NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-2046 & 12-2236

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D & D ASSOCIATES, INC.

a New Jersey Corporation

Appellant (12-2046)

v.

BOARD OF EDUCATION OF NORTH PLAINFIELD; THE VITETTA GROUP, INC., 

n/k/a/ Vitetta; BOVIS LEND LEASE INC; ROBERT C. EPSTEIN

Robert C. Epstein,

Appellant (12-2236)

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Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-03-cv-01026)

District Judge: Honorable Mary L. Cooper

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Submitted Under Third Circuit LAR 34.1(a)

November 19, 2013

Before: AMBRO, and SMITH, Circuit Judges

and O’CONNOR,* Associate Justice (Ret.)

(Opinion filed: January 8, 2014)

 

* Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the Supreme Court of the 

United States, sitting by designation.
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OPINION

________________

AMBRO, Circuit Judge

Plaintiff D&D Associates, Inc. (“D&D”), a New Jersey contractor, entered into a 

variety of contracts for school renovation with defendant North Plainfield Board of 

Education (the “Board”). After relations soured, D&D sued the Board and the Board’s 

attorney, Roger Epstein (“Epstein”), as well as the construction management company 

and architect the Board hired. D&D’s claims covered a variety of contractual, tort, and 

civil rights claims. The District Court dismissed all counts of the complaint or granted 

summary judgment in favor of defendants. D&D appeals as to some counts of the 

complaint; Epstein cross-appeals as to two. On all issues properly before us, we affirm 

the District Court.

I. Background

In 2001, the Board awarded construction contracts to D&D for the renovation and 

expansion of five schools. To fulfill its contractual bonding requirements, D&D obtained 

bonds from American Motorists Insurance Company (“the Surety”). The Surety and 

D&D entered into a General Indemnity Agreement (“GIA”). It contained a provision 

stating that, in the event of a default, D&D would “assign, transfer, and set over to 

Surety, all of their rights under all Bonded Contract(s), including . . . all claims and 

causes of actions against any parties to the Bonded Contract[.]” The Board entered into 
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contracts for the project with an architecture firm, Vitteta Group, Inc. (“Vittetta”), and a 

construction management firm, Bovis Lend Lease, Inc. (“Bovis”).

Relations among the parties quickly broke down and, after repeatedly informing 

D&D of issues relating to the construction, Epstein, on behalf of the Board, sent the 

Surety a letter stating that D&D was in default in February 2002, but withdrew the notice 

a month later. Despite the withdrawal, between March and July 2003 the Board, after 

providing notice, terminated D&D from all contracts and demanded that the Surety fulfill 

the contractor’s remaining obligations. The Board and the Surety entered into takeover 

agreements to facilitate the completion of all responsibilities.

During this time, the Surety began to decline D&D’s requests for further largescale bonding. From 2000 to 2003, D&D applied for prequalification, a New Jersey 

classification allowing a contractor to bid on school facilities projects. This application 

was approved each year until 2003, when D&D submitted an incomplete application that

was deemed withdrawn. D&D asserts that because it had lost bonding capacity, it would 

not have been eligible for prequalification even with a complete application. It filed for 

Chapter 11 bankruptcy in August 2003, and its reorganization plan was approved in 

January 2005. 

In March 2003, D&D filed its initial complaint in this action, charging the Board, 

Vitteta, Bovis, and Epstein with a variety of civil rights and tort claims. An amended 

complaint added additional claims. Between 2003 and 2012, the case went through 

extensive litigation at the District Court. This culminated in a March 2012 opinion that 

granted summary judgment for the Board on all remaining counts and for Epstein on 
4

Count Two (stigma-plus reputational harm). The same order denied both Epstein’s 

motion for summary judgment on Count Ten (tortious interference) and Count Eleven

(defamation) and D&D’s motion for summary judgment on various counts. Having 

disposed of all federal law claims, the District Court declined to exercise supplemental 

jurisdiction over Counts Ten and Eleven, both state law claims, and dismissed those

counts against Epstein, Bovis, and Vitteta without prejudice. D&D appeals the grants of 

summary judgment in favor of the Board on several counts and in favor of Epstein on 

Count Two. Epstein cross-appeals the denial of his motion for summary judgment on 

Counts Ten and Eleven. 

II. Jurisdiction & Standard of Review

The District Court had jurisdiction over D&D’s federal law claims under 28 

U.S.C. § 1331 and supplemental jurisdiction over D&D’s state law claims under 28 

U.S.C. § 1367. We have jurisdiction over the appeal under 28 U.S.C. § 1291. We review 

summary judgment orders de novo, applying the same test as the district court, which 

states that “[s]ummary judgment is appropriate when the moving party is entitled to 

judgment as a matter of law and there is no genuine dispute of material fact.” Hampton v. 

Borough of Tinton Falls Police Dep’t, 98 F.3d 107, 112 (3d Cir. 1996). Where we have 

jurisdiction to do so, we exercise plenary review over a denial of a motion for summary 

judgment. See Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994).
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III. Analysis

A. Count One: Property Seizure

In the first count of the amended complaint, D&D argues it was denied due 

process through the unlawful seizure of its property. The District Court granted summary 

judgment for both the Board and Epstein on this count in 2007. Although portions of 

D&D’s opening brief appear to relate to this count, it has not been properly preserved on 

appeal. 

D&D’s opening brief does not request that this count be reinstated or at any point

identify Count One specifically as being erroneously dismissed. Where the brief to us

refers to property seizure, those arguments are entangled with contentions on other 

counts. In addition, the citation seemingly intended to indicate the property-seizure claim 

in the statement of issues corresponds to a section of the District Court’s 2007 opinion 

concerning other claims, not Count One, meaning that the portion of the judgment 

appealed from is never identified. D&D’s vague efforts are insufficient to place the issue 

before us, and we make no decision on the merits of this claim. 

B. Count Two: Stigma Plus

The second count of the amended complaint charges various defendants of making 

false statements that deprived D&D of its liberty interest in prequalification. The 

contractor argues that the District Court erred in dismissing this count against the Board 

and not reinstating this count against Epstein.1

 

1

In a previous order, the District Court granted summary judgment for Epstein on Count 

Two.
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Civil rights claims under 42 U.S.C. § 1983 based on reputational harms are known 

as “stigma-plus” claims. See Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 

2006). In order to make out such a claim, “a plaintiff must show a stigma to his 

reputation plus deprivation of some additional right or interest.” Id. (emphasis in 

original). In other words, reputation damage is not actionable unless “it occurs in the 

course of or is accompanied by a change or extinguishment of a right or status guaranteed 

by state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 

1989). While stigma-plus analysis is most common in public employment cases, see, e.g.,

Ersek v. Twp. of Springfield, 102 F.3d 79 (3d Cir. 1996), it can also be used in other 

contexts, see Baraka v. McGreevey, 481 F.3d 187, 208-10 (3d Cir. 2007).

To establish stigma, the relevant statements by the defendant must be both made 

publicly and false. Hill, 455 F.3d at 236. Here, D&D asserts that the Board and Epstein

falsely claimed it was in default when no formal default proceedings had occurred. 

Because of the disagreement among the parties as to whether D&D was actually in 

default, the District Court correctly concluded that “there is at least a factual dispute 

between the parties” over whether the relevant statements were false. This dispute is 

sufficient for D&D to avoid summary judgment on the stigma prong of its stigma-plus 

claim.

The second, or “plus,” requirement refers to the additional deprivation needed to 

transform a stigmatizing statement into a § 1983 claim. D&D suggests that the loss of its 

status as a prequalified contractor satisfies this requirement. The District Court concluded 

that prequalification is not an interest protected by due process, a conclusion that is at 
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least somewhat in tension with precedent. See Berlanti v. Bodman, 780 F.2d 296, 300 (3d 

Cir. 1985) (noting that New Jersey recognizes “a property interest in not being arbitrarily 

debarred” from public contracts that triggers “some procedural protection under the due 

process clause”). 

We need not determine whether a protected interest in prequalification exists 

because the connection between the alleged stigma and the loss of prequalification is too 

remote for stigma-plus liability against either the Board or Epstein. By D&D’s own 

argument, the alleged reputational attacks affected prequalification only indirectly, by 

causing the Surety to decline further bonding. Even if those indirect effects were 

sufficient, the Surety’s decisions were attributable to other factors, including liens from 

D&D’s subcontractors, the size of D&D’s assets, and concerns about D&D’s ability to 

handle existing projects.

Moreover, in 2003, the only year D&D applied for and did not receive

prequalification, its application was missing necessary signatures, notarizations, 

affidavits, and financial records. It did not respond to requests to cure these deficiencies

and, as a result, the application was deemed withdrawn. D&D has not applied for 

prequalification since 2003. The contractor’s own actions in failing to apply properly for 

prequalification therefore intervened between the actions of the defendants and 

prequalification not being renewed. Such an attenuated connection is too strained to 

support a stigma-plus claim. See WMX Techs., Inc. v. Miller, 80 F.3d 1315, 1320 (9th Cir. 

1996) (“[T]he ‘stigma-plus’ test requires that the defamation be accompanied by an 

injury directly caused by the Government, rather than an injury caused by the act of some 
8

third party.”). Hence the loss of prequalification here is insufficient to raise a genuine 

question of material fact regarding the stigma-plus claim, and the District Court did not 

err in granting summary judgment on this count. 

C. Counts Three & Four: First Amendment Retaliation

D&D argues the District Court erred in granting summary judgment for the Board 

on the contractor’s § 1983 claims of retaliation for exercising its First Amendment rights. 

The amended complaint includes two such claims: Count Three charges that the 

defendants issued default letters in retaliation for D&D’s response to delays in the project 

schedule; Count Four alleges that D&D’s contracts with the Board were terminated in

retaliation for this lawsuit.2

To prevail on a First Amendment retaliation claim under § 1983, “a plaintiff must 

prove ‘(1) that he engaged in constitutionally-protected activity; (2) that the government 

responded with retaliation; and (3) that the protected activity caused the retaliation.’” 

Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting Eichenlaub v. Twp. of 

Indiana, 385 F.3d 274, 282 (3d Cir. 2004)). Where the speaker is a government 

employee, that person “must show that he or she spoke as a citizen on a matter of public 

concern.” Borough of Duryea, Pa., v. Guarnieri, 131 S. Ct. 2488, 2493 (2011) (emphasis 

added). This test, “adjusted to weigh the government’s interests as contractor rather than 

 

2

In its appellate brief, D&D alleges the Board suppressed a newspaper article and 

retaliated against D&D for “protesting the Board’s unlawful attempt to proceed without 

building permits.” Because these arguments were apparently not raised before the District 

Court, they are waived and not before us. See United States v. Lockett, 406 F.3d 207, 212 

(3d Cir. 2005) (“It is well settled that arguments asserted for the first time on appeal are 

deemed to be waived and consequently are not susceptible to review in this Court absent 

exceptional circumstances.”). 
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as employer,” applies to government contractors like D&D. Board of Cnty. Comm’rs v. 

Umbehr, 518 U.S. 668, 673 (1996). 

Count Three fails on the first prong because the speech in question was in D&D’s 

capacity as a contractor, not a citizen, and therefore not constitutionally protected. D&D 

claims it was retaliated against for refusing to “make false statements for public 

distribution that the Projects were on schedule” and for actually making “statements that 

defendants themselves had caused delays; for D&D’s requests for extensions of time and 

other compensation; and for D&D’s attempt to meet with other prime contractors affected 

by defendant’s improper actions to form a coordinated attempt to seek scheduling 

adjustments and other redresses.” The District Court concluded that this speech was on a 

matter of public concern, but was made (or not made) in D&D’s employee capacity and 

not protected by the First Amendment. On appeal, D&D does not challenge the 

conclusion that the relevant speech was in its capacity as an employee. Because there is 

no underlying constitutionally protected speech, it is unnecessary to reach the other steps. 

Therefore, the District Court did not err in granting summary judgment for the Board on 

Count Three.

Count Four, charging that the Board retaliated against D&D for initiating this 

litigation, has not been properly preserved for appeal. As discussed above with regard to 

Count One, appellants are deemed to have abandoned a claim on appeal unless, in their 

opening brief, they identify that claim in the statement of issues and present arguments in 

support of their position on that claim. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 

1993) (“[C]asual mention of an issue in a brief is cursory treatment insufficient to 
10

preserve the issue on appeal.”). Here, D&D requested in its conclusion that this count be 

reinstated against the Board but made no arguments regarding retaliation for initiating 

litigation anywhere in the brief. Nor, for that matter, did D&D specifically refer to 

retaliation for litigation in its statement of the issues. While D&D’s reply brief contains 

some specific references to this claim, mention in a reply brief does not remedy the 

absence of issues in the initial appellate brief. See Hoxworth v. Blinder, Robinson & Co., 

903 F.2d 186, 204-05 n. 29 (3d Cir. 1990) (“As a general matter, the courts of appeals 

will not consider arguments raised on appeal for the first time in a reply brief.”). This 

argument is abandoned, and we need not address it here.

D. Count Eight: Breach of Contract 

Count Eight of the complaint alleged contractual breaches by the Board. The 

District Court granted summary judgment to the Board on the ground that the claim had

been assigned to the Surety. On appeal, D&D argues that the grant of summary judgment 

was inappropriate for several reasons, but does not challenge the District Court’s general 

reasoning.

First, D&D charges that the District Court improperly ignored relevant state law, 

specifically a series of cases under the New Jersey Trust Fund Act (“NJTFA”), N.J. Stat. 

Ann. § 2A:44-148. This line of argument is precluded. In granting summary judgment on 

Count Seven, the District Court specifically concluded that the NJTFA does not apply in 

this case because, under New Jersey law, no trust had been created. Because D&D has 

not appealed the District Court’s ruling on Count Seven, res judicata precludes this 
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argument. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 

375, 396 n. 24 (3d. Cir. 1994).

Second, D&D argues that the District Court’s grant of summary judgment violated 

Federal Rule of Civil Procedure 17(a)(3) because it did not allow time for the real party in 

interest to “ratify, join, or be substituted into the action.” Fed. R. Civ. P. 17(a)(3).

Because this claim appears not to have been raised at the District Court, it is waived and 

not properly before us. See United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005). 

Third, D&D argues that United States v. Aetna Casualty & Surety Co., 338 U.S. 

366 (1949), controls here and requires the conclusion that D&D was entitled to pursue 

the breach of contract claim in its own name. Aetna is inapplicable because it concerns an 

entirely dissimilar fact pattern. In that case, the Supreme Court held that where an insurer 

has only partially paid a claim and is therefore a partial subrogee to the insured, both the 

insured and the insurer may bring actions in their own names for the portions of the claim 

they respectively hold. See id. at 380-81. Here the District Court concluded that D&D’s 

rights were wholly, not partially, assigned to the Surety. D&D has not argued, nor even 

clearly suggested, that the ruling was in error for concluding that the contractual rights 

were wholly assigned. Aetna and cases following it thus provide no reason to question the 

District Court’s conclusion.

Fourth, D&D argues that its confirmed Reorganization Plan foreclosed the District 

Court’s conclusion that the Surety is the real party in interest. As the District Court 

specifically noted, this argument was raised for the first time in D&D’s motion to alter 

judgment, which was interpreted as a motion for reconsideration. Thus, despite the fact 
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that the Reorganization Plan was filed in 2004 and the Board first sought summary 

judgment because the Surety was the real party in interest in 2006, D&D did not raise this 

argument until 2012. 

The Reorganization Plan argument is effectively an appeal of the denial of the 

motion for reconsideration. This motion can only be granted if the party seeking to alter 

the judgment can show “(1) an intervening change in the controlling law; (2) the 

availability of new evidence that was not available when the court granted the motion for 

summary judgment; or (3) the need to correct a clear error of law or fact or to prevent 

manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 

677 (3d Cir. 1999). As the District Court concluded, there was neither an intervening 

change in law nor new evidence, meaning only a “clear error of law or fact” or the 

prevention of “manifest injustice” could justify granting the motion. Neither occurred 

here. D&D cannot use a motion for reconsideration to avoid the consequences of failing, 

without providing any explanation, to raise this argument in the six years this issue has 

been under litigation. See United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010) 

(“Such motions are granted for ‘compelling reasons,’ such as a change in the law which 

reveals that an earlier ruling was erroneous, not for addressing arguments that a party 

should have raised earlier.” (internal quotation marks omitted) (quoting Solis v. Current 

Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009))). 

For all these reasons, the District Court did not err in granting summary judgment 

for the defendants on Count Eight, nor did it err in denying the motion for 

reconsideration.
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E. Counts Ten and Eleven: Tortious Interference and Defamation 

Epstein cross-appeals on Count Ten, which charged him and other defendants with 

tortious interference with D&D’s business, and Count Eleven, which alleged that he and 

other defendants defamed D&D. The District Court declined to exercise supplemental 

jurisdiction over these state law claims and dismissed them without prejudice as to 

Epstein, Bovis, and Vitteta. Epstein contends that the District Court erred in doing so

because both claims are barred by the New Jersey absolute litigation privilege for 

attorneys and the Board’s immunity ought to have been extended to him. 

“[F]ederal appellate courts have jurisdiction to hear appeals only from ‘final 

decisions’ of the district courts. Accordingly, we normally do not entertain appeals from 

a district court order denying a motion for summary judgment because such orders do not 

put an end to the litigation.” Rivas v. City of Passaic, 365 F.3d 181, 191 (3d Cir. 2004) 

(citation omitted). Epstein’s appeal is particularly unusual because these counts have 

been dismissed against him and D&D has not appealed their dismissal. He apparently 

seeks, through this cross-appeal, to preclude the bringing of these claims against him in 

state court through a grant of summary judgment in his favor.

Epstein argues that, because a dismissal without prejudice where the case cannot 

be reinstated in federal court is equivalent to a dismissal with prejudice, the decision is 

final and denial of summary judgment is reviewable. See Morton Int’l, Inc. v. A.E. Staley 

Mfg. Co., 460 F.3d 470, 477 (3d Cir. 2006) (“[A] case dismissed without prejudice that 

cannot be reinstituted is in the same position as a case dismissed with prejudice in that 

both classes of cases have reached finality.”). This principle, however, is drawn from 
14

cases assessing the finality of dismissals without prejudice as they relate to the finality of 

orders on other issues, not interlocutory orders on the same issue. See, e.g., Tiernan v. 

Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991). 

While the dismissals without prejudice of Counts Ten and Eleven are final, that 

does not render the decision to deny summary judgment directly reviewable. Reviewing

the denial of summary judgment would impermissibly end run the District Court’s 

discretionary decision declining supplemental jurisdiction. By statute, a “district court[] 

may decline to exercise supplemental jurisdiction over a claim” when it “has dismissed 

all claims over which it has original jurisdiction,” precisely as occurred here. 28 U.S.C. § 

1367(c). Moreover, by Epstein’s own arguments, deciding these claims would require

determining the effect of New Jersey’s absolute litigation privilege, which shields 

attorneys and parties from defamation liability based on statements made in judicial or 

quasi-judicial proceedings. See, e.g., Hawkins v. Harris, 661 A.2d 284, 289 (N.J. 1995). 

The application of this privilege represents a significant and complex state law question

that suggests an additional reason based on statute to decline supplemental jurisdiction. 

See 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental 

jurisdiction over a claim under subsection (a) if . . . the claim raises a novel or complex 

issue of State law[.]”).We review the decision not to exercise supplemental jurisdiction 

only for abuse of discretion. See Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 172 

(3d Cir. 2009). The District Court therefore did not abuse its discretion in declining to 

exercise supplemental jurisdiction over these claims. 
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* * * * *

In short, the District Court did not err in granting summary judgment on any count 

properly before us on appeal, nor did it abuse its discretion in dismissing without 

prejudice the remaining state law counts.3 We affirm its judgments. 

 

3 Because they are now moot, we deny Epstein’s motion to supplement the appendix and 

D&D’s motion to combine its briefs.