                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2006

Heinemeyer v. Scotch Plains
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2336




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Recommended Citation
"Heinemeyer v. Scotch Plains" (2006). 2006 Decisions. Paper 354.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/354


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                                               NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      NO. 06-2336
                   ________________

                  ILSE HEINEMEYER,

                                 Appellant

                            v.

          TOWNSHIP OF SCOTCH PLAINS
       ____________________________________

      On Appeal From the United States District Court
             For the District of New Jersey
              (D.N.J. Civ. No. 03-cv-1409)
             District Judge: John C. Lifland
       ____________________________________

        Submitted Under Third Circuit LAR 34.1(a)
                   September 20, 2006

Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES.

                  (Filed October 4, 2006)


               _______________________

                       OPINION
               _______________________
PER CURIAM

         Ilse Heinemeyer appeals the dismissal of her pro se complaint by the United States

District Court for the District of New Jersey. For the reasons below, we will affirm the

District Court’s judgment.

         On October 3, 2003, Heinemeyer filed an amended pro se complaint against

defendants, the Township of Scotch Plains and Thomas Atkins, the Township Manager.

She alleged that defendants violated the Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. §§ 1961, 1964(c) (RICO), by overcharging her property tax for over 30

years. The District Court granted defendants’ motion for summary judgment because

Heinemeyer did not show a prima facie case of a RICO violation. After the District Court

denied Heinemeyer’s motion for reconsideration as time-barred, she appealed.1

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of

review is plenary. See USX Corp. v. Liberty Mut. Ins. Co., 444 F.3d 192, 197 (3d Cir.

2006). We may affirm the District Court’s order if, when viewing the evidence in the

light most favorable to the non-moving party, there is “no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).



   1
     Because the District Court’s order of December 21, 2005, which granted summary
judgment to defendants, was not accompanied by a separate document that triggered the
typical 30-day appeal period, Heinemeyer’s seemingly late notice of appeal fits in the safe
harbor Fed. R. Civ. P. 58 and FRAP 4(a)(7) provide, and was timely filed as to the
December order.
                                              2
       Heinemeyer argues that the District Court erred in granting defendants’ motion for

summary judgment and denying her motion for reconsideration.2 She argues that

defendants violated the RICO statute by erroneously calculating her property taxes for

over 30 years. For essentially the same reasons set forth by the District Court, we agree

that Heinemeyer’s RICO claim against defendants fails as a matter of law. Defendant

Township of Scotch Plains is a municipal corporation and is thus immune to RICO

claims. See Genty v. Resolution Trust Corp., 937 F.2d 899, 914 (3d Cir. 1991) (holding

that “a civil claim brought under § 1964(c) of the RICO Act, with its mandatory award of

treble damages which are punitive in character, cannot be maintained against a municipal

corporation”). Moreover, Heinemeyer has not shown “(1) conduct (2) of an enterprise (3)

through a pattern (4) of racketeering activity” with respect to defendant Atkins. Lum v.

Bank of America, 361 F.3d 217, 223 (3d Cir. 2004); see also Beck v. Prupis, 529 U.S.

494, 505 (2000) (holding that a conspiracy claim under RICO must involve an act of

racketeering or an act that is otherwise unlawful under the statute). Here, there is no

evidence in the summary judgment record that Atkins committed any “racketeering

activity” under § 1961(1). See Fed. R. Civ. P. 56(e) (if the moving party establishes that


   2
    We agree with the District Court that Heinemeyer untimely filed her motion for
reconsideration. The District Court’s order granting summary judgment was entered on
December 21, 2005. Heinemeyer had 10 days from this date to file her motion. See Fed.
R. Civ. P. 59(e). However, she untimely filed her motion on January 11, 2006.
Furthermore, even if the District Court erred in failing to construe Heinemeyer’s pro se
motion as a Fed. R. Civ. P. 60(b) motion, any error was harmless. Heinemeyer’s motion
provided no evidence that defendant Atkins committed any “racketeering activity” under
§ 1961(1).
                                             3
there is no genuine issue of material fact for trial, the burden shifts to the non-moving

party to produce evidence of a genuine issue). Accordingly, we will affirm the judgment

of the District Court.




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