Albert Schock, et al v. James Baker, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 8.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1678
___________
ALBERT SCHOCK; WOLDEMAR SCHOCK; IRMA SCHOCK,
Appellants
v.
JAMES M. BAKER; JEFFREY STARKEY; ANTHONY KNISELY; MICHAEL E.
MILLER; CITY OF WILMINGTON; BOARD OF LICENSE AND INSPECTION
REVIEW; WILMINGTON CITY COUNCIL
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1:09-cv-00647)
District Judge: Honorable Gregory M. Sleet
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 25, 2016
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: October 27, 2016)
_________
OPINION*
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Pro se appellants Albert, Woldemar, and Irma Schock appeal pro se from the
District Court’s order granting summary judgment in favor of the defendants. For the
reasons discussed below, we will affirm.
This dispute concerns the demolition of a warehouse in Wilmington, Delaware,
that was owned by a business associated with the Schocks. The Schocks contended that
their warehouse was demolished improperly in order to facilitate a redevelopment
project. The defendants disagreed and argued that the warehouse was a dangerous public
nuisance demolished pursuant to a legal demolition order.
The Schocks filed suit in the United States District Court for the District of
Delaware in August 2009. In October 2010, they amended their complaint. The
Amended Complaint brought a 42 U.S.C. § 1983 action under the Fifth and Fourteenth
Amendments, alleging that the defendants’ actions violated the Schocks’ rights to due
process and equal protection, and amounted to an unjust taking of their property. After
the defendants answered the amended complaint and the parties engaged in extensive
discovery, the defendants moved for summary judgment in September 2014. Their brief
in support of summary judgment cited to record evidence in a substantial appendix that
the defendants filed with their motion. The defendants argued that the record showed
that the takings, due process, and equal protection claims all failed as a matter of law. In
addition, the defendants argued that the Schocks had failed to establish municipal liability
for Wilmington and the City Council, and that the government-official defendants were
entitled to qualified immunity.
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The Schocks’ answering brief recited a lengthy narrative, albeit without record
citations or support. That brief then raised a new Fourth Amendment claim for purported
illegal entry onto their property. The brief also made legal arguments in favor of the
Schocks’ Fifth Amendment takings claim, citing Takings Clause caselaw and the state
and municipal codes. As for the due process claim, the brief abandoned arguing that the
Schocks were deprived of constitutionally adequate procedures, and instead set out a
substantive due process claim based on the idea that the deprivation of their property
interest shocked the conscience. The brief then argued that the Schocks’ equal protection
claim should go to trial because of other buildings that allegedly had not been demolished
even though they were in purportedly worse condition than the Schocks’ warehouse.
Finally, the answering brief opposed the defendants’ municipal-liability and qualifiedimmunity arguments.
In reply, the defendants pointed out that the Schocks had not identified specific
material facts that were in dispute and had not cited to particular record evidence. The
defendants’ reply also argued that the Fourth Amendment and substantive due process
claims were forfeited because they had not been raised before, and then set out
substantive arguments in response to all of the Schocks’ claims.
For four months, neither party made any further filings. Then, in February 2015,
the District Court granted the defendants’ motion for summary judgment on the ground
that the Schocks had failed to sustain their burden under Federal Rule of Civil Procedure
56(c)(1)(A): “The Plaintiffs failed to cite any portion, particular or general, of the record
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in this case that demonstrates the existence of any material fact in dispute between the
parties that raises a genuine issue for trial.” Order, Feb. 26, 2015, D. Ct. Doc. No. 123.
Thereafter, the Schocks timely moved for reconsideration pursuant to Federal Rule
of Civil Procedure 59(e). That motion included a slightly expanded summary of
argument, a near-verbatim copy of the Schocks’ factual narrative and arguments
opposing summary judgment from their previous brief, and a new section entitled, “in
support of plaintiff’s argument, plaintiffs[] offer the following evidence.” That section
then went on to list various documents and factual assertions, with broad page-range
citations to an appendix that the Schocks filed with their motion for reconsideration.
Mot. for Reargument, Mar. 25, 2015, at 20-23, D. Ct. Doc. No. 125. The Schocks stated
that they had not filed an appendix before “in the belief that evidentiary materials already
filed with the Court were adequate.” Id. at 2. They did not cite any other reason for
reconsideration at that time. The defendants opposed reconsideration. Then, in a reply
brief, the Shocks asserted for the first time that they had not previously included
supporting documentation in part due to “the need to adhere to a filing time limit and to
medical problems being experienced by plaintiffs.” Reply to Mot. for Reargument, Feb.
1, 2016, at 6, D. Ct. Doc. No. 135. That reply also included three affidavits as exhibits
that described, in general terms, health problems that each of the Schocks had been
enduring, but which did not state in any way how those health problems had specifically
limited the Schocks’ ability to prosecute their lawsuit.

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The District Court then denied the motion for reconsideration, concluding that the
Schocks’ previous failure to file an appendix was not a basis for reargument, and that the
Schocks’ motion for reconsideration itself did not “cite to any portion of the record in this
case that demonstrates the existence of any material fact in dispute between the parties
that raises a genuine issue for trial.” Order, Feb. 25, 2016, at 2 n.2, D. Ct. Doc. No. 136.
This appeal followed.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
ruling on a motion for summary judgment de novo. Barefoot Architect, Inc. v. Bunge,
632 F.3d 822, 826 (3d Cir. 2011). Summary judgment is proper where, viewing the
evidence in the light most favorable to the nonmoving party and drawing all inferences in
favor of that party, there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. County
of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). A party opposing a motion for summary
judgment must cite to specific materials in the record that demonstrate the existence of a
disputed issue of material fact. Fed. R. Civ. P. 56(c)(1)(A). We review a district court’s
order denying a motion for reconsideration for an abuse of discretion. Max’s Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
The District Court was correct to conclude that the Schocks did not comply with
Federal Rule of Civil Procedure 56(c)(1).1 The Schocks do not dispute that their initial

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Following from that failure was the Schocks’ inability to respond to the
defendants’ demonstration that the Schocks’ claims failed as a matter of law. As the
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summary judgment response failed to identify record facts sufficient to create a genuine
issue for trial, but argue that their pro se status and their asserted health problems should
have prompted the District Court to grant them leeway to file an appendix after summary
judgment was granted.
Those arguments are not persuasive and fail to show that the District Court abused
its discretion when it denied the Schocks’ motion for reconsideration. A district court
should be “loathe to [reconsider its decisions] in the absence of extraordinary
circumstances such as where the initial decision was clearly erroneous and would make a
manifest injustice.” Lesende v. Borrero, 752 F.3d 324, 339 (3d Cir. 2014) (quotation
marks and citation omitted). “The scope of a motion for reconsideration . . . is extremely
limited,” and should “be used only to correct manifest errors of law or fact or to present
newly discovered evidence.” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).
“New” evidence is evidence that could not have been submitted to the court earlier
District Court observed, the defendants “cited to particular parts of the record that either
demonstrate the existence of unmet facts in support of their various defenses or a dearth
of factual material capable of undermining their position on summary judgment.” Order,
Feb. 26, 2015, D. Ct. Doc. No. 123. In particular, the Schocks could not rebut the
defendants’ arguments that their Fifth Amendment Takings Clause claim was either
unripe, see Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001), or was precluded
by the exercise of the city’s police power to combat a public nuisance, see Nat’l
Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 63 (3d Cir. 2013). Likewise, the
Schocks’ equal protection argument failed, among other reasons, for want of sufficient
evidence that their property was similarly situated to other properties that purportedly
were not demolished. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.
2006). Finally, the Schocks forfeited their Fourth Amendment and substantive due
process claims because the Schocks did not raise those claims until they filed their
summary judgment response brief. See Josey v. John R. Hollingsworth Corp., 996 F.2d
632, 641-42 (3d Cir. 1993).
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because it was not previously available, not merely evidence submitted following an
adverse court ruling. Id. at 415-16.
Here, the standard for reconsideration was not met. Although the Schocks’
pleadings are read with some leeway in light of their pro se status, they were still required
to comply with Rule 56. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d
Cir. 2013). And while the Schocks argue that they did not have notice that their case
could be dismissed for the failure to cite to specific record evidence, that argument is
belied by the Schocks’ failure to take any action between the defendants’ submission of
their reply brief on summary judgment—which raised the Rule 56(c)(1)(A) issue—and
the District Court’s issuance of its order four months later.
Moreover, while it is true that the local rules in the District of Delaware
contemplate the filing of an appendix, the more serious problem was the Schocks’ failure
to cite in their brief to specific facts in the record to overcome the defendants’ factual
support. It is doubtful that the Schocks’ motion for reconsideration itself complied with
Federal Rule of Civil Procedure 56(c)(1)(A)—even with the additional appendix
included—due to the conclusory and broad statements and citations that constitute the
“evidence” that the Schocks offered in opposition to summary judgment. No manifest
injustice occurred here when the Schocks failed to cite to the record in a sufficient
manner to comply with Rule 56(c)(1)(A) in even their post-judgment filing.
The only other potential argument for reconsideration was the assertion that a
tight filing deadline and health problems precluded initial compliance with Rule 56.
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Notably, however, the Schocks took advantage of extensions of time throughout the
litigation, but never brought any filing-deadline or health concerns to the District Court’s
attention until they filed their reply brief to the defendants’ opposition to the motion for
reconsideration. To the extent that the Schocks consider their vaguely described health
issues to be new evidence that provided a basis for reconsideration, their argument fails.
See Blystone, 664 F.3d at 415-16.
Finally, the Schocks argue on appeal that their motion for reconsideration should
have been construed as a motion for relief from judgment under Federal Rule of Civil
Procedure 60. They apparently believe that they filed a motion pursuant to Federal Rule
of Civil Procedure 59(e) in error. In fact, that belief is mistaken—Rule 59(e) was the
proper vehicle for their post-judgment challenge to the District Court’s summary
judgment ruling. Moreover, under these circumstances, the Schocks’ challenge would
not have fared any better as a Rule 60(b) motion than as a Rule 59(e) motion. See
Walker v. Astrue, 593 F.3d 274, 279 (3d Cir. 2010) (Rule 59(e) and Rule 60(b) “are
substantively interchangeable”).
For these reasons, the District Court did not err in its initial summary judgment
ruling, and did not abuse its discretion when it denied reconsideration of that ruling.
Consequently, we will affirm the District Court’s judgment.

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