NATIONAL AMUSEMENTS, INC. v. THE BOROUGH OF PALMYRA

Filing 142

OPINION. Signed by Judge Joseph E. Irenas on 5/9/2012. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NATIONAL AMUSEMENTS, INC.,

HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 08-2469
(JEI/KMW)

v.
BOROUGH OF PALMYRA

OPINION

Defendant.

APPEARANCES:
CONNELL FOLEY, LLP
Kevin J. Coakley
85 Livingston Avenue
Roseland, NJ 07068
Counsel for Plaintiff
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGIN, PA
Richard L. Goldstein
Woodland Falls Corporate Park
200 Lake Drive East
Suite 300
Cherry Hill, NJ 08002
Counsel for Defendant
IRENAS, Senior District Judge:
This action initially arose when Defendant Borough of
Palmyra (“Palmyra”) issued a resolution closing Plaintiff
National Amusement, Inc.’s (“National”) flea market to the public
due to dangerous subsurface unexploded ordnance. This Court
granted summary judgment on all counts in favor of Palmyra.
However, National now moves for attorneys’ fees pursuant to §
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1988 for work related to the Consent Order Judge Bumb entered on
July 18, 2008. The Consent Order obtained an expedited ordnance
removal schedule and permitted National to reopen contingent upon
certain precautionary measures.

I.
During, and shortly after World War II, Palmyra owned
National’s property. See National Amusements, Inc. v. Borough of
Palmyra, __ F.Supp.2d __, 2012 WL 379909, *1 (D.N.J. 2012).
During that time, Palmyra authorized the United States Army to
test munitions. Id. The former weapons testing impact zone is
located where National currently operates the flea market. Id.
During the intervening years, no people were reportedly
injured, though, required inspections uncovered the possibility
of subsurface unexploded munitions. As a result, Environmental
Resources Management, Inc. (“ERM”) contracted with Munitions
Management Group, LLC (“MMG”) to investigate possible unexploded
munitions and safely dispose of them. Id. On March 10, 2008,
during the course of the munitions disposal operations, MMG
observed a munition flush with the asphalt surface of the parking
lot. Id. at *2. The presence of a highly explosive munition at,
or just below, ground level was particularly concerning because
vendors at the flea market used stakes to secure tables and
tarps. Id. Serious injury or death could result from a stake
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being driven into a live munition. Id. Furthermore, the risk at
any given time was unpredictable because munitions can change
their subsurface depth due to frost heaving - a phenomenon in
which subsurface ice forms and pushes objects towards the
surface. Id. MMG informally reported this information to Palmyra
on March 10, 2008.
In response to this “imminent threat to public safety,” on
March 10, 2008, Palmyra drafted a resolution authorizing Police
Chief Richard Dreby to request National to voluntarily close
their operations or, if National refused, to exercise his
emergency powers to restrict the public’s access to National’s
property. Id. at *3. When National refused to close voluntarily,
Chief Dreby closed National’s Property.
On June 6, 2008, National filed a Motion for Preliminary
Injunction and Order to Show Cause. (See Dkt. Nos. 3-4) In
support of the Motion, National relied almost exclusively on the
first count of the Complaint entitled “Arbitrary and Capricious
Action.”1 (See Pl.’s Br., Dkt. No. 4)
Decision on the Motion was unnecessary, however, because on
July 30, 2008, Judge Bumb entered a Consent Order whereby
National could resume operations by August 13, 2008 provided
certain institutional precautions adequately protected the safety

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National mentions the Due Process Clause in its argument supporting a
finding of arbitrary and capricious municipal action, but only in passing.
(See Br. Prelim. Inj. 16, Dkt. No. 4-7)

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of flea market customers. (See Consent Order ¶ 4, Dkt. No. 17)
By way of example, one such institutional precaution was to erect
physical barriers to prevent vendors and customers from accessing
high risk areas. (Id.)
On December 11, 2008, National filed the Amended Complaint,
which sought monetary damages for two alleged violations of §
1983 and one action in lieu of prerogative writ under the New
Jersey State Constitution.2 See National, 2012 WL 379909, *5. For
approximately the next two years, the parties fought principally
over interim attorneys’ fees related to the entry of the Consent
Order. On October 8, 2010, this Court denied the application for
interim attorneys’ fees without prejudice to its renewal upon the
completion of litigation.

(Order, Dkt. No. 107)

On September 30, 2011, Palmyra filed for summary judgment.
(See Dkt. No. 120) In an Opinion and Order dated February 3,
2012, this Court granted the motion in full. (See Dkt. Nos. 12627) The instant Motion for Attorneys’ Fees essentially renews the
previous one.

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National’s attempt to recharacterize the action in lieu of prerogative
writ as a § 1983 claim at this late stage is unpersuasive. Although the basis
for the claim in the Complaint is unclear, National briefed the claim under
state law in the motions for preliminary injunction and summary judgment. The
Court will not allow National to now assert that the claim was actually a §
1983 claim. See Singer Management Consultants, Inc. v. Milgram, 650 F.3d 223,
238-39 (3d Cir. 2011) (quoting Krystal Cadillac-Oldsmobile GMC Truck, Inc. v.
Gen. Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003) (“The basic principle of
judicial estoppel ... is that absent any good explanation, a party should not
be allowed to gain an advantage by litigation on one theory, and then seek an
inconsistent advantage by pursuing an incompatible theory.”).

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II.
“In any action . . . to enforce a provision of section[]. .
. 1983 . . . of [Title 42]. . . the court in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as
part of the costs.” 42 U.S.C. § 1988. Upon determination that a
plaintiff is a prevailing party and is entitled to an award of
attorneys’ fees, the Court must then decide upon a reasonable
award of fees and costs.
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.” Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). This approach is
otherwise referred to as the lodestar and “is strongly presumed
to yield a reasonable fee.” Washington v. Philadelphia Cnty. Ct.
Of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996). Once the
lodestar is determined, the court may, in its discretion, adjust
the lodestar for many reasons, one important reason being the
results obtained by the prevailing party. Hensley, 461 U.S. at
434; McKenna v. City of Philadelphia, 582 F.3d 447, 455-59 (3d
Cir. 2009).
The burden is on the fee-applicant to establish a prima
facie case. Hensley, 461 U.S. at 437. If a prima facie case is
established, the opposing party bears the burden of presenting
contrary evidence. See Lanni v. New Jersey, 259 F.3d 146, 149 (3d
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Cir. 2001).
Preliminarily, to be entitled to attorneys’ fees, Plaintiff
must be a prevailing party.3 Defendant argues that Plaintiff is
not a prevailing party because Defendant was granted summary
judgment. Defendant further argues that, even if the Consent
Order grants Plaintiff prevailing party status, the Consent Order
was only based on Plaintiff’s state law claim. Because attorneys’
fees are only available under § 1988 for claims based on § 1983,
Defendant would not be entitled to attorneys’ fees.
“In addition to judgments on the merits, we have held that
settlement agreements enforced through a consent decree may serve
as the basis for an award of attorney’s fees.” Buckhannon Bd. and
Care Home, Inc. v. West Virginaia Dept. of Health and Human
Resources, 532 U.S. 598, 604 (2001). In the Third Circuit, a
stipulated settlement confers prevailing party status “where it
alters the legal relationship of the parties and is judicially
sanctioned.

A stipulated settlement is judicially sanctioned

where it: 1) contains mandatory language; 2) is entitled Order;
3) bears the signature of the District Court judge, not the
parties’ counsel; and 4) provides for judicial enforcement.”
P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 853 (3d Cir. 2006)

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Defendant’s argument that the motion is untimely is without merit.
Local Rule 54.2 provides a thirty day window to file a motion for attorneys’
fees after the entry of judgment or an order. This Court’s Opinion and Order
was filed on February 3, 2012 and the Motion for Attorneys’ Fees was filed on
March 7, 2012, within the thirty day window.

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(internal quotations omitted).
Here, the Consent Order fulfilled the Third Circuit test for
a judicially sanctioned stipulated settlement. First, the Consent
Order had mandatory language inasmuch as both parties were
required to perform tasks by certain dates. Second, the Consent
Order was clearly entitled “order.” Third, Judge Bumb signed the
Consent Order. Fourth, the District Court retained jurisdiction
over the case and could have provided judicial enforcement.
Therefore, the mere entry of summary judgment does not
preclude Plaintiff from recovering attorneys’ fees. The Consent
Order provided Plaintiff with some of the injunctive relief
sought and was a “court-ordered change in the legal relationship
between the plaintiff and the defendant.” Buckhannon, 532 U.S. at
604 (quoting Texas State Teachers Assn. v. Garland Independent
School Dist., 489 U.S. 782, 792 (1989) (internal punctuation
omitted).
However, Plaintiff can only recover attorneys’ fees as a
prevailing party for its § 1983 claims. In other words, if a
party succeeds on a state law claim, but loses on § 1983 claims,
then Plaintiff may not recover attorneys’ fees under § 1988. See
Luria Bros. & Co., Inc. v. Allen, 672 F.2d 347, 357 (3d Cir.
1982).
Accordingly, the Court must determine the basis for the
Consent Order. The preamble states: “This matter, having come

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before the Court on July 17, 2008 for a hearing on Plaintiff’s
Motion seeking preliminary injunction, and the parties having
been able to resolve their disputes with regard to the pending
application . . . .”

(Consent Order at 1, Dkt. No. 17) Paragraph

11 reinforces this view: “The resolution of the pending Order to
Show Cause through this Consent Order . . .”
The basis for the Consent Order, therefore was the
preliminary injunction motion and order to show cause.
Plaintiff’s moving papers for the application essentially follow
the elements required to establish entitlement to a preliminary
injunction: (1) likelihood of success on the merits, (2)
probability of irreparable injury to the moving party in the
absence of relief, (3) the possibility of harm to the non-moving
party, and (4) the public interest weighs in favor of granting
preliminary relief. Alessi by Alessi v. Com. of Pa., Dept. of
Public Welfare, 893 F.2d 1444, 1447 (3d Cir. 1990).
With respect to the first element, Plaintiff primarily
argued that Plaintiff will succeed on the merits of the claim for
an action in lieu of prerogative writ - a claim derived from the
New Jersey State Constitution. Although National also devoted a
page to the due process claim, the argument was not pursued
further.
The next section of the brief argued that National will
suffer irreparable injury if the preliminary injunction did not

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issue. (Pl.’s Br. 17, Dkt. No. 4-7) Plaintiff argued that
“Palmyra’s arbitrary and capricious actions have deprived
National Amusements of the use of its land . . .” (Id.) The
arbitrary and capricious standard is utilized in analyzing an
action in lieu of prerogative writ.
It is not clear which claim forms the basis for Plaintiff’s
discussion of the third element.
In analyzing the fourth element, National wrote “[t]here is
never a public interest in having the government take actions
that arbitrarily and capriciously destroy the rights of property
owners.” (Id. at 19) National seeks to satisfy the fourth element
by applying the standard for an action in lieu of prerogative
writ.
After reading National’s brief in its entirety, this Court
concludes that National sought the preliminary injunction based
on the claim for an action in lieu of prerogative writ. Although
National devoted one page to the due process clause in arguing
that it would likely succeed on the merits, National attempted to
satisfy the other elements based only on the claim for an action
in lieu of prerogative writ. Therefore, this Court finds that any
success that National had by way of the Consent Order was based
only on the claim for an action in lieu of prerogative writ. An
award of attorneys’ fees under § 1988 cannot be premised on
National’s success on a state law cause of action, however, and

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so the instant motion must be denied.

III.
For the reasons set forth above, the Motion for Attorneys’
Fees will be denied.

Dated: 5/9/12

/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

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