NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 KO RH UMEL; DEPTFORD MALL SECURITY; JANINE IMP ERATO, Security Guard; JOHN AND JANE DOES; ROBERT CHEROBSKI, Deptford Mall Secu rity Guard; IPC INTERNATIONAL, INC

____________________________________ On Appeal from the United States District Court for the Distric t 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 (O pinion filed : August 29, 2012 )

___________

OPINION

___________2 PER CURIAM Richard G. Holland, proceeding pro se , appeals from the District Court’s orders granting summary judgmen t in favor of Defendants and denying his post

- judgment motion to amend th e complaint . For the reasons that follow, we will affirm.
I. Holland is a self

- described “champion for the rights of the disabled” and
“secon dary caregiver ” for a n individual who is severely disabled. 1 (Dkt. No. 40 , ¶¶ 8

- 9.)
On February 28, 2007, Holl and visited a shopping mall in Deptford, New Jersey , (the “Deptford Mall”) to investig ate 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 guard s 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 F acts 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) (cita tion omitted). Therefore, Defendants’ motion to st rike is denied as unnecessary.3 threatening mann er 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 D iscrimination (“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, t he District Court granted Holland leave to amend his complaint . D iscovery ensued

. Defendants filed motions for summary judgment that

were granted by op inion and order entered December 30, 2011. Holland fil ed a timely post

- judgment motion to amend the complaint pursuant to Federal Rule of Civil Procedure 59(e) , which the District Court denied

. Holland ti mely 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, w e must be satisfied that there is “no genuine dispute as to any material fact and [ that ] the movant is entitled to ju dgment 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 a ny act or practice made unlawful by those statutes

. , 380 F.3d at 758.

See 42 U.S.C. § 12203(a); N.J. S tat

. A nn . 10:5

- 12(d). To prove a prima facie case of retaliati on under the ADA and the NJLAD, the plaintiff must demonstrate by a preponderance of the evidence that (1) h e 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, non

discriminatory 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 meet s that burden, the plaintiff has the burden of proving that the defendant’s reason was merely pr etextual. McDonnell Douglas , 411 U.S. at 804.5 The District Court determined that Holland’s investigative videotaping was a protected activ ity 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 a nd 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 evid ence that he suffered an adverse action as a result of engaging in a protected activity. First, t here was no evidence that any of the Defendants were involved with the local police or dering 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 Defen dants stating that he was never ba nned 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 fir st 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 comp laint 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 f avor of Defendants on his ADA and NJLAD claims.

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

re viewing 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 r econsideration must rely on one of three grounds: (1) an intervening change in the law; (2) the availability of new evid ence; 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

- Vi deotaping 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 argumen ts 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
- Judg ment Motion to Amend His Complaint We review the denial of a post

- judgment motion to amend a complaint fo r abuse of discretion. Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 220 (3d Cir. 2011), cert. denied , 132 S. Ct. 1861 (2012) (citations omitte d). 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 fort h 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 aft er en try of judgment would unfairly prejudice Defendants, and that his request was procedurally defective for failing to attach a copy of his proposed second amended c omplaint. (Dkt. No. 91.) We agree. Holland’s de lay was undue for several reasons, all of wh ich were properly analyzed by the District Court under our decision in at 2 30

- 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 ag ainst new facts or new theories ” after8 judgment was entered in their favor. Id

. Finally, Holland’s failure to submit a copy of his proposed second amended comp laint, standing alone, was enough reason to deny his motion

. Id. The District Court did not abuse its discretion in denying Hollan d’s post

judgment 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 Proce dure 60 and find it to be without m erit.