Scott Lanin v. Borough of Tenafly ( 2013 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 12-3399
    ____________
    SCOTT LANIN; LISA LANIN,
    Appellants,
    v.
    THE BOROUGH OF TENAFLY; THE TENAFLY BOARD OF EDUCATION
    __________________________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civ. No. 12-cv-02725)
    District Judge: Honorable Esther Salas
    __________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    March 12, 2013
    Before: RENDELL, FISHER and GARTH, Circuit Judges
    (Opinion filed: March 12, 2013)
    ____________
    OPINION
    ____________
    PER CURIAM
    Appellants Scott and Lisa Lanin appeal an order of the District Court denying their
    motion for a preliminary injunction. For the reasons that follow, we will affirm.
    1
    The Lanins, married residents of Tenafly, New Jersey, live on Lower Downey
    Drive, a public two-way street. Their house is located near a public elementary school.
    In June, 2010, the Borough of Tenafly adopted Ordinance No. 10-19, which turned
    Lower Downey Drive into a one-way street going eastbound and past the school during
    the school day, 8:00 a.m. to 4:00 p.m. The Borough also adopted Ordinance No. 10-20,
    which eliminated parking on Upper Downey Drive and shifted more cars onto Lower
    Downey Drive.
    On May 8, 2012, the Lanins filed suit pro se under state law and 
    42 U.S.C. § 1983
    in the United States District Court for the District of New Jersey.1 The Lanins raised
    numerous federal constitutional and state law claims, including a claim that their rights to
    substantive due process and to be free from unreasonable seizures had been violated by
    the Borough’s and Board of Education’s actions in depriving them of the right to freely
    travel on Lower Downey Drive. They later filed an amended complaint. Among other
    things, the Lanins complained that, after the passage of Ordinance 10-19, they (and eight
    other similarly situated families) could no longer exit their driveway, turn west on
    Downey Drive, and thereby avoid the school and its traffic altogether. Instead, as a result
    of the ordinance and the particular way that it was being implemented, the Lanins were
    forced to proceed eastbound, and, during the morning drop-off and afternoon pick-up,
    merge into heavy school traffic, where they would then make the same loop onto and off
    1
    Mr. Lanin is a licensed attorney in the State of New York.
    2
    of school property that parents make when they drop their children off at school. The
    Lanins alleged that the trip is time-consuming and wasteful, and that their property has
    been devalued as a result of the traffic scheme. Prior to Ordinance 10-19, the school used
    the traffic circle on its own property in the front of the school for drop-off and dismissal
    of students.
    Mr. Lanin, who suffers from juvenile diabetes and wears an insulin pump, also
    sought an injunction in the amended complaint under the Americans with Disabilities
    Act, 
    42 U.S.C. § 12101
    , et seq., to prevent the Borough and Board from constructing a
    sidewalk adjacent to his property, which, he contended they would inevitably neglect to
    maintain and keep accessible to persons with disabilities. Moreover, he contended that
    Ordinance 10-19 would interfere with the free passage of emergency vehicles to and from
    his home.
    On July 30, 2012, the Lanins filed a motion for a temporary restraining order or
    preliminary injunction, Fed. R. Civ. Pro. 65, and numerous supporting affidavits. In a
    supporting brief, the Lanins cited our decision in Lutz v. City of York, 
    899 F.2d 255
     (3d
    Cir. 1990) (right to move freely about one’s neighborhood by automobile is “implicit in
    the concept of ordered liberty” and “deeply rooted in the Nation’s history” but cruising
    ordinance was reasonable time, place and manner restriction on right of localized
    intrastate travel), and noted that section 1983 applies to municipalities under Monell v.
    Dep’t of Social Services of City of New York, 
    436 U.S. 658
     (1978).
    3
    On the same day the motion was filed, the District Court held a hearing. The
    Lanins appeared, as did counsel for the Borough and counsel for the Board of Education.
    At the hearing, Mr. Lanin answered the District Court’s questions about the basis for
    federal subject matter jurisdiction by expressly noting the right to substantive due process
    and our decision in Lutz. (N.T., 7/30/12, at 3.) The court, in turn, expressed an interest
    in the Lanins’ Fourth Amendment unreasonable seizure argument. See 
    id.
     at 5 The court
    then expressed considerable doubt about whether the Lanins could show immediate
    irreparable harm, given that Ordinance 10-19 was enacted back in June, 2010. Mr. Lanin
    explained that, initially, he was led to believe that the changes were temporary, but in
    April, 2012, he realized they were not temporary when the Borough began to construct a
    particular sidewalk. See id. at 8-10.
    Counsel for the Borough then argued that the Lanins simply wanted to prevent the
    construction of the sidewalk, that the matter had no federal constitutional significance,
    that the traffic scheme was only a minor inconvenience for the affected residents of
    Lower Downey Drive, and that the school’s traffic scheme was necessary for the safety
    of children, as established by a consulting report the Borough had obtained. Counsel also
    stated that Borough police had chosen to direct all traffic, including non-school traffic,
    onto school property; the ordinance itself did not require this redirection of traffic. See
    id. at 17-18. On rebuttal, Mr. Lanin disputed the assertion that the inconvenience was
    minor and stated that there are times when Lower Downey Drive “is blocked off for
    several hours in the morning and in the afternoon. This is not about inconvenience. This
    4
    is about the total deprivation of the use of that street.” Id. at 21. Mrs. Lanin noted that
    she is a working mother and “[t]hose 45 minutes in the morning and the afternoon is a
    time that I most use that public road.” Id. at 27.
    Following argument, the District Court denied the motion for a preliminary
    injunction and explained the decision on the record. The court questioned whether it had
    jurisdiction, but ruled that the Lanins had not shown a reasonable likelihood of success
    on the merits because the Borough’s interest in the safety of school children outweighed
    the Lanins’ interests. But the “bigger issue” for the court was immediate irreparable
    harm. Id. at 33. The District Court held that the Lanins had not made the required
    showing because Ordinance 10-19 was enacted in June, 2010, and they waited two years
    before seeking a preliminary injunction. The court was not convinced that the impending
    construction of a sidewalk was sufficient to show that they would be immediately
    irreparably harmed. The next day the District Court issued a written order denying the
    Lanins’ motion for the reasons set forth on the record.
    The Lanins appeal. We have jurisdiction to review an order denying a motion for
    a preliminary injunction under 
    28 U.S.C. § 1292
    (a)(1). In their brief, the Lanins contend
    that the District Court erred (1) in denying them an injunction to allow them to use Lower
    Downey Drive “in at least one direction to the west;” (2) in considering irreparable harm
    because the traffic scheme is invalid and ultra vires; (3) in failing to make findings of fact
    and conclusions of law, Fed. R. Civ. Pro. 52(a); and (4) in failing to identify any level of
    scrutiny to test the constitutionality of Ordinance 10-19. See Appellants’ Brief, at 3-4.
    5
    The Borough has noted that, “[i]nasmuch as the existing traffic pattern is the result of
    ordinances adopted by the Borough and a temporary roadblock enforced by members of
    its police department, the task of defending this appeal properly lies with the Borough,
    not the Board.” Appellee’s Brief, at 1 n.1.
    We will affirm. The District Court assumed, for the purpose of deciding the
    motion for a preliminary injunction, that federal subject matter jurisdiction was not
    lacking. Any argument to the contrary is not supported by the record. We are also
    satisfied that the District Court properly considered Borough counsel’s assertions and
    argument relating to the reasons for the traffic scheme, cf. University of Texas v.
    Camenisch, 
    451 U.S. 390
    , 395 (1981) (“a preliminary injunction is customarily granted
    on the basis of procedures that are less formal and evidence that is less complete than in a
    trial on the merits”). And we are satisfied that the District Court’s decision and the full
    hearing transcript collectively provide sufficient factual findings and conclusions of law
    to give us a clear understanding of the decision, see H. Prang Trucking Co., Inc. v. Local
    Union No. 469, 
    613 F.2d 1235
    , 1238 (3d Cir. 1980), and allow for meaningful appellate
    review.
    We exercise plenary review over the District Court’s conclusions of law and its
    application of the law to the facts, see Marco v. Accent Publishing Co., 
    969 F.2d 1547
    ,
    1548 (3d Cir. 1992). Findings of fact are reviewed for clear error, see Oberti by Oberti v.
    Board of Education of Borough of Clementon Sch. Dist., 
    995 F.2d 1204
    , 1220 (3d
    Cir.1993), which occurs when we are “left with a definite and firm conviction that a
    6
    mistake has been committed,” Anderson v. Bessemer City, 
    470 U.S. 564
    , 573 (1985). As
    a practical matter, our scope of review tends to be narrow because “the grant or denial of
    a preliminary injunction is almost always based on an abbreviated set of facts, requiring a
    delicate balancing . . . [that] is the responsibility of the district judge.” Frank’s GMC
    Truck Center, Inc. v. General Motors Corp., 
    847 F.2d 100
    , 101-02 (3d Cir. 1988)
    (quoting United States Steel Corp. v. Fraternal Ass’n of Steelhaulers, 
    431 F.2d 1046
    ,
    1048 (3d Cir. 1970)).
    Regardless of their claimed entitlement to a permanent injunction at the
    conclusion of this case, the Lanins were required to establish the need for a preliminary
    injunction. In ruling on the Lanins’ motion for a preliminary injunction, the District
    Court was required to consider: (1) the likelihood that they will prevail on the merits of
    their amended complaint; (2) the extent to which they are being irreparably harmed by
    the conduct complained of; (3) the extent to which the Borough of Tenafly and Tenafly
    Board of Education will suffer irreparable harm if the preliminary injunction is issued;
    and (4) the public interest. See Duraco Products, Inc. v. Joy Plastic Enterprises, 
    40 F.3d 1431
    , 1438 (3d Cir. 1994). All four factors must favor preliminary relief. See 
    id.
    We affirm on the basis of the District Court’s irreparable harm determination. A
    plaintiff has the burden of proving a “clear showing of immediate irreparable injury.”
    Hohe v. Casey, 
    868 F.2d 69
    , 72 (3d Cir. 1989) (internal quotation marks removed).
    “[P]reliminary injunctions are generally granted under the theory that there is an urgent
    need for speedy action to protect the plaintiffs’ rights.” Citibank, N.A. v. Citytrust, 756
    
    7 F.2d 273
    , 275 (2d Cir. 1985). Delay in seeking enforcement of those rights . . . tends to
    indicate at least a reduced need for such drastic, speedy action.” 
    Id.
     The traffic scheme
    challenged by the Lanins was adopted on June 22, 2010 and has continued to impact
    them during the school year in exactly the same fashion since that time, and yet they did
    not move for a preliminary injunction until July 30, 2012. The District Court properly
    relied on their two-year delay in seeking a preliminary injunction as sufficient proof that
    the risk of immediate irreparable harm did not exist.
    When the District Court asked the Lanins what had changed during the intervening
    two-year period, they pointed to the impending construction of the sidewalk as proof
    positive that their portion of Lower Downey Drive would never again be a two-way road.
    (N.T., 7/30/12, at 8.) Mr. Lanin said that “[t]he last thing we wanted to do was to file a
    lawsuit and we waited until there was no other alternative.” 
    Id.
     We note that delay may
    be excused where the party seeking a preliminary injunction delays only in the reasonable
    belief that negotiations may resolve the dispute, see Atari Corp. v. Sega of America, Inc.
    
    869 F. Supp. 783
    , 790 (N.D. Cal. 1994), but, even applying that rule here, the
    proceedings below still amply support the District Court’s conclusion that the Lanins will
    not suffer irreparable harm before a decision on the ultimate merits of their case can be
    reached.
    The Lanins argue that they were not required to prove irreparable injury because
    their case involves irreparable injury per se. They argue that the District Court erred by
    requiring them to prove irreparable injury because they have shown interference with
    8
    their fundamental right to travel, see Appellant’s Brief at 53-54, but “[c]onstitutional
    harm is not necessarily synonymous with the irreparable harm necessary for issuance of a
    preliminary injunction,” Hohe, 
    868 F.2d at 73
    . A party seeking a preliminary injunction
    must ordinarily prove irreparable injury, see id.; the Lanins’ case does not warrant an
    exception to this requirement. The Lanins also argue that they are not required to prove
    irreparable injury because the Borough’s traffic scheme is invalid and ultra vires, citing
    our decision in Office of the Comm’r of Baseball v. Markell, 
    579 F.3d 293
     (3d Cir.
    2009). See Appellants’ Brief, at 24. In Markell, we found it unnecessary on appeal to
    “consider the parties’ arguments regarding irreparable harm and the balancing of the
    equities,” 
    579 F.3d at
    300 n.4, because we reached the merits of the appeal. Markell
    reflects our decision about what issues we needed to reach on appeal; it did not hold that
    a party seeking a preliminary injunction at the trial court level need not prove irreparable
    harm.
    Because the District Court properly denied the Lanins’ motion for a preliminary
    injunction on the basis of their failure to show irreparable harm, and because all four
    factors must favor preliminary relief, see Duraco Products, 
    40 F.3d at 1438
    , we find it
    unnecessary to reach the “likelihood of success on the merits” issue. However, we note
    that the Lanins contend that, in crediting the Borough’s safety arguments, the District
    Court appears to have applied only rational basis scrutiny in finding Ordinance 10-19
    legitimate. Lutz says intermediate scrutiny is the most generous standard that could
    apply to the right to intrastate travel. In Lutz, we explained that:
    9
    Not every governmental burden on fundamental rights must survive strict
    scrutiny…. We believe that reviewing all infringements on the right to
    travel under strict scrutiny is just as inappropriate as applying no
    heightened scrutiny to any infringement on the right to travel not
    implicating the structural or federalism-based concerns of the more well-
    established precedents. For this conclusion, we rely heavily on the time,
    place and manner doctrine so firmly entrenched in the jurisprudence of free
    speech…. [S]tate and local governments must enjoy some degree of
    flexibility to regulate access to, and use of, the publicly held
    instrumentalit[y] of … travel.
    
    899 F.2d at 269
    .
    The Lanins’ case was reassigned to a new District Judge following the denial of
    their motion for a preliminary injunction. Because our review here is narrow, we leave
    all issues relating to the applicability of Lutz to the newly assigned District Judge to
    address in the first instance.
    For the foregoing reasons, we will affirm the order of the District Court denying
    the Lanins’ motion for a preliminary injunction.
    10