No: 02-2748/2813 ATE KAYS COMPANY v. Pennsylvania Convention Center

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-2748/2813
ATE KAYS COMPANY,
Appellant in 02-2748
v.
PENNSYLVANIA CONVENTION CENTER, et al,
Appellants in 02-2813
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 00-cv-3693)
District Court: Honorable Clifford Scott Green
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 2003
Before: McKEE and SMITH, Circuit Judges,
and GREENBERG, Senior Circuit Judge.
OPINION
(Filed: March 30, 2004)
McKEE, Circuit Judge.
ATE Kays Company (“ATE”) argues that the district court erred in granting
judgment as a matter of law in favor of defendant, the Pennsylvania Convention Center

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1 We have jurisdiction pursuant to 28 U.S.C. § 1291, based on the May 22, 2002 final order of
the district court granting judgment as a matter of law in favor of the Pennsylvania Convention
Center. We review a district court’s grant of judgment as a matter of law de novo.
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(“Convention Center”). For the reasons that follow, we will affirm.1
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case in detail. It is sufficient to note that ATE owns an eleven story office building
located at 121 North Broad Street in Philadelphia, and leases office space to commercial
tenants. ATE alleged that agents of the Convention Center violated their constitutional
rights in violation of 42 U.S.C. § 1983 by making public statements concerning the
possible condemnation of ATE’s property and thereby impairing ATE’s ability to rent
space in its building. Specifically, agents of the Convention Center allegedly made public
statements that, subject to obtaining necessary financing, the Convention Center would
expand westward, necessarily resulting in the condemnation and demolition of ATE’s
property. ATE claimed that the agents of the Convention Center made these statements
knowing the expansion plan was neither approved nor funded but nevertheless continued
making statements in order to lower property values in the area in case expansion was
approved. ATE claimed that as a result of these statements, it lost its three largest tenants
and its ability to find new tenants was impaired.
At the close of ATE’s evidence at trial, the district court granted the Convention
Center’s motion for judgment as a matter of law pursuant to Federal Rule of Civil

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Procedure 50(a). This appeal followed.
II.
At the time of the trial, in order to establish a substantive due process violation, a
plaintiff had to prove: (1) the government’s actions were not rationally related to a
legitimate government interest; or (2) the government’s actions in a particular case were
motivated by bias, bad faith, or improper motive. Parkway Garage, Inc. v. City of
Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993). The district court applied this standard at
trial in granting judgment as a matter of law in favor of the Convention Center. While
ATE’s appeal was pending, however, we concluded that, in light of the Supreme Court’s
decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), such a plaintiff had to
show that the government’s conduct “shocked the conscience.” United Artists Theater
Circuit v. Township of Warrington, 316 F.3d 392, 394 (3d Cir. 2003). This “shock the
conscience” standard is obviously higher than the previous standard requiring only bad
faith or improper motive. See Lewis, 523 U.S. at 846 (the “shocks the conscience”
standard encompasses “only the most egregious official conduct.”).
ATE does not argue that the Convention Center’s actions in making public
statements about the proposed expansion were not rationally related to a legitimate
government interest. Rather, ATE claims that the Convention Center’s actions “shock the
conscience because it engaged in a reckless campaign to publicize its intention to
condemn ATE’s property... . even though such statements were knowingly premature and

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false.” (Appellant Brief, 12). However, ATE admits that any statement made by a
representative of the Convention Center regarding the proposed expansion was
accompanied by an acknowledgment that the expansion project had not yet received
approval or the necessary funding. ATE offered no evidence at trial, other than its own
accusation, that the actions of the Convention Center were motivated by an improper
economic motive. For these reasons, the district court properly concluded that no
reasonable jury could infer from the evidence that the Convention Center was motivated
by bias, bad faith, or improper motive, and thus the court granted the Convention Center’s
motion for judgment as a matter of law. Since ATE could not establish a claim under the
“improper motive standard”, ATE necessarily cannot now meet the higher standard of
showing that the conduct “shocks the conscience.”
Furthermore, ATE failed to prove causation. At trial, not a single tenant testified
that they failed to renew their lease because of the Convention Center’s statements.
Moreover, a real estate agent who showed ATE’s building to prospective tenants testified
that prospective tenants declined to rent because of factors unrelated to the proposed
Convention Center expansion, such as the condition of the building and the
neighborhood. (Appellant’s App., 62A). Thus, the district court properly concluded there
was insufficient evidence to submit the issue of causation, to the jury.
III.
For all of the above reasons, we will affirm the district court’s order granting

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judgment as a matter of law in favor of the Convention Center.

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