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Inserra Supermarkets, Inc. v. The Stop & Shop Supermarket Co. LLC

United States District Court, D. New Jersey

July 27, 2017



          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Inserra Supermarkets, Inc. (“Inserra”) brings eight federal and state antitrust and tort claims against The Stop & Shop (“S&S” or “Defendant”). The Complaint alleges that Defendant filed “sham” administrative objections and lawsuits in order to prevent Inserra from opening a Shop-Rite supermarket in the town of Wyckoff, New Jersey. On February 28, 2017, the Court denied Defendant's motion to dismiss. Defendant now moves the Court under Federal Rule of Civil Procedure 28 U.S.C. §1291(b) to certify the Order for interlocutory appellate review and stay proceedings pending appeal. For the reasons below, the motion is DENIED.

         I. BACKGROUND

         A. Defendant's Alleged Pattern of Sham Petitioning at State Level

         In 2009, Inserra leased 7.4 acres of land (“the Property”) in Wyckoff, New Jersey, intending to open a full-service Shop-Rite supermarket.[1] First Amended Complaint (“FAC.”) ¶¶ 40, 45. The Property is located adjacent to Defendant Shop & Stop, which Inserra alleges is the only full-service supermarket in Wyckoff. Id. at ¶ 243. Inserra applied for land-use approval with the Wyckoff Planning Board in September 2009, and later with the Bergen County Planning Board in June 2011. Id. at ¶ 65.

         Defendant allegedly abused the approval process by filing dozens of “obstructionist, anti-competitive [objections], ” resulting in “39 hearings over nearly three years.” Id. at ¶¶ 79, 214.[2] Inserra alleges that Defendant acted in concert with Munico, LLC, landlord of Defendant's Wyckoff property and Defendant's collaborator on other existing and prospective projects. Id. at ¶ 71.[3] The Wyckoff Board finally approved Inserra's application on February 13, 2013, and the County Board's approval followed on April 8, 2014. Id. at ¶ 113. Defendant appealed the County's decision to Board of Chosen Freeholders (“Freeholders”), which affirmed the approval after de novo review in August 2014.

         As administrative proceedings dragged on, Defendant Shop & Stop and Munico initiated judicial proceedings against Inserra in state court. On April 1, 2013, Defendant and Munico filed separate complaints in New Jersey Superior Court challenging the Wyckoff Board's approval of Inserra's application. FAC ¶ 131.[4] Defendant filed a similar action challenging the County Board's approval in October 2014. Additionally, in August 2014, Defendant sued Bergan County under New Jersey's Open Public Records Act (“OPRA”), alleging that documents regarding Inserra's application had been withheld improperly. Id. at ¶ 158. All state actions have been decided in favor of Inserra or withdrawn.[5]

         B. Procedural History Before This Court

         Inserra filed this action on March 28, 2016, alleging that Defendant executed a “corporate policy of filing anticompetitive sham petitions . . . [which were] more interested in delay[ing] than in redressing any particular grievances.” FAC ¶ 16. Count I alleges that Defendant conspired with Munico to restrain trade in violation of Section 1 of the Sherman Act. 15 U.S.C. § 1. Count II alleges that Defendant violated Section 2 of the Sherman Act, 15 U.S.C. § 2, by monopolizing or attempting to monopolize the market for full-service supermarkets in the Greater Wyckoff Area. FAC ¶ 259. Counts III and IV state claims under corresponding provisions of the New Jersey Antitrust Act. N.J.S.A. 56:9-3; 56:9-4. Counts V-VIII allege tortious interference by contract, interference with prospective economic advantage, civil conspiracy, and malicious use of process.

         On February 28, 2017, the Court denied Defendant's motion to dismiss the FAC for failure to state a claim. ECF No. 36. On March 24, 2017, Defendant moved to certify the order for immediate appellate appeal under 28 U.S.C. § 1292(b). The Court subsequently adjourned the motion date to May 15, 2017 in response to a joint request by the parties. Letter from Arthur N. Chagaris, ECF No. 48. A Declaration of John J. Lamb, attorney for Inserra, has informed the Court that all state cases have been resolved on appeal in favor of Inserra. ECF No. 51.


         District courts have discretion to certify an interlocutory order for immediate appeal. 28 U.S.C. § 1292(b). See In re Cendant Corp. Secs. Litig., 166 F.Supp.2d 1, 13 (D.N.J. 2001). Because immediate appeal marks a “deviation from the ordinary policy of avoiding ‘piecemeal appellate review of trial court decisions, '” certification is “used sparingly.” Kapossy v. McGraw-Hill, Inc., 942 F.Supp. 996, 1001 (D.N.J. 1996) (citations omitted). The Court considers three criteria:[6] “[t]he order must (1) involve a ‘controlling question of law, ' (2) offer ‘substantial ground for difference of opinion' as to its correctness, and (3) if appealed immediately ‘materially advance the ultimate termination of the litigation.'” Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (quoting 28 U.S.C. § 1292(b)). The purpose of § 1292(b) is “to permit decision of legal issues as to which there is considerable question without requiring the parties first to participate in a trial that may be unnecessary.” Meyers v. Heffernan, 2014 WL 7336792, at *3 (D.N.J. Dec. 22, 2014). Accordingly, “saving of time of the district court and of expense to the litigants” bears significantly on a court's decision to grant certification under § 1292(b). Katz, 496 F.2d at 755.


         Defendant seeks immediate appellate review of two issues: first, whether the “continuing violation” exception to the four-year limitations provision applies to a series of “sham petitions” that began prior to the limitations period but extended into the limitations period; and second, whether the Defendant's petitions before local administrative agencies and administrative tribunals constitute a “series” of petitions such that ...

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