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Simmermon v. Gabbianelli

United States District Court, D. New Jersey

March 18, 2013

JOHN G. SIMMERMON, III & A. SIMMERMON CORPORATION, Plaintiffs,
v.
MICHAEL GABBIANELLI, ET AL., Defendants

Michael S. Fettner, Esq., Michael T. Sweeney, Esq., Peter E. Kidd, Esq., Lyman & Ash, Philadelphia, PA, Attorneys for Plaintiffs John G. Simmermon III and A. Simmermon Corporation.

Allen E. Richardson, Esq., Charles B. Austermuhl, Esq., Richardson & Galella, Woodbury, NJ, -and- George J. Botcheos, Jr., Esq., George J. Botcheos, Chartered, West Berlin, NJ, Attorneys for Defendants Michael Gabbianelli, Frank Caligiuri, Walter Bryson, Marvin Dilks, Bill Julio, William Sebastian, Dan Teefy, Michael DePalma, and Township of Monroe.

OPINION

Page 627

JEROME B. SIMANDLE, Chief U.S. District Judge.

I. INTRODUCTION

Plaintiff John G. Simmermon III and Plaintiff A. Simmermon Corporation, d/b/a A-Jack's Towing (" A-Jacks" ), brought this action against Defendant Monroe Township and eight Township officials, alleging discriminatory and retaliatory enforcement of towing and zoning laws against Plaintiffs. This matter now comes before the Court on Plaintiffs' Motions to Amend the Complaint [Docket Item 61] and to Amend/Correct [Docket Item 62] the Court's March 28, 2012 Opinion and Order [Docket Items 47 & 48]. The Court will grant both motions.

II. BACKGROUND

A. Factual Background

The Court provided a detailed summary of the factual background in its March 28, 2012 Opinion [Docket Item 47] and, in the present Opinion, the Court provides only a brief summary.

Monroe Township maintains a list of tow truck operators whom the Township Police call for towing services. On June 26, 2007, the Monroe Township Council (" Council" ) approved an amendment to the towing ordinance that, inter alia, adopted many recommendations for which Plaintiff Simmermon had advocated at council meetings. (March 28, 2012 Opinion at 4.)[1] In October of 2007, a final sentence

Page 628

was added to the towing ordinance requiring tow companies to have " all local, county, and state approvals." (March 28, 2012 Opinion at 4.) This new requirement, § 262-14-G, became the basis for the exclusion of A-Jacks Towing from the tow list from December 11, 2007 to December 4, 2008 because A-Jacks allegedly did not have all local, county, and state approvals. (March 28, 2012 Opinion at 2, 4.)

Plaintiffs' claims essentially pertain to a series of zoning enforcement actions taken against Plaintiffs and Plaintiffs' exclusion from the tow list. Plaintiffs allege that Defendants' actions were in retaliation for Simmermon's advocacy at Township Council hearings and discriminatory because similarly situated companies were treated more leniently. In their original Complaint, Plaintiffs alleged First Amendment, equal protection, and due process claims.

B. The March 28, 2012 Opinion and Order

Defendants filed a motion for summary judgment [Docket Item 27] on all of Plaintiffs' claims. The Court issued an Opinion and Order on March 28, 2012 [Docket Items 47 & 48] granting Defendants' motion as to Plaintiffs' equal protection claim and as to certain parts of Plaintiffs' First Amendment and due process claims; the remainder of Defendants' motion was denied.

In the March 28, 2012 Opinion, the Court assessed Plaintiffs' equal protection claim as a class of one claim[2] and applied the class of one equal protection test. The Court stated, " Plaintiffs contend that the facts adduced with respect to the retaliation claim also make out a claim for a violation of the Equal Protection Clause even if retaliatory animus was not the motivation behind the conduct." (March 28, 2012 Opinion at 24.) The Court held that, for Plaintiffs to survive summary judgment on their equal protection claim, a plaintiff must allege that he " has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (March 28, 2012 Opinion at 24.)

The Court held, " [t]he differential treatment that A-Jacks received at the hands of the Township Council survives rational basis review, because even assuming A-Jacks was similarly situated, Plaintiffs have not negated every conceivable basis for enforcing the towing ordinance requirements against A-Jacks." (March 28, 2012 Opinion at 26.) The Court emphasized that " there is no evidence that the decision to enforce the zoning laws against Simmermon was so lacking in any conceivable rational basis as to violate the Equal Protection Clause." (March 28, 2012 Opinion at 26.)

In the March 28, 2012 Opinion, the Court specifically considered the possibility that this evidence might exist: The Court stated, " [a]ssuming for the sake of argument that there were similarly-situated entities whose known zoning violations were not enforced (even though that fact is not clear from the record), Simmermon could have been rationally singled out based on the fact that citizens were complaining about him, or based on the longstanding nature of the violations, or a combination

Page 629

of the two." (March 28, 2012 Opinion at 27.)

The Court also granted summary judgment to Defendants Michael Gabbianelli and Michael DePalma as to that part of Plaintiffs' First Amendment retaliation claim that is based upon Plaintiffs' exclusion from the towing list. The Court noted that the township council made the decision to exclude A-Jacks from the list. (March 28, 2012 Opinion at 6.) Defendants Gabbianelli and DePalma were not members of the council; Gabbianelli was the Mayor of Monroe Township during the time period relevant to this action and DePalma was a township construction official. (March 28, 2012 Opinion at 2 n.1.) The Court noted that " Plaintiffs' Supplemental Statement of Material Facts reveals no facts suggesting, and Plaintiff[s] have not crafted any theory for how Gabbianelli or DePalma, who were not members of the Council, caused the members of the Council to extend leniency to other towers while denying it to A-Jacks . . . ." (March 28, 2012 Opinion at 13 n.5.) In other words, the Court found that there was no evidence indicating that Defendants Gabbianelli and DePalma were involved in the Council's decision to exclude A-Jacks from the tow list.

However, the Court did not grant summary judgment to Defendants Gabbianelli and DePalma on the aspect of Plaintiffs' First Amendment claim relating to zoning enforcement because " there were irregularities in the enforcement procedure, and there [wa]s direct evidence of the Mayor's antagonism and his ...


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