Van Wagner Communications, LLC et al v. Massachusetts Department of Transportation et al
Filing
52
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, plaintiffs' motion for a preliminary injunction pending appeal is DENIED. So ordered." (Moore, Kellyann)
United States District Court
District of Massachusetts
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VAN WAGNER COMMUNICATIONS, LLC, )
VAN WAGNER BOSTON, LLC,
)
)
Plaintiffs,
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)
v.
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MASSACHUSETTS DEPARTMENT OF
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TRANSPORTATION, et al.,
)
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Defendants.
)
)
Civil Action No.
13-11028-NMG
MEMORANDUM & ORDER
GORTON, J.
Plaintiffs Van Wagner Communications, LLC and Van Wagner
Boston, LLC (collectively “Van Wagner”) seek to invalidate
outdoor advertising regulations (“the New Regulations”) that the
Massachusetts Department of Transportation (“MassDOT”) issued in
2012. See 700 CMR § 3.00 et. seq.
Plaintiffs contend that
MassDOT lacked the statutory authority to enact such
regulations.
They also maintain that the New Regulations are
facially invalid because they constitute a prior restraint on
speech in violation of the First Amendment.
In a Memorandum and Order issued in July, 2013 (Docket No.
44), the Court allowed defendants’ motion to dismiss for lack of
jurisdiction and denied plaintiffs’ motion for a preliminary
injunction.
Pending before the Court is plaintiffs’ motion for
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a preliminary injunction pending appeal (Docket No. 47).
For
the reasons that follow, that motion will be denied.
I.
Background
The facts of this case are summarized in the Court’s July
10, 2013 Memorandum and Order (Docket No. 44) and require no
further elaboration here.
II.
Legal Standard
As the moving party, plaintiffs bear the burden of
demonstrating that they are entitled to injunctive relief
pending appeal. Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st
Cir. 2010).
The First Circuit Court of Appeals has directed
district courts to consider the following four factors when
assessing whether a movant is entitled to such an injunction:
(1) whether the applicant has made a strong showing
that [it] is likely to succeed on the merits; (2)
whether [irreparable injury will be likely absent an
injunction]; (3) whether issuance of relief will
substantially injure the other parties interested in
the proceeding; and (4) where the public interest
lies.
Id. (citing Nken v. Holder, 556 U.S. 418, 433-35 (2009)).
first two factors are the “most critical.” Id.
The
To prevail, a
plaintiff must demonstrate “more than [a] mere possibility” of
succeeding on the merits and suffering irreparable harm if an
injunction does not issue. Id.
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III. Application
Plaintiffs have not carried their burden of demonstrating
that they are entitled to injunctive relief pending appeal.
First, plaintiffs have failed to show a strong likelihood
that they will prevail on the merits.
This Court has already
determined that plaintiffs lack standing to raise a facial
challenge to the new regulations on the grounds that those
regulations violate the First Amendment.
Plaintiffs raise no
new arguments in the instant motion or their supporting
memorandum that would require a different outcome.
Second, plaintiffs have not demonstrated that they are
likely to suffer irreparable harm if an injunction does not
issue before the First Circuit Court of Appeals hears their
appeal.
Their argument that being deprived of First Amendment
rights for any period constitutes an irreparable injury as a
matter of law is unavailing.
The First Circuit recently
rejected that very argument and stated that plaintiffs must show
an “immediate injury that requires issuance of an emergency
injunction” pending appeal. Respect Maine PAC, 622 F.3d at 15.
The Court will do the same here.
Third, neither party has convinced this Court that the
balance of hardships or the public interest weighs in its favor.
The injunction that plaintiffs seek would
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enjoin[] the Director of the Office of Outdoor
Advertising from denying any sign permit application,
or from revoking or refusing to renew any sign permit,
under 700 C.M.R. § 3.00 except for the non-compliance
of the sign . . . with the criteria set forth in the
[1971 Federal Highway Beautification Act].
Plaintiffs suggest that an injunction would not jeopardize any
legitimate interest of the defendants and would further the
public interest because M.G.L. c. 6C, § 3, only authorizes
MassDOT to regulate signs to the extent necessary to comply with
the 1971 Federal Highway Beautification Act.
Defendants respond
that such an injunction would prevent MassDOT from pursuing
legitimate government interests (e.g., traffic safety and
aesthetics) by foreclosing MassDOT from regulating signs that
are not within the vicinity of a federal highway.
At this stage
of the litigation, the Court is unable to determine, based on
the limited evidentiary record, whether an injunction would
actually constrain the Commonwealth’s traditional power to
regulate public safety and aesthetics.
In sum, plaintiffs have not carried their burden of
demonstrating that they are entitled to a preliminary injunction
pending appeal and their motion will therefore be denied.
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ORDER
In accordance with the foregoing, plaintiffs’ motion for a
preliminary injunction pending appeal is DENIED.
So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated November 6, 2013
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