     Case: 09-11202 Document: 00511293253 Page: 1 Date Filed: 11/15/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                      November 15, 2010

                                    No. 09-11202                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



ENCLAVE ARLINGTON ASSOCIATES LIMITED PARTNERSHIP,

                                                 Plaintiff - Appellant
v.

CITY OF ARLINGTON, TEXAS,

                                                 Defendant - Appellee




                  Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:09-CV-155


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Enclave Arlington Associates Limited Partnership (“Enclave”) appeals the
district court’s grant of summary judgment dismissing its Fourth Amendment
claim against the City of Arlington (“the City”) and appeals the district court’s
denial of its motion for a continuance. For the following reasons, we AFFIRM.
                          FACTS AND PROCEEDINGS
       In 2004, the City entered into an agreement with the Dallas Cowboys


      *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
    Case: 09-11202 Document: 00511293253 Page: 2 Date Filed: 11/15/2010




Football Club (“Cowboys”) whereby the City would become the owner of a newly
constructed sports stadium, leased by the Cowboys. Because stadium events
were expected to substantially impact traffic in the surrounding area, prior to
the stadium’s opening in 2009, the Cowboys submitted a proposed traffic
management plan (“TMP”) to the City. The City reviewed and modified the
Cowboys’ proposed TMP before approving it.
      Next to the Cowboys’ stadium is a three-hundred-and-forty-eight unit
apartment complex owned by Enclave. The entrance to the Enclave complex is
on Randol Mill Road, which lies between the Enclave complex and the stadium.
Legends Way intersects Randol Mill Road on the east side of the Enclave
complex. Due to the large number of pedestrians that converge at the corner of
Legends Way and Randol Mill Road during events, the TMP limits vehicular
access to Randol Mill Road and other streets around the stadium. The TMP
allows an individual to access the Enclave complex by placing a “hang tag” in the
car or by informing a police officer on duty that the Enclave complex is his or her
destination. Some residents have reported delays when attempting to enter or
leave the Enclave complex during events and some have complained about traffic
and noise.
      In a lawsuit filed against the City, Enclave alleged a substantive due
process violation pursuant to 42 U.S.C. § 1983, an unreasonable seizure in
violation of the Fourth Amendment, regulatory and physical takings in violation
of the Fifth Amendment, and a private nuisance claim. It also requested
preliminary and permanent injunctions. After a hearing, the district court
denied Enclave’s request for a preliminary injunction. On July 24, 2009, the City
filed for summary judgment.       Enclave filed two successive motions for a
continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure,
which the district court granted. Subsequently, Enclave filed a third Rule 56(f)

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motion requesting an additional thirty days to respond, which the district court
denied in part, allowing only a fifteen-day continuance. After receiving Enclave’s
opposition, the district court granted summary judgment in favor of the City.
                                    DISCUSSION
      A. Summary Judgment
      “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(c)(2).
      i. Enclave’s Fourth Amendment Claim
      The Fourth Amendment, made applicable to the States by the Fourteenth
Amendment, Ker v. California, 374 U.S. 23, 30 (1963), provides in relevant part
that the “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.” U.S.
Const. amend. IV. The Fourth Amendment applies to civil as well as criminal
seizures. Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009). A “seizure”
of property occurs when “there is some meaningful interference with an
individual’s possessory interests in that property.” United States v. Jacobsen,
466 U.S. 109, 113 (1984); Soldal v. Cook County, 506 U.S. 56, 61 (1992). Only if
a court concludes that a seizure has occurred will it then consider the seizure’s
reasonableness, a determination requiring “a careful balancing of governmental
and private interests.” Soldal, 506 U.S. at 71; Freeman v. City of Dallas, 242
F.3d 642, 649 (5th Cir. 2001).
      Enclave contends that the district court applied an incorrect standard of
law by requiring a physical dispossession of Enclave’s property, rather than

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considering whether the City’s actions amounted to “meaningful interference
with [Enclave’s] possessory interests in that property.” See Jacobsen, 466 U.S.
at 113; see also Thomas v. Cohen, 304 F.3d 563, 572 (6th Cir. 2002) (“[A]n act
[need not] embody physical displacement of property in order to constitute a
seizure within the meaning of the Fourth Amendment.”). However, the district
court applied the correct standard of law, recognizing that “[w]hile complete
‘dispossession’ may not be required . . . [Enclave] has failed to establish any
seizure that meaningfully interfered with its possessory interests.” Enclave
Arlington Assoc. Ltd. P’ship v. City of Arlington, 669 F. Supp. 2d 735, 740–41
(N.D. Tex. 2009).
      According to Enclave, the City effected a seizure by denying residents
access to and from the Enclave complex during stadium events. However,
“Fourth Amendment rights are personal rights, which may be enforced only by
the person whose rights were infringed.” United States v. Pack, 612 F.3d 341,
341 (5th Cir. 2010) (citation omitted); see also Rakas v. Illinois, 439 U.S. 128,
133–34 (1978) (“Fourth Amendment rights are personal rights which, like some
other constitutional rights, may not be vicariously asserted.’ ”) (citations
omitted); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 195 n.5 (5th Cir. 2009)
(holding that a nightclub did not have standing to assert Fourth Amendment
rights on behalf of its patrons); San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697,
704 (5th Cir. 1991) (“Because the record in this case is devoid of any evidence
that [the plaintiff] was personally subjected to an illegal search or seizure, [the
plaintiff] has no standing to assert the rights of third parties who may have been
subjected to such searches or seizures while at [the plaintiff's store].”). Enclave
may not assert a Fourth Amendment claim based on the rights of third parties.
      Citing Gonzalez v. City Plan Commission, 2006 WL 278985, at *3 (N.D.



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Tex. Feb. 3, 2006), for the proposition that “[c]ourts have found seizures when
personal property has been destroyed or devalued by state action,” Enclave
alleges that the City’s actions amount to “meaningful interference” with
Enclave’s possessory interests because its property has been devalued by the
City’s actions. Gonzalez, an unpublished case from the Northern District of
Texas, is not binding precedent. Moreover, Enclave failed to direct the court to
summary judgment evidence showing that its property has been devalued as a
result of the City’s actions. Although Enclave has presented evidence showing
that six residents filed “Notices of Intent to Move Out,” citing traffic as a reason
for their move, it has not presented evidence raising an issue of material fact
that the loss of six residents in a three-hundred-and-forty-eight unit apartment
complex amounted to a devaluation of its property.
      Further, Enclave alleges that the City’s actions have meaningfully
interfered with its “use and enjoyment” of the property due to the “tens of
thousands of pedestrians and vehicles” that pass near the Enclave complex on
event days, the “partying” and “loud and boisterous conduct” in the stadium
parking lot, and the noise caused by stadium events. Enclave fails to cite any
authority supporting its contention that these inconveniences amount to a
seizure under the Fourth Amendment. Because Enclave has failed to
demonstrate a genuine issue of material fact on its Fourth Amendment claim,
the district court’s grant of summary judgment is AFFIRMED.
      ii. Enclave’s Remaining Claims
      In its opening brief, Enclave did not state that it was appealing the district
court’s grant of summary judgment on its Fifth Amendment, §1983, and private
nuisance claims. Although Enclave averred in its reply brief that it was not
waiving these claims and was appealing the entirety of the district court’s order
granting summary judgment, it offered no argument or discussion as to the

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merit of these claims. “A party waives an issue if he fails to adequately brief it
on appeal.” Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 926 (5th Cir.
2008) (citation omitted); see also Edwards v. Johnson, 209 F.3d 772, 776 n.1 (5th
Cir. 2000) (holding that if petitioner does not assign error to certain findings of
the district court in its initial brief on appeal, then “any challenge to these
findings has been abandoned on appeal”). “Merely mentioning a claim does not
constitute a supported argument or adequate briefing.” Sanders, 553 F.3d at
926. Enclave has waived these claims and the district court’s judgment as to
Enclave’s Fifth Amendment, §1983, and private nuisance claims is AFFIRMED.
      B. Rule 56(f) Motion
      This court next determines whether the district court erred when it denied
Enclave’s third request for a thirty-day continuance and merely allowed Enclave
a fifteen-day continuance. The denial of a Rule 56(f) motion is reviewed for abuse
of discretion. Stearns Airport Equip. v. FMC Corp., 170 F.3d 518, 534 (5th Cir.
1999). The party seeking Rule 56(f) relief “may not simply rely on vague
assertions that additional discovery will produce needed, but unspecified, facts.”
Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citing SEC v. Spence &
Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). A request to stay summary
judgment under Rule 56(f) must “set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will influence the outcome
of the pending summary judgment motion.” Id. (quoting C.B. Trucking, Inc. v.
Waste Mgmt Inc., 137 F.3d 41, 44 (1st Cir. 1998)).
      In its third Rule 56(f) motion, Enclave stated that it sought “limited
depositions of certain representatives of the City and Dallas Cowboys.” The
motion did not state the names of the individuals it wanted to depose, what the
depositions might reveal, or how that evidence would impact the outcome of the

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pending summary judgment motion. During a hearing conducted by the district
court via telephone, Enclave’s attorney stated that additional time for discovery
was necessary to identify evidence that would demonstrate that the Dallas
Cowboys “dictat[ed] [to the City] the process of which properties to condemn
[and] . . . the process of the traffic flow plan.” In response, the City, through
counsel, informed the district court that it was not aware of any documents that
indicated that the Cowboys were controlling the City’s decision making.
Enclave’s Rule 56(f) motion and representations to the district court consisted
of vague assertions. The district court did not abuse its discretion in granting
Enclave a fifteen-day, rather than a thirty-day, continuance, and we AFFIRM.
                               CONCLUSION
      The district court’s grant of summary judgment in favor of the City and its
partial denial of Enclave’s Rule 56(f) motion are AFFIRMED.




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