William Morlok v. City of Philadelphia

• Court: Court of Appeals for the Third Circuit
• Decided: January 26, 2022
• Docket: 20-2973
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2973 ______________

WILLIAM MORLOK; ADAM NOVICK; THEODORE LEWIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellants

v.

CITY OF PHILADELPHIA ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-17-cv-04213) District Judge: Hon. Michael M. Baylson ______________

Submitted Under Third Circuit L.A.R. 34.1(a) January 25, 2022 ______________

Before: HARDIMAN, SHWARTZ, and FUENTES, Circuit Judges.

(Filed: January 26, 2022) ______________

OPINION ______________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 SHWARTZ, Circuit Judge.

Plaintiffs-Appellants (“Plaintiffs”) and the putative class are electric vehicle

(“EV”) owners who, before 2017, had twenty-four-hour access to designated EV parking

spaces adjacent to their homes pursuant to Section 12-1131 of the Philadelphia Code

(“EV Program”). In 2017, Philadelphia (the “City”) modified the code and limited EV-

only access to 6:00 pm to 6:00 am (“2017 Amendment”), thereby permitting non-EVs to

park in those spots for periods outside of those hours. Plaintiffs claim that the 2017

Amendment violates their substantive due process and equal protection rights and

unjustly enriches the City.

The District Court dismissed the constitutional claims (“First Order”), Morlok v.

City of Philadelphia, No. 17-4213, 2018 WL 6092719 (E.D. Pa. Nov. 21, 2018), and

permitted discovery on the unjust enrichment claim, compelling production of documents

reflecting the City’s policies on attracting technology and business but barring discovery

concerning the EV Program’s “legislative history” (“Second Order”), App. 21 (August 9,

2019). Following discovery, the City moved for summary judgment on the unjust

enrichment claim, which the District Court granted (“Third Order”). Morlok v. City of

Philadelphia, No. 17-4213, 2020 WL 5101942 (E.D. Pa. Aug. 28, 2020).

Because the District Court did not err, we will affirm all three orders.1

1 In the Third Order, the District Court also stated that it “need not decide Plaintiffs’ Motion for Class Certification,” Morlok, 2020 WL 5101942, at *3 n.1. Because Plaintiffs make only passing reference, and no argument on this subject, any challenge is forfeited. See FTC v. AbbVie Inc., 976 F.3d 327, 368 n.3 (3d Cir. 2020). cert. denied sub nom. AbbVie Inc. v. FTC, 141 S. Ct. 2838 (2021). 2 I2

A3

We first review the First Order, which dismissed Plaintiffs’ substantive due

process and equal protection claims under Fed. R. Civ. P. 12(b)(6). According to the

Amended Complaint, Plaintiffs each submitted applications, “obtained . . . a parking

space at their respective places of residence,” and installed EV chargers near the parking

spaces. App. 40-43. Each was informed that “[a]n [EV space] should not be treated as a

personal parking spot,” as “[a]nyone with an [EV] is allowed to park in the [EV space].”

App. 55. After the 2017 Amendment, non-EVs were permitted to occupy EV Program

spaces during a twelve-hour period previously reserved for EVs. Plaintiffs assert that this

deprives them of access to their EV chargers in violation of their substantive due process

and equal protection rights.

2 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. 3 We exercise plenary review of a district court’s order granting a motion to dismiss for failure to state a claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011). We must determine whether the complaint, construed in the “light most favorable to the plaintiff,” Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014) (citation omitted), “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), “but we disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements,” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 663. 3 B

Substantive due process under the Fourteenth Amendment “protects individual

liberty against certain government actions regardless of the fairness of the procedures

used to implement them.” Newark Cab Ass’n v. City of Newark, 901 F.3d 146, 155 (3d

Cir. 2018) (quotation marks and citation omitted). “Substantive due process contains two

lines of inquiry: one that applies when a party challenges the validity of a legislative act,

and one that applies to the challenge of a non-legislative action.” Am. Express Travel

Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). When a

legislative act is challenged, as here, we apply rational basis review if no “fundamental

rights and liberty interests” are at issue. Heffner v. Murphy, 745 F.3d 56, 79 (3d Cir.

2014) (citations omitted); see also Nicholas v. Pa. State Univ., 227 F.3d 133, 139 n.1 (3d

Cir. 2000) (“[e]xecutive acts . . . typically apply to one person or to a limited number of

persons, while legislative acts, generally laws and broad executive regulations, apply to

large segments of society”).

The EV Program provides access to a parking space. Plaintiffs do not own the

space, the space is not assigned to them, the City notified each Plaintiff that the space is

not to be treated as any EV owners’ personal parking space, and Plaintiffs are not given

exclusive use of the space. App. 55. Rather, the EV Program allows “anyone with an

[EV]” to park in the designated spaces, not a specific EV owner. Id.. Thus, Plaintiffs do

not have a property interest in the EV spaces. Because we have not recognized a

property right outside real property as “fundamental,” Newark Cab, 901 F.3d at 155

(citation omitted), and although there may be non-real property rights that may be

4 deemed fundamental, Plaintiffs’ purported right to the parking space is not fundamental

regardless of the category into which it falls. Thus, rational basis review applies.

Under rational basis review, the ordinance will “withstand[] a substantive due

process challenge if the state identifies a legitimate state interest that the legislature could

rationally conclude was served” by the ordinance. Heffner, 745 F.3d at 79 (citation

omitted); see also Am. Express, 669 F.3d at 366-67 (rational basis review requires

“significant deference” to the legislature’s decisions if it “rationally furthers any

legitimate state objective”) (citation and quotation omitted) (emphasis in original). The

parties agree that the City has a legitimate interest in “providing more parking on [the

congested] City streets.” D. Ct. ECF No. 26 at 11. “One way to [provide more parking]

was to amend the EV Ordinance to free up restricted parking for 12 hours a day.” Id. at

12. Thus, the 2017 Amendment bears a rational relationship to the City’s interest in

reducing parking congestion, as spaces previously reserved for only one type of vehicle

are now available to other types of vehicles for half of each day.

Plaintiffs argue that the means selected—reducing the hours in which EV spaces

are reserved for EVs—are (1) overly broad, (2) unnecessary, and (3) misguided. None of

these objections requires us to conclude the 2017 Amendment violates substantive due

process. First, the means selected need not be narrowly tailored to survive rational basis

review. See Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 694-95 (3d Cir. 1996)

(“Just because a measure is over- or under-inclusive will not render it irrational.”).

Second, Plaintiffs’ argument that reducing the hours when EV spaces are reserved for

EVs was unnecessary, as the City Council could have instead chosen to reduce parking

5 reserved for people with disabilities, is irrelevant. Rational basis review does not require

the means chosen to be the only or best way to further the legitimate state interest. See

Heffner, 745 F.3d at 83–84. Third, Plaintiffs contend that modifying sixty-eight EV

spaces would not meaningfully increase available parking, but the 2017 Amendment does

not violate substantive due process merely because it makes incremental progress. See

Stretton v. Disciplinary Bd. of Supreme Ct. of Pa., 944 F.2d 137, 146 (3d Cir. 1991).

Because the 2017 Amendment’s reduction of the hours the designated spaces are reserved

for EVs is rationally related to the goal of increasing available parking, the 2017

Amendment does not violate Plaintiffs’ substantive due process rights.4

C

The District Court also correctly dismissed Plaintiffs’ equal protection claim. The

Equal Protection Clause dictates “that all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Where, as

here, a challenged state action does not burden a fundamental right or target a suspect

class, rational basis review applies. Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,

213 (3d Cir. 2013). Under this standard of review, “legislation is presumed to be valid

4 Plaintiffs cite Landgraf v. USI Film Products, 511 U.S. 244 (1994), to argue that the 2017 Amendment has “retroactive” effect and thus does not “withstand scrutiny.” Appellants’ Br. at 10–11. Even if the concept of retroactivity was apt (and it likely is not because the 2017 Amendment does not govern actions prior to 2017), it is irrelevant because rational basis review still applies. See, e.g., United States v. Carlton, 512 U.S. 26, 35 (1994) (holding no violation of due process where retroactive application of a legislative amendment is “rationally related to a legitimate legislative purpose”). 6 and will be sustained if the classification drawn by the statute is rationally related to a

legitimate state interest.” Cleburne, 473 U.S. at 440 (citations omitted).

Plaintiffs argue the District Court erred in finding that the relevant “similarly

situated” group is “all vehicle owners in Philadelphia who [use] parking spaces reserved

for EVs under” the EV Program, Morlok, 2018 WL 6092719, at *7.5 Plaintiffs contend

that the relevant “similarly situated” group includes drivers who use loading zones, car

share service parking, handicapped parking, and spaces made unavailable to provide

access to a private driveway or private garage. Appellants’ Br. at 15-16.

Plaintiffs’ equal protection claim fails for two reasons. First, Plaintiffs are not

similarly situated to the comparators they identify. Persons are “similarly situated” only

when they are alike in “all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d

183, 203 (3d Cir. 2008) (citation omitted). Plaintiffs are in a different position from, for

example, drivers who use accessible parking spaces. EV owners voluntarily chose to

drive electric vehicles, whereas the need for accessible spaces is not voluntary. Thus, the

legislative decision to change the hours in which EV spaces are reserved for EVs

modifies a convenience, whereas changing the availability of accessible parking spaces

could cause a hardship. Cf. Marcavage v. Nat’l Park Serv., 666 F.3d 856, 860 (3d Cir.

5 Plaintiffs also argue that they were treated differently from other EV owners because they installed chargers near the spaces while other EV owners did not. The 2017 Amendment treated all EV owners the same: all EV owners must compete with non- electric vehicle owners to use EV spaces during the hours of 6:00 am to 6:00 pm, regardless of whether they live adjacent to the EV space or have invested money in an EV charger. The fact that Plaintiffs invested in chargers only indicates that they had a hand in selecting which parking spaces would be designated under the EV Program, but as they were informed, that gave them no entitlement to the eventual space. 7 2012) (holding that a person escorted from a public sidewalk for leading a demonstration

without a permit was not similarly situated to others using the sidewalk for non-

demonstration purposes). Second, even if we were to assume that Plaintiffs’ identified

groups are “similar” to Plaintiffs, the City had a legitimate interest in reducing parking

congestion, and it rationally chose one method—making EV spots available to non-EVs

for part of the day—in pursuit of that goal. The fact that other users of other restricted

parking spaces were unaffected does not mean the 2017 Amendment did not further a

legitimate state interest. The District Court thus correctly dismissed Plaintiffs’ equal

protection claim.

II6

Plaintiffs also appeal the Second Order, which precluded discovery of certain

information. Plaintiffs sought, among other things, constituent communications, City

Council documents, and communications with the Mayor’s office “relating to the [EV]

Program,” S. App. 83-88, and argued that they were relevant to “the drafting and

amendment of the [EV Program],” “the City’s efforts to promote itself as

. . . environmentally . . . advanced,” and the “City’s deprivation of the Plaintiffs’ ability

to use their [EVs] and infrastructure to charge them,” S. App. 89. The District Court

compelled production of “written policies, promotions, etc. on attracting technology and

We review discovery orders “for abuse of discretion.” In re Orthopedic Bone 6

Screw Prod. Liab. Litig., 264 F.3d 344, 365 (3d Cir. 2001). 8 business to the City” but precluded depositions and the production of documents

concerning “legislative history about the ordinance or the amendment.” App. 21.

The District Court did not abuse its discretion in limiting discovery in this way.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). When the District Court issued its discovery order, unjust enrichment was the

only claim remaining in the case. Unjust enrichment claims focus on whether a

defendant unfairly retained a benefit given by the plaintiff, not the defendant’s

motivations. See Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. Ct. 1995).

Plaintiffs sought information regarding the reasons the City initiated the EV Program,

which would not reveal whether the City unjustly retained a benefit Plaintiffs conferred.

Because Rule 26 limits the scope of discovery to information relevant to claims and

defenses, and the information sought is not relevant to the unjust enrichment claim, the

District Court acted within its discretion to limit discovery.

III7

A

Plaintiffs also challenge the Third Order, in which the District Court granted

summary judgment to the City on Plaintiffs’ unjust enrichment claim. To succeed on an

7 We review a district court’s order granting summary judgment de novo, Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), and we view the facts and make all reasonable inferences in the non-movant’s favor, Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party is entitled to 9 unjust enrichment claim, Plaintiffs must prove: (1) a “benefit[] conferred on [the City] by

[Plaintiffs],” (2) “appreciation of such benefit[] by [the City],” and (3) “acceptance and

retention of such benefit[] under such circumstances that it would be inequitable for [the

City] to retain the benefit without payment of value.” Mark Hershey Farms Inc. v.

Robinson, 171 A.3d 810, 817 (Pa. Super. Ct. 2017). Discovery produced the factual

record upon which the summary judgment motion was based, and we next recite the facts

material to the elements of the unjust enrichment claim.

B

The City has established several environmentally conscious programs and issued

reports describing its sustainability plans. With respect to EVs, the reports mentioned the

City’s installation of EV chargers, EVs in the City’s rideshare program, and the EV

Program. The City also touted its sustainability efforts in social media posts, but none

mention EVs or the EV Program.

Plaintiffs voluntarily participated in the EV Program, purchased an EV, installed a

charger on their property near the assigned EV space at their own expense, recognized

that any EV could park in the EV space near their home, and believed the chargers

increased the value of their homes. In addition, Plaintiffs stated they were “induced by

the City to apply for an [EV] space by the City’s adoption of [the EV Program] as

judgment as a matter of law when the non-moving party fails “to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 10 originally written,” S. App. 73, and would not “be able to charge their respective electric

vehicles without their designated electric vehicle parking spots,” S. App. 73.

Plaintiffs contend that the City received two benefits from their participation in the

EV Program: (1) improvements to City infrastructure and (2) enhanced reputation.

Neither, however, is a compensable benefit and thus the District Court correctly granted

summary judgment in the City’s favor. See DiCarlo v. St. Mary Hosp., 530 F.3d 255,

268 (3d Cir. 2008) (“In the absence of a benefit conferred, there can be no claim for

unjust enrichment . . . .”).

First, Plaintiffs presented no evidence that the City received a benefit from their

installation of EV chargers. Plaintiffs installed the charges on their own property, and

thus they did not improve public infrastructure.

Second, even if the City gained a reputational benefit from Plaintiffs’ participation

in the EV Program, that benefit cannot be compensated under the law of unjust

enrichment. As the District Court correctly noted, unjust enrichment claims cannot be

based on “speculative” or “intangible” benefits. See Feather v. United Mine Workers of

Am., 711 F.2d 530, 541 (3d Cir. 1983) (denying recovery on an unjust enrichment theory

of prejudgment interest where the plaintiff failed to prove the amount of the alleged

economic benefit); see also Tempo Networks LLC v. Gov’t of NIA, No. 2:14-06334,

2016 WL 2625026, at *3 (D.N.J. May 9, 2016) (finding that a defendant was not unjustly

enriched by “benefits and promotion . . . for many years” where the defendant failed to

pay for “recording, producing, and airing” certain television programs because the benefit

11 was “too speculative”). Plaintiffs presented no evidence from which a factfinder could

determine the value of what the City “reaped” from Plaintiffs’ participation in the City’s

effort to “proclaim[] itself on the path to being ‘the greenest city in America.’” D. Ct.

ECF No. 61 at 10; see also Meehan v. Cheltenham Twp., 189 A.2d 593, 595 (Pa. 1963)

(“[Plaintiff] cannot merely allege its own loss as the measure of recovery . . . but instead

must demonstrate that [the defendant] has in fact been benefited.”).

Because Plaintiffs have not presented evidence that the EV Program conferred a

compensable benefit on the City, the District Court properly granted summary judgment

on the unjust enrichment claim.

IV

For the foregoing reasons, we will affirm the orders of the District Court.