Ilse Heinemeyer v. TOWNSHIP OF SCOTCH PLAINS On Appeal From the United States District Court For the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2336
________________
ILSE HEINEMEYER,
Appellant
v.
TOWNSHIP OF SCOTCH PLAINS
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.N.J. Civ. No. 03-cv-1409)
District Judge: John C. Lifland
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
September 20, 2006
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES.
(Filed October 4, 2006)
_______________________
OPINION
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1 Because the District Court’s order of December 21, 2005, which granted summary
judgment to defendants, was not accompanied by a separate document that triggered the
typical 30-day appeal period, Heinemeyer’s seemingly late notice of appeal fits in the safe
harbor Fed. R. Civ. P. 58 and FRAP 4(a)(7) provide, and was timely filed as to the
December order.
2
PER CURIAM
Ilse Heinemeyer appeals the dismissal of her pro se complaint by the United States
District Court for the District of New Jersey. For the reasons below, we will affirm the
District Court’s judgment.
On October 3, 2003, Heinemeyer filed an amended pro se complaint against
defendants, the Township of Scotch Plains and Thomas Atkins, the Township Manager.
She alleged that defendants violated the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. §§ 1961, 1964(c) (RICO), by overcharging her property tax for over 30
years. The District Court granted defendants’ motion for summary judgment because
Heinemeyer did not show a prima facie case of a RICO violation. After the District Court
denied Heinemeyer’s motion for reconsideration as time-barred, she appealed.1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of
review is plenary. See USX Corp. v. Liberty Mut. Ins. Co., 444 F.3d 192, 197 (3d Cir.
2006). We may affirm the District Court’s order if, when viewing the evidence in the
light most favorable to the non-moving party, there is “no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).

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2 We agree with the District Court that Heinemeyer untimely filed her motion for
reconsideration. The District Court’s order granting summary judgment was entered on
December 21, 2005. Heinemeyer had 10 days from this date to file her motion. See Fed.
R. Civ. P. 59(e). However, she untimely filed her motion on January 11, 2006.
Furthermore, even if the District Court erred in failing to construe Heinemeyer’s pro se
motion as a Fed. R. Civ. P. 60(b) motion, any error was harmless. Heinemeyer’s motion
provided no evidence that defendant Atkins committed any “racketeering activity” under
§ 1961(1).
3
Heinemeyer argues that the District Court erred in granting defendants’ motion for
summary judgment and denying her motion for reconsideration.2 She argues that
defendants violated the RICO statute by erroneously calculating her property taxes for
over 30 years. For essentially the same reasons set forth by the District Court, we agree
that Heinemeyer’s RICO claim against defendants fails as a matter of law. Defendant
Township of Scotch Plains is a municipal corporation and is thus immune to RICO
claims. See Genty v. Resolution Trust Corp., 937 F.2d 899, 914 (3d Cir. 1991) (holding
that “a civil claim brought under § 1964(c) of the RICO Act, with its mandatory award of
treble damages which are punitive in character, cannot be maintained against a municipal
corporation” ). Moreover, Heinemeyer has not shown “(1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity” with respect to defendant Atkins. Lum v.
Bank of America, 361 F.3d 217, 223 (3d Cir. 2004); see also Beck v. Prupis, 529 U.S.
494, 505 (2000) (holding that a conspiracy claim under RICO must involve an act of
racketeering or an act that is otherwise unlawful under the statute). Here, there is no
evidence in the summary judgment record that Atkins committed any “racketeering
activity” under § 1961(1). See Fed. R. Civ. P. 56(e) (if the moving party establishes that

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4
there is no genuine issue of material fact for trial, the burden shifts to the non-moving
party to produce evidence of a genuine issue). Accordingly, we will affirm the judgment
of the District Court.

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