Enclave Arlington Assoc., L.P. v. City of Arlington, Texas

Filing

UNPUBLISHED OPINION FILED. [09-11202 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/06/2010 [09-11202]

Enclave Arlington Assoc., L.P. v. City of Arlington, Texas Case: 09-11202 Document: 00511293253

Page: 1 Date Filed: 11/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 15, 2010 N o . 09-11202 S u m m a r y Calendar Lyle W. Cayce Clerk

E N C L A V E ARLINGTON ASSOCIATES LIMITED PARTNERSHIP, P la in t iff - Appellant v. C I T Y OF ARLINGTON, TEXAS, D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 4:09-CV-155

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* E n c la v e Arlington Associates Limited Partnership ("Enclave") appeals the district court's grant of summary judgment dismissing its Fourth Amendment c la im against the City of Arlington ("the City") and appeals the district court's d e n ia l of its motion for a continuance. For the following reasons, we AFFIRM. FACTS AND PROCEEDINGS I n 2004, the City entered into an agreement with the Dallas Cowboys

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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Football Club ("Cowboys") whereby the City would become the owner of a newly c o n s t r u c t e d sports stadium, leased by the Cowboys. Because stadium events w e r e expected to substantially impact traffic in the surrounding area, prior to t h e stadium's opening in 2009, the Cowboys submitted a proposed traffic m a n a g e m e n t plan ("TMP") to the City. The City reviewed and modified the C o w b o y s ' proposed TMP before approving it. Next to the Cowboys' stadium is a three-hundred-and-forty-eight unit a p a r t m e n t complex owned by Enclave. The entrance to the Enclave complex is o n Randol Mill Road, which lies between the Enclave complex and the stadium. L e g e n d s Way intersects Randol Mill Road on the east side of the Enclave c o m p le x . Due to the large number of pedestrians that converge at the corner of L e g e n d s Way and Randol Mill Road during events, the TMP limits vehicular a c c e s s to Randol Mill Road and other streets around the stadium. The TMP a llo w s an individual to access the Enclave complex by placing a "hang tag" in the c a r or by informing a police officer on duty that the Enclave complex is his or her d e s t in a t io n . Some residents have reported delays when attempting to enter or le a v e the Enclave complex during events and some have complained about traffic a n d noise. In a lawsuit filed against the City, Enclave alleged a substantive due p r o c e s s violation pursuant to 42 U.S.C. § 1983, an unreasonable seizure in v io la t io n of the Fourth Amendment, regulatory and physical takings in violation o f the Fifth Amendment, and a private nuisance claim. It also requested p r e lim in a r y and permanent injunctions. After a hearing, the district court d e n ie d Enclave's request for a preliminary injunction. On July 24, 2009, the City file d for summary judgment. Enclave filed two successive motions for a

c o n t in u a n c e pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, w h ic h the district court granted. Subsequently, Enclave filed a third Rule 56(f) 2

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motion requesting an additional thirty days to respond, which the district court d e n ie d in part, allowing only a fifteen-day continuance. After receiving Enclave's o p p o s it io n , the district court granted summary judgment in favor of the City. DISCUSSION A . Summary Judgment "We review the district court's grant of summary judgment de novo." Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary ju d g m e n t is appropriate only "if the pleadings, the discovery and disclosure m a t e r ia ls on file, and any affidavits show that there is no genuine issue as to a n y material fact and that the movant is entitled to judgment as a matter of la w ." FED. R. CIV. P. 56(c)(2). i. Enclave's Fourth Amendment Claim The Fourth Amendment, made applicable to the States by the Fourteenth A m e n d m e n t , Ker v. California, 374 U.S. 23, 30 (1963), provides in relevant part t h a t the "right of the people to be secure in their persons, houses, papers, and e ffe c t s , against unreasonable searches and seizures, shall not be violated." U.S. C o n s t . amend. IV. The Fourth Amendment applies to civil as well as criminal s e iz u r e s . Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009). A "seizure" o f property occurs when "there is some meaningful interference with an in d iv id u a l's possessory interests in that property." United States v. Jacobsen, 4 6 6 U.S. 109, 113 (1984); Soldal v. Cook County, 506 U.S. 56, 61 (1992). Only if a court concludes that a seizure has occurred will it then consider the seizure's r e a s o n a b le n e s s , a determination requiring "a careful balancing of governmental a n d private interests." Soldal, 506 U.S. at 71; Freeman v. City of Dallas, 242 F .3 d 642, 649 (5th Cir. 2001). E n c la v e contends that the district court applied an incorrect standard of la w by requiring a physical dispossession of Enclave's property, rather than 3

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considering whether the City's actions amounted to "meaningful interference w it h [Enclave's] possessory interests in that property." See Jacobsen, 466 U.S. a t 113; see also Thomas v. Cohen, 304 F.3d 563, 572 (6th Cir. 2002) ("[A]n act [n e e d not] embody physical displacement of property in order to constitute a s e iz u r e within the meaning of the Fourth Amendment."). However, the district c o u r t applied the correct standard of law, recognizing that "[w]hile complete `d is p o s s e s s io n ' may not be required . . . [Enclave] has failed to establish any s e iz u r e that meaningfully interfered with its possessory interests." Enclave A r lin g to n Assoc. Ltd. P'ship v. City of Arlington, 669 F. Supp. 2d 735, 740­41 (N .D . Tex. 2009). According to Enclave, the City effected a seizure by denying residents a c c e s s to and from the Enclave complex during stadium events. However, " F o u r t h Amendment rights are personal rights, which may be enforced only by t h e person whose rights were infringed." United States v. Pack, 612 F.3d 341, 3 4 1 (5th Cir. 2010) (citation omitted); see also Rakas v. Illinois, 439 U.S. 128, 1 3 3 ­ 3 4 (1978) ("Fourth Amendment rights are personal rights which, like some o t h e r constitutional rights, may not be vicariously asserted.' ") (citations o m it t e d ); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 195 n.5 (5th Cir. 2009) (h o ld in g that a nightclub did not have standing to assert Fourth Amendment r ig h t s on behalf of its patrons); San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 7 0 4 (5th Cir. 1991) ("Because the record in this case is devoid of any evidence t h a t [the plaintiff] was personally subjected to an illegal search or seizure, [the p la in t iff] has no standing to assert the rights of third parties who may have been s u b je c t e d to such searches or seizures while at [the plaintiff's store]."). Enclave m a y not assert a Fourth Amendment claim based on the rights of third parties. Citing Gonzalez v. City Plan Commission, 2006 WL 278985, at *3 (N.D.

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Tex. Feb. 3, 2006), for the proposition that "[c]ourts have found seizures when p e r s o n a l property has been destroyed or devalued by state action," Enclave a lle g e s that the City's actions amount to "meaningful interference" with E n c la v e 's possessory interests because its property has been devalued by the C it y 's actions. Gonzalez, an unpublished case from the Northern District of T e x a s , is not binding precedent. Moreover, Enclave failed to direct the court to s u m m a r y judgment evidence showing that its property has been devalued as a r e s u lt of the City's actions. Although Enclave has presented evidence showing t h a t six residents filed "Notices of Intent to Move Out," citing traffic as a reason fo r their move, it has not presented evidence raising an issue of material fact t h a t the loss of six residents in a three-hundred-and-forty-eight unit apartment c o m p le x amounted to a devaluation of its property. F u r t h e r , Enclave alleges that the City's actions have meaningfully i n t e r f e r e d with its "use and enjoyment" of the property due to the "tens of t h o u s a n d s of pedestrians and vehicles" that pass near the Enclave complex on e v e n t days, the "partying" and "loud and boisterous conduct" in the stadium p a r k in g lot, and the noise caused by stadium events. Enclave fails to cite any a u t h o r it y supporting its contention that these inconveniences amount to a s e iz u r e under the Fourth Amendment. Because Enclave has failed to d e m o n s t r a t e a genuine issue of material fact on its Fourth Amendment claim, t h e district court's grant of summary judgment is AFFIRMED. ii. Enclave's Remaining Claims I n its opening brief, Enclave did not state that it was appealing the district c o u r t's grant of summary judgment on its Fifth Amendment, §1983, and private n u is a n c e claims. Although Enclave averred in its reply brief that it was not w a iv in g these claims and was appealing the entirety of the district court's order g r a n t in g summary judgment, it offered no argument or discussion as to the 5

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merit of these claims. "A party waives an issue if he fails to adequately brief it o n appeal." Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 926 (5th Cir. 2 0 0 8 ) (citation omitted); see also Edwards v. Johnson, 209 F.3d 772, 776 n.1 (5th C ir . 2000) (holding that if petitioner does not assign error to certain findings of t h e district court in its initial brief on appeal, then "any challenge to these fin d in g s has been abandoned on appeal"). "Merely mentioning a claim does not c o n s t it u t e a supported argument or adequate briefing." Sanders, 553 F.3d at 9 2 6 . Enclave has waived these claims and the district court's judgment as to E n cla v e 's Fifth Amendment, §1983, and private nuisance claims is AFFIRMED. B . Rule 56(f) Motion T h is court next determines whether the district court erred when it denied E n c la v e 's third request for a thirty-day continuance and merely allowed Enclave a fifteen-day continuance. The denial of a Rule 56(f) motion is reviewed for abuse o f discretion. Stearns Airport Equip. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1 9 9 9 ). The party seeking Rule 56(f) relief "may not simply rely on vague a s s e r t io n s that additional discovery will produce needed, but unspecified, facts." R a b y v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citing SEC v. Spence & G r e e n Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). A request to stay summary ju d g m e n t under Rule 56(f) must "set forth a plausible basis for believing that s p e c ifie d facts, susceptible of collection within a reasonable time frame, probably e x is t and indicate how the emergent facts, if adduced, will influence the outcome o f the pending summary judgment motion." Id. (quoting C.B. Trucking, Inc. v. W a s te Mgmt Inc., 137 F.3d 41, 44 (1st Cir. 1998)). I n its third Rule 56(f) motion, Enclave stated that it sought "limited d e p o s it io n s of certain representatives of the City and Dallas Cowboys." The m o t io n did not state the names of the individuals it wanted to depose, what the d e p o s it io n s might reveal, or how that evidence would impact the outcome of the 6

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pending summary judgment motion. During a hearing conducted by the district c o u r t via telephone, Enclave's attorney stated that additional time for discovery w a s necessary to identify evidence that would demonstrate that the Dallas C o w b o y s "dictat[ed] [to the City] the process of which properties to condemn [a n d ] . . . the process of the traffic flow plan." In response, the City, through c o u n s e l, informed the district court that it was not aware of any documents that in d ic a te d that the Cowboys were controlling the City's decision making. E n c la v e 's Rule 56(f) motion and representations to the district court consisted o f vague assertions. The district court did not abuse its discretion in granting E n c la v e a fifteen-day, rather than a thirty-day, continuance, and we AFFIRM. C O N C L U S IO N T h e district court's grant of summary judgment in favor of the City and its partial denial of Enclave's Rule 56(f) motion are AFFIRMED.

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