Richard Holland v. Simon Property Group Inc ( 2012 )


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  •                                                         NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 12-2251
    ___________
    RICHARD G. HOLLAND,
    Appellant
    v.
    SIMON PROPERTY GROUP, INC.; MACERICH; TIMOTHY KORHUMEL;
    DEPTFORD MALL SECURITY; JANINE IMPERATO, Security Guard;
    JOHN AND JANE DOES; ROBERT CHEROBSKI, Deptford Mall Security Guard;
    IPC INTERNATIONAL, INC
    ____________________________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civil Action No. 1-09-cv-00914)
    District Judge: Honorable Renee M. Bumb
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    August 28, 2012
    Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges
    (Opinion filed: August 29, 2012)
    ___________
    OPINION
    ___________
    PER CURIAM
    Richard G. Holland, proceeding pro se, appeals from the District Court’s orders
    granting summary judgment in favor of Defendants and denying his post-judgment
    motion to amend the complaint. For the reasons that follow, we will affirm.
    I.
    Holland is a self-described “champion for the rights of the disabled” and
    “secondary caregiver” for an individual who is severely disabled. 1 (Dkt. No. 40, ¶¶ 8-9.)
    On February 28, 2007, Holland visited a shopping mall in Deptford, New Jersey, (the
    “Deptford Mall”) to investigate its compliance with the Americans with Disabilities Act
    (“ADA”). (Id. ¶ 12.) At that time, the Deptford Mall had a policy prohibiting all visitors
    from videotaping the premises without prior approval (the “No-Videotaping Policy”).
    (Dkt. No. 66, Attach. 2, ¶ 10.) Holland was videotaping the parking lot when he was
    approached by two security guards. (Id. ¶ 12.) The security guards informed Holland of
    the No-Videotaping Policy and asked him at least three times to stop videotaping. (Id. ¶¶
    13-25.) He refused, stating that he was conducting an “assessment of handicapped
    parking.” (Id. ¶ 15.) The security guards claimed that Holland then acted in a
    1
    This factual background is taken from the record below. Defendants have filed a
    Motion to Strike Holland’s Statement of Facts in his appeal brief because those facts
    were presented for the first time on appeal. This Court does not “consider material on
    appeal that is outside of the district court record.” Webb v. City of Phila., 
    562 F.3d 256
    ,
    261 n.4 (3d Cir. 2009) (citation omitted). Therefore, Defendants’ motion to strike is
    denied as unnecessary.
    2
    threatening manner towards them. (Id. ¶¶ 26-27.) The local police were notified. (Dkt.
    No. 40, ¶ 14; Dkt. No. 66, Attach. 2, ¶ 30.) They arrived and asked Holland to leave and
    never return. (Dkt. No. 40, ¶ 14.) Regardless, Holland visited the Deptford Mall at least
    twice after February 28, 2007, without incident. (Dkt. No. 66, Attach. 8, Ex. B at 83:17-
    84:15; 87:4-17.)
    Holland commenced this case in February 2009. Holland claimed that Defendants
    retaliated against him under the ADA and the New Jersey Law Against Discrimination
    (“NJLAD”) by revoking his status as a business invitee and banning him from the
    Deptford Mall. 2 (Dkt. No. 40.)
    On August 24, 2010, the District Court granted Holland leave to amend his
    complaint. Discovery ensued. Defendants filed motions for summary judgment that
    were granted by opinion and order entered December 30, 2011. Holland filed a timely
    post-judgment motion to amend the complaint pursuant to Federal Rule of Civil
    Procedure 59(e), which the District Court denied. Holland timely filed his Notice of
    Appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
    II.
    1.     The District Court Properly Granted Summary Judgment in Favor of
    Defendants
    2
    After receiving Holland’s complaint, Defendants sent him a letter stating that he was
    never banned from the Deptford Mall, and that he was free to visit at any time. (Dkt. No.
    66, Attach. 3, Ex. A; Attach. 7, Ex. D.)
    3
    Our review of the District Court’s order granting summary judgment is plenary,
    and we apply the same test used by the District Court. Williams v. Phila. Hous. Auth.
    Police Dep’t, 
    380 F.3d 751
    , 758 (3d Cir. 2004). That is, we must be satisfied that there is
    “no genuine dispute as to any material fact and [that] the movant is entitled to judgment
    as a matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most favorable
    to Holland, the non-moving party. Williams, 380 F.3d at 758.
    Both the ADA and the NJLAD prohibit retaliation against any individual because
    he has opposed any act or practice made unlawful by those statutes. See 42 U.S.C. §
    12203(a); N.J. Stat. Ann. 10:5-12(d). To prove a prima facie case of retaliation under the
    ADA and the NJLAD, the plaintiff must demonstrate by a preponderance of the evidence
    that (1) he engaged in a protected activity; (2) he suffered an adverse action; and (3) a
    causal connection exists between the protected activity and the adverse action. Williams,
    380 F.3d at 759 (citing Krouse v. Am. Sterilizer Co., 
    126 F.3d 494
    , 500 (3d Cir. 1997)
    (other citation omitted)); Victor v. State, 
    4 A.3d 126
    , 141 (N.J. 2010). Once a prima
    facie case is made, the burden shifts to the defendant to articulate a legitimate, non-
    discriminatory reason for taking the adverse action. McDonnell Douglas Corp. v. Green,
    
    411 U.S. 792
    , 802 (1973); see also Williams, 380 F.3d at 759 n.3 (McDonnell Douglas
    framework applies to ADA retaliation claims). If the defendant meets that burden, the
    plaintiff has the burden of proving that the defendant’s reason was merely pretextual.
    McDonnell Douglas, 411 U.S. at 804.
    4
    The District Court determined that Holland’s investigative videotaping was a
    protected activity under the ADA and the NJLAD. (Dkt. No. 82, p. 11.) 3 Moving to the
    second prong of the prima facie case, it was Holland’s burden to prove that he suffered an
    adverse action. Williams, 380 F.3d at 759; Victor, 4 A.3d at 141. Holland alleged that
    the adverse actions were (1) Defendants calling the police and asking them to remove
    him from the Deptford Mall and (2) his being banned from the premises. 4 (Id., p. 12.)
    Holland did not meet his burden of proving by a preponderance of the evidence that he
    suffered an adverse action as a result of engaging in a protected activity. First, there was
    no evidence that any of the Defendants were involved with the local police ordering
    Holland to leave the Deptford Mall and never return. Second, Holland testified that he
    had freely visited the premises at least twice since February 28, 2007, and he produced a
    letter from Defendants stating that he was never banned from the Deptford Mall. (Dkt.
    No. 66, Attach. 7, Ex. D.) Holland did not suffer an adverse action at the hands of
    3
    We need not and do not decide whether characterizing the videotaping as protected
    activity was legally sound.
    4
    The District Court correctly declined to consider claims of retaliation asserted for the
    first time in Holland’s summary judgment opposition brief. Anderson v. DSM N.V., 
    589 F. Supp. 2d 528
    , 534 n.5 (D.N.J. 2008) (citing Shanahan v. City of Chi., 
    82 F.3d 776
    , 781
    (7th Cir. 1996) (“A plaintiff may not amend his complaint through arguments in his brief
    in opposition to a motion for summary judgment.”)).
    5
    Defendants. 5 Because Holland failed to prove a prima facie case of retaliation, the
    District Court properly granted summary judgment in favor of Defendants on his ADA
    and NJLAD claims.
    2.     The District Court Properly Denied Holland’s Motion for
    Reconsideration
    We review the denial of a motion for reconsideration for abuse of discretion, while
    reviewing the District Court’s underlying legal determinations de novo and its factual
    determinations for clear error. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,
    
    176 F.3d 669
    , 673 (3d Cir. 1999). The District Court liberally construed Holland’s Rule
    59(e) motion (Dkt. No. 94) as both a motion for reconsideration and a post-judgment
    motion to amend the complaint. A motion for reconsideration must rely on one of three
    grounds: (1) an intervening change in the law; (2) the availability of new evidence; or (3)
    the need to correct clear error of law or prevent manifest injustice. N. River Ins. Co. v.
    CIGNA Reinsurance Co., 
    52 F.3d 1194
    , 1218 (3d Cir. 1995). Holland did not identify
    any of these factors in his motion. He merely rehashed the arguments he presented in his
    summary judgment opposition brief. (Dkt. No. 84.) Finding no abuse of discretion by
    the District Court, we will affirm the denial of Holland’s motion for reconsideration.
    5
    Even if the Defendants asked Holland to leave the premises or directed the police to do
    so, they had a legitimate, non-retaliatory reason, that is, his undisputed refusal to comply
    with the No-Videotaping Policy. McDonnell Douglas, 411 U.S. at 802. Holland had no
    evidence that this reason was pretextual. Id. at 804.
    6
    3.     The District Court Properly Denied Holland’s Post-Judgment Motion
    to Amend His Complaint
    We review the denial of a post-judgment motion to amend a complaint for abuse
    of discretion. Burtch v. Milberg Factors, Inc., 
    662 F.3d 212
    , 220 (3d Cir. 2011), cert.
    denied, 
    132 S. Ct. 1861
     (2012) (citations omitted). The District Court’s underlying legal
    determinations are reviewed de novo and its factual determinations are reviewed for clear
    error. Id. Where, as here, the Rule 59(e) motion is timely filed, the District Court should
    consider the factors set forth in Federal Rule of Civil Procedure 15(a) when determining
    whether to grant the post-judgment motion to amend. Id. at 230. Those factors include
    “undue delay, bad faith, prejudice, or futility.” Id. at 230-31(citation omitted).
    Holland wanted to amend his complaint to add new claims for retaliation that were
    first asserted in his summary judgment opposition brief. (Dkt. No. 84, p. 2.) The District
    Court determined that Holland exhibited undue delay in seeking the amendment, that an
    amendment after entry of judgment would unfairly prejudice Defendants, and that his
    request was procedurally defective for failing to attach a copy of his proposed second
    amended complaint. (Dkt. No. 91.) We agree. Holland’s delay was undue for several
    reasons, all of which were properly analyzed by the District Court under our decision in
    Cureton v. Nat’l Collegiate Athletic Ass’n, 
    252 F.3d 267
    , 273 (3d Cir. 2001), and need
    not be repeated here. Defendants certainly would have been prejudiced if the motion
    were granted, as allowing Holland’s amendment would have resulted in “additional
    discovery, cost, and preparation to defend against new facts or new theories” after
    7
    judgment was entered in their favor. Id. Finally, Holland’s failure to submit a copy of
    his proposed second amended complaint, standing alone, was enough reason to deny his
    motion. Id. The District Court did not abuse its discretion in denying Holland’s post-
    judgment motion to amend his complaint. 6
    For the foregoing reasons, we will affirm the District Court’s orders granting
    summary judgment in favor of Defendants and denying Holland’s post-judgment motion
    to amend his complaint.
    6
    We have considered Holland’s argument that the District Court should have analyzed
    this motion under Federal Rule of Civil Procedure 60 and find it to be without merit.
    8