A real estate development team that included plaintiffs-appellants NRP Holdings LLC and NRP Properties LLC (together, "NRP") made preliminary arrangements with the City of Buffalo ("Buffalo," or the "City") from 2007 to 2009 to build affordable housing on City-owned land, a project that would be financed in large part by public grants, loans, and tax exemptions (the "Project"). As the planning phase drew to a close, NRP felt pressure from the City to hire an organization sponsored by a political ally of Mayor Byron W. Brown as a contractor on the Project. After NRP hired a different contractor-one that, in NRP's estimation, offered a more attractive proposal at lower cost-the City failed to take the steps necessary to approve the Project, and the whole undertaking died on the vine.
In the aftermath, NRP filed suit seeking damages in the United States District Court for the Western District of New York (Skretny, J .). As defendants, NRP named, inter alia , the City, the City's Urban Renewal Agency, and three City officials (the latter three, the "individual defendants"): Mayor Brown; Deputy Mayor Steven M. Casey; and Demone A. Smith, a member of the Buffalo Common Council (the City's legislative body). From 2012 through 2017, the District Court issued orders that resolved all of NRP's claims in defendants' favor, some by dismissal under Federal Rule of Civil Procedure 12(b)(6) and 12(c), and others by award of summary judgment under Rule 56. NRP now appeals the District Court's 2017 final judgment as to four claims that it lodges against all of these defendants: one under the Racketeer Influenced and Corrupt Organizations Act ("RICO"),
We are troubled by the implications of the evidence that NRP adduced in support of its claims. That evidence suggests that defendants' motives for scuttling the Project-a development that, it appears, might have benefited low-income individuals and families in Buffalo-stemmed from either caprice or a form of political engagement whose ethical valence seems dubious. Nonetheless, as a matter of law, we conclude that NRP's damages claims fail. We therefore AFFIRM the District Court's judgment in favor of defendants.
Background
I. Factual background
The following account is drawn from the record before the District Court when it adjudicated defendants' motions for summary
A. The proposed affordable housing project
In late 2007, NRP's development team began discussions with the City and the City of Buffalo Urban Renewal Agency ("BURA") about a possible affordable housing project to be located on Buffalo's East Side.
As they had for East Side I, the parties developed a plan under which NRP would purchase real property from the City and finance construction of the buildings and infrastructure with a combination of private funds and four types of public support:
(1) Federal "HOME" fund loans, which are made available under the HOME Investment Partnerships Program and allocated by state and local entities like BURA, see42 U.S.C. §§ 12741 - 12756 ;
(2) An agreement for "payments in lieu of taxes" (a "PILOT agreement"), under which NRP would be exempted from local and county property taxes, and would instead comply with a predefined schedule of payments to the City and to Erie County;
(3) State tax credits provided under the New York State Low-Income Housing Tax Credit Program, seeN.Y. Pub. Hous. Law §§ 21 - 25 ; and
(4) A low-interest loan from the New York State Housing Trust Fund, seeN.Y. Priv. Hous. Fin. Law §§ 1100 - 1103.
Not surprisingly, each of these programs requires various applications and sets processes for obtaining the necessary governmental approvals. As relevant for this appeal, Buffalo municipal law provides that the City may enter into contracts for transfers of City-owned property and for PILOT agreements only if such contracts have been approved by a vote of the City's legislative body, called the "Common Council." City law vests Buffalo's mayor with broad discretion over whether to introduce to the Common Council the resolutions necessary to secure City approval.
B. The Wanamaker letter
In February 2008, the City and BURA set forth the fundamentals of their undertakings with regard to East Side II in a series of letters addressed to NRP by Timothy Wanamaker, who then served as BURA's Vice President and (concurrently) as the Executive Director of Buffalo's Office of Strategic Planning. Most relevant for our purposes is a letter addressed to
In what he called a "commitment letter," Wanamaker described East Side II as "redevelop[ing] a significant number of long vacant properties and creat[ing] much needed affordable housing" in Buffalo by providing "fifty ... units of single-family homes in the Masten Park and Cold Springs neighborhoods." App'x 408-09. He confirmed to NRP that BURA had "earmarked" $ 1.6 million in HOME funds for the Project, App'x 408, noting at the same time that before issuing any such funds, "BURA is required to meet all applicable Federal, State and local rules and regulations," App'x 409. Wanamaker also declared that "[t]he City will provide" $ 1.6 million in HOME funds, will extend its "usual" Low-Income Housing PILOT agreement to NRP, and will provide "51 buildable vacant lots ... at a price no greater than $ 2,000 per buildable lot, and not to exceed a total price of $ 100,000."Id. He cautioned, still, that "[t]his commitment letter is only valid if [NRP] is successful in securing a 2008 Low-Income Housing Tax Credit allocation to complete the project" from New York State. Id .
C. Preliminary steps, but no final approval
In 2008 and early 2009, the City, BURA, and NRP took further steps to make East Side II a reality. The City proposed a list of specific lots to be included in the Project. BURA unanimously passed a resolution allocating $ 1.6 million in federal HOME funds to the Project, an allocation decision that was then approved by the Buffalo Fiscal Stability Authority ("BFSA"), which oversees the City's financial operations. Serving as an ex officio member of BFSA's Board of Directors, Mayor Brown voiced no objection to BURA's proposed allocation of HOME funds in the BFSA proceedings. In his capacity as Mayor, in March 2009 he filed a request with the United States Department of Housing and Urban Development ("HUD") for the release of $ 1.6 million of HOME funds to support the Project.
In deposition, Mayor Brown testified that he and the City "were trying to move this project forward" during this period, and "had every intention of supporting this project." App'x 1055. He further acknowledged that, based on communications such as the Wanamaker letter and actions such as the City's request to HUD for the release of funds, NRP's development team "could definitely feel that they were receiving support from the city," and "that it made sense for them to do everything that they were supposed to do to try to complete [the] project."
NRP did precisely that. It secured over $ 3 million in tax credits and low-interest loans from New York State and completed various other Project-related tasks: it conducted appraisals and title searches for the proposed lots, prepared architectural designs, took out private loans, obtained insurance coverage, and submitted applications for requisite permissions to various governmental bodies with jurisdiction over the Project, such as the City Planning Board and the City's Department of Economic Development, Permit and Inspection Services. During this planning phase, NRP spent more than $ 489,000 on unreimbursed Project-related expenses and uncompensated labor devoted to Project-related tasks.
By mid-2009, almost all the preliminary arrangements were in place. NRP was prepared to begin construction as soon as Mayor Brown signed off on certain final matters. Critically, the City's legislature-the Common Council-had not yet approved the property transfer or the PILOT agreement because Mayor Brown
As it turned out, he never would. As a result, the Project never received the City's final approval. NRP never broke ground, and East Side II was never built.
To encounter such an impаsse so late in the development process was apparently a rarity. Mayor Brown could not identify any other instance when an affordable housing project failed to proceed after BURA approved the needed allocation of HOME funds. As described above, he further testified that as late as March 2009, he and the City "had every intention of moving ... forward" with East Side II. App'x 1828. Defendants have not offered any substantial explanation for the Mayor's reversal.
D. The City's request to include the Jeremiah Partnership in East Side II
NRP proffers this explanation: it asserts that Brown blocked East Side II in retaliation for NRP's refusal to comply with the Mayor's demand, Appellants' Br. 2, namely, that NRP create a paid contractor role for a not-for-profit coalition of faith-based organizations based in Buffalo's East Side, referred to locally as the Buffalo Jeremiah Partnership for Community Development (the "Jeremiah Partnership"). That organization was led by the Reverend Richard A. Stenhouse, whom NRP characterizes as a "key opinion[ ]maker" in Buffalo and Brown's "political ally." Appellants' Br. 10. Not surprisingly, the facts relevant to NRP's assertion are disputed by the parties. Because this appeal arises out of defendants' successful motions for summary judgment, we resolve all ambiguities and draw all reasonable inferences from the record in NRP's favor. See Willey v. Kirkpatrick ,
1. The City's request that NRP hire the Jeremiah Partnership
According to sworn statements made by defendant Casey (then Buffalo's deputy mayor), and Steven Weiss (NRP's outside counsel during the planning phase of East Side II), Mayor Brown stated on multiple occasions in late 2008 and early 2009 that the Project would move forward only if NRP provided a prominent paid role for the Jeremiah Partnership.
Several contemporaneous emails and letters corroborate these accounts. On March 12, 2009, for example, a BURA official emailed NRP seeking a signed agreement with NRP for the purposes, among other things, of meeting certain goals for local
In a March 30, 2009 email to members of NRP's development team, NRP Vice President Aaron Pechota complained that he had "just [been] put on the spot" when a City official reiterated to him the City's request that NRP secure a "service contract" under which the Jeremiah Partnership would "help" NRP meet its goals for contracting with MWBEs (as requested by the City) and for employing low-income individuals (as required by federal law for projects financed by HOME funds, see 12 U.S.C. §§ 1701u, et seq. ). App'x 2000. Pechota noted that he was "waiting to hear how much [Jeremiah] want[s]" for those services, but explained to his colleagues that the City "want[s] an answer asap (next 1.5 hours) if we are going to get our land approved [by the Common Council] tomorrow." Id .
Only one hour later, Stenhouse emailed NRP and City officials, proposing in a five-line email that Jeremiah "provide mwbe and [low-income] subcontractors for the fifty houses" to NRP in exchange for $ 30,000 and a year's worth of "management training" for Jeremiah members. App'x 1984. Shortly thereafter on March 30, after meeting, NRP emailed a counter-proposal, which it fleshed out the following day. NRP withdrew that offer, however, in a letter dated April 8, 2009, explaining that, "[t]o avoid even the appearance of any impropriety," NRP had opted for "an open and public process to engage a local organization" fоr assistance with its hiring goals. App'x 1696. When Weiss notified Mayor Brown of NRP's decision to proceed with competitive bidding, Brown replied (as Weiss averred) "that he didn't care what [NRP] did so long as [it] hired 'the right company.' " App'x 2170.
On April 15-before NRP released its request for proposals for Project subcontractors (the "RFP")-a Jeremiah representative emailed Pechota a proposed service agreement, advising that "Reverend Stenhouse is ready to place his call to the Mayor endorsing our approach, provided I can show him an executed agreement with your firm." App'x 2004. Two weeks later, the City's Commissioner of Economic Development told Mayor Brown and Deputy Mayor Casey that he'd met with Weiss, who "said [NRP] knows what to do" and "will do it." App'x 2008. The Commissioner wrote further, "Rev. Stenhouse will call [the] Mayor should that contract be signed this AM. IF that happens, presumably the file could be introduced for passage today [before the Common Council]." Id . When a City official promptly followed up, however, Pechota responded that NRP "cannot execute any documentation prior to undertaking the RFP process." App'x 2010.
2. NRP's competitive bidding process
In late April 2009, NRP released its RFP for outreach services. It received responsive proposals from, among others, the Jeremiah Partnership, and the University at Buffalo's Center for Urban Studies (the "University Center"). As cоmpared to Jeremiah's three-page offering, the University Center's twelve-page proposal provided substantial detail when describing the Center's past successes and its proposed work plan for East Side II. Moreover,
In a letter dated May 12 of that year, NRP notified the City that it had selected the University Center for the job, explaining that the Center's proposal "ranked far superior to the others." App'x 2094. Weiss shared this news with Mayor Brown in a conversation. As Weiss remembered it, the Mayor responded, "I told you what you had to do and you hired the wrong company." App'x 2171.
3. Mayor Brown's professed reasons for declining to approve East Side II
According to Deputy Mayor Casey, Mayor Brown's attitude toward East Side II "pivoted" after NRP selected the University Center over the Jeremiah Partnership. App'x 2152. For the first time, Brown began expressing concerns about two features of the Project: first, that the housing units would be built on scattered sites rather than in one consolidated area; and second, that the units would be made available on a 30-year rent-to-own basis rather than on other terms. Those two features had been part of East Side II's design from the very beginning, however, as confirmed by the February 2008 Wanamaker letter. The City itself identified the specific lots to be included in the Project, and later approved at least one other housing project that was similarly built on scattered sites. Meanwhile, Wanamaker had declared in his February 2008 letter that the City supported the lease-to-own financial structure because it would "provide[ ] future homeownership opportunities to residents who are not currently prepared to become homeowners, while providing them with clean, state-of-the-art housing today." App'x 409.
Meanwhile, June passed with no action by the Mayor. In a letter dated July 10, 2009, NRP protested to Mayor Brown that "[t]he only reason the Project has not and will not move forward is the inaction of your office," including Brown's failure to "forward[ ] necessary resolutions to the Buffalo Common Council." App'x 2119. In NRP's view, the City had "repeatedly communicated ... that the real reason for the inaction" was NRP's decision not to "contract with the Jeremiah Partnership as a consultant." Id .
II. Procedural history
NRP filed suit in June 2011, asserting claims under federal and New York State law against the City, BURA, and the individual defendants.
NRP timely appealed the resulting judgment entered for defendants, challenging the District Court's resolution of the following four sets of claims:
(1) A civil RICO claim asserted against the individual defendants (resolved by summary judgment);
(2) A violation of the Equal Protection Clause, asserted via section 1983 against the City, BURA, and the individual defendants (dismissed under Rule 12(b)(6) );
(3) A claim for breach of contract asserted against the City and BURA (dismissed under Rule 12(b)(6) ); and
(4) A claim for promissory estoppel asserted against the City, BURA, and the individual defendants (dismissed in part under Rule 12(c), and later resolved by summary judgment).6
DISCUSSION
We review de novo dismissals under Rules 12(b)(6) and 12(c), asking whether the allegations in the complaint, taken as true, state a plausible claim for relief. Willey ,
NRP's allegations and evidence raise troubling questions about defendants' conduct regarding the East Side II development, particularly insofar as it can reasonably be inferred that the City would have approved the Project had NRP only agreed to pay the Mayor's ally for services in an amount that might be subject to questiоn. For the reasons set forth below, however, we are nonetheless constrained to affirm the District Court's judgment on all claims. We conclude first that NRP's civil RICO claim is barred by the common-law doctrine of legislative immunity. Second, as to its claim for a "class of one" equal protection violation, NRP's complaint fails because it does not sufficiently allege the existence of similarly situated comparators. Next, NRP does not state a viable claim for breach of contract because NRP has failed to show that either the City or BURA entered into a binding preliminary agreement under municipal contracting rules that obligated the parties to continue negotiating in good faith. Finally, NRP fails to state a claim for promissory estoppel under New York law because it has not shown that defendants' conduct worked a "manifest injustice"-a stringent standard that is only rarely met by a plaintiff desiring to pursue a promissory estoppel claim against a municipal entity in New York.
I. Civil RICO
NRP asserts a civil RICO claim under
A. Legislative immunity for state and local officials
Under the Speech or Debate Clause of the federal Constitution, members of the United States Congress enjoy absolute immunity from civil and criminal liability for conduct that falls "within the sphere of legitimate legislative activity." Eastland v. U. S. Servicemen's Fund ,
As discussed in greater detail below, a defendant may be entitled to invoke legislative immunity when the plaintiff's prima facie case depends on an inquiry into the defendant's legislative activity. United States v. Brewster ,
B. Characterizing Brown's conduct as "legislative" or "administrative"
As we have observed, the Supreme Court directed courts to accord absolute legislative immunity to "all actions taken in the sphere of legitimate legislative activity." Bogan ,
Drawing on Bogan , our Court has defined a two-part inquiry for determining whether an act is legislative:
First, it is relevant whether the defendants' actions were legislative in form , i.e. , whether they were integral steps in the legislative process. Second, it may also be relevant whether defendants' actions were legislative in substance , i.e. , whether the actions bore all the hallmarks of traditional legislation, including whether they reflected discretionary, policymaking decisions implicating the budgetary priorities of the government and the servicesthe government provides to its constituents.
State Emps. Bargaining Agent Coal. v. Rowland ,
We conclude that Mayor Brown's discretionary conduct in declining to introduce the necessary resolutions before the Common Council satisfies both elements of the Rowland test, and therefore constitutes protected legislative activity. Our reasons are as follows.
As an initial matter, Brown's actions (or specific inaction, here) seem to us without doubt legislative in form . Introducing a measure for a vote by a legislative body amounts to an "integral step[ ] in the legislative process," and is therefore a "formally legislative" act, even when performed by an executive official. Bogan ,
We turn, therefore, to the second element of the Rowland test, which asks whether Brown's conduct was legislative in substance . On this point, we lack the benefit of any precedential cases presenting similar facts. Since Bogan , our discussions of legislative immunity for state and local officials in precedential opinions have arisen primarily from disputes concerning individuals in public employment, not real estate or large-scale public projects.
Although the argument has some force, it fails to persuade us. Even if the Anderson rulings were binding here (and they are not), their factual setting is quite unlike that presented by NRP, and their conclusions would not affect our result. In this case, NRP did not merely apply to a planning board seeking, pursuant to well-established zoning rules, a permit to build homes on its own land using its own money. Rather, East Side II was conceived as a joint public-private venture through which the City would expand affordable housing options for its residents by contributing substantial municipal resources. Had the Project proceeded, these contributions would have taken the form of (as listed supra Background Section I.A) a PILOT tax incentive, the transfer of City-owned property, and the allocation of $ 1.6 million in BURA-administered HOME funds. Mayor Brown, the City's chief executive, faced the decision whether to seek Common Council approval for certain aspects of the Project. Those aspects affected municipal resources in their own right and carried additional significance when viewed in context: approval of those features was needed beforе NRP could secure financing and begin construction. Unlike the zoning board in Anderson , Brown was not deciding simply whether to seek the Common Council's blessing for a private development project; he was deciding whether a multimillion-dollar housing project, which would use extensive City resources, should proceed at all.
Upon review of these circumstances, we agree with the District Court that Mayor Brown's decision not to introduce the resolutions for Common Council action amounted to a "discretionary, policymaking decision[ ]" that implicated the City's "budgetary priorities ... and the services [it] provides to its constituents." NRP Holdings ,
C. Identifying the relevant conduct for civil RICO purposes
Having concluded that by declining to submit the resolutions for approval, Mayor Brown engaged in protected legislative conduct, we next consider whether that conduct is an essential component of NRP's civil RICO claim. We conclude that NRP's theory of RICO liability against all three individual defendants depends, in part, on a showing that Brown's legislative decision not to introduce Common Council resolutions was fatally tainted by improper motive.
1. The defense of legislative immunity is available against only those claims that would require a factfinder to consider evidence of an official's legislative actions. The Supreme Court defined the contours of this test in a pair of decisions arising out of federal corruption prosecutions: United States v. Johnson ,
The District Court appeared to disclaim reliance on any legislative immunity cases arising out of criminal proceedings, explaining that, unlike constitutional legislative immunity, common-law legislative immunity does not protect against federal criminal prosecutions. The District Court is correct that constitutional immunity protects against a broader set of claims than does the common-law doctrine. See United States v. Gillock ,
Here, neither the District Court nor the parties have offered any basis for presuming that the civil or criminal nature of a case would influence a court's determination thаt a defendant's conduct constitutes (or does not constitute) protected legislative activity, or that the conduct is (or is not) integral to the opposing side's prima facie case. We thus see no reason not to look for guidance to Supreme Court precedent arising out of criminal, as well as civil, proceedings, as have our sister circuits in other civil appeals. See, e.g. , Youngblood v. DeWeese ,
In 1966, in Johnson , the Court affirmed the Fourth Circuit's decision setting aside a federal representative's criminal conspiracy convictions on legislative immunity grounds. The charged offense conduct at issue on appeal consisted primarily of accepting bribes in exchange for making a speech in the House of Representatives; the prosecution's conspiracy theory "depended upon a showing that the speech was made solely or primarily to serve private interests."
In contrast, in Brewster , the Court determined that a former U.S. Senator was not entitled to legislative immunity. The former legislator was charged under a statute that the Court characterized as criminalizing "accepting a bribe in exchange for a promise relating to an official act."
2. Applying this framework to the case at hand, we begin by identifying the required elements of NRP's civil RICO claim against the three individual defendants. We next consider whether NRP, as plaintiff, can satisfy those elements without considering the fact of, or motives for, Mayor Brоwn's refusal to seek Common Council approval for the transfer of City-owned lots or the PILOT agreement. Because we determine that the circumstances of this case preclude NRP from doing so, we hold that the three individual defendants are shielded by legislative immunity.
To state a civil RICO claim, NRP must show, first, that the individual defendants committed a substantive RICO violation, and second, that the violation proximately caused an injury to NRP's business or property. See
NRP's theory falls short of the mark. NRP has cited no authority to support its assertion that mere fear of economic loss is sufficient to satisfy the required RICO element of a compensable injury to business or property. In our view, the only potentially cognizable injury to NRP in this matter consists of the $ 489,000 in expenditures that it incurred during the Project's preliminary planning phases. Those expenditures did not become losses, however, until the Project failed to move forward as planned. To show a proximately caused injury, NRP must demonstrate that East Side II failed to move forward because of a substantive RICO violation committed by the individual defendants. D'Addario ,
It is undisputed that the East Side Housing II development could not be realized without a transfer of City-owned property and execution of a PILOT agreement, and that both of these acts required the Common Council's approval. It is also undisputed that Mayor Brown retained sole discretion over whether to introduce the resolutions necessary to obtain that approval. Brown's decision not to introduce those resolutions thus constitutes a "necessary step in the causal chain linking the [individual] defendant[s'] alleged [misconduct] to [NRP's] injury." Sergeants Benevolent Ass'n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP ,
We determined above that Brown's inaction regarding the Common Council resolutions was protected legislative conduct. We now conclude that NRP is unable to "make out a prima facie case" on its RICO claim without reliance on that legislative conduct. Brewster ,
For these reasons, we affirm the District Court's grant of summary judgment on NRP's civil RICO claim to the three individual defendants.
II. Equal Protection
NRP also charges that the City, BURA, and the individual defendants violated NRP's rights, as a "class of one," under the Equal Protection Clause, thereby entitling it to damages under
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.
Id. at 222 (quoting Ruston v. Town Bd. for Town of Skaneateles ,
NRP's second amended complaint alleges that, pursuant to an "official custom or policy established by Brown, Casey, and/or Smith,"
NRP was treated differently than other developers of projects in the City of Buffalo. When other developers found a way to pay monies to Stenhouse and/or affiliated organizations, [defendants] allowed their projects to proceed to completion. Because NRP refused to make such payments, [defendants] ... actively took steps to kill the Project. The difference in treatment was not on the basis of any legitimate government policy or the product of a mistake.
2d Am. Compl. ¶¶ 153, 156. This differеntial, NRP urges, entitles it to relief under section 1983.
To establish a class-of-one claim, a plaintiff must "show an extremely high degree of similarity between itself and its comparators." Fortress Bible ,
For these reasons, we conclude that NRP's allegations fail to establish that any individual defendant violated NRP's Equal Protection rights.
For these reasons, we affirm the District Court's dismissal of NRP's class-of-one claim as against all defendants.
III. Breach of Contract
NRP asserts a claim for breach of contract against the City and BURA. In its second amended complaint, NRP alleges that Wanamaker's February 25, 2008 letter established a "preliminary agreement obligating [the City] and/or BURA to make good faith efforts to realize the specific commitments set forth in the agreement," and that defendants breached that agreement by "failing ... to move the Project forward in good faith." 2d Am. Compl. ¶¶ 118, 121. The District Court dismissed this claim under Rule 12(b)(6) on the grounds that the Wanamaker letter does not evince the parties' mutual intent to be bound to continued negotiations in good faith. We agree, and therefore affirm the dismissal.
To create a binding contract under New York law, the parties must provide a "mаnifestation of mutual assent sufficiently definite to assure that [they] are truly in agreement with respect to all material terms." Stonehill Capital Mgmt., LLC v. Bank of the West ,
Beyond these common-law requirements, state and local statutes and ordinances may impose additional requirements on municipal contracting "to protect the public from corrupt or ill-considered actions [by] municipal officials." Henry Modell & Co. v. City of New York ,
Buffalo's City Charter provides that "[e]very contract to which the city is a party shall be made and executed in the name of the city and approved as to form by the corporation counsel, and signed and acknowledged by the head of the department charged with the execution of the matter therein provided for." City Charter § 22-1.
Having conducted this review, we conclude that the Wanamaker letter did not create a binding preliminary agreement. We are unable to discern in the letter evidence of a shared commitment by the parties to continue negotiаtions with each other in good faith. The letter provides no evidence of the parties' mutual assent to be bound. Acting in his capacity as Executive Director of Buffalo's Office of Strategic Planning, Wanamaker signed the letter on behalf of BURA and the City. No member of NRP's development team executed or otherwise endorsed the letter. The letter contains no undertakings by NRP, and, as the District Court observed, the letter does not even contain a "signature line where NRP could have signed." NRP Holdings ,
In arguing that the Wanamaker letter bound them both, NRP relies primarily on Brown v. Cara ,
NRP insists that Wanamaker's letter "memorialized the parties' prior agreements" and "must be read in the context of the parties' agreement to take the steps necessary to complete the Project." Appellants' Br. 65. It emphasizes Brown's statement in deposition that, based on the Wanamaker letter, NRP's team could "definitely feel that they were receiving support from the city," and "that it made sense for them to do everything that they were supposed to do to try to complete [the] project." App'x 1059-60. Because NRP's breach of contract claim failed on a motion to dismiss under Rule 12(b)(6), however, Brown's testimony is not properly before us with respect to this claim. In any event, that testimony would not alter our analysis. As the New York Court of Appeals has stated, "The mere expectation that a contract will be entered into does not constitute a contract." Papa v. New York Tel. Co. ,
We conclude that the Wanamaker letter did not establish a binding agreement requiring the City or BURA to engage in continued negotiations with NRP, and so we affirm the District Court's dismissal of NRP's claim for breach of contract.
IV. Promissory Estoppel
Finally, NRP asserts a claim for promissory estoppel against the City, BURA, and the individual defendants, seeking to hold them liable for NRP's reliance on the "commitments" articulated in the Wanamaker letter. The District Court dismissed the claim under Rule 12(c) as to some of those alleged promises, and later granted
We affirm the judgment in favor of defendants on this count. Under New York law, municipal defendants may not be subject to promissory estoppel claims except in rare cases of "manifest injustice," N.Y. State Med. Transporters Ass'n, Inc. v. Perales ,
To establish a claim of promissory estoppel, a plaintiff "must demonstrate that the [defendant] made a clear and unambiguous promise, upon which the [plaintiff] reasonably relied, to its detriment." Wilson v. Dantas ,
New York courts have carved out a narrow exception to this rule in cases where the government's "misleading nonfeasance would otherwise result in a manifest injustice." Agress v. Clarkstown Cent. Sch. Dist. ,
NRP seeks to hold defendants liable for the commitments articulаted in the Wanamaker letter: namely, the City's stated intention to allocate $ 1.6 million in HOME funds, to approve the PILOT
NRP contends with some force that the exception should apply here based on defendants' unsavory and "extortionate pay-to-play scheme." Appellants' Br. 57. The New York case law applying this exception strongly suggests, however, that the circumstances presented here do not meet the manifest injustice standard as those courts have understood it. New York appellate courts have permitted estoppel claims against municipal entities to proceed where individual persons relied to their detriment on a city's erroneous promises concerning, for example, their financial benefits as public employees,
The New York Court of Appeals acknowledged long ago that results like these "may seem unjust." Parsa ,
We conclude that NRP's claim of promissory estoppel as against all defendants cannot be sustained under prevailing principles of New York law. We therefore affirm the District Court's judgment in defendants' favor on this claim.
CONCLUSION
NRP argues that a proposed 50-home affordable housing project in the City of Buffalo fell apart at the eleventh hour because City officials prioritized cronyism over civic responsibility. Those are serious allegations, and NRP has come forward with substantial evidence of their accuracy. That evidence, however, is insufficient to overcome the significant legal flaws in NRP's claims for damages. Municipal officials are shielded against certain federal civil claims by the common-law doctrine of legislative immunity. Plaintiffs asserting equal protection "class of one" claims bear the burden of sufficiently alleging similarly situated comparators. Municipal entities may not be sued under New York law if the plaintiff detrimentally relied on promises by municipal officials but failed to secure a binding contract that complied with municipal law. NRP has failed to surmount these barriers. We therefore AFFIRM the judgment of the District Court.
Notes
This evidence is relevant to our review of the District Court's summary judgment rulings, but we look only to NRP's pleadings when reviewing the District Court's earlier rulings on defendants' Rule 12 motions.
In early 2008, NRP entered into an agreement with the Belmont Shelter Corporation ("Belmont") under which Belmont would act as a developer on the Project, while NRP would act as general contractor and assume responsibility for obtaining the necessary government approvals. NRP later agreed to absorb Belmont's Project-related expenses in exchange for an assignment of Belmont's Project-related rights and legal claims. In light of that assignment, it is unnecessary here to differentiate between the two companies' specific roles, and so we will refer to "NRP" when describing actions taken by either company with respect to the Project.
NRP relied on Casey's and Weiss's sworn statements rather than deposition testimony because Defendants moved for summary judgment before the close of discovery, when NRP had not yet deposed Casey and various other witnesses whom it had slated for examination. See Dist. Ct. Dkt. 154-1 at 9-10 (declaration in support of NRP's motion to strike or defer resolution of defendants' summary judgment motions until completion of discovery). The District Court concluded, however, that NRP had presented no legal basis for deferring adjudication of defendants' motions. Dist. Ct. Dkt. 175 at 3-4 (Decision and Order filed Nov. 17, 2016). The court's order denying deferral noted, too, the individual defendants' assertion of qualified and legislative immunity as defenses against NRP's federal claims and, in acting before the close of discovery, cited this Circuit's directive that "questions of immunity should be resolved 'at the earliest possible stage of the litigation.' " Id. at 3 (alteration omitted) (quoting Drimal v. Tai ,
NRP also named Reverend Stenhouse and the Jeremiah Partnership as defendants in its original complaint. In 2012, however, NRP voluntarily dismissed all claims against them with prejudice.
In addition to the claims listed in the text above, NRP asserted claims against the City, BURA, and the individual defendants for due process violations, tortious interference with contract, and tortious interference with prospective economic advantage. The District Court dismissed these claims under Rules 12(b)(6) and 12(c). Although NRP's notice of appeal purports to appeal the District Court's disposition of all of NRP's causes of action against the City, BURA, and the individual defendants, NRP's appellate briefs make no mention of due process violations or tortious interference. We thus treat these claims as abandoned. See Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany ,
Section 1964 provides a private right of action fоr "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter," referring to title 18, chapter 96, "Racketeer influenced and corrupt organizations."
As relevant here, section 1962(c) makes it unlawful "for any person ... associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity ...." Section 1962(d) makes it unlawful to conspire to do (among other acts) what section 1962(c) prohibits.
The clause provides in relevant part:
The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
U.S. Const. art. I, § 6, cl. 1.
The Supreme Court observed in Bogan at the same time that "certain deterrents to legislative abuse may be greater at the local level than at other levels of government." Bogan ,
See Rowland ,
We recognize that the categories of "legislative" and "administrative" acts, while mutually exclusive, are not necessarily exhaustive of the conduct of officialdom: the Supreme Court has also defined legislative activity by way of comparison to, for example, "political" activity, Brewster ,
As noted above in Discussion Section I.A, courts should generally consider the defense of legislative immunity on a defendant-by-defendant basis. We nonetheless affirm the District Court's aggregated immunity analysis in this instance based on the record and the arguments presented to us in this appeal.
The Court noted that the representative's "speech ... was only a part of the conspiracy charge" lodged under
In Sergeants Benevolent Association , we discussed the import of such intervening causes as follows in the context of an asserted RICO mail-fraud violation:
Although reliance on the defendant's alleged misrepresentation is not an element of a RICO mail-fraud claim, the plaintiffs' theory of injury in most RICO mail-fraud cases will nevertheless depend on establishing that someone ... relied on the defendant's misrepresentation. ... [I]f the person who was allegedly deceived by the misrepresentation ... would have acted in the same way regardless of the misrepresentation, then the misrepresentation cannot be a but-for, much less proximate, cause of the plaintiffs' injury.
The District Court provided two grounds for its dismissal of NRP's class-of-one claim. First, the District Court suggested that NRP had likely failed to establish itself as similarly situated to other developers because NRP allegedly "was treated differently from other developers (i.e. , not hired for the project) because it acted differently (i.e. , refused to involve Stenhouse) than the other developers who allegedly complied with the City's demands." NRP Holdings LLC ,
NRP does allege, it is true, that "[t]he difference in treatment" among the development projects "was not on the basis of any legitimate government policy," 2d Am. Compl. ¶ 156, but was based on the Mayor's improper demands. But this conclusory allegation regarding the other projects does not cure the claim's deficiencies: a "formulaic recitation of the elements of a cause of action" will not protect a claim against dismissal absent additional factual support. Ashcroft v. Iqbal ,
Because we conclude that NRP failed to sufficiently allege an Equal Protection violation by any defendant, we need not consider defendants' related arguments regarding abandonment, legislative immunity, or qualified immunity.
Although the nomenclature has not been uniformly adopted, our Court has sometimes referred to such agreements as "Type II" preliminary agreements. See Brown v. Cara ,
The Charter is publicly available at https://ecode360.com/13550986 (last visited February 19, 2019). The Charter provisions relevant for this appeal were effective as of July 1, 2000, City Charter § 32-8, long before the events that led to this lawsuit.
It is true that New York recognizes unilateral contracts, under which one party makes a unilateral "offer to contract, which ... becomes a binding obligation" if another party takes whatever actions are specified as conditions of acceptance. I. & I. Holding Corp. v. Gainsburg ,
The District Court relied on other grounds in adjudicating defendants' various dispositive motions, but as noted above, we "may affirm on any basis for which there is sufficient support in the record." Lotes ,
NRP has not contested that defendants performed a "governmental function" when making decisions about whether to proceed with the East Side II project.
See Vassenelli v. City of Syracuse ,
Konner v. New York City Transit Auth. ,