NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 20

- 1 618

___________ ACADEMY HILL, INC. ; MERRICK WILSON ; RIVER VALLEY HEIGHTS CORP ORATION, Appellants v. CITY OF LAMBERTVILLE ; JOSEPH JINGOLI & SONS, INC.; JOSEPH JINGOLI, JR. ; MICHAEL JINGOLI ; DAVID DELVECCHIO

______________ Appeal from the United States District Court for the District of New Jersey ( D.C. No. 3:19

- cv - 00426 ) District Judge: Honorable Brian R. Martinotti

________________ Submitted Under Third Circuit L.A.R. 34.1(a)

March 31, 2022

______________ Before: CHAGARES, Chief Judge , SHWARTZ, Circuit Judge , and ROSENTHAL, District Judge

. * (Filed: April 12, 2022 )

______________ OPINION * *

______________

* Honorable Lee H. Rosenthal , Chief U.S. District Judge for the Southern District of Texas , sitting by designation.

* * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

ROSENTHAL, District Judge

. Merrick Wilson , Academy Hill, Inc., and River Valley Heights Corporation (“Plaintiffs”) own parcels of land in Lambertville, New Jersey. Supp. App’x 1. In 2018, the City of Lambertville passed a resolution declaring an area that included the Plaintiffs’
tract as property in need of redevelopment . The resolution authoriz ed the City to acquire property in the area by condemnation. The Plaintiffs sued , alleging that the City had “taken the property of the P laintiffs without due compensation by declaring the property

. . . to be an area in need of rehabilitation.” Supp. App’x 2. The P laintiffs also alleged a conspiracy between the then

- mayor, David Del Vecchio, and his employer, Jingoli & Sons, Inc., and Joseph Jingoli, Jr. and Michael Jingoli (the “ Jingoli D efendants ” ) , to deprive the P laintiffs of the economic value of their property

. Supp. App’x 9. T he P laintiffs and the Jingoli
D efendants are compe titors in the construction business; the alleged co nspiracy was to prevent the P laintiffs from g etting City approval to develop the property

. The D istrict C ourt dismissed the P laintiffs’ claims. The C ourt held that the
P laintiffs had failed to allege a plausible violation of the Fifth Amendment Takings Clause or a conspiracy to violate P laintiffs’ substantive due process rights. We agree and will affirm.
I We have jurisdiction under 28 U.S.C. § 1291. 1 We review a district court’s dismissal under Rule 12(b)(6) de novo, accepting all well

- pleaded factual allegations as

1 Th e D istrict C ourt gave the P laintiffs 30 days to amend their complaint after dismissal. The P laintiffs instead appealed. The C ourt then dismissed the P laintiffs’3

true and drawing all reasonable inferences in the P laintiffs’ favor. N.J. Carpenters & the Trs. Thereof v. Tishman Constr. Corp. of N.J. , 760 F.3d 297, 302 (3d Cir. 2014). To survive a Rule 12(b)(6) motion, the complaint must “set forth enough factual allegations to ‘state a claim to relief that is plausible on its face.’” Klotz v. Celentano Stadtmauer & Walentowicz LLP , 991 F.3d 458, 46 2 (3d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).
II We note at the outset that the P laintiffs’ filed amended complaint includes few factual allegations

. When the P laintiffs moved to amend their original complaint, they
at tached as an exhibit a proposed amended complaint that was almost 40 pages long and included a nearly 100

- paragraph section entitled “Factual Background Common to All
Counts

. ” District Ct. Dkt. 35

- 3. The m agistrate j udge granted in part and d enied in part the P laintiffs’ motion to amend. The P laintiffs then filed an amended complaint that was substantially different

. The filed amended complaint was only 12 pages long and was missing the “factual background” section that had appeared in the propos ed amended complaint . The filed amended complaint included claims that the m agistrate j udge had ordered the P laintiffs not to file . The filed amend ed complaint did not incorporate , by reference or otherwise, the factual allegations that were in the origi nal complaint and in the proposed amended complaint

.

amended complaint with prejudice. The C ourt’s dismissal is a final order for purposes of § 1 291. See Borelli v. City of Reading , 532 F.2d 950, 951

– 52 (3d Cir. 1976).4

The D istrict C ourt noted that the P laintiffs’ filed amended complaint was “markedly different from its proposed amended complaint.” Acad. Hill, Inc. v. City of Lambertville , No. 3:19

- CV

- 00426, 2021 WL 754092, at *2 (D.N.J. Feb. 26, 2021). The C ourt essentially invited the P laintiffs to fix the problem by pointing it out in the order granting the motion to dismiss , making the dismissal without prejudice, and allowing amendment wit hin 30 day s . The C ourt wrote: “[i]t is not clear to the Court, and [the] Plaintiffs provide no explanation, as to why Plaintiffs filed a significantly pared down version of the Amended Complaint which is only twelve pages in length . . . compared to the p roposed amended complaint . . . . Further, at no point do Plaintiffs, at least not expressly, attempt to incorporate their previous pleadings.” Id. The C ourt granted the motion to dismiss based

on consider ing the P laintiffs’ filed amended complaint as t he operative pleading. The dismissal order included a clear statement that failing to amend within 30 days would lead to dismissal with prejudice. The P laintiffs were invited to amen d to allege facts sufficient to state a claim ; t he P laintiffs declined the invitation and instead appealed

. On appeal, the P laintiffs include d in their appendix their original complaint and proposed amended complaint , but not the filed amended complaint that the D istrict C ourt considered below. The P lai ntiffs do not argue that the C ourt erred in declining to read their filed amended complaint as incorporating their previous pleadings . T he P laintiffs do not otherwise explain why they omitted their filed amended complaint from the appellate record. The P l aintiffs have been given ample opportunity to amend their complaint or to explain why they chose to file an amended complaint with scant factual allegations . They5

have declined the opportunity. We therefore assess only whether the P laintiffs’ filed amend ed complaint “set forth enough factual allegations to ‘state a claim to relief that is plausible on its face,’” Klotz , 991 F.3d at 462, without consideration of the original and unfiled versions , s ee W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank , 712 F.3d 165, 171 (3d Cir. 2013) (an “amended complaint ‘supersedes the original [complaint] and renders it of no legal effect, unless the amended complaint specifically refers to or adopts the earlier pleading.’” (quoting New Rock As set Partners, L.P. v. Preferred Entity Advancements, Inc. , 101 F.3d 1492, 1504 (3d Cir. 1996) ) ).
III The P laintiffs allege that the City of Lambertville deprived them of the ability to develop their land by passing a resolution that declared the ir prop erty to be in an area in need of redevelopment

. The P laintiffs do not allege that the City has condemned the property, which would “constitute the ‘clearest sort of taking.’” Cedar Point Nurse r y v. Hassid , 141 S. Ct. 2063, 2071 (2021) (citation omitted). The P laintiffs instead argue that they are unable to develop the property because i t is “frozen in limbo” between the resolution tha t the City passed and an eminent domain proceeding that it ha s not begun

. P l . Br. 9.
“T he Fifth Amendment is violated” when a city “deprive[s] a landowner of all economically beneficial uses” of his or her land

. Lucas v. S.C. Coastal Council , 505 U.S. 1003, 1018 (1992)

. “T he mere enactment of legislation which authorizes condemnation of property ,” however, “ cannot be a taking.” Danforth v. United States , 308 U.S. 271, 286 (1939). The r esolution authorize d the City to “use all of the powers provided by the6

Legislature for us[e] in the Redevelopment Area, including all and/or full power of eminent d omain and/or condemnation to acquire any of the properties located within the designated area.” 2 District Ct. Dkt. 47

- 10. The r esolution did not require the City to condemn the
P laintiffs’ property . T he P laintiff s allege that the City has taken no steps to do so. T he

r esolution “may be repealed or modified, or appropriations [for redevelopment] may fail.” Danforth , 308 U.S. at 286. The P laintiffs’ allegation that they fear a taking, which may or may not occur, does not plausibly allege a n unconst itutional taking without just compensation. Cf. United States v. Sponenbarger , 308 U.S. 256, 267 (1939) ( a landowners’ “apprehension of future flooding [of her land]” did not give rise to a claim under the Takings Clause). The filed amended complaint states only that “[o]n June 19, 2018, the City of Lambertville adopted Resolution Number 100

- 2018,” “[s]aid Re solution constituted a taking of the Plaintiff’s property without just compen s sation,” and “[t]he actions of the City of Lambertville have, are and continue to impose damages on the Plaintiffs.” Supp. App’x 3. These conclusory allegations, without more, do not plausibly establish that the P laintiffs have lost “all economically beneficial use [ s ] ” of their property, or that a taking has occurred “based on

‘ a complex of factors,’” including “the economic impact of the regulation o n the claimant” and “the ext ent to which the regulation has interfered with distinct investment

- backed expectations.” Murr v. Wisconsin , 137 S. Ct. 1933, 19 43 (2017) (quoting Palazzo lo v.

2 Resolution 100

- 2018 was referenced in the P laintiffs’ complaint and is a “matter[] of public record,” and so this C ourt may consider it. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1996).7

Rhode Island , 533 U.S. 606, 617 (2001)); Penn Central Transp. Co. v. New York City , 438 U.S. 104, 124 (1978). The P laintiffs also allege that the City of Lambertville, Mayor DelVecchio, and the individual Jingoli defendants “entered in a conspiracy to deprive . . . Academy Hill . . . of its rights to develop its property.” Supp App’x 9

. T he D istrict Co urt construed the
P laintiffs’ conspiracy allegation as “a claim under § 1983 for allegedly conspiring to violate Plaintiffs’ substantive due process rights.” Acad. Hill, Inc. , 2021 WL 754092, at *4. To plausibly allege a conspiracy claim und er § 1983, “a plaintiff must assert facts from which a conspiratorial agreement can be inferred.” Great W

. Mining & Min

. Co. v. Fox Rothschild LLP , 615 F.3d 159, 17 8 (3d Cir. 2010). The P laintiffs’ filed amended complaint fails to meet this burden. The P laintiffs assert that DelVecchio was simultaneously the mayor of Lambertville and an employee of Jingoli & Sons. Supp. App’x 9

– 10. The P laintiffs allege among other things that “DelVecchio secreted his employment with Jin goli by purposely and deliberately providing false and misleading information on DelVecchio’s State mandated disclosure form

. ” Id. The P laintiffs allege that Jingoli & Sons competed with A cademy Hill in “the bidding, design and construction of publicly f

unded construction projects.” Id. “On information and belief,” the P laintiffs allege , the Jingoli D efendants and Mayor DelVecchio conspired with the City to prevent the P laintiffs from developing their property into residential housing. Id. at 11. The filed amended complaint asserts what are, at most, “conclusory allegations that there was ‘a corrupt conspiracy,’ ‘an agreement,’ or ‘an understanding in place between [the allegedly conspiratorial parties].’” Gr eat W. Mining & Min. Co. , 615 F.3d at 178

.8

Conclusory a llegations like these “are not entitled to an assumption of truth.” Id. at 177 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009))

. The P laintiffs have “not pleaded

. .

. facts that plausibly suggest a meeting of the mind s ” between the City, the Mayor, and the individual Jingoli D efendants, allegations needed to state a conspiracy claim

. Id. at 179. 3
I V For the foregoing reasons, w e will affirm.

3 The Plaintiffs have not challenged the District Court’s decision declining to exercise supplemental jurisdiction. Any argument in that regard is, therefore, forfeited. See, e.g. , Barna v . Bd. of Sch. Dirs. , 877 F.3d 136, 146 (3d Cir. 2017) (noting that we will not “reach arguments raised for the first time in a reply brief or at oral argument”).