which relief may be granted pursuant to Fed. R. Civ. P.

12(b)(6). He also appeals the court’s denial of his motion for costs

and legal fees under Fed. R. Civ. P. 4(d)(2). We affirm in part, vacate

in part, and remand for further proceedings. 

We review de novo a district court’s Rule 12(b)(6) dismissal for

failure to state a claim. See Flood v. New Hanover County, 125 F.3d

249, 251 (4th Cir. 1997). We accept the complainant’s well-pleaded

allegations as true and view the facts in the light most favorable to the

non-moving party. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134

(4th Cir. 1993). 

Prousalis’ complaint alleged malicious abuse of process, malicious

prosecution, conspiracy under the Virginia Business Conspiracy Statute, and civil conspiracy. Virginia law applies to each claim. See Erie

R.R. v. Tompkins, 304 U.S. 64 (1938). In his complaint, Prousalis

alleged the Appellees filed two frivolous complaints against him

alleging, inter alia, legal malpractice in a malicious effort to "humble

and embarrass" him. These actions, Prousalis further claimed, resulted

in damage to his "reputation, trade, business and profession." We find

Prousalis failed to state a claim upon which relief may be granted

under any of the legal theories advanced in his complaint. See Ross

v. Peck Iron & Metal, Co., 264 F.2d 262, 268 (4th Cir. 1959) (holding

regular use of process cannot constitute abuse of process); Ely v.

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Whitlock, 385 S.E.2d 893 (Va. 1989) (holding damage to an attorney’s livelihood is a natural consequence of disciplinary proceedings

and, as such, cannot satisfy the special injury requirement of a malicious prosecution claim stemming from a civil proceeding); Fox v.

Deese, 32 S.E.2d 699 (Va. 1987) (holding an attorney is an agent of

the client and therefore cannot conspire with the client). Accordingly,

we affirm the district court’s order dismissing these claims for failure

to state a claim upon which relief may be granted. 

Prousalis next contends the district court erred in denying his Rule

4 motion for costs and attorney’s fees. Rule 4 provides:

If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located

within the United States, the court shall impose the costs

subsequently incurred in effecting service on the defendant

unless good cause shown . . . . The costs to be imposed

. . . for failure to comply with a request to waive service of

a summons shall include the costs subsequently incurred in

effecting service . . . together with the costs, including a reasonable attorney’s fee, of any motion required to collect the

costs of service. 

Rule 4(d)(2), (5). We find attorney’s fees are not available under Rule

4(d)(2) or (5) to an attorney proceeding pro se. Accordingly, we

affirm the district court’s order denying Prousalis’ Rule 4 motion as

to attorney’s fees. See Kay v. Ehrler, 499 U.S. 432 (1991); Falcone

v. IRS, 714 F.2d 646 (6th Cir. 1983). 

Prousalis’ pro se status does not, however, affect his entitlement to

collect the costs of personal service if taxing of such costs is otherwise appropriate under Rule 4. Prousalis claimed Appellees failed to

waive service of process after receiving proper notice and request for

waiver. The Appellees claim good cause supports their failure to

waive service. The district court denied Prousalis’ motion for costs

without making factual or legal findings on Prousalis’ motion for

costs and the Appellees’ defense of good cause. Because the record

is insufficient for appellate review as to the denial of costs, we vacate

the district court’s order denying Prousalis’ Rule 4 motion for costs

and remand for further proceedings on this issue. 

PROUSALIS v. JAMGOCHIAN 3
We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

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