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D. Russo Inc. v. Chiesa

United States District Court, D. New Jersey

August 2, 2017

D. RUSSO INC., et al., Plaintiffs,
v.
JEFFREY CHIESA, et al., Defendants.

          OPINION & ORDER

          Stanley R. Chesler, U.S.D.J.

         This matter comes before the Court on two motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56: 1) the motion by Defendants Daniel Antonelli, Suzette Cavados, Manuel Figeuiredo, Joseph Florio, Kevin Kalendek, Ronald Manzella, Richard Milanda, Clifton People, Anthony Terrezza, the Township of Union Police Department, and the Township of Union (collectively, the “Township”); and the cross-motion by Plaintiffs D. Russo Inc. t/a “H22, ” Kevin Hickey (“Hickey”), and the estate of Daniel Russo (collectively, “Plaintiffs”). For the reasons stated below, Defendants' motion will be granted in part and denied in part, and Plaintiffs' cross-motion will be denied.

         This case arises from a long-running dispute between Plaintiffs, an adult entertainment business known as “Hott 22” which operated in the Township of Union, New Jersey and its owners, and the Township. Plaintiffs filed this case in 2012, and the complaint presently active is the Second Amended Complaint (“SAC”), which asserts six counts (though the count which comes sixth is denominated the “Tenth Count.”)

         The Second Amended Complaint asserts that it concerns events which occurred on or about April 13, 2012, when officers from the Township of Union Police Department closed down Hott 22 on the basis that it violated the Sexually Oriented Business Act (“SOBA”), N.J.S.A. § 2C:34-7. Defendants have now moved for summary judgment on certain claims, and Plaintiffs have cross-moved for summary judgment on certain claims.

         On June 15, 2017, Plaintiffs submitted a sur-reply brief - a reply to Defendants' opposition to their cross-motion - without leave of the Court. Local Civil Rule 7.1(h) states: “No reply brief in support of the cross-motion shall be served and filed without leave of the assigned district or magistrate judge.” Because the sur-reply brief was not permitted by L. Civ. R. 7.1(h), it was not considered by this Court.

         Defendants first move for summary judgment on all claims against the Township of Union Police Department on the ground that a municipal police department is not a “person, ” separate from the municipality, within the meaning of 42 U.S.C. § 1983. Plaintiffs agree, and Judgment will be entered in Defendants' favor on all claims against the Township of Union Police Department.

         Defendants next move for summary judgment on all Monell claims against the Township of Union, contending that Plaintiffs have no evidence to support these claims. In opposition, Plaintiffs point to the letter dated April 13, 2012 from Daniel Antonelli, attorney for the Township, to Kevin Hickey. In this brief letter, in short, Mr. Antonelli reported that the New Jersey Supreme Court had denied certification of the case challenging the decision of the Appellate Division that N.J.S.A. 2C:34-7 was constitutional as applied to Hott 22. (Hittman Cert. Ex. A.) The letter then stated:

Consequently, please accept this letter as a cease and desist Order. If you continue to operate your business you, the manager or anyone else running the business will be deemed to have violated the above mentioned statute, which under the law is a fourth degree crime.

(Id.) Plaintiffs' opposition brief calls this letter “a smoking gun, ” and argues: “If Mr. Antonelli's letter . . . fails to evidence policy making, with the knowledge and approval of the Township, then there is scarcely likely to be a fact pattern that does.” (Pls.' Opp. Br.) The opposition brief does not give any further explanation of how Plaintiffs support their Monell claim against the Township.

         Plaintiffs' argument in opposition to the motion for summary judgment begins with a crucial mistake, contending that Defendants moved for summary judgment on the ground that a municipality cannot be liable for the conduct of its employees under a respondeat superior theory pursuant to Monell. The first sentence of Defendants' argument for summary judgment on the Monell claim states: “plaintiffs have failed to adduce any facts to establish liability.” (Defs.' Br. 10.)

         Plaintiffs bear the burden of proof for a claim pursuant to § 1983. “[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by ‘showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Defendants, as the movants without the burden of proof at trial, satisfy their initial summary judgment burden by pointing to the absence of evidence to support Plaintiffs' case. In the first sentence of their argument for summary judgment, Defendants did just that.

         Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). “A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The Supreme Court has held:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 322-323. Thus, as to each claim, to defeat the motion for summary judgment, Plaintiffs must point to sufficient evidence to allow a jury to find ...


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