United States District Court, D. New Jersey, Camden Vicinage
& CONNERY, LLP William M. Tambussi, Esq. Mark P. Asselta,
Esq. Andrew S. Brown, Esq. Counsel for Plaintiff.
BALLARD SPAHR LLP Roberto A. Rivera-Soto, Esq. Counsel for
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE.
Cherry Hill Towne Center Partners, LLC (“Cherry Hill
Towne Center”) would like to open and operate a sports
wagering facility on its property in New Jersey. Problematic
for Plaintiff is the fact that its property is subject to a
Declaration of Restrictive Covenants (“Restrictive
Covenant”) that runs to the exclusive benefit of
Defendant GS Park Racing, L.P.
(“GSPR”). The Restrictive Covenant provides,
“Horse racing, simulcasting, off-track betting,
wagering activities and gambling and gaming of any sort
(collectively, ‘Gaming9;) anywhere on the GSP
Property at any time by any party other than GSPR and its
successors and assignees is hereby prohibited
(‘Covenant9;).” (Rivera-Soto Cert. Ex. C).
action, Cherry Hill Towne Center seeks a declaration that the
Restrictive Covenant is unenforceable, and asks this Court to
permanently enjoin GSPR from enforcing the restriction. GSPR
has responded by filing a Motion for Preliminary Injunction
asking this Court to enjoin Cherry Hill Towne Center
“from and against opening and operating a sports
wagering lounge or engaging in the business of sports
wagering at or within the GSP Property.” [Proposed
Preliminary Injunction Order, Dkt. No. 17-9].
reasons stated herein, the Court holds that GSPR will likely
prevail on its position that the Restrictive Covenant is
enforceable. The Court will, however, deny the Motion for
Preliminary Injunctive Relief because GSPR has not
established that, absent provisional injunctive relief,
immediate irreparable harm will result before this Court can
render a final judgment on the merits.
11, 2018');">18');">18');">18');">18');">18');">18');">18 the New Jersey Sports Wagering Act of 2018');">18');">18');">18');">18');">18');">18');">18, N.J.S.A.
5:12A-10 to -19, became effective. Importantly for the
instant case, the law does not allow sports wagering to take
place just anywhere in the state. Rather, the law allows
sports wagering to occur only at “casinos” and
“racetracks” that have obtained a sports wagering
license. N.J.S.A. 5:12A-11. Cherry Hill Towne Center owns the
property that was formerly Garden State Park (“the GSP
Property”), where horse racing took place until 2001.
(Rivera-Soto Cert. ¶ 10) Because the Sports Wagering
Act9;s definition of “racetrack”
“includes any former racetrack, ” N.J.S.A.
5:12A-10, Cherry Hill Towne Center is eligible to apply for a
sports wagering license.
days after the Sports Wagering Act went into effect, on June
22, 2018');">18');">18');">18');">18');">18');">18');">18, GSPR9;s attorney sent Cherry Hill Towne Center a
letter, via certified mail, concerning the Restrictive
Covenant. (Rivera-Soto Cert. Ex. E) The letter stated in
GSPR is the beneficiary under that certain Declaration of
Restrictive Covenants dated January 28, 1999. . . . You are
an owner of property subject to the Restrictive Covenants.
For ease of reference, a copy of the Restrictive Covenants is
enclosed. . . .
In light of the recent enactment of sports wagering
legislation which applies to certain former racetracks in New
Jersey, and because you are the owner of record of part of
the [Garden State Park] Property, and therefore, are subject
to the restrictions set forth in the Restrictive Covenants,
we wanted to bring this matter to your attention and inform
you that GSPR attaches significant importance and value to
the rights it holds under the Restrictive Covenants.
Anticipating that you would be interested in discussing this
matter with our client, our client will be happy to arrange a
meeting at your and our clients9; mutual convenience.
Cherry Hill Towne Center responded to GSPR, the response is
not in the record before this Court. It would appear that,
rather than accepting GSPR9;s invitation to “discuss
[the] matter, ” Cherry Hill Towne Center raced to the
courthouse and, on June 31, 2018');">18');">18');">18');">18');">18');">18');">18, filed this suit. The
“Complaint for Declaratory Judgment and Injunctive
Relief” asserts two counts: (1) “declaratory
judgment invalidating the entirety of the Declaration of
Restrictive Covenants and for injunctive relief”; and
(2) “declaratory judgment providing that the
Declaration of Restrictive Covenants does not prohibit sports
wagering and for injunctive relief.” The complaint was
filed in the Superior Court of New Jersey, Chancery Division.
GSPR timely removed on the basis of diversity of
citizenship. Thereafter, the parties participated in
private mediation, but they were unable to resolve their
filed the instant Motion for Preliminary Injunction in
mid-December 2019. After briefing was complete, the Court
issued a letter order directing the parties to submit
supplemental briefs addressing, among other things, the issue
of Article III ripeness. Supplemental briefing was recently
completed. The parties9; supplemental briefs state that
Cherry Hill Towne Center has not applied for a sports
wagering license, however, Cherry Hill Towne Center maintains
that it “intends to do so as soon as possible.”
[Supplemental Brief, Dkt. No. 26, p. 1');">p. 1].
obtain a preliminary injunction, the moving party must show:
(1) a likelihood of success on the merits, (2) a likelihood
that the moving party will suffer irreparable harm, (3) that
the balance of equities weighs in the moving party9;s
favor, and (4) that injunctive relief is in the public
interest. Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). If the moving party has established
the first two “most critical” factors, Nken
v. Holder, 18');">18');">18');">18');">18');">18');">18');">18');">556 U.S. 418');">18');">18');">18');">18');">18');">18');">18, 434 (2009), the court then
performs a “balancing of the factors, ”
Reilly v. City of Harrisburg, 858 F.3d 173, 18');">18');">18');">18');">18');">18');">18');">180 n.5
(3d Cir. 2017), to determine whether the prongs, “taken
together, balance in favor of granting the requested
preliminary relief, ” id. at 179.
court may issue a preliminary injunction only on notice to
the adverse party.” Fed.R.Civ.P. 65(a)(1).
recently explained by the Third Circuit,
Ripeness is a justiciability doctrine that derives from
Article III of the United States Constitution. The function
of the ripeness doctrine is to determine whether a party has
brought an action prematurely. The doctrine counsels that we
should abstain until such time as a dispute is sufficiently
concrete to satisfy the constitutional and prudential
requirements of the doctrine. We have recognized the
following considerations that underpin the ripeness doctrine:
[A]re the parties in a sufficiently adversarial posture to be
able to present their positions vigorously; are the facts of
the case sufficiently developed to provide the court with
enough information on which to decide the matter
conclusively; and is a party genuinely aggrieved so as to