                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-3263
                                       __________

                                  SANDRA HARMON,
                                            Appellant

                                             v.

       SUSSEX COUNTY, State of Delaware Administration; TODD LAWSON;
            CONSTABLE MIKE CASTELLO; KELLY PASSWATER
                 ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                         (D.C. Civil Action No. 1-17-cv-01817)
                     District Judge: Honorable Richard G. Andrews
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 1, 2020

           Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges

                              (Opinion filed: April 8, 2020)
                                     ___________

                                       OPINION *
                                      ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Sandra Harmon appeals the District Court’s order granting

summary judgment to the defendants. For the reasons detailed below, we will affirm the

District Court’s judgment.

       Harmon owned real property in Rehoboth Beach, Delaware. In April 2017, a

Sussex County constable performed an inspection of the property and determined that,

due to serious fire damage, the home was unsafe and unfit for human occupancy. As a

result, Sussex County issued a “demolition order,” which directed the owner of the

property to raze and remove the structure on or before June 24, 2017. The order further

provided that if the owner did not comply, Sussex County would do so itself and charge

the owner. Harmon objected, and Sussex County, through Michael Costello, its

government affairs manager, agreed to stay any demolition pending her appeal to the

County Board of Adjustments and Appeals.

       Harmon filed an appeal. However, Costello, who processed her filing, informed

her that there was a $600 filing fee and that if she did not pay the fee by September 13,

2017, her scheduled hearing would be canceled. Harmon did not pay the fee, and on

September 14, 2017, an assistant attorney for Sussex County informed Harmon that her

hearing had, in fact, been canceled. Demolition began shortly thereafter.

       In January 2018, Sussex County commenced a monition 1 action to collect

delinquent sewer and water bills and demolition costs. A sheriff posted notice on the


1
 “Monition” is “a legal process in the nature of a summons or citation to appear and
answer (as in default of performing some certain act).” Monition, Merriam-Webster’s
Unabridged Dictionary (2016).

                                             2
property on January 23, 2018. Harmon challenged these proceedings in Delaware state

court, to no avail, and on June 19, 2018, a sheriff’s sale was held and the property was

sold.

        In her complaint in District Court, Harmon alleged that the defendants—Sussex

County, Costello, and two other Sussex County employees—had violated her

constitutional right to enjoy her property, violated her due process rights, and had

conspired to deprive African-Americans of their beach property. The defendants filed a

motion for summary judgment, which the District Court granted. The Court concluded

that the record failed to support any of Harmon’s claims. 2 Harmon then filed a timely

notice of appeal.

        We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of

summary judgment de novo, applying the same standard as the District Court. See Blunt

v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is

proper if, viewing the record in the light most favorable to Harmon, there is no genuine

issue of material fact and the defendants are entitled to judgment as a matter of law. See

Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002).




2
 Harmon also filed a motion for reconsideration, which the District Court denied.
Because Harmon did not timely file a new or amended notice of appeal encompassing the
order denying her motion for reconsideration, we lack jurisdiction to consider that order.
See Fed. R. App. P. 4(a)(4)(B)(ii); Carrascosa v. McGuire, 520 F.3d 249, 253–54 (3d Cir.
2008).

                                             3
       On appeal, Harmon raises three arguments. 3 First, she contends that the

defendants violated her constitutional rights by inventing the $600 filing fee, which they

have applied only in her case and not in cases involving other litigants. We agree with

the District Court that the record does not support this claim. Sussex County Code § 71-

31 provides that “[e]ach Board of Appeals shall adopt and publish rules and regulations

as may be necessary to govern its administrative procedures and proceedings.” The

Board of Adjustments and Appeals has promulgated rules and procedures, which

specifically provide that any appeal “shall be accompanied with the proper fee.” ECF

No. 30 at 27 (Rules of Procedure of the Board of Adjustments and Appeals of Sussex

County, Delaware ¶ 14.1). While the rules and procedures do not themselves quantity the

fee, the Board’s website provides that “[a] fee of $600.00 shall accompany such notice of

appeal.” Id. at 30 (Sussex County Board of Adjustments and Appeals,

https://sussexcountyde.gov/board-adjustments-and-appeals). Harmon has presented no

evidence that this $600 fee is not uniformly applied. See generally Berckeley Inv. Grp.,

Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (“In this respect, summary judgment is

essentially ‘put up or shut up’ time for the non-moving party: the non-moving party must

rebut the motion with facts in the record and cannot rest solely on assertions made in the


3
  We will consider only those issues that Harmon raised in her opening brief. See
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue will not suffice to bring that issue before
this court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the same rules
that apply to all other litigants”).

                                             4
pleadings, legal memoranda, or oral argument.”). Accordingly, we discern no error in

this part of the District Court’s decision.4

       Next, Harmon argues that the defendants improperly used the monition method of

collecting delinquent taxes when that method is available only when the property has an

unknown owner. The District Court rejected this claim on the ground that Harmon had

not raised it in her complaint and could not amend her complaint through arguments

presented in a response to the defendants’ motion for summary judgment. See ECF No.

76 at 12 n.10. This was permissible. See Shanahan v. City of Chi., 82 F.3d 776, 781 (7th

Cir. 1996) (“A plaintiff may not amend his complaint through arguments in his brief in

opposition to a motion for summary judgment.”).

       Moreover, as the defendants argue in their brief, Harmon’s claim lacks merit. In

1947, the Delaware legislature authorized the monitions method as an additional way to

collect taxes. See Del. Code Ann. Tit. 9, § 8721; Riley v. Banks, 62 A.2d 229, 233–34

(Del. Super. Ct. 1948). That method was available regardless of whether the property’s

owner was known. See Robins v. Garvine, 136 A.2d 549, 550 (Del. 1957) (discussing

use of monition method in case where the owner’s identity was known). In 2005, the

legislature amended the statute to insert a new subsection permitting tax collecting



4
  Harmon also argues that her case should have been disposed of by the Board of Appeals
itself, not Costello. However, she points to no authority, and we have found none, that
requires a dismissal for failure to pay the filing fee to be accomplished by the Board
rather than an administrator. Cf. 3d Cir. L.A.R. 3.3(a) (“If a proceeding is docketed
without prepayment of the applicable docketing fee, the appellant must pay the fee within
14 days after docketing. If the appellant fails to do so, the clerk is authorized to dismiss
the appeal.”).
                                               5
authorities to “initiate and complete the monitions process against any property

designated by the authority as having an unknown owner for a continuous period in

excess of 5 years.” Del. Code Ann. Tit. 9, § 8722(d). This subsection permits tax

collectors to use the monition method in this additional situation; it does not purport to

limit the remainder of the statute and change longstanding practice. See generally State

v. Fletcher, 974 A.2d 188, 194 (Del. 2009) (“This policy has been Delaware law for over

fifty years, and should not be changed in the absence of a clear statutory mandate.”

(footnote omitted)). Accordingly, even if Harmon had properly pleaded this claim, she

would be entitled to no relief.

       Finally, Harmon argues that the District Court violated D. Del. LR 7.1.3(c)(2) by

refusing to strike a transcript that the defendants attached to their reply brief in support of

their motion for summary judgment. See Rule 7.1.3(c)(2) (“The party filing the opening

brief shall not reserve material for the reply brief which should have been included in a

full and fair opening brief.”). However, the transcript bore on an issue 5 that Harmon

raised for the first time in her opposition to the motion for summary judgment. The

District Court did not abuse its considerable discretion to manage the proceedings by

considering this evidence. See United States v. Schiff, 602 F.3d 152, 176 (3d Cir. 2010)

(“We give a district court broad discretion in its rulings concerning case

management[.]”); Wilmot v. Marriott Hurghada Mgmt., Inc., No. CV 15-618-RGA-MPT,

2016 WL 2599092, at *4 (D. Del. May 5, 2016) (concluding that “arguments in a reply


5
  The transcript related to the issue of whether the monition order was based in part on
the demolition costs.
                                               6
brief responsive to positions and new information raised in an opposition brief do not

violate D. Del. LR 7.1.3(c)(2)”).

Accordingly, we will affirm the District Court’s judgment.




                                            7
