The opinion of the court was delivered by: Wolfson, District Judge
Presently before the Court are three separate motions for Summary Judgment relating to the Complaint of Platinum Links Entertainment ("Platinum Links"), Carlos Nesbitt and Karl Thomas ( collectively known as "Plaintiffs") and the Third Party Complaint of Atlantic City Professional Baseball Club, Inc. ("AC Pro Ball Club"). Plaintiffs seek to recover damages for alleged contractual breaches and constitutional violations arising out of events surrounding a rap and hip hop concert that occurred on August 25, 2002 at Sandcastle Stadium in Atlantic City, New Jersey. Plaintiffs filed suit against Atlantic City Surf Professional Baseball Club, Inc., the City of Atlantic City, Deputy Chief of Police Michael Erskine, Deputy Chief of Police William Glass*fn1 , Chief of Police Arthur Snellbaker, and Business Administrator Benjamin Fitzgerald (collectively known as "City Defendants"). On October 18, 2002, AC Pro Ball Club filed a Third Party Complaint against Jeffrey Rodman and Mario Perrucci, the principals of Jersey Shore Professional Baseball, LLC ("Jersey Shore Baseball") seeking contribution and indemnification for any judgment against them.
Following the conclusion of discovery, dispositive motions were filed: on November 9, 2005, AC Pro Ball Club moved for summary judgment on Plaintiff's Complaint; on November 15, 2005, the City Defendants moved for summary judgment on Plaintiff's Complaint; and on November 15, 2005, Mario Perrucci moved for summary judgment on AC Pro Ball Club's Third Party Complaint. The Court has considered the moving, opposition and reply papers, and for the reasons set forth below, AC Pro Ball Club's Motion for Summary Judgment will be denied without prejudice, the individual City Defendants' Motion for Summary Judgment on the issue of qualified immunity will be granted; the City Defendants' Motion for Summary Judgment will be denied in part and granted in part, and Mario Perrucci's Motion will be denied in part and granted in part.
This matter arises out of events surrounding a rap and hip hop concert that was held on August 25, 2002, at Sandcastle Stadium in Atlantic City, New Jersey. Sandcastle Stadium, home of the Atlantic City Surf ("Surf"), a professional minor league baseball team, is owned by the City of Atlantic City and leased to the Casino Reinvestment Development Authority ("CRDA"). In turn, the CRDA subleases the facility to the owners of the Surf.*fn2 In 2002, the Surf was owned by Francis F. Boulton III and Anton H. Rosenthal.
On May 3, 2002, the Surf owners, Boulton and Rosenthal, entered into a Management Agreement ("Agreement") with Jeffrey Rodman and Mario Perrucci for the operation and management of the AC Pro Ball Club for the 2002 baseball season through December 31, 2002. See Pl's. Opposition ("Opp.") to AC Pro Ball Club's Summary Judgment Motion ("SJ Mot."), Braverman Cert., Ex. D at 2. AC Pro Ball Club is referred to as the "Company" in the Agreement, but it is not a defined term. Pursuant to the Agreement, Rodman and Perrucci operated and managed the Surf and utilized the Stadium for other, non-baseball related events. Moreover, under the terms of the Agreement, Rodman and Perrucci assumed all liabilities for the AC Pro Ball Club through December 31, 2002. The Agreement provided in relevant part: "[o]perator is asuming [sic] the management of the Company as is. . .all liabilities of the Company as of the date of Closing are assumed by Operator. Operator further specifically assumes all liabilities in conjunction with all open contracts of the Company. As of the date of Closing, Operator shall be solely responsible for all liabilities associated with the Company and the assets thereof for the 2002 Championship Season and through December 31, 2002." Id. at 11-12. Additionally, the Agreement provided that any and all notices for Boulton or Rosenthal were to be delivered to each owner's out of state home address. However, any notices for Perrucci and Rodman were to be delivered "c/o Atlantic City Professional Baseball Club, Inc., 545 North Albany Ave, Atlantic City, NJ." Id. at 13. Moreover, at some point, Rodman and Perrucci formed an entity known as Jersey Shore Professional Baseball LLC ("Jersey Shore Baseball") for the alleged purpose of managing and operating the AC Surf.*fn3 Perrucci's Statement of Facts, Perrucci Br. at 3 ¶ 4.
On or about July 30, 2002, Platinum Links and AC Surf agreed to enter into a contract for the staging of a hip hop and rap concert to be performed at Sandcastle Stadium on August 25, 2002. Pl's. Opposition ("Opp.") to AC Pro Ball Club's Summary Judgment Motion ("SJ Mot."), Braverman Cert., Ex. B. The contract was signed and dated, August 9, 2002. Carlos Nesbitt signed the contract on behalf of Platinum Links and Rodman signed the contract as a Representative of "Atlantic City Surf". The contract was drafted on letterhead which bore both the name and logo of the Atlantic City Surf Professional Baseball Club ("ACSPBCI"); moreover, the letterhead featured an address for the ASPBCI that was the same address as that listed for Perrucci and Rodman in the Management Agreement. In other words, the address for the Atlantic City Surf Professional Baseball Club as set forth in the contract between AC Surf and Platinum Links was the same address as that of the Atlantic City Professional Baseball Club as set forth in the Management Agreement.
The contract between Platinum Links and AC Surf set forth the responsibilities of both parties regarding the August 25, 2002 concert. Specifically, the contract provided that Platinum Links was responsible for the security of the event including paying for and providing security by a "team approved concert security company." In addition, the contract provided that "[f]acility security shall be agreed upon (by AC Surf, Your organization [Platinum Links] & police) number of off duty AC Police Officers & shall include officers conducting traffic control on Albany Ave." Pls. Opp. to AC Pro Ball Club's SJ Mot., Braverman Cert., Ex. B at 1. Finally, Platinum Links was responsible for obtaining any and all permits needed or associated with the concert.
According to witness testimony, in the weeks prior to the concert the Atlantic City Police Department ("ACPD") became increasingly concerned about safety at the concert. Erskine Dep. 12:20-14:18. Specifically, the ACPD became aware of an increased potential for gang-related violence based on violent incidents that occurred at previous concerts by some of the same performers scheduled to perform at the August 25th concert. Id. at 14:11-18, 17:8-24. In light of this information, on August 16, 2002, Deputy ACPD Chiefs Michael Erskine and William Glass met with Perrucci and Rodman to relate the police department's concerns about the upcoming show and to recommend that the concert be cancelled. Erskine Dep. 59-61; Rodman Dep. 68-70. As of that date, slightly more than one week before the concert, Plaintiffs had not put forth a security plan related to the upcoming concert nor had Plaintiffs met with a security provider regarding this concert. Nesbitt Dep. 57:16-58:5. Thereafter, on August 19, 2002, representatives of the ACPD participated in a conference call in which they informed Rodman, Perrucci and others of their concerns about violence at the concert. Erskine Dep. 76:17-24; Rodman Dep. On that same date, August 19, 2002, Rodman and Perrucci notified Plaintiffs that the concert was cancelled. Rodman Dep. 109-111.
On August 22, 2002, Plaintiffs filed a Complaint and made an application for a temporary restraining order ("TRO") and a preliminary injunction in the United States District Court of New Jersey. On the following day, the Honorable Joseph E. Irenas, U.S.D.J., held a hearing on the TRO. However, Judge Irenas did not rule on the application; instead, the parties reached a compromise agreement that the concert could go forward pending the inclusion of certain security measures, and, on August 25, 2002, the concert was held, as scheduled, at Sandcastle Stadium.
On September 30, 2002, Plaintiffs filed an amended complaint alleging that Defendants' actions in initially canceling the concert violated their First, Fourth and Fourteenth Amendment rights. In addition, Plaintiffs allege that they suffered substantial financial harm as a result of the announced cancellation because many fewer people came to the concert than originally expected.
Thereafter, on October 18, 2002, AC Pro Ball Club filed a Third Party Complaint against Jeffrey Rodman and Mario Perrucci. Following the completion of discovery, in November 2005, AC Pro Ball Club and City Defendants separately moved for summary judgment on Plaintiff's Complaint. At or around the same time, Mario Perrucci moved for summary judgment on AC Pro Ball Club's Third Party Complaint. The Court will analyze each individual motion in turn.
II. Summary Judgment Standard
Summary judgment is appropriate where 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of material fact exists, the nonmoving party may not rest upon mere allegations, but must present actual evidence in support thereof. Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc. Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the Court must view evidence and draw inferences "in the light most favorable to the party opposing the motion." Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir. 1990) (quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
1. Atlantic City Professional Baseball Club Inc.'s Motion for Summary Judgment
Initially, Defendant, AC Pro Ball Club, contends that it is not a proper party in this suit and thus, the Complaint against it should be dismissed as a matter of law. Specifically, AC Pro Ball Club argues that the contract for the concert manifested an agreement between Platinum Links and Rodman as a representative of the AC Surf and not as a representative of AC Pro Ball Club. Moreover, Defendant alleges that Rodman was not an employee of AC Pro Ball Club and was not authorized to enter into a contract on its behalf. Finally, Defendant contends that Rodman was acting on behalf of Jersey Shore Baseball, and not AC Pro Ball Club or AC Surf, when he entered into the contract with Plaintiffs. According to AC Pro Ball Club, the facts in this regard are clear and undisputed. The Court does not agree.
To begin, the Court notes that there are numerous and significant issues of fact concerning the identity of the various corporate entities involved in this suit. Indeed, the few documents relied upon by the parties identify no less than four separate names for what appear to be no more than two separate entities -- the entity that owns the ball club and the entity that operates the ball club. Specifically, the non-municipal Defendants have represented themselves as the Atlantic City Surf, Atlantic City Surf Professional Baseball Club, Inc., the Atlantic City Professional Baseball Club, Inc., and Jersey Shore Professional Baseball, LLC. Despite these multiple names, however, the parties have not provided a single document, such as a corporate charter, that could help to establish the proper corporate entity involved in this suit*fn4 .
Moreover, the Court finds AC Pro Ball Club's argument that the record is clear on the parties' proper corporate affiliation strains credulity. For example, the Court notes that the Management Agreement between Rodman, Perrucci, Boulton and Rosenthal is signed by these four individuals as individuals and not in the names of any corporate entities. Indeed, the only corporate entity mentioned in the Agreement is the subject of the Agreement itself -- i.e. the entity identified as the Atlantic City Professional Baseball Club, Inc. Jersey Shore Professional Baseball is not named, referenced or mentioned at all in the Management Agreement. Similarly, the contract between Platinum Links and AC Surf was signed by Rodman as a representative of AC Surf and the letterhead was that of the Atlantic City Surf Professional Baseball Club. Thus, the Court finds that AC Pro Ball Club's suggestion that the "motion record is sufficiently clear that Jeffrey Rodman was acting on behalf of Jersey Shore Professional Baseball, LLC, when he entered into the contract with plaintiffs" is wishful thinking. AC Pro Ball Club Br. at 3.
Despite the significant factual issues about the identities of the corporate entities in this suit, the Court finds that certain facts are undisputed. First, it is clear from the record Platinum Links did not have a contract with either Boulton or Rosenthal individually; instead, Platinum Links contracted with AC Surf through its representative Jeffrey Rodman. Moreover, there is no evidence that Rodman was employed by Boulton or Rosenthal. Instead, as per the Management Agreement which was captioned "Management Agreement By and Between Francis F. Boulton, III and Anton H. Rosenthal and Mario F. Perrucci and Jeffrey Rodman," Perrucci and Rodman were responsible for the management of the AC Pro Ball Club. The issue here is which corporate entities are, in fact, separate corporate entities and which entity is a proper defendant. However, because there are significant issues of fact regarding the proper corporate entity, the Court must deny AC Pro Ball Club's Motion for Summary Judgment.
AC Pro Ball Club alternatively contends that even if it is a proper defendant in the instant matter, summary judgment is still appropriate because the actions of the ACPD rendered the performance of the contract with Platinum Links impracticable. Specifically, AC Pro Ball Club alleges that it cannot be held liable under the contract because the concert was "ultimately cancelled based upon the information provided by and actions of the Atlantic City Police Department." AC Pro Ball Club Br. at 3. The Court does not agree.
According to the Restatement (Second) of Contracts, "where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." Restatement (Second) of Contracts § 261 (1977); see also M.J. Paquet Inc., v. New Jersey Department of Transportation, 171 N.J. 378, 391 (2003). In other words, an essential part of the doctrine of impracticability is that a party to a contract be unable to perform its duties pursuant to the contract. Common sense dictates that if the contracted-for-performance actually occurs, the doctrine of impracticability cannot apply. In the instant matter, despite the initial cancellation of the concert, Plaintiffs filed for emergent relief in this Court, and, after a hearing held before Judge Irenas on August 22, 2002, the parties reached an agreement enabling the concert to go forward as planned on August 25, 2002. Thus, the Court finds that the doctrine of impracticability is inapplicable here.
Moreover, the Court finds that AC Pro Ball Club's reliance on Section 264 of the Restatement (Second) of Contracts is similarly misplaced. Section 264 provides that if the performance of a duty is made impossible through a governmental regulation or order, that regulation or order is an event "the non-occurrence of which was a basic assumption on which the contract was made." Id. at § 264. The Comments to Section 264 further provide that "[u]nder the rule stated in this Section, the regulation or order may be domestic or foreign. It may emanate from any level of government and may be, for example, a municipal ordinance or an order of an administrative agency. Any governmental action is included and technical distinctions between 'law,' 'regulation,' 'order' and the like are disregarded. . . [t]he regulation or order must directly affect a party's performance in such a way that it is impracticable for him both to comply with the regulation or order and to perform." Id. at § 264 cmt. b. As discussed above, the parties in the instant dispute reached a compromise agreement pursuant to which the concert occurred. Furthermore, for the reasons discussed below, the Court finds that there are material issues of fact regarding ACPD's actions and thus summary judgment based on this section of the Restatement is not warranted in favor of AC Pro Ball Club.
Furthermore, to the extent that AC Pro Ball Club relies on various New Jersey cases for the proposition that where the government intervenes in a contract between private parties, the parties cannot be held liable, the Court finds those cases inapposite because significant issues of fact remain as to the nature and character of the ACPD's action in the instant suit. For example, in M.J. Paquet Inc., 171 N.J. 378 (2002), the New Jersey Supreme Court considered the impact of revised regulations issued by the Occupational Safety and Health Administration on a public contract. Similarly, in Directions Inc. v. New Prince Concrete Construction Co., 200 N.J. Super 639 (App. Div. 1985), the Court considered the impact of an order issued by an authorized representative of the New Jersey Department of Transportation that was supplemented by a memorandum from the County Prosecutor's Office immediately prohibiting the use of civilian flagmen to direct traffic and requiring, instead, the use of police to direct traffic. In these cases, the courts were faced with specific governmental actions -- regulations or orders -- that rendered the performance of a contract impracticable. Unlike the government action at issue in M.J. Paquet Inc. and Directions Inc., in the instant matter, the Court is not faced with a specific government regulation or order. Indeed, the record is replete with various communications between the ACPD and Defendants that highlight the ambiguous nature of the actions taken by both AC Pro Ball Club/AC Surf and the ACPD. For example, after the concert was initially cancelled, Mario Perrucci sent a memo to Plaintiffs which read, "[p]lease be advised that after consultations with the Atlantic City Police Department. . . [the event] has been canceled. The Atlantic City Surf received notice from the ACPD on Monday Aug. 19 that the concert could be a target for gang related violence." Pls Br. in Opp. to AC Pro Ball Club's Mot. for SJ, Braverman Cert., Ex. E. Moreover, on August 20, 2002, the AC Pro Ball Club/AC Surf issued a press release stating that: "[t]he decision to cancel was a mutual one reached by the Atlantic City Surf and the Atlantic City Police Department." Pls Br. in Opp. to AC Pro Ball Club's Mot. for SJ, Braverman Cert., Ex. I.
In addition, the deposition testimony of various parties involved in the instant matter is equally riddled with inconclusive statements about the nature of the ACPD's action. For example, Jeffrey Rodman testified regarding the initial meeting with members of the ACPD on August 16, 2002, "[i]t was very quick. It was very simply they had concerns about the event that was going to take place.. . They had serious concerns about security of this event. So, they wanted me -- they wanted from me as to whether I had security in place. . .They were concerned about gang violence." Rodman Dep. 74. Moreover, Rodman testified that he and Perrucci had talked about canceling the event prior to the conference call with the city on August 19th and that the actual decision to cancel the concert happened after both the conference call with the city and a meeting with Plaintiffs. Rodman Dep. 110:9-12. Specifically, Rodman testified that "Mike and Akeem came in. I said. . . You guys need to get some assurance in to the City that you guys have this place secure because, you know, there's a conversation going on right now about canceling this thing. Before I got a chance to even get Mario. . .or anybody on the phone in the same communication with Mike and Akeem, Mike was. . .defending himself. . . Akeem stopped him and said no, I'm calling a lawyer and they left, they walked out. They said next ...