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claim or challenged the administrative nuisance determination. Id. at *15. But since he
didn’t do either, the court granted summary judgment for the city. Id.
Fox moved for reconsideration. He first argued that the city’s suggested public
use—elimination of blight—was a “pretext.” D.A. Realestate Inv., LLC v. City of Norfolk,
2023 WL 5347305, at *2 (E.D. Va. Aug. 16, 2023) (DARI II); see Va. Code Ann. § 1-
219.1(E). The court rejected the argument because if the property was not an actual
nuisance, Fox failed to show that the taking was for public use—an essential element of
his inverse condemnation claim. DARI II, 2023 WL 5347305, at *4. And the court held
that Fox presented no triable question of fact; he merely speculated that the city was taking
property for unauthorized motives. Id. Fox next argued that the grant of summary judgment
deprived him of a right to try the state inverse condemnation claim before a jury. Id. at *5.
Because Fox never raised this theory at the summary judgment stage, the court declined to
consider it. Id. So, the district court denied Fox’s motion. Id. at *5–6.
Fox timely appealed.4 However, he did not appeal the district court’s dismissal of
the federal constitutional claims. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307,
316 (4th Cir. 2017) (finding an argument waived when a party failed to present it in its
opening brief); Fed. R. App. P. 28(a)(8)(A). Eliminating any question about this, Fox stated
4
The district court exercised jurisdiction over the federal claims under 28 U.S.C.
§ 1331 and the state law claims under 28 U.S.C. § 1367. We have jurisdiction pursuant to
28 U.S.C. § 1291. And we review the summary judgment grant de novo, applying “the
same standard that the district court was required by law to apply . . . .” Sylvia Dev. Corp.
v. Calvert Cnty., Md., 48 F.3d 810, 817 (4th Cir. 1995).
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