Bergman v. City of Atlantic City

• Decision Date: 21 November 1988
• Docket Number: No. 88-5128,88-5128
• Citation: 860 F.2d 560
• Parties: Edward and Gilda BERGMAN, Appellants, v. The CITY OF ATLANTIC CITY, The Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, New Jersey, and Resorts International, Inc., Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 560

860 F.2d 560

12 Fed.R.Serv.3d 630

Edward and Gilda BERGMAN, Appellants, v. The CITY OF ATLANTIC CITY, The Housing Authority and Urban

Redevelopment Agency of the City of Atlantic City,

New Jersey, and Resorts International,

Inc., Appellees.

No. 88-5128.

United States Court of Appeals, Third Circuit.

Argued July 26, 1988.

Decided Oct. 24, 1988.

Rehearing and Rehearing In Banc Denied Nov. 21, 1988.

Edward Bergman (argued), pro se.

Gerald A. Inglesby, Merchantville, N.J., for appellant.

Matthew H. Powals (argued), Atlantic City, N.J., for appellee City of Atlantic City.

William J. Bigham (argued), Sterns, Herbert, Weinroth & Petrino, P.A., Trenton, N.J., for appellee Resorts Intern., Inc.

Gerard W. Quinn (argued), Atlantic City, N.J., for appellee Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, N.J.

Before HIGGINBOTHAM, BECKER and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Appellants Edward and Gilda Bergman seek reversal of the district court's order granting summary judgment in favor of defendants and denying the Bergmans' motion for leave to amend their complaint. The Bergmans are the plaintiffs in one of two actions consolidated for discovery and trial by the district court; the other action is still pending. At issue in both actions is the validity of amendments made to an Urban Renewal Plan ("the Plan") which regulates the development of an area in Atlantic City. Within that area is the Beachgate condominium complex; the Bergmans own one of the Beachgate units. At the heart of the Bergmans' claim is their assertion that the Plan was impermissibly amended without their written consent. A preliminary issue for this court, before we can adjudicate the merits of the Bergmans' appeal, is whether appellate jurisdiction exists despite the pendency of the consolidated action in the district court. Because we hold that it does not, we need not decide at this time whether the district court properly granted summary judgment and denied the Bergmans leave to amend their complaint.

I.

In 1965, an 80-acre tract of land bordering the Atlantic City boardwalk ("the Tract") was declared an Urban Renewal Area pursuant to 42 U.S.C. Sec. 1452 (1976), and the Plan was adopted to regulate development of the Tract. The Plan was amended in 1973, and recorded in the Clerk's Office of Atlantic City. This amended version of the Plan was in effect in 1976 when the Bergmans purchased a condominium in the Beachgate complex, situated in the Tract governed by the Plan. The portion of the Plan at issue in this case is Paragraph F, which allows for amendment of the Plan

upon compliance with the requirements of all applicable laws by the Housing Authority of the City of Atlantic City, with the approval of the Board of Commissioners of the City of Atlantic City, provided, however, that the amendment must be consented to in writing by the purchaser, lessee, their successor or assigns of any land in the project area, previously acquired or agreed to be acquired in accordance with the Urban Renewal Plan, whose interests therein are materially affected by such amendment.

App. at 68.

Shortly after the Bergmans purchased their condominium, the New Jersey Constitution was amended to allow for gambling casinos in Atlantic City. Some two years later, appellee Resorts International, Inc. ("Resorts") began construction of the first casino. On June 15, 1983, appellees the City of Atlantic City ("the City") and the Housing Authority and Urban Development Agency of the City of Atlantic City ("the Housing Authority") amended the Plan to allow for more and larger hotels along the boardwalk. ¹ Neither the City nor the Housing Authority notified the Bergmans of the planned amendment, and the Bergmans never consented to it in writing.

On June 1, 1985, Edward Bergman wrote to the Housing Authority expressing his concern that the Plan not be changed without his knowledge. App. at 73. Over the course of the next few months, Bergman corresponded with the Housing Authority about the 1983 amendment to the Plan, with Bergman objecting to the lack of notice and insisting upon the necessity of his consent. The Housing Authority took the position that his consent was not required. Not satisfied with the responses from the Housing Authority or, later, from the City, Bergman initiated the current lawsuit.

The Bergmans filed a six-count complaint in the district court on September 3, 1986, and amended it on November 14, 1986. The amended complaint sought to represent a class of similarly situated purchasers and owners of condominiums in the Beachgate complex. The complaint named the City and the Housing Authority as defendants and alleged an unconstitutional taking of property without due process in violation of the fifth and fourteenth amendments and 42 U.S.C. Sec. 1983. Other counts alleged breach of contract, a violation of the New Jersey Constitution, and sought to prevent any further amendment of the Plan absent the Bergmans' consent. Count Six, which also named Resorts as a defendant, alleged a conspiracy to violate the Bergmans' rights under the Plan in violation of 42 U.S.C. Sec. 1985.

On January 14, 1987, the section 1985 count was dismissed for failure to state a claim, thus effectively ending Resorts' participation in the Bergmans' action. Although the district court did not certify the dismissal order for appeal under Fed.R.Civ.P. 54(b), the Bergmans filed a notice of appeal to this court on February 9, 1987. That appeal was withdrawn five days later, and the dismissal is not challenged in the current appeal.

On February 24, 1987, the Association of Owners of the Courts at Beachgate (the condominium owners' association) filed suit in the New Jersey Superior Court of Atlantic County against Resorts, Showboat, Inc., the City, and the Housing Authority ("the Beachgate action"). The central issue in the Beachgate action, like that in Bergman, is whether the 1983 amendment to the Plan was valid absent the condominium owners' consent. The Beachgate action was removed to the district court on April 17, 1987. Upon removal, Resorts moved to consolidate the Bergman and Beachgate actions. The motion was unopposed, and on August 21, 1987, a magistrate ordered the two actions "consolidated for all purposes of discovery and trial...." App. at 102.

In the Bergman action, the Bergmans and the remaining defendants cross-moved for summary judgment. While the motions were pending, the district court asked the parties to prepare arguments solely on the section 1983 count, which was the only remaining count for which federal subject matter jurisdiction was alleged. In a "supplemental brief," the Bergmans argued that federal question jurisdiction existed not only pursuant to section 1983, but also pursuant to 42 U.S.C. Sec. 1455(b), a section which deals with federally funded urban renewal projects.

On November 25, 1987, the district court granted the defendants' motion for summary judgment on Count I, and dismissed the pendent state claims without prejudice. The dismissal portion of the order has not been appealed. The Bergmans filed a motion under Fed.R.Civ.P. 59(e) on December 7, 1987, to vacate the summary judgment, to grant summary judgment for plaintiffs, and for leave to amend the complaint so as to allege jurisdiction pursuant to section 1455(b). The district court characterized the motion as untimely, but also denied it on the merits. ² App. at 121-26. The Bergmans then filed a timely notice of appeal to this court. ³

II.

We will dismiss the Bergmans' appeal because the pendency of the Beachgate action, with which it has been consolidated "for all purposes of discovery and trial," makes the summary judgment order non-final for purposes of 28 U.S.C. Sec. 1291, and because the district court has not certified the order for appeal pursuant to Fed.R.Civ.P. 54(b). The dismissal is without prejudice to any motion the Bergmans may file under Rule 54(b).

A.

The precise issue before us is whether, where two separately filed actions have been consolidated "for all purposes of discovery and trial," a summary judgment in one action may be considered final and appealable while the second action remains pending in the district court. Only two cases decided by this court have any precedential value.

The first of these cases, Jones v. Den Norske Amerikalinje A/S, 451 F.2d 985 (3d Cir.1971), provides little guidance. The court's entire jurisdictional discussion in that case is as follows:

The three appellees started separate actions, which were consolidated. The order of consolidation was not for all purposes but only for trial [of liability but not of damages], and a separate judgment was entered in favor of Jones. This being so, the judgment in favor of Jones probably is final and hence appealable under 28 U.S.C. Sec. 1291 (1964).

Even if this judgment is considered interlocutory, however, we have jurisdiction to consider this appeal under 28 U.S.C. Sec. 1292(a)(3) (1964) since the consolidated cases were solely in admiralty.

Id. at 986-87 (citations omitted). As this discussion demonstrates, the finality of the judgment in Jones's action was not actually decided by the court (as shown by the use of "probably" in the opinion), nor was a determination of the issue necessary, as jurisdiction existed under section 1292(a)(3). Therefore, Jones is neither controlling nor particularly helpful in the current appeal.

More recently, this court decided Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978). In Bogosian, we were faced with the issue whether an order granting summary judgment in one of two consolidated cases could be considered a "separate judicial unit" for purposes of Rule 54(b) certification. The cases had been consolidated for pre-trial purposes only. In concluding that the district court was empowered to certify the...