                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 16-3179
                                     ____________

                               LOUISE M. WILLIAMS;
                                ELIE FEUERWERKER,
                 Individually and on behalf of others similarly situated,

                                                  Appellants

                                            v.

                          BOROUGH OF HIGHLAND PARK
                                ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 2-15-cv-06879)
                    District Judge: Honorable Katharine S. Hayden
                                      ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 10, 2017

Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, Chief District Judge.*


                              (Filed: September 11, 2017)




      *
         The Honorable Lawrence F. Stengel, United States District Court for the Eastern
District of Pennsylvania, sitting by designation. The Honorable Lawrence F. Stengel
assumed Chief Judge status on August 1, 2017.
                                      ____________

                                       OPINION**
                                      ____________
STENGEL, Chief District Judge.

       Louise Williams and Elie Feuerwerker appeal the District Court’s dismissal of

their Fourteenth Amendment due process claims, brought pursuant to 42 U.S.C. § 1983,

against the Borough of Highland Park, New Jersey. Williams and Feuerwerker sued the

Borough for financial injuries stemming from the Borough’s passage and enforcement of

an ordinance requiring residents to maintain their sidewalks in good repair. The District

Court dismissed their due process claims as time-barred. We will affirm.

I      Background

       In March 2012, the Borough passed an ordinance that required owners or

occupants of land in the Borough to maintain sidewalks and curbing abutting that land in

an effort to improve safety.1 Pursuant to the ordinance, if a land owner or occupant failed

to replace the sidewalk or curb, written notice would be provided stating that

maintenance or repairs were to be performed within thirty days of the date of the notice.

A summons would issue for a violation. Upon failure to comply, the Borough would



       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         Because this case is an appeal from dismissal under Fed. R. Civ. P. 12(b)(6), we
accept the allegations in the complaint as true and draw all reasonable inferences
therefrom in the light most favorable to Williams and Feuerwerker, the non-moving
parties. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). Accordingly, the
recitation of facts is taken from the complaint and its supporting documents.
                                             2
perform the work and place a lien on the land abutting any replaced sidewalks, resulting

in a fine to the owner or occupant, who would also be responsible for the cost of

replacing the sidewalks.

       In May and June 2012, following an inspection of sidewalks throughout the

Borough, the Director of Code Enforcement sent out notices to residents whose sidewalks

were deemed unsafe and in violation of the ordinance, and advised them that they would

have sixty days to obtain a zoning permit for repairs. The notices also informed these

residents that failure to make repairs would result in a summons being issued. Appellants

were among the residents receiving these notices.2 In June 2014, a summons was issued

to Williams, resulting in fines and court costs. Williams ultimately paid a contractor to

replace her sidewalk.

       In July 2012, the Borough Mayor, in response to complaints about the ordinance

and the notices, sent residents a letter describing two alternatives for compliance:

residents could pay a contractor directly to perform the repairs, or they could enroll in the



       2
           The notice read as follows:

                Your public sidewalk was inspected today and found to be in
                an unsafe condition. You have 60 days to obtain a Zoning
                Permit and to repair the public sidewalk. Sidewalk slabs may [
                ]be lifted and reset or poured, leveling agents will not be
                allowed. Failure to make the required repairs will result in
                summons to be issued. We appreciate your cooperation in
                helping to keep Highland Park a safe place to live.

App. 191. The notice referenced the ordinance immediately below the above-quoted text.
                                              3
Borough Sidewalk Improvement Program through which the Borough would make

payments to a contractor and the resident would then repay the Borough. Residents who

enrolled in the program would not have to obtain a zoning permit and the sixty-day

deadline for repairs would be waived. The property owner would receive a notice of the

cost to replace the sidewalk and would later receive a bill that could be paid in full or in

five equal installments. The Borough would place a lien on the property until the bill was

fully paid. Feuerwerker signed up for the Borough’s program in 2012.

       In 2014, a group of Borough residents filed a lawsuit over the ordinance in state

court and sought a preliminary injunction against its enforcement, which was granted in

September 2014. On November 12, 2014, the Borough amended the ordinance and

adopted a six-month moratorium on its enforcement.

       In June 2015, the Borough issued invoices to residents, including Feuerwerker,

whose sidewalks were repaired or replaced through the program. Feuerwerker made at

least one installment payment to the Borough as part of the program.

       Williams and Feuerwerker filed suit in district court, asserting claims pursuant to

42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights, as

well as two state law claims. The district court granted the Borough’s motion to dismiss

on the ground that the § 1983 claims were time-barred because they were outside the

two-year statute of limitations, and declined to exercise supplemental jurisdiction over

the state law claims.

II     Jurisdiction and Standard of Review
                                              4
       We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review de novo

a district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Merle v. United States, 351

F.3d 92, 94 (3d Cir. 2003). In reviewing dismissal on statute of limitations grounds, we

exercise plenary review “to determine whether the time alleged in the statement of a

claim shows that the cause of action has not been brought within the statute of

limitations.” Algrant v. Evergreen Valley Nurseries Ltd. P’ship, 126 F.3d 178, 181 (3d

Cir. 1997) (citations and quotation marks omitted). We review de novo a district court’s

determination of the applicable statute of limitations under state law. See Salve Regina

Coll. v. Russell, 499 U.S. 225, 231 (1991); Nelson v. Cty. of Allegheny, 60 F.3d 1010,

1012 (3d. Cir. 1995).

III    Discussion

       Williams and Feuerwerker raise three principal arguments on appeal: (1) the

district court erred in finding that their § 1983 due process claims were time-barred; (2)

the district erred in finding that the Borough’s conduct was not a continuing wrong; and

(3) equitable tolling should apply to their claims. We address each argument in turn.

       A. Statute of Limitations

       “In determining the length of the statute of limitations for a claim arising under §

1983, courts must apply the limitations period applicable to personal-injury torts in the

State in which the cause of action arose.” Estate of Lagano v. Bergen Cty. Prosecutor’s

Office, 769 F.3d 850, 859 (3d Cir. 2014) (citing Wallace v. Kato, 549 U.S. 384, 387

(2007)). A two-year statute of limitations applies to personal injury claims in New Jersey.
                                             5
Id. (citing N.J. Stat. Ann. § 2A:14–2). Williams and Feuerwerker filed their complaint on

September 16, 2015. Their claims, therefore, must not have accrued earlier than

September 16, 2013.

       “The date of accrual of a § 1983 claim is a matter of federal law.” Id. at 860 (citing

Wallace, 549 U.S. at 388). “Accrual is the occurrence of damages caused by a wrongful

act—‘when a plaintiff has a complete and present cause of action, that is, when the

plaintiff can file suit and obtain relief.’” Dique v. N. J. State Police, 603 F.3d 181, 185

(3d Cir. 2010) (quoting Wallace, 549 U.S. at 388) (internal quotation marks omitted). “As

the Court in Wallace explained, ‘the tort cause of action accrues, and the statute of

limitations commences to run, when the wrongful act or omission results in damages.’”

Id. at 185–86 (quoting Wallace, 549 U.S. at 391) (internal quotation marks omitted). In

other words, a § 1983 claim accrues “when the plaintiff knows or has reason to know of

the injury which is the basis of the section 1983 action.” Genty v. Resolution Tr. Corp.,

937 F.2d 899, 919 (3d Cir. 1991).

       Applying these principles, we agree with the District Court that the appellants’

claims accrued when they received notices from the Borough, in either May or June

2012, informing them that their sidewalks were not in compliance with the ordinance and

that they had to obtain permits and replace their sidewalks to avoid receiving

summonses.3 The appellants’ arguments to the contrary are not persuasive.


       3
         Appellants originally raised both a facial challenge and an as-applied challenge
to the ordinance. As noted by the District Court, however, the appellants did not address
                                              6
       The appellants first argue that Williams’s claim did not accrue until June 2014,

“when the Borough applied the Ordinance to her by issuing a summons and compelling

her to fix her sidewalk and pay fines and court costs.” Appellants’ Br. 13. But Williams

had already been negatively affected by the ordinance in 2012, when she was given

official notice that her sidewalks were not in compliance with the ordinance and that she

was obligated to repair or replace them to avoid adverse consequences. The same is true

of the appellants’ argument that Feuerwerker’s claim did not accrue until he received a

demand for payment pursuant to the Borough’s program in September 2015, because he

too was given official notice in 2012 that he would be obligated to repair or replace his

sidewalks.

       The appellants next argue that the 2014 summons to Williams and the 2015

invoice to Feuerwerker were “the only definitive actions taken on the part of the

Borough” that would have provided knowledge of their injuries. Appellants’ Br. 14. This

characterization is simply not correct. The appellants knew of the injury forming the basis

of their due process claims when they received the 2012 notices from the Borough, and

they could have brought their “as applied” claims challenging the ordinance on vagueness

grounds when they received those notices. Because the claims accrued at the latest in




their facial challenge to the ordinance in their opposition to the Borough’s motion to
dismiss. Consequently, we consider here only whether the ordinance was
unconstitutional as applied.
                                             7
June 2012, the statute of limitations ran out in June 2014. As Williams and Feuerwerker

did not file the complaint in this case until September 2015, the claims are time-barred.

       B. The Continuing Wrong Doctrine

       The appellants next argue that, even if the statute of limitations began to run when

the notices were issued in 2012, their claims are nonetheless timely because the

Borough’s conduct constitutes a continuing violation.

       “[W]hen a defendant’s conduct is part of a continuing practice, an action is timely

so long as the last act evidencing the continuing practice falls within the limitations

period; in such an instance, the court will grant relief for the earlier related acts that

would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters &

Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991); see also Cowell v. Palmer Twp., 263

F.3d 286, 292 (3d Cir. 2001). “To allege a continuing violation, the plaintiff must show

that all acts which constitute the claim are part of the same unlawful . . . practice and that

at least one act falls within the applicable limitations period.” Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 165–66 (3d Cir. 2013) (citing Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 122 (2002)).

       According to the appellants, the Borough’s issuance of summonses and invoices in

2014 and 2015 constituted separate events which reset the statute of limitations on their

claims stemming from receipt of the 2012 notices. This argument misses the distinction

between “continual unlawful acts” and “continual ill effects from an original violation.”

Cowell, 263 F.3d at 293 (citation omitted); see also Brenner, 927 F.2d at 1296 (observing
                                               8
that ‘“[t]he proper focus is upon the time of the discriminatory acts, not upon the time at

which the consequences of the acts became most painful.’” (alteration in original)

(quoting Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)). Williams and Feuerwerker

were aware of the consequences of the ordinance as applied to them when they received

the 2012 notices. They should, therefore, have brought their § 1983 claims within the

applicable limitations period instead of waiting until after they experienced additional

consequences for failing to respond to the notice or being billed for participation in the

program. As we have previously observed, “the continuing violations doctrine should not

provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in

pursuing their claims.” Cowell, 263 F.3d at 295. For these reasons, the continuing

violations doctrine does not apply to the appellants’ claims.

       C. Equitable Tolling

       Lastly, the appellants argue—for the first time—that equitable tolling should apply

to their claims. Failure to raise an issue in the district court, however, means that it was

forfeited. United States v. Andrews, 681 F.3d 509, 517 (3d Cir. 2012). ‘“We only depart

from this rule when manifest injustice would result from a failure to consider a novel

issue.’” Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 352 (3d Cir. 2014)

(quoting Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002)). While “it is within

our discretion to consider an issue that the parties did not raise below,” Freeman v.

Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 2013) (citing Bagot v. Ashcroft,


                                              9
398 F.3d 252, 256 (3d Cir. 2005)), consideration of the appellants’ forfeited equitable

tolling argument is not warranted here.

                                     *       *      *

       For the reasons stated, we will affirm the judgment of the District Court.




                                            10
