Louise Williams, et al v. Borough of Highland Park

Filing

NOT PRECEDENTIAL OPINION Coram: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL*, Chief District Judge. Total Pages: 10. Judge: STENGEL Authoring. * The Honorable Lawrence F. Stengel, United States District Court for the Eastern District of Pennsylvania, sitting by designation. The Honorable Lawrence F. Stengel assumed Chief Judge status on August 1, 2017.

Case: 16-3179

Document: 003112723210

Page: 1

Date Filed: 09/11/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3179
____________
LOUISE M. WILLIAMS;
ELIE FEUERWERKER,
Individually and on behalf of others similarly situated,
Appellants
v.
BOROUGH OF HIGHLAND PARK
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cv-06879)
District Judge: Honorable Katharine S. Hayden
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 10, 2017
Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, Chief District Judge.*

(Filed: September 11, 2017)

*

The Honorable Lawrence F. Stengel, United States District Court for the Eastern
District of Pennsylvania, sitting by designation. The Honorable Lawrence F. Stengel
assumed Chief Judge status on August 1, 2017.

Case: 16-3179

Document: 003112723210

Page: 2

Date Filed: 09/11/2017

____________
OPINION**
____________
STENGEL, Chief District Judge.
Louise Williams and Elie Feuerwerker appeal the District Court’s dismissal of
their Fourteenth Amendment due process claims, brought pursuant to 42 U.S.C. § 1983,
against the Borough of Highland Park, New Jersey. Williams and Feuerwerker sued the
Borough for financial injuries stemming from the Borough’s passage and enforcement of
an ordinance requiring residents to maintain their sidewalks in good repair. The District
Court dismissed their due process claims as time-barred. We will affirm.
I

Background
In March 2012, the Borough passed an ordinance that required owners or

occupants of land in the Borough to maintain sidewalks and curbing abutting that land in
an effort to improve safety.1 Pursuant to the ordinance, if a land owner or occupant failed
to replace the sidewalk or curb, written notice would be provided stating that
maintenance or repairs were to be performed within thirty days of the date of the notice.
A summons would issue for a violation. Upon failure to comply, the Borough would

**

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1

Because this case is an appeal from dismissal under Fed. R. Civ. P. 12(b)(6), we
accept the allegations in the complaint as true and draw all reasonable inferences
therefrom in the light most favorable to Williams and Feuerwerker, the non-moving
parties. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). Accordingly, the
recitation of facts is taken from the complaint and its supporting documents.
2

Case: 16-3179

Document: 003112723210

Page: 3

Date Filed: 09/11/2017

perform the work and place a lien on the land abutting any replaced sidewalks, resulting
in a fine to the owner or occupant, who would also be responsible for the cost of
replacing the sidewalks.
In May and June 2012, following an inspection of sidewalks throughout the
Borough, the Director of Code Enforcement sent out notices to residents whose sidewalks
were deemed unsafe and in violation of the ordinance, and advised them that they would
have sixty days to obtain a zoning permit for repairs. The notices also informed these
residents that failure to make repairs would result in a summons being issued. Appellants
were among the residents receiving these notices.2 In June 2014, a summons was issued
to Williams, resulting in fines and court costs. Williams ultimately paid a contractor to
replace her sidewalk.
In July 2012, the Borough Mayor, in response to complaints about the ordinance
and the notices, sent residents a letter describing two alternatives for compliance:
residents could pay a contractor directly to perform the repairs, or they could enroll in the

2

The notice read as follows:
Your public sidewalk was inspected today and found to be in
an unsafe condition. You have 60 days to obtain a Zoning
Permit and to repair the public sidewalk. Sidewalk slabs may [
]be lifted and reset or poured, leveling agents will not be
allowed. Failure to make the required repairs will result in
summons to be issued. We appreciate your cooperation in
helping to keep Highland Park a safe place to live.

App. 191. The notice referenced the ordinance immediately below the above-quoted text.
3

Case: 16-3179

Document: 003112723210

Page: 4

Date Filed: 09/11/2017

Borough Sidewalk Improvement Program through which the Borough would make
payments to a contractor and the resident would then repay the Borough. Residents who
enrolled in the program would not have to obtain a zoning permit and the sixty-day
deadline for repairs would be waived. The property owner would receive a notice of the
cost to replace the sidewalk and would later receive a bill that could be paid in full or in
five equal installments. The Borough would place a lien on the property until the bill was
fully paid. Feuerwerker signed up for the Borough’s program in 2012.
In 2014, a group of Borough residents filed a lawsuit over the ordinance in state
court and sought a preliminary injunction against its enforcement, which was granted in
September 2014. On November 12, 2014, the Borough amended the ordinance and
adopted a six-month moratorium on its enforcement.
In June 2015, the Borough issued invoices to residents, including Feuerwerker,
whose sidewalks were repaired or replaced through the program. Feuerwerker made at
least one installment payment to the Borough as part of the program.
Williams and Feuerwerker filed suit in district court, asserting claims pursuant to
42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights, as
well as two state law claims. The district court granted the Borough’s motion to dismiss
on the ground that the § 1983 claims were time-barred because they were outside the
two-year statute of limitations, and declined to exercise supplemental jurisdiction over
the state law claims.
II

Jurisdiction and Standard of Review
4

Case: 16-3179

Document: 003112723210

Page: 5

Date Filed: 09/11/2017

We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review de novo
a district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Merle v. United States, 351
F.3d 92, 94 (3d Cir. 2003). In reviewing dismissal on statute of limitations grounds, we
exercise plenary review “to determine whether the time alleged in the statement of a
claim shows that the cause of action has not been brought within the statute of
limitations.” Algrant v. Evergreen Valley Nurseries Ltd. P’ship, 126 F.3d 178, 181 (3d
Cir. 1997) (citations and quotation marks omitted). We review de novo a district court’s
determination of the applicable statute of limitations under state law. See Salve Regina
Coll. v. Russell, 499 U.S. 225, 231 (1991); Nelson v. Cty. of Allegheny, 60 F.3d 1010,
1012 (3d. Cir. 1995).
III

Discussion
Williams and Feuerwerker raise three principal arguments on appeal: (1) the

district court erred in finding that their § 1983 due process claims were time-barred; (2)
the district erred in finding that the Borough’s conduct was not a continuing wrong; and
(3) equitable tolling should apply to their claims. We address each argument in turn.
A. Statute of Limitations
“In determining the length of the statute of limitations for a claim arising under §
1983, courts must apply the limitations period applicable to personal-injury torts in the
State in which the cause of action arose.” Estate of Lagano v. Bergen Cty. Prosecutor’s
Office, 769 F.3d 850, 859 (3d Cir. 2014) (citing Wallace v. Kato, 549 U.S. 384, 387
(2007)). A two-year statute of limitations applies to personal injury claims in New Jersey.
5

Case: 16-3179

Document: 003112723210

Page: 6

Date Filed: 09/11/2017

Id. (citing N.J. Stat. Ann. § 2A:14–2). Williams and Feuerwerker filed their complaint on
September 16, 2015. Their claims, therefore, must not have accrued earlier than
September 16, 2013.
“The date of accrual of a § 1983 claim is a matter of federal law.” Id. at 860 (citing
Wallace, 549 U.S. at 388). “Accrual is the occurrence of damages caused by a wrongful
act—‘when a plaintiff has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.’” Dique v. N. J. State Police, 603 F.3d 181, 185
(3d Cir. 2010) (quoting Wallace, 549 U.S. at 388) (internal quotation marks omitted). “As
the Court in Wallace explained, ‘the tort cause of action accrues, and the statute of
limitations commences to run, when the wrongful act or omission results in damages.’”
Id. at 185–86 (quoting Wallace, 549 U.S. at 391) (internal quotation marks omitted). In
other words, a § 1983 claim accrues “when the plaintiff knows or has reason to know of
the injury which is the basis of the section 1983 action.” Genty v. Resolution Tr. Corp.,
937 F.2d 899, 919 (3d Cir. 1991).
Applying these principles, we agree with the District Court that the appellants’
claims accrued when they received notices from the Borough, in either May or June
2012, informing them that their sidewalks were not in compliance with the ordinance and
that they had to obtain permits and replace their sidewalks to avoid receiving
summonses.3 The appellants’ arguments to the contrary are not persuasive.

3

Appellants originally raised both a facial challenge and an as-applied challenge
to the ordinance. As noted by the District Court, however, the appellants did not address
6

Case: 16-3179

Document: 003112723210

Page: 7

Date Filed: 09/11/2017

The appellants first argue that Williams’s claim did not accrue until June 2014,
“when the Borough applied the Ordinance to her by issuing a summons and compelling
her to fix her sidewalk and pay fines and court costs.” Appellants’ Br. 13. But Williams
had already been negatively affected by the ordinance in 2012, when she was given
official notice that her sidewalks were not in compliance with the ordinance and that she
was obligated to repair or replace them to avoid adverse consequences. The same is true
of the appellants’ argument that Feuerwerker’s claim did not accrue until he received a
demand for payment pursuant to the Borough’s program in September 2015, because he
too was given official notice in 2012 that he would be obligated to repair or replace his
sidewalks.
The appellants next argue that the 2014 summons to Williams and the 2015
invoice to Feuerwerker were “the only definitive actions taken on the part of the
Borough” that would have provided knowledge of their injuries. Appellants’ Br. 14. This
characterization is simply not correct. The appellants knew of the injury forming the basis
of their due process claims when they received the 2012 notices from the Borough, and
they could have brought their “as applied” claims challenging the ordinance on vagueness
grounds when they received those notices. Because the claims accrued at the latest in

their facial challenge to the ordinance in their opposition to the Borough’s motion to
dismiss. Consequently, we consider here only whether the ordinance was
unconstitutional as applied.
7

Case: 16-3179

Document: 003112723210

Page: 8

Date Filed: 09/11/2017

June 2012, the statute of limitations ran out in June 2014. As Williams and Feuerwerker
did not file the complaint in this case until September 2015, the claims are time-barred.
B. The Continuing Wrong Doctrine
The appellants next argue that, even if the statute of limitations began to run when
the notices were issued in 2012, their claims are nonetheless timely because the
Borough’s conduct constitutes a continuing violation.
“[W]hen a defendant’s conduct is part of a continuing practice, an action is timely
so long as the last act evidencing the continuing practice falls within the limitations
period; in such an instance, the court will grant relief for the earlier related acts that
would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters &
Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991); see also Cowell v. Palmer Twp., 263
F.3d 286, 292 (3d Cir. 2001). “To allege a continuing violation, the plaintiff must show
that all acts which constitute the claim are part of the same unlawful . . . practice and that
at least one act falls within the applicable limitations period.” Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 165–66 (3d Cir. 2013) (citing Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 (2002)).
According to the appellants, the Borough’s issuance of summonses and invoices in
2014 and 2015 constituted separate events which reset the statute of limitations on their
claims stemming from receipt of the 2012 notices. This argument misses the distinction
between “continual unlawful acts” and “continual ill effects from an original violation.”
Cowell, 263 F.3d at 293 (citation omitted); see also Brenner, 927 F.2d at 1296 (observing
8

Case: 16-3179

Document: 003112723210

Page: 9

Date Filed: 09/11/2017

that ‘“[t]he proper focus is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts became most painful.’” (alteration in original)
(quoting Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)). Williams and Feuerwerker
were aware of the consequences of the ordinance as applied to them when they received
the 2012 notices. They should, therefore, have brought their § 1983 claims within the
applicable limitations period instead of waiting until after they experienced additional
consequences for failing to respond to the notice or being billed for participation in the
program. As we have previously observed, “the continuing violations doctrine should not
provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in
pursuing their claims.” Cowell, 263 F.3d at 295. For these reasons, the continuing
violations doctrine does not apply to the appellants’ claims.
C. Equitable Tolling
Lastly, the appellants argue—for the first time—that equitable tolling should apply
to their claims. Failure to raise an issue in the district court, however, means that it was
forfeited. United States v. Andrews, 681 F.3d 509, 517 (3d Cir. 2012). ‘“We only depart
from this rule when manifest injustice would result from a failure to consider a novel
issue.’” Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 352 (3d Cir. 2014)
(quoting Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002)). While “it is within
our discretion to consider an issue that the parties did not raise below,” Freeman v.
Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 2013) (citing Bagot v. Ashcroft,

9

Case: 16-3179

Document: 003112723210

Page: 10

Date Filed: 09/11/2017

398 F.3d 252, 256 (3d Cir. 2005)), consideration of the appellants’ forfeited equitable
tolling argument is not warranted here.
*

*

*

For the reasons stated, we will affirm the judgment of the District Court.

10