                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 16-3579
                                     ___________

                             DR. GEORGE PIECZENIK,
                                              Appellant

                                           v.

               COMMISSIONER NEW JERSEY DEPARTMENT OF
                       ENVIRONMENTAL PROTECTION;
             SECTION CHIEF OF THE BUREAU OF COASTAL LAND
                  USE COMPLIANCE AND ENFORCEMENT;
                   JOHN DOE, persons who are employees and
                enforcement officers of the New Jersey Department
                of Environmental Protection; MARY DOE, persons
                 who are employees and enforcement officers of the
                New Jersey Department of Environmental Protection
                    ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 3:15-cv-07484)
                     District Judge: Honorable Freda L. Wolfson*
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 1, 2017
             Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

                          (Opinion filed: November 2, 2017)
                                     ___________

                                      OPINION**

*
  Judge Wolfson entered the order challenged in this appeal. Subsequently, she recused
from the matter. Honorable Brian R. Martinotti now sits as the District Judge for this
case.
                                       ___________

PER CURIAM

       George Pieczenik, a leaseholder of a property subject to mowing and maintenance

restrictions on areas classified as freshwater wetlands or wetlands transition areas, filed

suit against the Commissioner of the New Jersey Department of Environmental

Protection (“NJDEP Commissioner”), the Section Chief of the Bureau of Coastal Land

Use Compliance (“the Section Chief”), and NJDEP enforcement officers. The mowing

and maintenance restrictions were imposed in an administrative consent order (“ACO”)

entered into by the property’s owner and NJDEP. Pieczenik alleged that the restrictions

require him to hire a lawn service that can use GPS to identify the spatial coordinates

corresponding to protected wetlands areas. He sought a declaration that the ACO was

void on its face as applied to him and an order enjoining its enforcement against him

without a proper hearing or payment of just compensation for a purported taking. The

defendants moved to dismiss the complaint under Rule 12(b)(1) for Pieczenik’s lack of

standing.

       The District Court granted the defendants’ motion. The District Court held that

Pieczenik had no standing to challenge the ACO because all agreed that he was not a

party to it and because the defendants expressly disavowed that any enforcement action




**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
would be taken against Pieczenik based on the provisions of the ACO.1 Specifically, in

regard to the latter, the defendants stated that they did not intend and never intended to

hold Pieczenik liable under the ACO. However, the defendants did not disavow a

statement made in a letter to Pieczenik, namely that NJDEP may take legal action against

him if he continued to mow and maintain areas that were regulated and protected by the

Freshwater Wetlands Protection Act, N.J. Stat. Ann. 13:9B-1, et seq. (“FWPA”). The

defendants explained that the remedies they would seek would be based on Pieczenik’s

independent violations of the FWPA as a tenant. In light of the defendants’ statement

and Pieczenik’s objection to the potential enforcement in his response to the motion to

dismiss, the District Court dismissed the complaint without prejudice. The District Court

allowed Pieczenik 10 days to amend his complaint to challenge the threat of enforcement

of the FWPA. Pieczenik subsequently filed a notice of appeal.2




1
 In concluding that the action was not justiciable, the District Court also relied on cases
discussing principles related to ripeness and mootness.
2
  Also, before he filed his notice of appeal, Pieczenik filed a document in the District
Court that he entitled “amended complaint, motion for reconsideration and request for a
default judgment.” Among other things, he stated that he would like to amend his
complaint to include a new claim that the defendants sought to remove him from his job
as a New Jersey professor. He also included a motion for default judgment. After the
District Judge (Judge Wolfson) recused without ruling on the motion because she had
personal knowledge of the facts underlying the new claim, another District Judge denied
the motion for reconsideration and the motion for a default judgment because this appeal
was pending. Pieczenik did not file another notice of appeal or amend his notice of
appeal.

                                              3
       We have jurisdiction pursuant to 28 U.S.C. § 1291.3 We exercise plenary review

over a dismissal for lack of subject-matter jurisdiction. See Gould Elecs., Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000). We may affirm on any basis supported by the

record. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988).

       Upon review, we agree that the District Court lacked subject-matter jurisdiction

over the complaint. The Constitution limits federal courts’ jurisdiction to actual cases

and controversies between proper litigants. See Florida Audubon Soc. v. Bentsen, 94

F.3d 658, 661 (D.C. Cir. 1996) (en banc) (citing Liverpool, N.Y. & Phila. Steam-Ship

Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885)).

       In his complaint, Pieczenik took issue with the ACO and its application to him.

The letter that the Bureau Chief sent him to notify him about the mowing restrictions was

phrased ambiguously such that he could have understood it to mean that the defendants

would take action against him based on violations of the provisions of the ACO.

However, the defendants have expressly stated that they have never planned to, and never


3
  Although the District Court dismissed Pieczenik’s complaint without prejudice and
allowed amendment, we may hear this appeal. “Generally, an order which dismisses a
complaint without prejudice is neither final nor appealable because the deficiency may be
corrected by the plaintiff without affecting the cause of action.” Borelli v. City of
Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam). However, the rule of Borelli
does not apply because the dismissal was based on justiciability (lack of standing and
ripeness), and it appears that Pieczenik cannot do anything to cure the complaint. See Pa.
Family Inst., Inc. v. Black, 489 F.3d 156, 162 (3d Cir. 2007); Presbytery of N.J. of
Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 & 1462 (3d Cir. 1994). The
District Court allowed amendment to raise a different cause of action (a state law claim
under the FWPA) but foreclosed any challenge to the ACO by Pieczenik.

                                             4
will, take action against Pieczenik on the basis of the ACO. On appeal, they stress that it

is undisputed that they never intended to hold Pieczenik liable under the ACO and that

they agree that they cannot.

       Because the defendants have not and will not apply terms of the ACO against

Pieczenik, Pieczenik’s requests for the District Court to declare the ACO void on its face

as applied to him and enjoin its enforcement against him were not justiciable. “In order

to present a justiciable controversy in an action seeking a declaratory judgment to protect

against a feared future event, the plaintiff must demonstrate that the probability of that

future event occurring is real and substantial, ‘of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.’” Salvation Army v. Dep’t of

Community Affairs, 919 F.2d 183, 192 (3d Cir. 1990) (citations omitted). Pieczenik

maintains that his suit should proceed despite the defendants’ statements because the

NJDEP will enforce the ACO against him through his landlord. That is, he will be

affected by NJDEP’s imposition of the requirements of the ACO on its signatory (for

instance, he posits that the NJDEP could take steps against his landlord and his landlord

could be compelled to threaten eviction absent compliance). Even putting aside whether

the landlord is still the property owner,4 his speculation about what could happen is not

sufficient to show a real and substantial probability of some event occurring in the future

that his litigation could protect against. See Salvation Army, 919 F.2d at 192. Instead,


4
 In motions separately filed, and previously ruled on, in this appeal, the parties have
discussed a state foreclosure action against the landlord.
                                              5
the ruling he requested from the District Court would have been impermissibly advisory.

See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678-79 (2016).

       Pieczenik also argues that he was entitled to a default judgment in his favor in this

action on the basis that the defendants did not timely respond to his complaint. The

defendants filed their motion within the time permitted in the District Court. However,

Pieczenik argues that an extension of time granted by the District Court Clerk in

compliance with the District of New Jersey’s Local Rule 6.1 was invalid and in conflict

with Rule 6(a) of the Federal Rules of Civil Procedure, which allows the court to grant an

extension of time for good cause shown.5 Without deciding the validity of Local Rule

6.1, we note that Pieczenik was not automatically entitled to a default judgment based on

when the response was filed in this case.6 Default judgments, which are disfavored, are

left to the discretion of the District Court. See United States v. $55,518.05 in U.S.

Currency, 728 F.2d 192, 194-95 (3d Cir. 1984). Furthermore, a district court has an

obligation to consider its jurisdiction before entering a default judgment, see Williams v.

Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986) (per curiam), and it is



5
 Local Rule 6.1(b) allows the Clerk to grant one extension of time no greater than 14
days for the filing of a responsive pleading.
6
  Additionally, to the extent that his argument is a challenge to the order denying the
motion for a default judgment that he filed with his motion for reconsideration after the
District Court dismissed his complaint, it is not clear if the issue is before us. He did not
file a separate appeal from the post-judgment order denying his request for a default
judgment. In any event, Pieczenik relied on a different argument for default judgment in
the District Court. See ECF No. 30 at 2. Unless there are compelling circumstances
                                              6
appropriate for a district court to decline to enter a default judgment or to vacate default

judgment where the court lacks jurisdiction or questions whether it has jurisdiction. See

Cheeks v. Fort Myer Const. Co., 722 F. Supp. 2d 93, 112 (D.D.C. 2010); D’Onofrio v. Il

Mattino, 430 F. Supp. 2d 431, 437-38 (E.D. Pa. 2006).

       For these reasons, we will affirm the District Court’s judgment.




(which are absent here), we do not consider an issue raised for the first time on appeal.
Ross v. Hotel Emps. & Rest. Emps. Int’l Union, 266 F.3d 236, 242 (3d Cir. 2001).
                                              7
