NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 3732

_____________ MERCER OUTDOOR ADVERTISING, LLC, Appellant

v. CITY OF HERMITAGE, PE NNSYLVANIA; CITY OF HERMITAGE ZONING HEARING BOARD

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN D ISTRICT OF PENNSYLVANIA

(D.C. Civil No. 2

- 14

- cv - 00561 ) District Judge: Honorable Terrence F. McVerry

____________ Argued: Marc h 1 7 , 2015

____________ Before: RENDELL, FUENTES and BARRY, Circuit Judges

( F iled: April 2, 2015 )

____________ E. Adam Webb , Esq. [ARGUED] Webb, Klase & Lemond 1900 The Exchange, Southeast Suite 480 Atlanta, GA 30339 C ounsel for Appellan t David J. Rosenberg , Esq. [ARGUED] Matthew R. Zwick , Esq. Weber, Gallagher, Simpson, Stapleton, Fires & Newby 603 Stanwix Street2

Two Gateway Center, Suite 1450 Pittsburgh, PA 15222 C ounsel for Appellees

____________ OPINION *

____________ B ARRY, Circuit Judge We have reviewed the briefs and the brief record in this case, and have heard oral argument. The parties, for whom we primarily write, are, of course, fully famili ar with each other’s contentions and the uncontested , albeit very limited , facts before us. T hey also know our concerns , as those concerns were fully aired at oral argument. We, therefore, will move directly to, and need only briefly explain, our decision, which concludes that we will affirm the order of the District Court granting the City of Hermitage’s motion to dismiss the federal claims under Fed. R. Civ. P. 12(b)(6) and declining to exercise supplemental jurisdiction over the remaining claims. We will , however, remand so that the Court can amend its “with prejudice” dismissal of the remaining claims to a dismissal “without prejudice.” Given oral argument, it will come as no surprise to the parties that, in our view, what should have been a straightfo rward and, indeed, simple case became extraordinarily complicated , with the willing participation of all involved. The case began, quite simply, with the decision, first by the City Planning Technician and then by the City’s Zoning Hearing Board, to deny M ercer Outdoor Advertising LLC’s seven applications for

* This di sposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

permits to erect and operate billboards in the City’s Central Commercial or Highway Commercial zoning districts because, under § 306.10 of the Zoning Ordinance, they are not a “Permitted Use” in those locations. In response, Mercer filed in the District Court a

co mplaint that summarily concluded that the entirety of § 306, as well as a panoply of other sections of the Ordinance , violate the First and Fourteenth Amendments to the U.S. Constitution and Pe nnsylvania law

. Not only did the complaint not say why that is so , but it was bereft o f any factual support for any of those supposed violations or even for §
306.10 , on which the denial was virtually exclusively based. And, we note, the barebones complain t did not even mention, much less challenge (and Mercer does not challenge before us) , the size and height restrictions of § 308.27, the blatant violation of which would have prohibited the billboards even had § 306.10 somehow been invalidated. That was, i n essence, “it.” The City of Hermitage, although in passing paying homage in its brief in the District Court to what have become known as the “ Iqbal / Twombly pleading requirements,” 1 moved to dismiss the complaint on the ground s that Mercer lacked Article III standing and, failing that, that Mercer’s various challenges to the numerous sections of the Ordinance lacked merit. With reference to standing, the City argued that the denial of the applications was based only on § 306.10, that Mercer did not challen ge the height and size restrictions that otherwise would have blocked the applications, and so that a finding in Mercer’s favor on § 306.10 would not redress the claimed injury

–

1 Ashcroft v. Iqbal , 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly , 550 U.S. 544 (2007).4

Mercer still would not be able to post its billboards. Mercer, in response, e ssentially ducked § 306.10 , and argued that it had standing to challenge any and all sections of the Ordinance that could have been used to block its applications. Moving on, Mercer argued why on the merits it should win. The District Court should have a ddressed the issue of standing, but did not. Rather, it granted the motion to dismiss on merits

- related grounds, although certain of Mercer’s numerous claims were also rejected as inadequately pled under Iqbal/Twombly

. We need not discuss the various concl usions reached by the Court in its careful opinion, though we see no reason to reject them. Rather, as we are permitted to do, we will affirm on a ground not reached by the Court

– Article III standing. Indeed, as Mercer conceded at oral argument, we are r equired to address standing even though the Court did not pass on it and even if the issue had not been raised to us which, of course, it has been. FW/PBS, Inc. v. Dallas , 493 U.S. 215 , 230

- 31 (1990). It is Mercer’s burden, as the party invoking federal j urisdiction, to establish its standing. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342 (2006). “[T] o establish [Article III] standing, a plaintiff must show (1) an ‘injury in fact,’ i.e. , an actual or imminently threatened injury that is ‘concrete and p articularized’ to the plaintiff; (2) causation, i.e. , traceability of the injury to the actions of the defendant; and (3) redressability of the injury by a favorable decision by the Court. ” NCAA v. Governor of
N.J. , 730 F.3d 208, 218 (3d Cir. 2013) (citing Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009)). It must be likely, not merely speculative, that a favorable decision will5

redress the injury. Taliaferro v. Darby Twp. Zoning Bd. , 458 F.3d 181, 188 (3d Cir. 2006). In other words, t he issue is whe ther “ [ a ] favorable decision . . . is substantially likely to result , ” as in Toll Brothers , in the proposed development or , here, in the permit s . Toll Bros., Inc. v. Twp. of Readington , 555 F.3d 131, 143 (3d Cir. 2009). Simply to state what must be shown to establish Article III standing is to answer the question of whether Mercer has done so . It has not. Even if § 306.10 were to be held unconstitutional, an issue we do not reach, the permits would not be issued because the billboards at issue do not meet the unchallenged requirements of § 308.27

– the “injury” to Mercer, in other words (and as our sister Circuits would agree) , would not be redressable by a favorable decision of the Court nor, we think, would that “injury” be
traceable to the actions of the City. 2 And, as to the list of sections of the Ordinance that Mercer hypothesizes could have applied to its applications, Mercer has simply not shown an “injury in fact” as to any of them. In conclusion, we will affirm the order of the District Court dism issing the federal claims (Counts 1 and 2) and remand for the amendment of the order to reflect the dismissal of the remaining claims (Counts 3 and 4) “without prejudice.” See Figueroa v. Buccaneer Hotel Inc. , 188 F.3d 172 , 182 (3d Cir. 1999).

2 See , e.g., Maverick Media Grp., Inc. v. Hillsbor ough Cnty. , 528 F.3d 817 , 821 (11th Cir. 2008) (per curiam) ; Get Outdoors II, LLC v. City of San Diego , 506 F.3d 886, 893 (9th Cir. 2007); Midwest Media Prop., LLC v. Symmes Twp. , 503 F.3d 456, 461 (6th Cir. 2007); Covenant Media of S.C., LLC v. City of N. Charleston , 493 F.3d 421, 430 (4th Cir. 2007) ; Advantage Media, L.L.C. v. City of Eden Prairie , 456 F.3d 793, 801

- 0 2 (8th Cir. 2006); Harp Adver. Ill., Inc. v. Vill. of Chicago Ridge, Ill. , 9 F.3d 1290, 129 1 (7th Cir. 1993)

.