On Appeal from an Order of the United States District Court for the District of New Jersey, D.C. Civil Action No. 83-1566.
Hutchinson, Scirica and Garth Circuit Judges.
HUTCHINSON, Circuit Judge.
Defendant Virgilio J. Granata appeals (at 87-5471) a district court order denying his motion to dismiss plaintiffs' complaint, which alleges violations of their constitutional rights. In the alternative, he requests relief in the form of a writ of mandamus (at 87-5910) ordering the district court to dismiss the complaint. Because the complaint stated claims arising under the law of the United States, the district court had jurisdiction under 28 U.S.C.A. § 1331 (West Supp. 1988).*fn1 We have jurisdiction to review the district court's interlocutory order as it pertains to Granata's claim of qualified immunity under 28 U.S.C.A. § 1291 (West Supp. 1988). Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); see also Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir. 1988) (district court's denial of school board member's motion for summary judgment was appealable interlocutory order under Mitchell v. Forsyth despite court's failure to address the board member's qualified immunity defense). Our review of the legal questions presented on appeal is plenary. See Hynson v. City of Chester, 827 F.2d 932, 934 (3d Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653 (1988).
Because the record before us is insufficient for determination of Granata's claim of qualified immunity, the only theory available to him on this appeal, that issue is not ripe for appellate determination. Therefore, we will remand to the district court for further development of the record with respect to qualified immunity. Since Granata's remedy of dismissal for properly established qualified immunity remains open, mandamus is not available.
In 1969, plaintiffs Owen and Loreen Brown (the Browns) purchased a house in Bogota, New Jersey. They financed this purchase through a mortgage with Community Federal Savings and Loan Association (CFS&L). They later fell behind in their mortgage payments, and CFS&L assigned the mortgage to the United States Department of Housing and Urban Development (HUD). The Browns failed to meet the requirements of a payment schedule they set up with MUD.
In August, 1979, the Health Sanitarian for the Borough of Bogota notified MUD's Newark, New Jersey office that the Borough would have its Department of Public Works clean up garbage and debris on the Browns' property if the Browns did not do so. In September, 1979, the Bogota police chief communicated with defendant Granata, then Chief of MUD's Property Disposition Branch in Newark, and Thomas Verdon, MUD's Deputy Manager, to advise MUD that the Borough wanted the Browns' property cleaned up. A few days later, MUD called the Havar Real Estate Agency and requested that it have the property cleaned up. The Hallar Agency arranged to have the Charles Beimfohr Construction Company clean up the property. From September 13 through September 16, 1979, the construction company removed furniture, clothing and debris from the property.
In April, 1980, the Browns filed a formal administrative claim with MUD. After that claim was denied, they filed suit in the United States District Court for the District of New Jersey, claiming that various federal and non-federal defendants had wrongfully entered their property and removed personalty, causing physical damage to the premises in the process. The district court dismissed the action without prejudice, for lack of jurisdiction in December 1981.
The Browns filed a similar complaint in the Superior Court of New Jersey in March, 1983.*fn2 The action was removed to the United States District Court for the District of New Jersey. The district court concluded that it lacked jurisdiction over the United States, HUD and the individual federal defendants in their official capacities, but granted the Browns leave to amend their complaint to include a cause of action under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. § 1346(b) (West 1976). The Browns filed their amended complaint in March, 1984. In May, 1984, the district court dismissed the claims against the United States, HUD and the individual federal defendants in their official capacities under the FTCA because the Browns had filed suit beyond the Act's two-year limitation period, 28 U.S.C.A. § 2401 (b) (West Supp. 1988).
The individual federal defendants then sought dismissal of the complaint's state law, § 1983 and Bivens claims, contending, inter alia, that the complaint was filed beyond the statute of limitations. Treating their motions as motions for summary judgment under Federal Rule of Civil Procedure 56, the district court granted summary judgment and dismissed the complaint as to the federal defendants in their individual capacities.
The Browns filed a motion for reconsideration of this order. They argued that the complaint should not have been dismissed as to defendant Granata because the statute of limitations applicable to the claims against him was tolled under N.J. Stat. Ann. § 2A:14-22 (West 1987), which provides that the statute of limitations for personal injuries will be tolled in cases where the person against whom the action is brought is not a resident of the state of New Jersey. Because Granata was a resident of the state of Connecticut when the Browns' cause of action accrued, the district court held that the statute of limitations was tolled as to those claims asserted against Granata to which the statute of limitations for personal injury applied. Accordingly, the court vacated its earlier order dismissing the complaint as to Counts One, Two, Three, Four and Eight.*fn3 Granata filed a motion seeking reconsideration of this order and dismissal of the complaint on grounds other than the propriety of the court's interpretation of the New Jersey ...