                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 09-4647


                                    LORI SMITH;
                                   ROB FAM, INC.
                               t/a Liberty Square Cafe

                                           v.

                  CITY OF LEBANON; LAWRENCE MINNICK;
                      DAVID LEAR; ROBERT ANSPACH

                        Lori Smith; Rob Fam, Inc., Appellants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                     (D.C. Civ. Action No. 1-07-cv-01207)
               District Judge: Honorable Christopher C. Conner


                     Submitted Under Third Circuit LAR 34.1(a)
                                  July 16, 2010


       Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

                                (Filed: July 19, 2010)


                                      OPINION


GREENAWAY, JR., Circuit Judge.

     Lori Smith and Rob Fam, Inc. (together, “Smith”) initiated this civil rights action
under 42 U.S.C. § 1983 against the City of Lebanon; the Mayor of the City of Lebanon,

Robert Anspach; and police officers Lawrence Minnick1 and David Lear (collectively,

“Defendants”). Smith alleges that Defendants violated Smith’s constitutional rights by

conducting “invasive” police enforcement activities in the vicinity of Smith’s business,

the Liberty Square Cafe (the “Tavern”).2 The District Court for the Middle District of

Pennsylvania granted summary judgment in favor of Defendants. The District Court

concluded that Smith failed to produce sufficient evidence to support any of her claims.

We will affirm.

        The District Court had jurisdiction over Smith’s § 1983 action, pursuant to 28

U.S.C. §§ 1331, 1343(a)(3)-(4), and 1367. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We exercise plenary review over a grant of summary judgment and apply the

same standard used by the district court. Azur v. Chase Bank, USA, Nat. Ass’n, 601 F.3d

212, 216 (3d Cir. 2010). Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if any, show

that 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). We view the evidence in the light

most favorable to the non-movant and draw all justifiable, reasonable inferences in the



  1
      Lawrence Minnick is incorrectly referred to in the complaint as “Officer Minnich.”
  2
    Smith is the sole officer of Rob Fam, Inc. Rob Fam, Inc. has a part ownership in the
Tavern.
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non-movant’s favor. Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d

Cir. 2009). Yet, “[t]he mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

       We write solely for the parties and recount only the essential facts.

       Before the District Court, Smith contended that Defendants’ interactions with the

Tavern, including surveillance, and investigation of reported crimes, constituted an

“excessive intrusion.” Smith alleged a unique theory under the First Amendment.

Specifically, Smith maintained that Defendants interfered with her ability to engage in her

business by conducting law enforcement activities in the area around the Tavern. In

addition, she asserted that Defendants violated the Fourteenth Amendment’s substantive

due process clause by recommending that the Tavern’s customers frequent other

establishments. Smith also asserted a Fourteenth Amendment equal protection claim,

which rests on her assertion that Defendants treated the Tavern differently from another

bar which, like the Tavern, was also the subject of reports of criminality.

       Smith presents one issue on appeal. She contends that the District Court erred in

its application of the summary judgment standard. Specifically, she claims that the

District Court resolved genuine issues of material fact rather than submitting those issues

to the jury.


                                             3
       We are satisfied, after reviewing the record, that the District Court strictly adhered

to the appropriate summary judgment standard. The District Court noted that it made all

reasonable inferences in Smith’s favor, and properly applied the relevant precedents to

the undisputed material facts. The District Court determined that Smith failed to establish

that the law enforcement activities she identified were other than lawful exercises of

police power. We substantially agree with the District Court’s analysis.

       The District Court’s grant of summary judgment to Defendants was proper because

the three constitutional claims Smith raised below lack merit. The evidence Smith

presented neither directly nor inferentially support her theories of liability. First, Smith’s

First Amendment rights were not violated because Smith and her clientele lack either an

intimate or an expressive association. Roberts v. United States Jaycees, 468 U.S. 609,

618 (1984). Smith has not presented, nor have we found, any authority to support her

business interference theory of liability under the First Amendment. Second, Smith

cannot establish any conscience-shocking behavior, under her Fourteenth Amendment

substantive due process claim, on the basis of Mayor Anspach’s alleged

“micromanagement” of the officials involved, and Defendants’ surveillance and

investigation of the Tavern. County of Sacremento v. Lewis, 523 U.S. 833, 846-47

(1988). Third, the facts do not indicate, for purposes of Smith’s equal protection claim,

that Smith or the Tavern was intentionally singled out and treated differently, much less

for an irrational reason. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per


                                              4
curiam). Although “[o]ur court has not had the opportunity to consider the equal

protection ‘class-of-one’ theory at any length,” Hill v. Borough of Kutztown, 455 F.3d

225, 239 (3d Cir. 2006), Smith’s class-of-one claim resolutely fails.

       On appeal, Smith offers a bare-bones mention of a Fourth Amendment violation,

arguing that Defendants conducted illegal searches of the Tavern and of its patrons.

Because Smith failed to raise this argument below, it is waived on appeal. In re Ins.

Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir. 2009).

       There are no genuine issues as to any material facts in dispute, and Defendants

prevail as a matter of law.3 We will affirm the District Court’s order granting summary

judgment to Defendants.




  3
      In her appellate brief, Smith failed to raise any challenge to the District Court’s grant
of summary judgment to Defendants on her civil conspiracy and municipal liability
claims. Smith, therefore, has waived any such challenge. In re Ins. Brokerage Antitrust
Litig., 579 F.3d at 261. Because our resolution of Smith’s substantive claims is
dispositive, we need not reach the qualified immunity issue.
        In the absence of any viable federal claim, the District Court properly declined
jurisdiction over Smith’s state law claims. See 28 U.S.C. § 1367(c)(3).
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