NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2251

___________

RICHARD G. HOLLAND, 

 Appellant

v.

SIMON PROPERTY GROUP, INC.; MACERICH; TIMOTHY KORHUMEL;

DEPTFORD MALL SECURITY; JANINE IMPERATO, Security Guard; 

JOHN AND JANE DOES; ROBERT CHEROBSKI, Deptford Mall Security Guard;

IPC INTERNATIONAL, INC

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-09-cv-00914)

District Judge: Honorable Renee M. Bumb

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 28, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: August 29, 2012)

___________

OPINION

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2

PER CURIAM

Richard G. Holland, proceeding pro se, appeals from the District Court’s orders 

granting summary judgment in favor of Defendants and denying his post-judgment 

motion to amend the complaint. For the reasons that follow, we will affirm.

I.

Holland is a self-described “champion for the rights of the disabled” and 

“secondary caregiver” for an individual who is severely disabled.1

 (Dkt. No. 40, ¶¶ 8-9.) 

On February 28, 2007, Holland visited a shopping mall in Deptford, New Jersey, (the 

“Deptford Mall”) to investigate its compliance with the Americans with Disabilities Act 

(“ADA”). (Id. ¶ 12.) At that time, the Deptford Mall had a policy prohibiting all visitors 

from videotaping the premises without prior approval (the “No-Videotaping Policy”). 

(Dkt. No. 66, Attach. 2, ¶ 10.) Holland was videotaping the parking lot when he was 

approached by two security guards. (Id. ¶ 12.) The security guards informed Holland of 

the No-Videotaping Policy and asked him at least three times to stop videotaping. (Id. ¶¶ 

13-25.) He refused, stating that he was conducting an “assessment of handicapped 

parking.” (Id.

 1 This factual background is taken from the record below. Defendants have filed a 

Motion to Strike Holland’s Statement of Facts in his appeal brief because those facts

¶ 15.) The security guards claimed that Holland then acted in a 

were presented for the first time on appeal. This Court does not “consider material on 

appeal that is outside of the district court record.” Webb v. City of Phila., 562 F.3d 256, 

261 n.4 (3d Cir. 2009) (citation omitted). Therefore, Defendants’ motion to strike is 

denied as unnecessary.
3

threatening manner towards them. (Id.

Holland commenced this case in February 2009. Holland claimed that Defendants

retaliated against him under the ADA and the New Jersey Law Against Discrimination 

(“NJLAD”) by revoking his status as a business invitee and banning him from the 

Deptford Mall.

¶¶ 26-27.) The local police were notified. (Dkt. 

No. 40, ¶ 14; Dkt. No. 66, Attach. 2, ¶ 30.) They arrived and asked Holland to leave and

never return. (Dkt. No. 40, ¶ 14.) Regardless, Holland visited the Deptford Mall at least 

twice after February 28, 2007, without incident. (Dkt. No. 66, Attach. 8, Ex. B at 83:17-

84:15; 87:4-17.)

2

On August 24, 2010, the District Court granted Holland leave to amend his 

complaint. Discovery ensued. Defendants filed motions for summary judgment that

were granted by opinion and order entered December 30, 2011. Holland filed a timely

post-judgment motion to amend the complaint pursuant to Federal Rule of Civil 

Procedure 59(e), which the District Court denied. Holland timely filed his Notice of 

Appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

 (Dkt. No. 40.)

II.

1. The District Court Properly Granted Summary Judgment in Favor of 

Defendants

 2 After receiving Holland’s complaint, Defendants sent him a letter stating that he was 

never banned from the Deptford Mall, and that he was free to visit at any time. (Dkt. No. 

66, Attach. 3, Ex. A; Attach. 7, Ex. D.)
4

Our review of the District Court’s order granting summary judgment is plenary, 

and we apply the same test used by the District Court. Williams v. Phila. Hous. Auth. 

Police Dep’t, 380 F.3d 751, 758 (3d Cir. 2004). That is, we must be satisfied that there is 

“no genuine dispute as to any material fact and [that] the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most favorable 

to Holland, the non-moving party. Williams

Both the ADA and the NJLAD prohibit retaliation against any individual because 

he has opposed any act or practice made unlawful by those statutes. 

, 380 F.3d at 758.

See 42 U.S.C. § 

12203(a); N.J. Stat. Ann. 10:5-12(d). To prove a prima facie case of retaliation under the 

ADA and the NJLAD, the plaintiff must demonstrate by a preponderance of the evidence 

that (1) he engaged in a protected activity; (2) he suffered an adverse action; and (3) a 

causal connection exists between the protected activity and the adverse action. Williams, 

380 F.3d at 759 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) 

(other citation omitted)); Victor v. State, 4 A.3d 126, 141 (N.J. 2010). Once a prima 

facie case is made, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for taking the adverse action. McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802 (1973); see also Williams, 380 F.3d at 759 n.3 (McDonnell Douglas

framework applies to ADA retaliation claims). If the defendant meets that burden, the 

plaintiff has the burden of proving that the defendant’s reason was merely pretextual. 

McDonnell Douglas, 411 U.S. at 804.
5

The District Court determined that Holland’s investigative videotaping was a 

protected activity under the ADA and the NJLAD. (Dkt. No. 82, p. 11.)3

 Moving to the 

second prong of the prima facie case, it was Holland’s burden to prove that he suffered an

adverse action. Williams, 380 F.3d at 759; Victor, 4 A.3d at 141. Holland alleged that 

the adverse actions were (1) Defendants calling the police and asking them to remove

him from the Deptford Mall and (2) his being banned from the premises.4

 (Id.

 3

 We need not and do not decide whether characterizing the videotaping as protected 

activity was legally sound.

, p. 12.) 

Holland did not meet his burden of proving by a preponderance of the evidence that he 

suffered an adverse action as a result of engaging in a protected activity. First, there was

no evidence that any of the Defendants were involved with the local police ordering 

Holland to leave the Deptford Mall and never return. Second, Holland testified that he 

had freely visited the premises at least twice since February 28, 2007, and he produced a 

letter from Defendants stating that he was never banned from the Deptford Mall. (Dkt. 

No. 66, Attach. 7, Ex. D.) Holland did not suffer an adverse action at the hands of 

4 The District Court correctly declined to consider claims of retaliation asserted for the 

first time in Holland’s summary judgment opposition brief. Anderson v. DSM N.V., 589 

F. Supp. 2d 528, 534 n.5 (D.N.J. 2008) (citing 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.”)).
6

Defendants.

5

2. The District Court Properly Denied Holland’s Motion for 

Reconsideration

 Because Holland failed to prove a prima facie case of retaliation, the 

District Court properly granted summary judgment in favor of Defendants on his ADA 

and NJLAD claims.

We review the denial of a motion for reconsideration for abuse of discretion, while 

reviewing the District Court’s underlying legal determinations de novo and its factual 

determinations for clear error. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 

176 F.3d 669, 673 (3d Cir. 1999). The District Court liberally construed Holland’s Rule 

59(e) motion (Dkt. No. 94) as both a motion for reconsideration and a post-judgment 

motion to amend the complaint. A motion for reconsideration must rely on one of three 

grounds: (1) an intervening change in the law; (2) the availability of new evidence; or (3) 

the need to correct clear error of law or prevent manifest injustice. N. River Ins. Co. v. 

CIGNA Reinsurance Co.

 5 Even if the Defendants asked Holland to leave the premises or directed the police to do 

so, they had a legitimate, non-retaliatory reason, that is, his undisputed refusal to comply 

with the No-Videotaping Policy. McDonnell Douglas, 411 U.S. at 802. Holland had no 

evidence that this reason was pretextual. Id. at 804.

, 52 F.3d 1194, 1218 (3d Cir. 1995). Holland did not identify 

any of these factors in his motion. He merely rehashed the arguments he presented in his 

summary judgment opposition brief. (Dkt. No. 84.) Finding no abuse of discretion by 

the District Court, we will affirm the denial of Holland’s motion for reconsideration.
7

3. The District Court Properly Denied Holland’s Post-Judgment Motion 

to Amend His Complaint

We review the denial of a post-judgment motion to amend a complaint for abuse 

of discretion. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011), cert. 

denied, 132 S. Ct. 1861 (2012) (citations omitted). The District Court’s underlying legal 

determinations are reviewed de novo and its factual determinations are reviewed for clear 

error. Id. Where, as here, the Rule 59(e) motion is timely filed, the District Court should 

consider the factors set forth in Federal Rule of Civil Procedure 15(a) when determining 

whether to grant the post-judgment motion to amend. Id. at 230. Those factors include 

“undue delay, bad faith, prejudice, or futility.” Id.

Holland wanted to amend his complaint to add new claims for retaliation that were 

first asserted in his summary judgment opposition brief. (Dkt. No. 84, p. 2.) The District 

Court determined that Holland exhibited undue delay in seeking the amendment, that an 

amendment after entry of judgment would unfairly prejudice Defendants, and that his 

request was procedurally defective for failing to attach a copy of his proposed second 

amended complaint. (Dkt. No. 91.) We agree. Holland’s delay was undue for several 

reasons, all of which were properly analyzed by the District Court under our decision in 

at 230-31(citation omitted).

Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001), and need 

not be repeated here. Defendants certainly would have been prejudiced if the motion 

were granted, as allowing Holland’s amendment would have resulted in “additional 

discovery, cost, and preparation to defend against new facts or new theories” after 
8

judgment was entered in their favor. Id. Finally, Holland’s failure to submit a copy of 

his proposed second amended complaint, standing alone, was enough reason to deny his 

motion. Id. The District Court did not abuse its discretion in denying Holland’s postjudgment motion to amend his complaint.

6

For the foregoing reasons, we will affirm the District Court’s orders granting 

summary judgment in favor of Defendants and denying Holland’s post-judgment motion

to amend his complaint.

 6 We have considered Holland’s argument that the District Court should have analyzed 

this motion under Federal Rule of Civil Procedure 60 and find it to be without merit.