Petition for Writ of Certiorari — Wrench Transportation Systems, Inc. v. Kennedy

Sore Og us

No-08_ng-o 50 uw 14 2010

In The VFFICE Gr THE CLERK

Supreme Court of the Anited States

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WRENCH TRANSPORTATION SYSTEMS, INC.

and JAMES MALONE, JR.,

Petitioners,

v.

JOHN F. KENNEDY and LEAH ANN MACMAHON,

Respondents.

*

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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PETITION FOR A WRIT OF CERTIORARI

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ALAN WASSERMAN JEFFREY J. BROOKNER

Counsel of Record LAW OFFICES OF

WILENTZ, GOLDMAN & JEFFREY J. BROOKNER, LLC

SPITZER, P.A. 60 Nicole Terrace

90 Woodbridge Ctr. Dr. Bridgewater, NJ 08807

Woodbridge, NJ 07095 (908) 938-2553

(732) 855-6171

CONSTANTINE BARDIS

LAW OFFICES OF CONSTANTINE BARDIS, LLC

1800 Main Street

Lake Como, NJ 07719

(732) 280-2500

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does Substantive Due Process prohibit a State

from wrongfully seizing personal property, or does the

prohibition apply only to real property, as the Third

Circuit held?

2. Does 42 U.S.C. § 1983 provide a remedy when a

State actor, having determined that previously seized

personal property is no longer subject to forfeiture,

nonetheless refuses to return the property unless and

until the owner agrees to confer a personal benefit on

the State actor?

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LIST OF PARTIES

In addition to the parties listed on the cover, the

following were Defendants in the proceedings below,

but whose interests are not implicated by this

Petition:

Frank Bradley

Maryanne Lewicki

CORPORATE DISCLOSURE STATEMENT

Plaintiff Wrench Transportation Systems, Inc.

has no parent company, and no publicly held company

owns 10% or more of the corporation’s stock.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......00...... cece eeeeee eee i

Lee GH BEI ora sttareeistcdcnngdiesnneaused ii

CORPORATE DISCLOSURE STATEMENT ........ il

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TAARRE ae OOF AUT EaR REE ENED cocescesececccessvescssoecevessssee Vv

CITATIONS FOR OPINIONS BELOW..................

STATEMENT OF JURISDICTION .......................

CONSTITUTIONAL AND STATUTORY PROVI-

RD Ee SE racecorsciescoevatcctanccdnincuivatinneneneuees 1

STATEMENT OF THE CASE.......0............ccceeeceecees 3

PIII T, teittciiatntisabecesenapisibincanigiigsnencesdevsimn tigen 4

I. Certiorari should issue because the Panel’s

opinion contravenes Supreme Court authority

by failing to distinguish between the

incorporation and simpliciter strains of

Substantive Due Process ........................0-+++ 5

II. Certiorari should issue because, even

under the simpliciter strain of Substantive

Due Process, the Wrench Vehicles qualify

as a fundamental interest in property......... 8

IiIl. Certiorari should issue because this case

involves a monumental question of Consti-

tutional law — can a State actor be held

accountable for wrongfully seizing per-

OUI IIIT oiissncinisscivccccsccaseactuiadscnacaetss 10

iV

TABLE OF CONTENTS -— Continued

Page

IV. Granting a writ of certiorari would con-

sume relatively little of this Court’s

resources because summary disposition

WOUIG DO SNPTOPTIAE ........cccecccvcevecessseseceveess 11

II cicthicuiai ca cadasnutiedudeicesnadscucerstonsabaacideio 12

APPENDIX

July 28, 2009 Opinion of the Court of Appeals

Be ee ee I hccietcennsnensecorencsecBinaceucenscnes App. l

July 28, 2009 Order of the Court of Appeals for

ee I aise shi ieckinecnticcbreretencsneesninnens App. 10

November 29, 2007 District Court Opinion

granting summary judgment.......................-. App. 12

November 28, 2007 District Court Order

granting summary judgment.....................0.+ App. 39

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994)............0.... eee eee 5

Altman v. City of High Point, 330 F.3d 194 (4th

a lel 6

Alvarez v. Smith, 129 S. Ct. 1401 (2009)................... 10

Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995) .............. 7

DeBlasio v. Zoning Board, 53 F.3d 592 (3d Cir.

NING cca tacit “4s olan. Ueeeenleas ius es delle au sivas anaiesoendanannaces 11

Ker v. California, 374 U.S. 23 (1963)................ceeeee eee 5

Leebaert v. Harrington, 332 F.3d 134 (2d Cir.

cities aia ara sca ee easel amas tus eas beemeanéabenaoel 8

Montana v. Egelhoff, 518 U.S. 37 (1996) ..................... 8

Parratt v. Taylor, 451 U.S. 527 (1981)...............0......... 6

Reitz v. County of Bucks, 125 F.3d 139 (3d Cir.

yg RREESERIZIRRE RIES ES re ReN ES ORE A NE AN CES MONS a 7

Schrob v. Catterson, 948 F.2d 1402 (3d Cir.

REINER ATC Roe SA ROR ACN PIER HEA One TN A sea 7

Soldal v. Cook County, 506 U.S. 56 (1992).................. 7

U.S. v. Jacobson, 466 U.S. 109 (1984) ...........0..02.. 22... 7

Zinermon v. Burch, 494 U.S. 113 (1990).................. 5,6

STATUTES

I Ds oa care sctinasinanhbudedanenmuatpanaouinelall 1

BO I iin pes cree dcarcecssniccaninoaseunsaiesnasanncermmmmuaneen 4

wrt od

> # y ” La ow ll ‘ a ~~ ~~ bd PP. 4 —

tl — S a ad e , 7 o ?* oe , a

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TABLE OF AUTHORITIES — Continued

Page

ZB U.S.C. $ LSB ...cccccccces FAS ORDO a RR SO ee CTE 4

ee asuadaouseeuounanans 4

EE, Oe BIE cccsvecicuscndeacacces OEE SUNS SENT ARE ee

CONSTITUTIONAL PROVISIONS

Seis Acs MUNIN, BY cccnsoccarsecaceccccsccnvscesiscness 1, 5, 6, 7

Br , c, MAMIE, FEW © Dvescccscccnceccccescvcccvesecses 2, 5,6

OTHER AUTHORITIES

Black’s Law Dictionary 592 (9th ed. 2009).................. 6

REED RE SOE OTR SS 9g

1

CITATIONS FOR OPINIONS BELOW

The District Court’s Opinion granting summary

judgment (App. 12—38) was not published.

The Third Circuit’s Opinion affirming the grant

of summary judgment (App. 1—9) was not published.

The Third Circuit’s Order denying rehearing

(App. 41-42) was not published.

+

STATEMENT OF JURISDICTION

The Court of Appeals entered its decision on July

28, 2009, and denied rehearing on October 16, 2009.

This Court’s jurisdiction is conferred by 28 U.S.C.

§ 1254(1).

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CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

U.S. Const., Amend. IV

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

2

U.S. Const., Amend. XTV, §$ 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

42 U.S.C. § 1983 (“Section 1983”)

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or declara-

tory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a

statute of the District of Columbia.

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3

STATEMENT OF THE CASE'

Wrench Transportation Systems, Inc. and its sole

shareholder, James Malone (together, “Wrench”)

operated a waste-hauling business. Wrench owned

and used six vehicles (the “Wrench Vehicles”) that

were critical to the company’s operations.

As part of an investigation into allegedly illegal

waste hauling, the State of New Jersey initiated an in

rem forfeiture action against, and seized, the Wrench

Vehicles in August 1993. Defendant John Kennedy

was the Deputy Attorney General in charge of the

underlying criminal prosecution; Defendant Leah

Ann MacMahon was the Deputy Attorney General

who brought the forfeiture action.

The State’s investigation exonerated Wrench,

which if anything had been an innocent pawn in

others’ wrongdoing. Thus, as early as January 15,

1994, Defendants advised Wrench that the Wrench

Vehicles were not properly subject to forfeiture. But

as a precondition to returning the Wrench Vehicles to

Wrench, Defendants insisted that Wrench provide

testimony against someone higher up in the investi-

gation. Wrench was unable to do so because it had no

knowledge of wrongdoing. Thus, the State returned

the Wrench Vehicles to their respective lien holders.

* Because the District Court granted summary judgment,

this Statement of the Case is made in the light most favorable to

the Petitioners.

The lien holders liquidated all but one of the vehicles,

yielding no surplus.

As of May 1995, the last of the Wrench Vehicles

was still being held subject to the forfeiture action.

MacMahon refused to release that vehicle to Wrench

unless and until Wrench signed a release in Defen-

dants’ favor. Wrench refused to sign such a release.

Ultimately, the State dismissed the forfeiture action

in May 1999 — almost 6 years after it was com-

menced. No criminal charges were ever filed against

Wrench.

Wrench sued Defendants and others in the

United States District Court for the District of New

Jersey, asserting claims under Section 1983. The

District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1331 & 1343. The District Court granted summary

judgment dismissing all claims on November 28,

2007. Wrench appealed to the Third Circuit, with

jurisdiction premised on 28 U.S.C. § 1291. The Third

Circuit affirmed on July 28, 2009, and denied re-

hearing on October 16, 2009. This Petition for a Writ

of Certiorari follows.

ARGUMENT

Section 1983 provides a remedy when a State

actor deprives a citizen of any “right ... secured by

the Constitution.” The Panel dismissed Wrench’s

claims on the ground that the right at issue — an own-

ership interest in personal property used for business

purposes — was not secured by the United States

Constitution. Instead, the Panel held that protection

from unreasonable seizure by the States extends only

to real property. (App. 7). Because this conclusion is

contrary to Supreme Court authority, and because

this case involves important questions of Constitu-

tional law, a writ of certiorari should issue.

'. Certiorari should issue because the Panel’s

opinion contravenes Supreme Court authority

by failing to distinguish between the in-

corporation and simpliciter strains of

Substantive Due Process.

The Due Process Clause of the Fourteenth

Amendment bars States from “depriviing] any person

of life, liberty, or property, without due process of

law.” On its face, this lim _tation might appear to be

exclusively procedural. But this Court has recognized

that the Due Process Clause has two substantive

strains as well. See Zinermon v. Burch, 494 U.S. 113,

125 (1990). The first strain of Substantive Due

Process “incorporates” provisions of the Bill of Rights

that otherwise apply only to the Federal government,

making those provisions applicable to the States as

well. Id.; see also Albright v. Oliver, 510 U.S. 266,

272-73 (1994) (summarizing the historical develop-

ment of incorporation); Ker v. California, 374 U.S. 23,

30 (1963) (holding that the Fourth Amendment’s

prohibition against unreasonable search and seizure

applies to the States pursuant to the Fourteenth

Amendment). The second strain of Substantive Due

6

Process, sometimes known as the “simpliciter” strain,

prohibits State action that is so arbitrary or wrongful

as to be substantively improper, “regardless of the

fairness of procedures used to implement them.”

Zinermon, supra, 494 U.S. at 125; Parratt v. Taylor,

451 U.S. 527, 536 (1981).

The Panel analyzed whether the State’s conduct

in this case deprived Wrench of its rights under the

simpliciter strain of Substantive Due Process. (App.

6-9). But the Panel did not address whether the

State’s conduct violated the Fourth Amendment’s pro-

hibition against unreasonable searches and seizures,

as applied to the States pursuant to the “incorpora-

tion” strain of Substantive Due Process. This case

was plead and argued below as a wrongful-seizure

case under the Fourth and Fourteenth Amendments.

Thus, the Panel erred by analyzing the claims solely

under the simpliciter framework.

The Panel’s opinion, analyzed under an incor-

poration framework, contravenes Supreme Court

authority as well as the plain language of the Fourth

Amendment. That Amendment prohibits unreason-

able seizure of “effects.” At the time the Fourth

Amendment was adopted, the term “effects” was

specifically understood to include business property.

See Altman v. City of High Point, 330 F.3d 194, 201

(4th Cir. 2003) (noting that a 1730 dictionary defined

“effects” as “the goods of a merchant, tradesman,

& c”); see also Black’s Law Dictionary 592 (9th ed.

2009) (defining “effects” to mean “movable property;

goods”). Thus, there can be no doubt that the term

7

“effects” includes a fleet of vehicles used for a

business.

This conclusion is consistent with the manifest

intent of our founding fathers in drafting the Fourth

Amendment, and with an originalist understanding

of the Amendment’s scope. It is safe to say that a

blacksmith in the late 18th Century would have

expected his anvil to be considered an “effect” entitled

to protection from unreasonable seizure. Yet the

Panel’s opinion would dictate a contrary result.

This Court routinely applies the Fourth Amend-

ment to prohibit unreasonable seizures of personal

property. E.g., Soldal v. Cook County, 506 U.S. 56,

61—71 (1992) (seizure of mobile home and its con-

tents); U.S. v. Jacobson, 466 U.S. 109, 124—25 (1984)

(seizure of powder for chemical testing). At least one

Circuit Court has held that Section 1983 provides a

remedy for an unreasonable seizure of personal prop-

erty by a State actor. See Davis v. Bayless, 70 F.3d

367, 375 (5th Cir. 1995); see also Reitz v. County of

Bucks, 125 F.3d 139 (3d Cir. 1997) (assuming, without

discussion, that the Fourth Amendment applies to a

case involving seizure of personal property); Schrob v.

Catterson, 948 F.2d 1402 (3d Cir. 1991) (same).

Here, the Panel overlooked the “incorporation”

strain of Substantive Due Process jurisprudence in

holding that Wrench’s interest in the Wrench Vehicles

was not Constitutionally protected. Because this

analysis fundamentally conflicts with Supreme Court

8

and Circuit Court authority, a writ of certiorari

should issue.

II. Certiorari should issue because, even

under the simpliciter strain of Substantive

Due Process, the Wrench Vehicles qualify

as a fundamental interest in property.

Moreover, were this case guided by principles of

Substantive Due Process. simpliciter, personal

property would nonetheless be subject to protection

as a “fundamental right.” “Our primary guide in

determining whether the principle in question is

fundamental is, of course, historical practice.”

Montana v. Egelhoff, 518 U.S. 37, 43 (1996). “Rights

are fundamental when they are implicit in the

concept of ordered liberty, or deeply rooted in this

Nation’s history and tradition.” Leebaert v. Harring-

ton, 332 F.3d 134, 140 (2d Cir. 2003). Ownership of

personal property is a fundamental Constitutional

right, “implicit in the concept of ordered liberty” and

“deeply rooted in this Nation’s history and tradition.”

This Court should issue a writ of certiorari to review

the Panel’s conclusion to the contrary.

The Panel’s opinion cites a string of cases

establishing that rights created solely by state law —

such as employment tenure rights, or the right to a

public contract — are not fundamental, and thus are

not protected by the simpliciter strain of Substantive

Due Process. (App. 7-8). The conclusions in the cited

cases are sound because the property interests in

9

question were not rooted in a property interest of a

type that would have existed in 1787, much less ones

that would have been considered “deeply rooted in the

Nation’s history.” The mere fact that such rights may

have come to be recognized as “property” under mod-

ern law does not give them a Constitutional dimen-

sion.

But the Panel sought to squeeze a round peg into

a square hole by characterizing Wrench’s interest as a

“right to ‘engage in business’” that is “more similar to

the type of intangible employment rights that the

Court has rejected as not protected by substantive

due process.” (App. 7). The Panel did mention that

Wrench also “asserted a right to the ownership of the

trucks” (App. 7), but this significant point was lost in

the remainder of the analysis.

Ownership of tangible personal property is an

interest that dates back thousands of years. See, e.g.,

Exodus 20:15 (“Thou shalt not steal.”). It is hard to

imagine a right that is more “deeply rooted” in our

history, or more “implicit in the concept of ordered

liberty.” Accordingly, the Panel erred by concluding

that Wrench’s interest in the Wrench Vehicles was not

a “fundamental” right protected by the Constitution.

10

Ill. Certiorari should issue because this case

involves a monumental question of Con-

stitutional law —- can a State actor be held

accountable for wrongfully seizing per-

sonal property?

Whether ownership of personal property is a

Constitutionally protected right, and thus whether it

is protected by reasonable limitations upon seizure,

are questions of great importance to citizens of this

Nation, and to the parties in this case.

Wrench owned the Wrench Vehicles, and de-

pended on those vehicles to operate their business.

Defendants seized the Wrench Vehicles in connection

with a criminal investigation, but later determined

that the vehicles were not properly subject to seizure.

Rather than return the vehicles, Defendants abused

their position of authority by refusing to release the

vehicles unless Wrench offered untrue testimony

against other targets, and unless Wrench agreed to

sign a release exonerating Defendants from personal

liability.

Such abuses, and the proper reach of seizures

more generally, is a critical issue. Under the Panel’s

decision, the State would be entitled to seize personal

property whenever it wanted to, for whatever reason,

without any risk of offending the Constitution.

By issuing a writ of certiorari last term in

Alvarez v. Smith, 129 S. Ct. 1401 (2009), this Court

recognized that curbing abuses of this nature is an

important issue meriting consideration. Unfortunately,

11

there is a “paucity of guidance” from this Court

regarding the scope of Substantive Due Process sim-

pliciter in this and similar contexts. See, e.g.,

DeBlasio v. Zoning Board, 53 F.3d 592, 598 (3d Cir.

1995). Accordingly, a writ of certiorari is warranted.

IV. Granting a writ of certiorari would consume

relatively little of this Court’s resources

because summary disposition would be

appropriate.

The Third Circuit panel addressed the case under

the wrong analytical framework. Petitioners respect-

fully request that this Court grant certiorari, vacate

the judgment below, and remand to the Third Circuit

for reconsideration of the case under the correct

analytical framework.

*

12

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

ALAN WASSERMAN JEFFREY J. BROOKNER

Counsel of Record LAW OFFICES OF

WILENTZ, GOLDMAN & JEFFREY J. BROOKNER, LLC

SPITZER, P.A. 60 Nicole Terrace

90 Woodbridge Ctr. Dr. Bridgewater, NJ 08807

Woodbridge, NJ 07095 (908) 938-2553

(732) 855-6171

CONSTANTINE BARDIS

LAW OFFICES OF CONSTANTINE BARDIS, LLC

1800 Main Street

Lake Como, NJ 07719

(732) 280-2500

App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4817

WRENCH TRANSPORTATION SYSTEMS, INC.;

JAMES MALONE, JR..,

Appellants

v.

FRANK BRADLEY; JOHN F. KENNEDY;

MARIANNE [sic] LEWICKI;

LEAH ANN MCMAHON [sic]

On Appeal from the United States District Court

for the District of New Jersey

(No. 95-cv-06203)

District Judge: Honorable Jose L. Linares

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 20, 2008

Before: BARRY and CHAGARES, Circuit Judges and

RESTANI, Judge’

(Filed: July 28, 2009)

' The Honorable Jane A. Restani, Chief Judge, United

States Court of International Trade, sitting by designation.

App. 2

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Plaintiffs Wrench Transportation Systems, Inc.

and its sole stockholder, James Malone, Jr. (“Malone”)

appeal the District Court’s grant of summary judg-

ment in favor of defendants John Kennedy and Leah

Ann McMahon (“Kennedy” and “McMahon’”). Because

we find that Malone is not entitled to substantive due

process protection for his purported interest in either

his right to “engage in business” or his personal

property ownership of his trucks, we will affirm the

District Court’s grant of summary judgment in favor

of Kennedy and McMahon.

[.

Because we write only for the parties, we will

only address the facts that are relevant to our

analysis. This case arises out of the civil forfeiture of

certain Malone trucks seized in connection with a

New Jersey state criminal investigation about the

illegal transport of waste oil. Malone claims that

the defendants violated his substantive due process

rights when they allegedly refused to return the

Malone vehicles unless Malone signed a release and

provided testimony for them in connection with the

criminal investigation.

To pursue this claim, Malone sued Frank Bradley

(a New Jersey state investigator) (“Bradley”),

Marianne Lewicki (a New Jersey state investigator)

App. 3

(“Lewicki”), Kennedy, and McMahon under 42 U.S.C.

§ 1983. In 2003, the District Court granted summary

judgment to defendant Marianne Lewicki on the

grounds of absolute immunity. See Appendix (App.)

14-15. Malone did not appeal that decision. In Wrench

Transp. Serv., Inc. v. Bradley, 136 F. App’x 521 (3d

Cir. 2005) (“Wrench I”), we found that Bradley was

entitled to qualified immunity because Malone was

unable to show a causal connection between Bradley’s

actions and the return of the Malone trucks. See

Wrench I, 136 F. App’x at 522. At that time, we

declined to decide whether Malone had a protectible

substantive due process interest. /d.

In Wrench Transp. Sys., Inc. v. Bradley, 212 F.

App’x 92, 98-100 (3d Cir. 2006) (“Wrench II”), we

found that Kennedy and McMahon were not entitled

to absolute immunity for their alleged actions in

connection with their post-seizure conduct regarding

Malone’s property, because they were acting in an

investigatory, rather than a prosecutorial, capacity.

We also held that there was no evidence that

Kennedy or McMahon tried to coerce false testimony

from Malone in exchange for the trucks. Jd. at 100.

The case then returned to the District Court,

where Kennedy and McMahon argued both that

Malone had failed to show that his substantive due

process rights were violated, and that, even if

Malone’s rights had been violated, Kennedy and

McMahon were still entitled to qualified immunity.

The District Court granted summary judgment in

favor of Kennedy and McMahon. It found that, with

App. 4

regard to Kennedy, Malone had failed to establish a

causal connection between Kennedy’s actions and his

alleged injuries, as he was required to do, and that

Kennedy was entitled to summary judgment. See

Wrench Transp. v. Bradley, No. 95-cv-06203, 2007 WL

4233011 at *4, *9 (D.N.J. Nov. 29, 2007) (“Wrench

IIT’). In addition, the District Court noted that even if

Malone had established a causal connection between

Kennedy’s actions and his alleged injuries, his failure

to establish that he had a property interest that is

protected by substantive due process would result in

the failure of his claim. Although the District Court

held that McMahon’s actions met the causal connec-

tion standard, it nevertheless found that McMahon

was entitled to summary judgment because Malone

failed to establish a substantive due process violation,

a showing which is required for a 42 U.S.C. § 1983

claim. Id. at *8.

IT.

The District Court had jurisdiction under 28

U.S.C. § 1331 and 1343. We have jurisdiction pur-

suant to 28 U.S.C. § 1291. This Court reviews the

grant of summary judgment de novo. Gonzalez uv.

AMR, 549 F.3d 219, 223 (3d Cir. 2008). “Summary

judgment is appropriate only where there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” /d. (citation

omitted). See Fed. R. Civ. P. 56(c). When analyzing a

summary judgment claim, “we must view the facts in

the light most favorable to the non-moving party, and

App. 5

draw all reasonable inferences therefrom in that

party’s favor.” New Jersey Transit Corp. v. Harsco

Corp., 497 F.3d 323, 326 (3d Cir. 2007) (citation

omitted).

ITI.

Section 1983 provides that “[elvery person who,

under color of any statute, ordinance, regulation,

custom, or usage, of any State ... subjects, or causes

to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress....” It is a

remedial statute; it does not create rights. Kneipp v.

Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To succeed

on a § 1983 claim, “a plaintiff must show that the

defendants, acting under color of law, violated the

plaintiff’s federal constitutional or statutory rights,

and thereby caused the complained of injury.” Elmore

v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citation

omitted). Thus, we first look to see whether Malone

was deprived of a constitutional right. The District

Court found that he was not. We agree.

Malone contends that Kennedy and McMahon

violated his rights under the substantive due process

clause of the Fourteenth Amendment when they

failed to return the Malone trucks. He argues that

“ownership of trucks, which are used to support [a]

App. 6

business, is a property interest protected by the

Constitution. ...” Appellant Br. at 27-28. He also

contends that he has a fundamental right to “conduct

business.” Jd. at 30.

The Fourteenth Amendment provides that no

state shall “deprive any person of life, liberty, or

property, without due process of law. .. .” U.S. Const.

amend. XIV. Substantive due process is a “component

of the [Fourteenth Amendment] that protects

individual liberty against ‘certain government actions

regardless of the fairness of the procedures used to

implement them.’” Collins v. City of Harker Heights,

503 U.S. 115, 125 (1992) (quoting Daniels v. Williams,

474 U.S. 327, 331 (1986)). The Supreme Court

explained in Collins that “|als a general matter, the

Court has always been reluctant to expand the

concept of substantive due process because guideposts

for responsible decisionmaking in this ... area are

scarce and open-ended.” /d. (citation omitted). See

also Nicholas v. Pa. State. Univ., 227 F.3d 133, 140

(3d Cir. 2000) (citation omitted) (“The history of

substantive due process ‘counsels caution and re-

straint.’”).

Whether the property right asserted is entitled to

substantive due process protection depends on

whether it is considered “fundamental.” Nicholas, 227

F.3d at 140. Fundamental rights are rights that are

“deeply rooted in the Nation’s history and tradi-

tions. ... [and] interests implicit in the concept of

ordered liberty like personal choice in matters of

marriage and family.” Jd. at 143 (citations and

App. 7

quotation marks omitted). While this Court has found

that there can be a fundamental interest in real

property, interests like “a low bidder’s entitlement to

state contract” as well as an entitlement to public

tenured employment are not fundamental. /d. at 142.

Indeed, Malone concedes that this Court has held

that employment is not a protected property interest

under a substantive due process analysis.

Here, we agree with the District Court’s finding

that Malone’s asserted interests — the right to

“engage in business” and his right to the ownership of

the trucks — are more similar to the type of intangible

employment rights that this Court has rejected as not

protected by substantive due process than the real

property interests which can be protected by substan-

tive due process. Cf. Leib v. Hillsborough County Pub.

Transp. Comm'n, 558 F.3d 1301, 1306 n.4 (11th Cir.

2009) (noting that while the plaintiff “abandoned” his

claim that he was deprived of the “right to earn a

living” nevertheless it “would have failed in any event

given ... that employment rights do ‘not enjoy

substantive due process protection....’”); Hill uv.

Borough of Kutztown, 455 F.3d 225, 234 n.12 (3d Cir.

2006) (“To the extent [plaintiff’s] substantive due

process claim was based not only on loss of his job,

but also on reputational injury that decreased his

‘ability to earn a living,’ it also fails.”); Medeiros v.

Vincent, 431 F.3d 25, 32 (1st Cir. 2005) (“The right to

‘make a living’ is not a ‘fundamental right’... for

substantive due process purposes.”). In addition,

while we have stated that “ownership is a property

App. 8

interest worthy of substantive due process protec-

tion,” DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d

592, 600 (3d Cir. 1995), abrogated on other grounds

by United Artists Theatre Cir, Inc. v. Twp. of

Warrington, 316 F.3d 392, 400 (3d Cir. 2003), in

Nicholas, we noted: “we have so far limited non-

legislative substantive due process review to cases

involving real property ownership.” 227 F.3d at 141

(emphasis added). Accordingly, we conclude that

Malone has failed to establish that his personal

property interest in his trucks is “fundamental” for

purposes of our Fourteenth Amendment substantive

due process analysis.

We therefore find that Malone has failed to

establish that he has a property right which is

protected by the Constitution.” Because Malone has

failed to establish any substantive due process right

here, regardless of the any [sic] causal connection

between Kennedy and the return of the trucks, the

arguments that Malone makes in his brief regarding

potential genuine issues of material fact with regard

to whether Kennedy caused a deprivation of his

* Because we find that Malone's claim does not establish

the deprivation of a Constitutional right, we need not determine

whether Kennedy and McMahon are entitled to qualified

immunity. See Pearson v. Callahan, 129 S.Ct. 808, 815-18

(2009) (upholding the two prongs of qualified immunity analysis

that a plaintiff must show a “violation of a constitutional

right” and that the right was “clearly established” — but finding

that they do not necessarily have to be examined in a particular

order).

App. 9

rights are rejected. Accordingly, the District Court did

not err in granting summary judgment in favor of

Kennedy and McMahon.

We briefly note that Malone also argues that the

District Court erred when it found that Malone was

barred from challenging a protective order that had

been issued by the Magistrate Judge in this case

because Malone had not filed timely objections. This

Court has previously considered and rejected Malone’s

argument on this issue. Wrench II, 212 F. App’x at

100-01. We are not inclined to disturb our prior

decision, and will therefore affirm the District Court’s

ruling.

V.

For the foregoing reasons, we affirm the judg-

ment of the District Court.

App. 10

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4817

WRENCH TRANSPORTATION SYSTEMS, INC.;

JAMES MALONE, JR..,

Appellants

v.

FRANK BRADLEY; JOHN F. KENNEDY;

MARIANNE LEWICKI; LEAH ANN MCMAHON

On Appeal from the United States District Court

for the District of New Jersey

(No. 95-cv-06203)

District Judge: Honorable Jose L. Linares

Submitted Under Third Circuit LAR 34.1(a)

November 20, 2008

Before: BARRY and CHAGARES, Circuit Judges and

RESTANI, Judge’

“The Honorable Jane A. Restani, Chief Judge, United

States Court of International Trade, sitting by designation.

App. 11

JUDGMENT

This cause came on to be heard on the record

from the United States District Court for the District

of New Jersey and was submitted pursuant to Third

Circuit LAR 34.1(a) on November 20, 2008.

On consideration whereof, it is now hereby

ADJUDGED and ORDERED by this Court that the

judgment of the United States District Court for the

District of New Jersey entered November 29, 2007 is

hereby affirmed. All of the above in accordance with

the opinion of this Court.

Costs taxed against appellants.

Attest:

/s/ Marcia M. Waldron, Clerk

DATED: July 28, 2009

App. 12

2007 WL 4233011 (D.N.J.)

NOT FOR PUBLICATION

United States District Court,

D. New Jersey.

WRENCH TRANSPORTATION, et al., Plaintiffs,

v.

Frank BRADLEY, et al., Defendants.

Civil Action No. 95-cv-06203 (JLL).

Nov. 29, 2007.

Constantine Bardis, Law Offices of Constantine

Bardis, LLC, Lake Como, NJ, Jay William McCann,

Paterson, NJ, for Plaintiffs.

Robert P. Shane, Brian G. Flanagan, Office of the NJ

Attorney General, Trenton, NJ, for Defendants.

OPINION

LINARES, District Judge.

This matter comes before the Court by way of

cross-motions for summary judgment filed by Plain-

tiffs, Wrench Transportation Systems, Inc. and James

Malone, Jr. [CM/ECF Docket Entry No. 101], and

Defendants, John Kennedy and Leah Ann McMahon

[CM/ECF Docket Entry No. 100]. The Court has

considered the submissions made in support of and in

opposition to the motions. No oral argument was

heard. Fed.R.Civ.P. 78. For the reasons set forth

below, Defendants’ motion for summary judgment is

GRANTED and Plaintiffs’ motion for summary

judgment is DENIED.

App. 13

BACKGROUND

1. Factual Background

A detailed factual background of this case was set

forth by the Court on the record on September 16,

2003 and October 27, 2003, and will not be repeated

here, except where necessary to provide context for

the pending motions for summary judgment.

Generally speaking, this action arose from

Defendants’ seizure of several vehicles which Plain-

tiffs utilized in their business activities. As a result of

this seizure, and a series of events that followed, on

December 8, 1995, Plaintiffs Wrench Transportation

Systems, Inc., and its sole shareholder, James

Malone, Jr. (collectively “Plaintiffs”), commenced the

instant cause of action against Defendants Frank

Bradley (New Jersey state investigator), John

Kennedy (Deputy Attorney General of New Jersey),

Marianne Lewiki (New Jersey state investigator),

and Leah Ann McMahon (Deputy Attorney General of

New Jersey) pursuant to 42 U.S.C. § 1983, alleging

that Plaintiffs were deprived of their property, in

violation of the substantive component of the Four-

teenth Amendment’s Due Process Clause.

2. Procedural Background

On September 16, 2003, this Court granted sum-

mary judgment to Defendants Kennedy and Lewicki

on grounds of absolute immunity. By way of oral

Opinion rendered on October 27, 2003, this Court

also (1) granted summary judgment to Defendant

App. 14

McMahon on absolute immunity grounds, and (2)

denied summary judgment as to Defendant Bradley,

finding that he was not entitled to qualified

immunity.

On June 27, 2005, the Third Circuit reversed this

Court’s October 27, 2003 Order as to Defendant

Bradley, finding that “[blecause Malone failed to

connect Bradley’s conduct to the continued retention

of the vehicles in which Malone assertedly possessed

a protected property interest, Bradley is entitled to

summary judgment.” Wrench Transp. Servs., Inc. v.

Bradley, 136 Fed. Appx. 521, 524 (3d Cir.2005)

(hereinafter “Wrench I”). Accordingly, by way of Order

dated October 5, 2005, this Court entered summary

judgment in favor of Defendant Bradley.

On December 21, 2006, the Third Circuit

affirmed this Court’s grant of summary judgment as

to Defendants Kennedy and McMahon “insofar as

Malone attempts to rest liability on their alleged

attempts to force James Malone to provide false

testimony.” Wrench Transp. Servs., Inc. v. Bradley,

212 Fed. Appx. 92, 100 (3d Cir.2006) (hereinafter

“Wrench II”). However, the Third Circuit reversed

this Court’s finding that Defendants Kennedy and

McMahon were entitled to absolute immunity to the

extent that such finding was “based upon their

conduct in delaying the return of Malone’s trucks

and conditioning that return on the execution of a

release.” Jd. at 101. Accordingly, by way of Order

dated January 16, 2007, this Court vacated its prior

entry of summary judgment as to Defendants

App. 15

Kennedy and McMahon, insofar as it was based upon

their assertion of absolute immunity with respect to

their conduct in delaying the return of property

belonging to Plaintiffs, and conditioning the return of

said property on the execution of a release.

This case was thus re-opened on January 16,

2007, and cross-motions for summary judgment were

filed by the parties on March 23, 2007. Oral argu-

ment was held before this Court on July 23, 2007.

Plaintiffs now argue that they are entitled to

summary judgment as to the liability of Defendants

Kennedy and McMahon for violating Plaintiffs’

substantive due process rights." Defendants Kennedy

and McMahon, on the other hand, claim that (1)

Plaintiffs have failed to establish a viable substantive

due process claim, and (2) in any event, they are

entitled to qualified immunity for their conduct.

Even in the absence of the Third Circuit’s

directive, this Court would, in any event, decline to

‘ Plaintiffs also attempt to re-open discovery by challenging

a protective order issued by Magistrate Judge Hedges on

December 22, 1997 as part of their cross-motion for summary

judgment. The Court need not address this argument as the

Third Circuit already found, in the context of Wrench II, that (a)

Plaintiffs failed to properly object to Magistrate Judge’s

December 22, 1997 ruling, and (b) any prejudice to Plaintiffs

that would result in the absence of the Court’s review of

Magistrate Judge Hedges’ decision “is not sufficient to establish

the ‘manifest injustice’ required to review an issue in the

absence of a properly filed objection to a Magistrate Judge’s

ruling.” Wrench IT, 212 Fed. Appx. at 101.

App. 16

entertain Plaintiffs’ attempt to re-open discovery. By

way of Order dated February 7, 2007, this Court

ordered that all discovery-related motions be filed

within fifteen days of entry of that Order. Plaintiffs

failed to file any such motion within fifteen days.

Instead, without leave of Court, Plaintiffs made a

belated attempt to re-open discovery by challenging

Magistrate Judge Hedges’ December 22, 1997 pro-

tective order in the context of their cross-motion for

summary judgment, which was filed on March 23,

2007 — well over fifteen days from entry of this

Court’s February 7, 2007 Order.

LEGAL STANDARD

A court shall grant summary judgment under

Rule 56(c) of the Federal Rules of Civil Procedure “if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

On a summary judgment motion, the moving

party must show, first, that no genuine issue of

material fact exists. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The burden then shifts to the non-

moving party to present evidence that a genuine, fact

issue compels a trial. Jd. at 324. In so presenting, the

non-moving party must offer specific facts that

establish a genuine issue of material fact, not just

“some metaphysical doubt as to the material facts.”

App. 17

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986). Thus, the

nonmoving party may not rest upon the mere

allegations or denials in its pleadings. See Celotex,

477 U.S. at 324. Further, the non-moving party

cannot rely on unsupported assertions, bare allega-

tions, or speculation to defeat summary judgment.

See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172

F.3d 238, 252 (3d Cir.1999). The Court must, however,

consider all facts and their reasonable inferences in

the light most favorable to the non-moving party. See

Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236

(3d Cir.1995).

For purposes of efficiency, the Court will first

address Defendants’ motion for summary judgment.

DISCUSSION

1. Plaintiffs’ Section 1983 Claim

Plaintiffs claim that Defendants, while acting

under color of state law, deprived Plaintiffs of their

interest in the vehicles, in violation of Plaintiffs’

constitutional rights pursuant to 42 U.S.C. § 1983.’ In

* Section 1983 states in relevant part: “[elvery person who,

under color of any statute, ordinance, regulation, custom, or

usage, of any State ... subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. . . .” 42 U.S.C. § 1983.

App. 18

particular, Plaintiffs claim that “[t]he evidence shows

that Kennedy and McMahon callously refused to

return plaintiffs’ seized vehicles that they knew were

necessary to his livelihood so that they could coerce

Malone into providing testimony against other

targets of Operation Boilermaker and in order to

procure personal releases from any liability for these

actions.” (Pl. MSJ at 19).

To establish section 1983 liability, a plaintiff

must show “that the official acting under color of

state law caused the deprivation of a federal right.”

Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting

Kentucky v. Graham, 473 U.S. 159, 166 (1985)).” This

is because section 1983 itself is not a source of sub-

stantive rights, but provides a vehicle for vindicating

the violation of rights created by the United States

Constitution or federal law. See Graham v. Connor,

490 U.S. 386, 393-94 (1989); Morse v. Lower Merion

School Dist., 132 F.3d 902, 907 (3d Cir.1997). Thus, in

particular, Plaintiffs allege that Defendants’ conduct

— in delaying the return of the seized vehicles, and

conditioning said return on their execution of a

release — deprived Plaintiffs of their property, in

violation of the substantive component of the

Fourteenth Amendment’s Due Process clause.

* Defendants do not dispute that they are state actors for

purposes of this § 1983 cause of action.

App. 19

2. Substantive Due Process Claim

As a preliminary matter, the Court reiterates

that the sole claim at issue is Plaintiffs’ substantive

due process claim.‘ Plaintiffs do not allege a violation

of the procedural component of the Due Process

Clause.° See generally Wrench I, 136 Fed. Appx. at

523.

“A property interest that falls within the ambit of

substantive due process may not be taken away by

the state for reasons that are ‘arbitrary, irrational, or

tainted by improper motive,’ or by means of govern-

ment conduct so egregious that it ‘shocks the

conscience.’” Nicholas v. Pennsylvania State Univ.,

227 F.3d 133, 139 (3d Cir.2000) (citations omitted).°

However, to prevail on a non-legislative substantive

due process claim, Plaintiffs must first establish

* Moreover, the sole conduct at issue is Defendants’ delay in

returning the seized vehicles, and the conditioning of said return

on the execution of a release. See Wrench II, 212 Fed. Appx. at

100 (granting summary judgment in favor of Defendants

Kennedy and McMahon “insofar as Malone attempts to rest

liability on their alleged attempts to force James Malone to

provide false testimony.”).

° Moreover, Plaintiffs acknowledge that they could have

challenged the deprivation of their property through the

procedural due process safeguards that existed in the context of

the civil forfeiture proceeding. See Tr. (July 23, 2007) at 19:6-

20:17.

* See generally United Artists Theatre Circuit, Inc. v. Twp. of

Warrington, PA, 316 F.3d 392, 400 (3d Cir.2003) (clarifying that

“executive action violates substantive due process only when it

shocks the conscience.”).

App. 20

that they have a protected property interest to which

the Fourteenth Amendment’s due process protection

applies. See, e.g., Hill v. Borough of Kutztown, 455

F.3d 225, 235 n. 12 (3d Cir.2006); Desi’s Pizza, Inc. v.

City of Wilkes-Barre, 321 F.3d 411, 427 (8d Cir.2003);

Nicholas, 227 F.3d at 140. In addition, Plaintiffs must

establish a causal link between the constitutional

violation alleged and the harm that Plaintiffs claim

followed it. See, e.g., Miller v. City of Philadelphia,

174 F.3d 368, 374 n. 5 (3d Cir.1999).

A. Causal Connection

In order to show that certain state action caused

Plaintiffs’ injury, Plaintiffs must establish a “causal

link between an alleged unconstitutional act and the

harm that a plaintiff claims followed it.” Miller, 174

F.3d at 374 n. 5; see also Wrench I, 136 Fed. Appx.

521, 523 (3d Cir.2005). For example, in the context of

Wrench I, the Third Circuit explained:

To the extent Malone was deprived of his

property, that deprivation was caused by the

operation and application of New Jersey’s

civil forfeiture statute. Malone abandoned a

constitutional attack on the direct cause of

his injury by forgoing a procedural due

process challenge to the forfeiture statute.

Therefore, in order to assert a constitutional

violation, and satisfy the threshold inquiry

set forth by Saucier, Malone must establish

some connection between Bradley and the

civil forfeiture action by showing that

Bradley either interfered with the dismissal

App. 21

of the action or breached a duty to

recommend that the action be dismissed.

Id. Here, Defendants argue that “the record is

undisputed that neither of the line Deputy Attorneys

General, Kennedy and McMahon, had the authority

to dismiss either the criminal or civil proceedings

against the Plaintiffs.” (Def. S.J. Br. at 41). This

Court will now address Defendants’ argument as it

relates to each remaining Defendant.

Defendant Kennedy

Defendants claim that Defendant Kennedy, who,

at all relevant times was a DAG assigned to the

Environmental Crimes Bureau of the Division of

Criminal Justice, “had no responsibility whatsoever

for the civil action.” (Def. Statement of Material

Facts, {| 30). In particular, Defendants argue that

“DAG Kennedy had no involvement, whatsoever, in

the offer of the mutual release, or in the civil

forfeiture litigation.” (Def. S.J. Br. at 43). Therefore,

Defendants’ claim that Plaintiffs cannot establish

the requisite causal connection between Kennedy’s

actions and Plaintiffs’ injuries — namely the depri-

vation of his property. (/d. at 40-41).

In response, Plaintiffs point to a letter written by

Defendant Kennedy on December 27, 1993, stating

that “if I and other members of the Division of

Criminal Justice are satisfied by Mr. Malone’s

statement that he and Wrench Transportation, Inc.

(“Wrench”) are innocent of any criminal involvement,

App. 22

I will recommend to DAG McMahon that the for-

feiture complaint be dismissed.” (Pl.’s Response to

Def. Statement of Material Facts, | 30, App. Volume

IV, A-904). Plaintiffs claim that the December 27th

letter written by Kennedy demonstrates his “au-

thority with respect to returning the vehicles.” (Pl.’s

Response to Def. Statement of Material Facts, { 71).

However, the causation analysis does not turn on

whether Kennedy possessed the authority to dismiss

the civil forfeiture action. Instead, summary judg-

ment must be granted unless Plaintiffs raise a

genuine issue of material fact as to whether Kennedy

“actually exercised any authority reaching the

forfeiture action.” Wrench I, 136 Fed. Appx. at 523

n.1. The December 27th letter — indicating that

Kennedy would be willing to make a recommendation

to Defendant McMahon that the forfeiture complaint

be dismissed — does not demonstrate that Kennedy

actually “interfered with the dismissal of the action or

breached a duty to recommend that the action be

dismissed.” To the contrary, evidence contained in

the record indicates that even after Kennedy met

with Malone on December 30, 2003, he was “still very

much on the fence about whether [Malone] was

truthful.” (Def. Statement of Material Facts, ¥ 135;

Flanagan Aff?f., Ex. 9, Tr. (June 14, 2002) at 62:8-11).

" Wrench I, 136 Fed. Appx. at 523.

* The relevant excerpt from Kennedy's June 14, 2002

deposition transcript is as follows:

(Continued on following page)

App. 23

Plaintiffs essentially concede the absence of

specific evidence establishing a causal connection

between Defendant Kennedy and the outcome of the

forfeiture proceedings. For example, during oral argu-

ment held on July 23, 2007, this Court specifically

asked Plaintiffs’ counsel the following questions:

THE COURT: Where is your evidence that

Kennedy was involved in that part?

MR. BARDIS: Your Honor, I think it was

from his office, and McMahon was working

with Kennedy, and Kennedy also has the

correspondence establishing that he would

conduct a hearing, and he and Mr. Malone,

would have a meeting, an informal meeting.

THE COURT: That he would conduct the

meeting?

MR. BARDIS: He would have a meeting.

THE COURT: What is the evidence that

Kennedy was involved in conditioning the

Q. So it would be fair to say that after the meeting,

each of you would have had an opinion as to whether

or not Mr. Malone on behalf of Wrench Transportation

was truthful or untruthful?

A I don't know if everyone formed an opinion about

that.

Q. Do you know if you did?

A. I was very much on the fence about whether he

had been truthful. I certainly was not convinced. But I

would say that I was on the fence. Tr. (June 14, 2002)

at 62:2-11.

App. 24

release of the property on the signing of the

release?

MR. BARDIS: Your Honor, they are from

the same department.

See Tr. (July 23, 2007) at 45:13-15.

Thus, at best, Plaintiffs theorize that because

Defendants McMahon and Kennedy “are from the

same department,” Kennedy must, therefore, have

conspired with McMahon in delaying the return of

the vehicles. However, “[i]t is not sufficient at the

summary judgment stage for Malone, the non-moving

party, to rest on allegations of a conspiracy. Rather, in

order to raise a genuine issue of material fact he must

produce sufficient evidence to allow a reasonable jury

to find that a conspiracy existed.” Wrench I, 136 Fed.

Appx. at 523. Because Plaintiffs have come forward

with no evidence establishing a causal connection

between Kennedy’s actions and Plaintiffs’ alleged

injuries, Defendants’ motion for summary judgment

as to Defendant Kennedy is hereby granted.’

° Even assuming, arguendo, that Plaintiffs had demon-

strated a sufficient causal connection between Kennedy’s actions

and Plaintiffs’ injuries, for the reasons discussed herein,

Defendant Kennedy would nevertheless be entitled to qualified

immunity for such actions inasmuch as Plaintiffs have failed to

establish that their interest in the seized vehicles constitutes a

protected property interest to which the Fourteenth Amend-

ment’s substantive due process protection applies.

App. 25

Defendant McMahon

Defendants argue that “[o]nly a supervisor in the

Civil Remedies and Forfeiture Bureau would have

any final decision making authority regarding a

seizure and forfeiture.” (Def. Statement of Material

Facts, 471). Defendant McMahon was a DAG

assigned to the Civil Remedies Bureau of the Division

of Criminal Justice. (Jd., J 2). Because McMahon was

not a supervisor in the Civil Remedies and Forfeiture

Bureau, Defendants argue that McMahon had no

authority to dismiss the forfeiture proceedings. (Def.

S.J. Br. at 41). Therefore, according to Defendants,

Plaintiffs cannot establish the requisite causal con-

nection between McMahon’s actions and Piaintiffs’

injuries. (/d. at 40-41).

Plaintiffs, on the other hand, allege that

“McMahon stated at the conclusion of Malone’s

interview under oath ... that she would process the

papers to return Malone’s vehicles,” thus demon-

strating McMahon’s “authority with respect to

returning the vehicles.” (Pl.’s Response to Def.

Statement of Material Facts, 4 71). Because Defen-

dants concede that “[dluring the course of the civil

litigation, DAG McMahon offered to settle the State’s

forfeiture case against Wrench,” the Court finds that

a sufficient causal connection between McMahon’s

actions and Plaintiffs’ alleged injuries has been

"° See Def. S.J. Br. at 43; Def. Statement of Material Facts,

4 74.

App. 26

established. As a result, the Court will proceed with

its analysis of Defendants’ arguments as they relate

to Defendant McMahon.

B. Qualified Immunity"

Defendants claim that they are entitled to quali-

fied immunity from Plaintiffs’ section 1983 claim,

and are thus shielded from suit. See generally

Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Wright

v. City of Philadelphia, 409 F.3d 595, 599 (3d

Cir.2005). “The Supreme Court has set forth a two-

step objective reasonableness test to determine

whether qualified immunity should be granted.”

Barton v. Curtis, 497 F.3d 331, 335 (3d Cir.2007).

The threshold inquiry, in determining whether a

party is entitled to qualified immunity is whether,

viewing the facts in the light most favorable to

Plaintiffs, the facts alleged show that Defendants’

conduct violated a constitutional right. See, e.g.,

Saucier, 533 U.S. at 201; Wright, 409 F.3d at 600.

Thus, Plaintiffs bear the initial burden of showing

" The Court disagrees with Plaintiffs’ conclusory assertion

that Defendants’ entitlement to qualified immunity “was rejected

by the Third Circuit.” (Pl. Opp’n Br. at 41). To the contrary, the

Third Circuit specifically stated that, “to the extent that Malone is

arguing that Kennedy and McMahon are not entitled to either

absolute or qualified immunity, Appellants’ argument is meritless,

and can be rejected without discussion.” Wrench IT, 212 Fed.

Appx. at 95 n. 3; see also Schrob v. Catterson, 948 F.2d 1402, 1419

(3d Cir.1991) (“Qualified immunity will provide sufficient protec-

tion to prosecutors managing seized property.”).

App. 27

that Defendants’ conduct violated a constitutional

right. See, e.g., Sherwood v. Mulvihill, 113 F.3d 396,

399 (3d Cir.1997). “If no constitutional right would

have been violated were the allegations established,

there is no necessity for further inquiries concerning

qualified immunity.” See Saucier, 533 U.S. at 201.

However, if a favorable view of the Plaintiffs’

submissions reveals the violation of constitutional

right, this Court must determine whether such a

right was clearly established. See id.; Wright, 409

F.3d at 600. To be clearly established, “the contours of

the right must be sufficiently clear that a reasonable

official would understand that what he is doing

violates that right.” See Saucier, 533 U.S. at 202;

Barton, 497 F.3d at 335. Plaintiffs, again, bear the

burden of demonstrating that the constitutional or

statutory rights at issue were clearly established. See,

e.g., Sherwood, 113 F.3d at 399. If the Court finds

that Defendants violated such clearly established

constitutional or statutory rights, they are not

entitled to qualified immunity for their actions. See,

e.g., Wright, 409 F.3d at 599-600.

App. 28

(i) Violation of a Constitutional Right”

It is clear that, as a threshold matter, in adju-

dicating Plaintiffs’ section 1983 claim, the Court must

consider whether a constitutional violation occurred.

See Saucier, 533 U.S. at 201. Similarly, in assessing

Defendants’ qualified immunity defense, the Court

must first determine whether Defendants’ conduct

” Plaintiffs’ contention that this Court has already ruled,

with respect to Defendant Bradley, that Plaintiffs had a clearly

established constitutional right to their property, is well taken.

See Tr. (Oct. 27, 2003) at 16:23-25. Nevertheless, given that (a)

the issue has now been the subject of far more extensive

briefing, and (b) this Court’s October 27, 2003 decision with

respect to Defendant Bradley was reversed by the Third Circuit,

albeit on different grounds, see Wrench I, 136 Fed. Appx. at 522,

the Court will revisit the issue of qualified immunity, in its

entirety. See, e.g., Higgins v. California Prune & Apricot Grower,

Inc., 3 F.2d 896, 898 (2d Cir.1924) (explaining that “it is now

well settled that the ‘law of the case’ does not rigidly bind a court

to its former decisions”) (citing Messenger v. Anderson, 225 U.S.

436 (1912)). Furthermore, because summary judgment was

granted as to Defendant Bradley by the Third Circuit, this

approach will not affect the disposition of Plaintiffs’ case as

against said defendant.

To the extent that Plaintiffs claim that they have

successfully demonstrated the existence of a constitu-

tional violation based findings made by Judge Lifland

at the motion to dismiss stage, any such argument is

meritless. See, e.g., S.C. v. Deptford Tp. Bd. of Educ.,

No. 01-5127, 2006 WL 1784591, at *14 (D.N.J.)

(explaining that “the law of the case doctrine does not

prevent a court from granting summary judgment

where a court previously denied a motion to dismiss

using the more liberal standards governing Rule 12

motions”).

App. 29

violated a constitutional right. See id. Thus, regard-

less of whether the Court first considers Plaintiffs’

1983 claim, or Defendants’ qualified immunity

defense, the inquiry begins with an assessment of

whether a constitutional violation has occurred.

Plaintiffs argue that “[t]he evidence shows that

Kennedy and McMahon callously refused to return

plaintiffs’ seized vehicles that they knew were neces-

sary to his livelihood so that they could coerce Malone

into providing testimony against other targets.” (PI.

S.J. Br. at 19). According to Plaintiffs, such conduct

deprived Plaintiffs of their property, in violation of

the substantive component of the Due Process

Clause. The Due Process Clause of the Fourteenth

Amendment provides that no state shall “deprive any

person of life, liberty, or property, without due process

of law.” Nicholas, 227 F.3d at 138. Thus, while the

Fourteenth Amendment protects certain property

interests, “not all property interests worthy of

procedural due process protection are protected by

the concept of substantive due process.” Jd. at 140

(quoting Reich v. Beharry, 883 F.2d 239, 243 (3d

Cir.1989)). “Rather, to state a substantive due process

claim, ‘a plaintiff must have been deprived of a

particular quality of property interest.’” 7d. (quoting

DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592,

598 (3d Cir.1995)). The determination of whether a

particular property interest constitutes this “par-

ticular quality” depends on whether the interest is

“fundamental” under the Constitution. See, e.g., id.

Thus, in order to prevail on a_ non-legislative

App. 30

substantive due process claim, Plaintiffs must

establish that they have a protected property interest

to which the Fourteenth Amendment’s due process

protection appiies. See, e.g., Hill, 455 F.3d at 235 n.

12; Desi’s Pizza, Inc., 321 F.3d at 427; Nicholas, 227

F.3d at 140.”

Plaintiffs characterize the alleged constitutional

violation as:

The intentional and substantive wrong that

defendants committed when they inten-

tionally refused to remit the Wrench vehicles

notwithstanding the defendants’ collective

belief in Malone’s innocense [sic] and the

conditioning of the return of the vehicles on

Malone’s provision of false testimony and a

personal release for all defendants. This

motive was improper and lead to the dis-

possession of plaintiffs’ property, therefore,

plaintiffs have a claim for a deprivation

of substantive due process constitutional

rights.

(Pl. Opp’n Br. at 37). Based on Plaintiffs rather

ambiguous characterization, the Court construes the

" In Wrench I, the Third Circuit specifically declined to

express an opinion as to whether “an owner’s interest in vehicles

properly seized and held subject to a forfeiture action is

protected by the Due Process Clause of the Fourteenth

Amendment.” Wrench I, 136 Fed. Appx at 522.

Plaintiffs’ Amended Complaint similarly alleges that:

Defendants’ intentional use of the continued forfeiture

of Wrench’s vehicles to coerce Malone into cooperating

(Continued on following page)

App. 31

alleged property interest at issue as Plaintiffs’

interest in the seized vehicles.

Defendants argue that no constitutional violation

has occurred because Plaintiffs’ substantive due proc-

ess claim is grounded in the notion that Defendants’

actions deprived them of their interest in the seized

vehicles, in violation of their substantive due process

rights; however, the Third Circuit has limited its

substantive due process protection of property

interests to real property. (Def. S.J. Br. at 40).

Defendants correctly note that the Third Circuit

has “so far limited non-legislative substantive due

process review to cases involving real property

ownership,” and has admittedly been reluctant to

extend substantive due process protection. Nicholas,

227 F.3d at 141 (citing to Collins v. City of Harker

Heights, 503 U.S. 115 (1992)).” Plaintiffs provide no

with their criminal investigation of third parties

deprived Wrench Transportation Systems, Inc. and

Malone of property without due process of law, in

violation of the Fourteenth Amendment to the

Constitution of the United States.

(Am.Compl., ¥ 38).

* In Collins, the United States Supreme Court explained

the following:

As a general matter, the Court has always been

reluctant to expand the concept of substantive due

process because guideposts for responsible decision-

making in this unchartered area are scarce and open-

ended. The doctrine of judicial self-restraint requires

us to exercise the utmost care whenever we are asked

to break new ground in this field. It is important,

(Continued on following page)

App. 32

legal basis to refute Defendants’ position.” To the

contrary, Plaintiffs’ opposition brief is replete with

broad and conclusory statements lacking specific

legal support. For example, Plaintiffs argue that

A reasonable person would be aware that

these actions are wrong, unlawful and

violative of the most fundamental and well

known constitutional rights enjoyed by

citizens of the United States of America... .

therefore, to focus on the allegations in the complaint

to determine how petitioner describes the constitu-

tional right at stake and what the city allegedly did to

deprive her husband of that right.

503 U.S. 115, 125 (1992) (internal citation omitted).

Plaintiffs’ reliance on Reitz v. County of Bucks, 125 F.3d

139 (3d Cir.1997), and Schrob v. Catterson, 948 F.2d 1402 (3d

Cir.1991) for the generalized proposition that “[a] state official

that seizes property and wrongfully retains it thereafter violates

the owner’s constitutional rights and may be liable under 42

U.S.C. § 1983” is misplaced for the following reasons. (Pl. Opp’n

Br. at 41). First, the Third Circuit did not address — much less

determine — whether the property interest at issue in Reitz is

protected by the substantive component of the Due Process

Clause. Secondly, the Court’s analysis in Schrob was limited to

the defendant’s entitlement to absolute immunity. See Schrob,

948 F .2d at 1407 n. 4 (“With respect to qualified immunity, the

record before us on this motion to dismiss is so limited that we

cannot decide whether the rights that Catterson and the Agents

allegedly violated were clearly established, or even established

in the first place.”). Plaintiffs’ reliance on Lavicky v. Burnett, 758

F.2d 468, 476 (10th Cir.1985), and Coleman v. Turpen, 697 F.2d

1341 (10th Cir.1982) neither of which appear to involve

substantive due process claims — is likewise unavailing.

App. 33

In short, refusing to return property that is needed

for someone’s livelihood when you know they are

innocent so that you can obtain a release is improper,

against well established law and conscience shocking.

(Pl. Opp’n Br. at 43). Similarly, during oral argument,

Plaintiffs’ counsel presented several broad theories

in support of the proposition that Plaintiffs’ interest

in the seized vehicles is fundamental under the

Constitution, and, therefore, that the deprivation of

such property interest constitutes a violation of the

substantive component of the Due Process Clause. In

particular, Plaintiffs’ counsel argued that: (1) the

seized vehicles “were part and parcel of the inter-

dependent relationship that Malone had in exercising

his right to contract,” and (2) “it is in Mr. Malone’s

life and liberty to freely engage in business. These

vehicles were closely or were the essence of his

business.””* The Court will address each argument, in

turn.

(a) Right to Contract

Plaintiffs’ counsel argued, during the July 23,

2007 oral argument, that the constitutional violation

at issue is “[t]he right to freely enter into a contract.”

Tr. (July 23, 2007) at 23:1-2. As a preliminary matter,

the Court notes that this argument was not raised in

Plaintiffs’ opposition brief; rather, it was raised for

" Tr. (July 23, 2007) at 22:14-16.

" Id. at 18:22-24.

App. 34

the first time during oral argument. Therefore, this

argument will not be considered, as it was not

properly before this Court. See, e.g., Garver v. Garver,

No. 96-2507, 1997 WL 47801, at *6 n. 1 (S.D.N_Y. Feb.

5, 1997). Even if the Court were inclined to entertain

such an argument, Plaintiffs provide no legal or

factual basis to substantiate such a theory.

(b) Right to “Engage in Business”

At oral argument, Plaintiffs’ counsel also charac-

terized the fundamental right at issue as Plaintiffs’

right to “engage in business.” Tr. (July 23, 2007) at

18:22-24. In particular, Plaintiffs’ counsel explained

that “these were the vehicles that were the sole

source of his livelihood and the livelihood of the

employees that he had under him.” Tr. (July 23, 2007)

at 23:15-17. Again, the Court notes that this

argument was not expressly raised in Plaintiffs’

opposition brief. Accordingly, it is not properly before

this Court and need not be considered. Even if the

Court were inclined to consider this argument, for the

reasons that follow, the Court finds that Plaintiffs

have failed to meet their burden in demonstrating

that one’s right to “engage in business” is funda-

mental under the Constitution.

As a preliminary matter, the Court construes

Plaintiffs’ argument in this regard as akin to the

argument that employment rights are fundamental.

Although the parties did not brief this issue — because

it was raised for the first time at oral argument — the

App. 35

Court notes that the plaintiff in Nicholas made a

similar argument in claiming that his tenured

professorship was a property interest worthy of

substantive due process protection. See Nicholas, 227

F.3d at 136. In particular, the plaintiff in that case

claimed that defendants violated the substantive

component of the Fourteenth Amendment’s Due

Process Clause by “firing him for an arbitrary,

irrational or improper reason.” Jd. at 138.

The Third Circuit began its analysis by

addressing the issue of whether the plaintiff’s prop-

erty interest in his tenured professorship was entitled

to substantive due process protection. In finding that

it was not,” the Third Circuit explained, in relevant

part, as follows:

Nicholas’s tenured public employment is a

wholly state-created contract right; it bears

little resemblance to other rights and

property interests that have been deemed

fundamental under the Constitution. We

agree with the analysis of the District Court

in Homar v. Gilbert that “it cannot be

reasonably maintained that public employ-

ment is a property interest that is deeply

rooted in the Nation’s history and tradi-

tions.” Nor does public employment approach

* In finding that the plaintiff’s property interest in his

tenured professorship was not entitled to substantive due

process protection, the Third Circuit joined the majority of the

courts of appeals that have addressed the issue. See Nicholas,

227 F.3d at 142.

App. 36

the interests “‘implicit in the concept of

ordered liberty like personal choice in

matters of marriage and family.’” Accord-

ingly, we view public employment as more

closely analogous to those _ state-created

property interests that this Court has pre-

vious deemed unworthy of substantive due

process than to the venerable common-law

rights of real property ownership implicated

in DeBlasio.

Nicholas, 227 F.3d at 143 (internal citations omitted);

see also Collins, 503 U.S. at 128 (explaining that

“state law, rather than the Federal Constitution,

generally governs the substance of the employment

relationship.”). In light of the foregoing, to the extent

that Plaintiffs analogize the deprivation of their right

to their vehicles as a deprivation of their right to

“engage in business” or to pursue their “livelihood,”

Plaintiffs have failed to meet their burden in

establishing that such interests — much like employ-

ment rights — are fundamental. See, e.g., Medeiros v.

Vincent, 431 F.3d 25, 32 (1st Cir.2005) (stating that

the “right to ‘make a living’ is not a ‘fundamental

right,’ for either equal protection or substantive due

process purposes.”).

Therefore, given (1) the Third Circuit’s limitation

of property interests worthy of (nonlegislative)

substantive due process protection to real property

ownership,” (2) the Third Circuit’s reluctance to

™® See Nicholas, 227 F.3d at 141.

App. 37

extend substantive due process protection “to other,

less fundamental property interests,” including

employment rights, (3) the United States Supreme

Court’s cautioning to lower courts to exercise “the

utmost care whenever we are asked to break new

ground in this field,” and (4) Plaintiffs’ failure to

provide the Court with any legal basis in support of

their assertion that an owner’s interest in his vehicles

is a fundamental right created by the Constitution,

the Court determines that Plaintiffs have failed to

establish that their interest in the seized vehicles

constitutes a protected property interest to which the

substantive component of the Due Process Clause

applies.” See generally Desi’s Pizza, 321 F.3d at 427

(expressing “serious doubts” over whether plaintiffs’

allegations — that defendants wrongfully deprived

plaintiffs of their ability to put their bar/restaurant to

“productive use” — state a substantive due process

claim). Therefore, because Plaintiffs have failed to

establish a violation of their substantive due process

rights, Defendant McMahon is entitled to qualified

immunity for her actions in delaying the return of the

seized vehicles, and conditioning the return of the

7" 2.

* See Collins, 503 U.S. at 124.

= The Court, therefore, need not determine (a) whether

Defendants’ actions rise to the level of conscience shocking, or (b)

whether Defendants’ actions were objectively reasonable in light

of the clearly established law.

App. 38

vehicles on the execution of a release.“ See, e.g.,

Saucier, 533 U.S. at 201. Accordingly, the Court

grants Defendants’ motion for summary judgment as

to Defendant McMahon.

CONCLUSION

For the reasons set forth above, the Court grants

Defendants’ Motion for Summary Judgment as to

Defendants Kennedy and McMahon. Plaintiffs’

Motion for Summary Judgment is, therefore, denied

as moot.

An appropriate Order accompanies this Opinion.

* It is unclear whether this Court’s finding should result in

a dismissal of Plaintiffs’ Amended Complaint based on Plaintiffs’

failure to establish a cause of action under section 1983 or based

on qualified immunity. See Wright v. City of Philadelphia, 409

F.3d 595, 600 (3d Cir.2005). The parties do not brief this issue.

The Third Circuit admittedly has been inconsistent on this

issue. See id. However, the Third Circuit emphasized that “[a]s a

practical matter, the outcome will be the same whether we

conclude that the officers are immune from suit or instead, that

the plaintiff has no cause of action.” Id.

App. 39

NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WRENCH

TRANSPORTATION, et al., Civil Action No.:

Plaintiffs, - 95-cv-06203 (JLL)

FRANK BRADLEY, et al., ORDER

Defendants.

LINARES, District Judge.

This matter comes before the Court by way of

cross-motions for summary judgment filed by Plain-

tiffs Wrench Transportation Systems, Inc. and James

Malone, Jr. [CM/ECF Docket Entry No. 101], and

Defendants John Kennedy and Leah Ann McMahon

[CM/ECF Docket Entry No. 100]. For the reasons set

forth in this Court’s corresponding Opinion dated

November 5, 2007,

IT IS, on this 28th day of November, 2007,

ORDERED that Defendants’ motion for sum-

mary judgment [CM/ECF Docket Entry No. 100] is

GRANTED; and it is further

ORDERED that Plaintiffs’ motion for summary

judgment [CM/ECF Docket Entry No. 101] is DE-

NIED as moot; and it is further

App. 40

ORDERED that this case is hereby CLOSED.

/s/ Jose L. Linares

JOSE L. LINARES

UNITED STATES

DISTRICT JUDGE

App. 41

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

07-4817

WRENCH TRANSPORTATION SERVICES, INC.;

JAMES MALONE, JR.,

Appellants

V.

FRANK BRADLEY; JOHN F. KENNEDY;

MARYANNE LEWICKI; LEAH ANN MACMAHON

SUR PETITION FOR REHEARING

(Filed Oct. 16, 2009)

Present: SCIRICA, Chief Judge, SLOVITER,

McKEE, RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, CHAGARES, JORDAN,

and HARDIMAN, Circuit Judges, and RESTANI,

Chief Judge Court of International Trade*

The petition for rehearing filed by appellant in

the above entitled case having been submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the

* As to panel rehearing only.

App. 42

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing

by the court en banc, the petition for rehearing is

denied.

By the Court,

MICHAEL A. CHAGARES

Circuit Judge

DATED: October 16, 2009

CH/ce: Constantine Bardis, Esq.

Brian G. Flanagan, Esq.