Martin Scahill & HRH Servs. LLC v. Dist. of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2018 Decided December 7, 2018
No. 17-7151
MARTIN SCAHILL AND HRH SERVICES LLC,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02076)
Brendan J. Klaproth argued the cause and filed the briefs
for appellants.
Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Karl A. Racine, Attorney General, and Loren L. AliKhan,
Solicitor General. Caroline S. Van Zile, Deputy Solicitor
General, entered an appearance.
Before: GARLAND, Chief Judge, and ROGERS and
GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal arises from
conditions placed by the D.C. Alcoholic Beverage Control
Board on the liquor license of the Alibi restaurant. The court
must decide whether the curable defect exception to issue
preclusion allows a plaintiff to establish standing under Article
III of the Constitution based on events that arose after the initial
complaint was filed, and whether the license conditions violate
appellants’ First and Fifth Amendment rights. The district
court had ruled the original complaint controlled its jurisdiction
as to most of HRH Services, LLC’s constitutional claims. On
the merits, it ruled that HRH’s retaliation allegations and
Scahill’s nearly identical constitutional allegations failed to
state a claim.
Guided by Supreme Court instruction and precedent from
our sister circuits, we hold that HRH properly invoked the
curable defect doctrine and that the district court was wrong to
reject HRH’s proposed second amended complaint that would
have cured the standing defect. We deny on the merits HRH’s
claims that were dismissed for lack of standing, and
consequently HRH’s unconstitutional conditions claim fails as
well. HRH’s compelled speech claim is foreclosed by Full
Value Advisors, LLC v. SEC, 633 F.3d 1101, 1109 (D.C. Cir.
2011), which held that required notification of the government
does not constitute compelled speech. HRH’s commercial
association claim is foreclosed by Roberts v. U.S. Jaycees, 468
U.S. 609, 620 (1984), and City of Dallas v. Stanglin, 490 U.S.
19, 25 (1989).
We affirm the dismissal of HRH’s First Amendment
retaliation claim because even assuming the facts alleged in the
complaint are true, the record shows that retaliation was “not a
plausible conclusion,” Ashcroft v. Iqbal, 556 U.S. 662, 682
3
(2009). We also affirm the dismissal of Scahill’s claims. His
commercial association claim fails for the same reasons as
HRH’s; his freedom of movement claim fails under the court’s
precedent; and his procedural due process claim fails to
identify a cognizable liberty or property interest.
I.
In January 2015, HRH Services, LLC, d/b/a The Alibi
(“HRH”) applied to the D.C. Alcoholic Beverage Control
Board for a license to serve alcoholic beverages at the Alibi
restaurant. Rachel Traverso and her father Richard Traverso
were identified as co-owners of HRH, but the Board was
concerned about the possible involvement of Martin Scahill,
who had been part owner of the previous restaurant at that
location, which was fined by the Board for allowing underage
drinking. Scahill had originally applied with two others for a
liquor license at the same location before withdrawing the
application when the Board raised issues regarding his
qualifications. He also had been working at the Alibi
restaurant. The Board “required HRH to demonstrate that it
was not engaging in subterfuge to allow Mr. Scahill to obtain a
license without the legally required review of his qualifications
for licensure.” ABC Board Order at 3 (May 18, 2016) (“2016
Board Order”). At a hearing on HRH’s application, HRH
informed the Board it had served a barring notice on Scahill
that he could not be on the premises and stated it would accept
other license conditions as the Board deemed necessary. See
id. ¶ 90.
On May 18, 2016, the Board granted HRH a liquor license
with conditions. The conditions required HRH to “maintain a
barring notice against Martin Scahill to prohibit him from
entering or accessing the licensed premises for a period of five
years” and to notify the Metropolitan Police Department
4
(“MPD”) of any violations. The conditions also prohibited
HRH from “directly or indirectly transfer[ing] or attempt[ing]
to transfer ownership” of the business to Scahill, providing him
“access or control over any financial accounts maintained by
the business,” and “employ[ing] [him] as a manager, employee,
independent contractor, or volunteer” at the restaurant. 2016
Board Order at 36-37. The Board denied HRH’s motion for
reconsideration.
Scahill and HRH thereafter unsuccessfully attempted to
have the license conditions set aside on statutory grounds. The
D.C. Court of Appeals dismissed HRH’s petition for review
under the D.C. Administrative Procedure Act (“DCAPA”) for
lack of standing because of its lack of aggrievement. HRH
Servs., LLC v. D.C. Alcoholic Beverage Control Bd., No. 16-
AA-758, Order at 1 (D.C. Oct. 13, 2016). The court rejected
on the merits Scahill’s claims under the DCAPA that the
imposition of the license conditions exceeded the Board’s
authority and was unsupported by the evidence and arbitrary
and capricious, holding the Board acted within its discretion.
Scahill v. D.C. Alcoholic Beverage Control Bd., No. 16-AA-
775, Mem. Op. and J. at 5-7 (D.C. Feb. 8, 2018).
Scahill and HRH also seek to have the license conditions
set aside on constitutional grounds. After filing a complaint in
the U.S. district court on October 18, 2016, Scahill filed an
amended complaint on December 28, 2016, adding HRH as a
plaintiff and arguing that the license conditions violated their
First and Fifth Amendment rights. The district court granted
the government’s motion to dismiss the amended complaint for
lack of standing and failure to state a claim. Scahill v. District
of Columbia, 271 F. Supp. 3d 216 (D.D.C. 2017); see FED. R.
CIV. P. 12(b)(6). Except as to HRH’s First Amendment
retaliation claim based on appellants’ legal challenges to the
license conditions, the district court ruled that issue preclusion
5
prevented HRH from re-litigating its standing in view of the
D.C. Court of Appeals’ determination that it was not aggrieved
by the Board’s license order. On the merits, the district court
ruled that Scahill and HRH had failed to allege sufficient facts
to support the remainder of their claims.
HRH moved on October 16, 2017, for reconsideration and
for leave to file a second amended complaint. Paragraph 60 of
the proposed complaint alleged that in retaliation for exercise
of HRH’s First Amendment rights, the Board, by order of July
19, 2017, “took adverse action against HRH Services by
issuing a $4,000.00 fine, the maximum allowable penalty, to
HRH [S]ervices for the alleged violation[s] of the Liquor
License conditions.” The Board found that HRH had allowed
Scahill to be on the premises of the Alibi restaurant on two
occasions and each time failed to notify the MPD about his
presence. Although agreeing that HRH had shown an injury-
in-fact as a result of the $4,000 fine, the district court ruled that
the fine did not trigger the curable defect exception to issue
preclusion because the fine was imposed nine months after the
original complaint was filed and thus was too late to confer
standing. Scahill v. District of Columbia, 286 F. Supp. 3d 12,
18 (D.D.C. 2017). The district court also denied the motion for
leave to file as futile, stating the proposed second amended
complaint would not change its view of the inadequacy of
HRH’s retaliation claim. Id. at 20-24.
II.
On appeal, Scahill and HRH contend that the district court
erred in ruling that HRH lacked standing under Article III of
the Constitution on the basis of issue preclusion because the
court should have applied the curable defect exception in view
of the Board’s imposition of the fines and granted its motion
for leave to file the amended complaint. On the merits, they
6
contend that the district court erred in ruling that their well-
pleaded claims failed to show violations of their rights under
the First and Fifth Amendments of the Constitution. Our
review of the dismissal of the complaint for failure to state a
claim is de novo. Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000). So too is our review of the denial
of leave to amend the complaint based “on grounds of futility
where the proposed pleading would not survive a motion to
dismiss,” In re Interbank Funding Corp. Sec. Litig., 629 F.3d
213, 215-18 (D.C. Cir. 2010) (internal quotation marks and
citation omitted).
Issue preclusion occurs when (1) the same issue was
“contested by the parties and submitted for judicial
determination in [a] prior case,” (2) the issue was “actually and
necessarily determined by a court of competent jurisdiction in
that prior case,” and (3) preclusion does not result in “basic
unfairness to the party bound by the first determination.”
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.
Cir. 1992). The district court correctly found all conditions
were met with respect to HRH’s standing to bring a challenge
to the Board’s license order, in view of the decision of the D.C.
Court of Appeals dismissing HRH’s petition for review upon
concluding it was not aggrieved by the Board’s conditions.
First, the issue of HRH’s standing was “contested” and
“submitted for judicial determination,” id. The D.C. Court of
Appeals issued an order to show cause why HRH’s petition
should not be dismissed for lack of standing because HRH did
not appear to be aggrieved by the Board’s conditions, and HRH
filed a response. Appellants maintain that standing under the
DCAPA is different from Article III standing because in
addition to showing injury-in-fact, the interest sought to be
protected must be arguably within the zone of interests
protected by the DCAPA, and no clear legislative intent must
7
withhold judicial review. HRH acknowledges that both require
an injury-in-fact, which is the aspect relevant here, for
aggrievement under the DCAPA requires the same concrete
and particularized injury as Article III standing. D.C. Code
§ 2–510(a); see Mallof v. D.C. Bd. of Elections & Ethics, 1
A.3d 383, 394 (D.C. 2010); York Apartments Tenants Ass’n v.
D.C. Zoning Comm’n, 856 A.2d 1079, 1085 (D.C. 2004); Dist.
Intown Props., Ltd. v. D.C. Dep’t of Consumer & Regulatory
Affairs, 680 A.2d 1373, 1377 (D.C. 1996). HRH objects that
the D.C. Court of Appeals order dismissing its petition did not
set forth the grounds for its holding but HRH ignores the order
to show cause. Second, the issue was “actually and necessarily
determined by a court of competent jurisdiction,” Yamaha, 961
F.2d at 254, because the D.C. Court of Appeals dismissed
HRH’s petition for lack of standing in view of its non-
aggrievement, and that court has jurisdiction over petitions
regarding D.C. agency orders, see D.C. Code § 2–510(a).
Third, applying issue preclusion involves no basic unfairness
to HRH because the order to show cause put HRH on notice
and HRH had the same incentives to litigate this standing issue
before the D.C. Court of Appeals where it was challenging the
same license conditions.
The curable defect exception to issue preclusion allows
relitigation of jurisdictional dismissals when a material
occurrence subsequent to the original dismissal remedies the
original deficiency. Nat’l Ass’n of Home Builders v. EPA, 786
F.3d 34, 41 (D.C. Cir. 2015); see Dozier v. Ford Motor Co.,
702 F.2d 1189, 1192 (D.C. Cir. 1983). Neither the Supreme
Court nor this court has decided whether the lack of Article III
standing at the outset of litigation is determinative of the
court’s jurisdiction because events occurring subsequent to the
filing of the original complaint cannot cure that deficiency.
The district court relied on Davis v. Fed. Election Comm’n, 554
U.S. 724, 734 (2008), for the proposition that “[t]he standing
8
inquiry is ‘focused on whether the party invoking jurisdiction
had the requisite stake in the outcome when the suit was filed.’”
Scahill, 286 F. Supp. 3d at 19 (quoting Davis, 554 U.S. at 734).
There, Jack Davis, a candidate for a seat in the U.S. House of
Representatives, challenged the asymmetrical campaign
contribution limits under Section 319(a) of the Bipartisan
Campaign Reform Act of 2002, 2 U.S.C. § 441a–1(a), as
violative of his First Amendment rights, because the provision
allowed his opponent to be subject to higher campaign
contribution limits in view of Davis’s expenditure of his
personal funds. Davis, 554 U.S. at 729-31. Rejecting the
Federal Election Commission’s view that Davis could not show
the requisite injury because his opponent had yet to qualify for
the higher limits at the outset of the litigation and ultimately
chose not to take advantage of them, see id. at 734, the Supreme
Court held that Davis faced the requisite Article III injury when
he declared his intent to spend his personal funds and there was
no suggestion that his opponent would forgo the Section 319(a)
advantage. Id. Davis, then, held that Article III injury is
satisfied at the outset of the litigation even if the anticipated
injury fails to come to fruition, but does not address whether
subsequent events can provide standing that was lacking at the
outset.
More instructive is the Supreme Court’s precedent where
jurisdiction was determined by looking beyond the original
complaint. In Mathews v. Diaz, 426 U.S. 67, 75 (1976), a
Medicare applicant did not file his Part B application until after
he was joined as a plaintiff in an amended complaint. Although
42 U.S.C. § 405(g) made filing an application a “nonwaivable
condition of jurisdiction,” the Supreme Court held that
condition was met. The Court stated it had “little difficulty” in
holding that the district court had jurisdiction over the
plaintiff’s constitutional claim. Id. Citing Federal Rule of
Civil Procedure 15(d), the Court stated that “[a] supplemental
9
complaint in the District Court would have eliminated this
jurisdictional issue.” Id. Likewise, in Rockwell International
Corp. v. United States, 549 U.S. 457, 460 (2007), the Court
made clear that the original complaint was not dispositive of
jurisdiction. There, the Court stated that “when a plaintiff files
a complaint in federal court and then voluntarily amends the
complaint, courts look to the amended complaint to determine
jurisdiction.” Id. at 473-74 (citations omitted). In determining
jurisdiction, the Court looked to the final pretrial order, which
“superseded all prior pleadings and ‘controll[ed] the
subsequent course of the action,’ Fed. Rule Civ. Proc. 16(c).”
Id. at 474. The Court observed that it did not matter that the
pleadings were not formally amended. Id. (citing FED. R. CIV.
P. 15(b) and 16; other citations omitted).
A number of the circuit courts of appeal have addressed
whether events subsequent to the filing of the original
complaint can cure a jurisdictional defect. Some courts have
held that a plaintiff may cure a standing defect through a
supplemental pleading alleging facts that arose after the
original complaint was filed. See Northstar Fin. Advisors Inc.
v. Schwab Investments, 779 F.3d 1036, 1044 (9th Cir. 2015);
United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d
1, 6 (1st Cir. 2015); Daniels v. Arcade, L.P., 477 F. App’x 125,
131 (4th Cir. 2012); Prasco, LLC v. Medicis Pharm. Corp., 537
F.3d 1329, 1337 (Fed. Cir. 2008); Travelers Ins. Co. v. 633
Third Assocs., 973 F.2d 82, 87-88 (2d Cir. 1992). Other courts
have affirmed the dismissal of the original complaint for lack
of jurisdiction even if subsequent events cured the standing
deficiency, so that the plaintiff would have to file a new lawsuit
to pursue the claims. See S. Utah Wilderness All. v. Palma, 707
F.3d 1143, 1153 (10th Cir. 2013); Pollack v. U.S. Dep’t of
Justice, 577 F.3d 736, 743 (7th Cir. 2009); Park v. Forest Serv.
of U.S., 205 F.3d 1034, 1037-38 (8th Cir. 2000).
10
The circuit courts of appeal adopting the former approach
have relied on the supplemental pleadings provision of Federal
Rule of Civil Procedure 15(d), which provides such pleading
may “set[] out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented,”
FED. R. CIV. P. 15(d).1 The Advisory Committee has explained
that Rule 15(d) was amended in order to place broad discretion
in the district court in order to avoid “needlessly remitt[ing]
[plaintiffs] to the difficulties of commencing a new action even
though events occurring after the commencement of the
original action have made clear the right to relief.” Id.,
advisory committee notes to 1963 amendment. Tracking this
approach, the Ninth Circuit in Northstar Financial Advisors
Inc., 779 F.3d at 1042, affirmed the district court’s decision to
allow Northstar to file an amended complaint as a supplemental
pleading pursuant to Rule 15(d), id. at 1043-44, where it had
filed a shareholder class action lawsuit against an investment
trust before obtaining an assignment of claims allowing suit on
the shareholders’ behalf, id. at 1043. Permitting subsequent
pleadings to correct jurisdictional defects “circumvents the
needless formality and expense of instituting a new action
when events occurring after the original filing indicated a right
to relief.” Id. at 1044 (internal quotation marks and citation
omitted). Although Rule 15(d) refers to deficiencies “in stating
a claim or defense,” FED. R. CIV. P. 15(d), the court concluded
1
Federal Rule of Civil Procedure 15(d) provides:
On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.
The court may permit supplementation even though the
original pleading is defective in stating a claim or defense.
The court may order that the opposing party plead to the
supplemental pleading within a specified time.
11
there was no reason why a jurisdictional defect should be
different, relying in part on the Supreme Court’s discussion of
amended pleadings in Matthews v. Diaz and Rockwell
International Corp. v. United States. See Northstar, 779 F.3d
at 1044.
The government acknowledges the open jurisdictional
question in this court and the Supreme Court and the circuit
split. Citing the Tenth Circuit’s 2013 decision as “significant
authority contrary to plaintiffs’ position,” Appellee’s Br. at 22,
the government offers no analysis of which approach this court
should adopt. Instead the government maintains that even
assuming that there is merit to the Northstar approach,
appellants cannot prevail because their proposed second
amended complaint had not been accepted for filing when the
district court considered HRH’s standing in view of the
Board’s imposition of the $4,000 fine. This approach harkens
back to the type of technical obstacle that the Supreme Court
rejected in Rockwell International Corp., 549 U.S. at 474, and
that the amendment to Rule 15(d) was designed to avoid.
Appellants simultaneously filed their motions for
reconsideration and for leave to file a second amended
complaint, and the district court considered the motions
together. See Scahill, 286 F. Supp. 3d at 15. The government
offers no reason why Rule 15(d)’s reference to “claim or
defense” would weigh in favor of a different interpretation. See
Northstar, 779 F.3d at 1044. To the extent the government
suggests this court’s review of the denial of appellants’ motion
for leave to file the second amended complaint is for abuse of
discretion only, maintaining there can be no such abuse when
the law is unsettled, it overlooks In re Interbank Funding Corp.
Securities Litigation, 629 F.3d at 215-18, which holds review
is de novo when the denial is based on futility.
12
Therefore, we hold that a plaintiff may cure a standing
defect under Article III through an amended pleading alleging
facts that arose after filing the original complaint. The
alternative approach forces a plaintiff to go through the
unnecessary hassle and expense of filing a new lawsuit when
events subsequent to filing the original complaint have fixed
the jurisdictional problem. The “reasonable notice” and “just
terms” limitations in Rule 15(d) guard against undue expansion
of a provision designed to eliminate “needless[] remitt[ing]” of
a plaintiff. FED. R. CIV. P. 15 advisory committee notes to 1963
amendment. Because the district court found that HRH
suffered an injury-in-fact as a result of the imposition of the
$4,000 fine nine months after HRH filed its original complaint
in federal court, HRH properly invoked the curable defect
exception to issue preclusion. The district court, consequently,
was wrong to reject HRH’s proposed second amended
complaint that included allegations about the Board’s
enforcement action that would have cured the standing defect.
We turn, therefore, to the merits.
III.
HRH contends that the license conditions violate its First
Amendment rights against compelled speech and its right of
commercial association. Absent a finding that HRH has such
constitutional rights, appellants’ counsel conceded, Oral Arg.
Tape 9:50-10:19 (Sept. 20, 2018), that HRH cannot prevail on
its claim that the license conditions are unconstitutional
conditions.
HRH’s compelled speech claim is based on the license
conditions requiring HRH to report any violation of the barring
notice to the MPD and the Board. This claim is foreclosed by
Full Value Advisors, 633 F.3d at 1108-09. There, the court
held that requiring notification of the government does not
13
constitute compelled speech because First Amendment
concerns are not implicated where the government requires
disclosures for its operations, such as requiring individuals to
provide information about their income in tax returns. Id.
Similarly, here, the District of Columbia government has an
interest in restricting the ability to sell alcohol to applicants
who are “of good character and generally fit for the
responsibilities of licensure,” D.C. Code § 25–301(a)(1), and
an interest in promoting public safety, see Marusa v. District
of Columbia, 484 F.2d 828, 834 (D.C. Cir. 1973). HRH thus
fails to state a claim that the license conditions compel its
speech in violation of its First Amendment rights.
HRH’s commercial association claim is foreclosed by U.S.
Jaycees, 468 U.S. at 620, and Stanglin, 490 U.S. at 25. The
Supreme Court has recognized the right to intimate association
and expressive association, U.S. Jaycees, 468 U.S. at 617-18,
but no general right of social association, Stanglin, 490 U.S. at
25. As a result, prohibiting HRH from employing or hosting
Scahill on the Alibi restaurant premises does not violate a
cognizable associational right. Because no constitutional
rights of HRH were violated, HRH’s unconstitutional
conditions claim also fails.
HRH’s retaliation claim is unavailing. In the proposed
second amended complaint, HRH alleges that the Board’s
enforcement action resulting in the fines was in retaliation for
HRH’s and Scahill’s efforts to overturn the license conditions
by filing a motion for reconsideration by the Board, petitioning
the D.C. Court of Appeals, and filing a complaint in federal
court. Even assuming the truth of the allegations in the
complaint, the district court did not err in concluding retaliation
was “not a plausible conclusion.” Iqbal, 556 U.S. at 682.
14
To establish a First Amendment retaliation claim, HRH
must show (1) “that [it] engaged in protected conduct,” (2)
“that the government took some retaliatory action sufficient to
deter a person of ordinary firmness in plaintiff’s position from
speaking again,” and (3) “that there exists a causal link between
the exercise of a constitutional right and the adverse action
taken against him.” Doe v. District of Columbia, 796 F.3d 96,
106 (D.C. Cir. 2015) (internal quotation marks and citation
omitted). To establish the causal link, the constitutional speech
must be the but-for cause of the retaliatory action. Id. at 107.
HRH did not plausibly allege the requisite causation.
Although it maintains that investigators appeared at the Alibi
restaurant in retaliation for appellants’ legal challenges, the
Board relied on testimony that D.C. investigators visited the
Alibi restaurant on two occasions in response to complaints
that Scahill was seen at the restaurant. See ABC Board Order
¶¶ 12, 19 (July 19, 2017) (“2017 Board Order”). The proposed
second amended complaint alleges that the Board unreasonably
fined HRH even though one of the two investigators, Ms.
Cullings, “testified under oath that she never identified Mr.
Scahill as being present at the Alibi on June 10, 2016.”
Proposed Second Am. Compl. ¶ 63. The Board could properly
rely on testimony from the other investigator, Mr. Brashears,
who was familiar with Scahill and identified him talking to
Rachel Traverso and working at the restaurant; Ms. Cullings
testified that she had no reason to doubt this. Appellants also
object to the district court’s adoption of the Board’s factual
findings, but HRH attached the 2017 Board Order to its motion
for leave to amend the complaint and the district court need not
“accept as true the complaint’s factual allegations insofar as
they contradict exhibits to the complaint or matters subject to
judicial notice,” Kaempe v. Myers, 367 F.3d 958, 963 (D.C.
Cir. 2004).
15
Scahill’s commercial association claim fails for the same
reasons as HRH’s fails. His Fifth Amendment claims fail as
well. Appellants contend Scahill adequately pleaded a
substantive due process claim based on his right to travel. But,
as the district court ruled, neither the Supreme Court nor this
court has recognized a general right to intrastate travel. See
Hutchins v. District of Columbia, 188 F.3d 531, 537-38 (D.C.
Cir. 1999). In these circumstances, Scahill has no substantive
right to be in a particular place at a particular time, namely to
be at the Alibi restaurant. Scahill’s procedural due process
claim that the license conditions prevent him from being able
to enter and eat at the Alibi restaurant and from pursuing his
chosen profession without due process likewise fails because
he did not identify a cognizable liberty or property interest.
Appellants point to no authority that a cognizable liberty
interest is implicated by the ban from one commercial
establishment. Nor is Scahill thereby deprived of his “right to
follow a chosen trade or profession without governmental
interference,” O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C.
Cir. 1998) (internal quotation marks and citation omitted),
merely because he cannot work at one particular establishment
in the District of Columbia. To the extent that Scahill asserts a
property right on the basis of his status as a guarantor on the
Alibi lease, such a property interest must “stem from an
independent source such as state law,” Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972), and Scahill has not
identified any state law or term of the lease agreement that
gives him a property interest as result of his status as a
guarantor.
Accordingly, we affirm the September 25, 2017 dismissal
of Scahill’s claims and HRH’s First Amendment retaliation
claim; we reverse the December 11, 2017 denial of HRH’s
motions for reconsideration and for leave to file the second
16
amended complaint; and we affirm the dismissal of HRH’s
remaining claims.