P.R.B.A. CORP. v. HMS HOST TOLL ROADS, INC. et al

Filing 36

OPINION. Signed by Judge Renee Marie Bumb on 7/19/2013. (tf, )

NOT FOR PUBLICATION

[Dkt. 7, 19]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

P.R.B.A. CORPORATION,
Plaintiff,

Civil No. 1:12-CV-07914
(RMB/JS)
v.
OPINION

HMS Host Tolls Roads, Inc., et al.,
Defendants.

Appearances:
F. Michael Daily, Jr.
Sentry Office Plaza
216 Haddon Ave., Suite 100
Westmont, NJ 08108
Attorneys for Plaintiff
Christopher R. Paldino
Wolff Samson
One Boland Drive
West Orange, NJ 07052
Attorneys for Defendants
Bumb, UNITED STATES DISTRICT JUDGE:
Plaintiff P.R.B.A. Corporation t/a Bare Exposure
(“Plaintiff”) has moved for a preliminary injunction [Dkt. 7].
Defendants HMS Host Toll Roads, Inc. (“Host”), South Jersey
Transportation Authority (“SJTA”), and New Jersey Turnpike
Authority (“NJTA”) (collectively, the “Defendants”) oppose the
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motion and have moved for summary judgment. [Dkt. 19] For the
reasons that follow, both motions are DENIED without prejudice.
I.

Background
A.

Factual

Plaintiff operates a nude dance club in Atlantic City, New
Jersey. Ariemma Declaration ¶ 2. It has contracted with CTM
Media Group (“CTM”), an advertising agency, to display brochures
advertising the club on display racks owned by CTM in New Jersey
area rest stops. Id. at ¶ 5-6. The stops are property of
Defendants NJTA and SJTA, governmental entities created under
New Jersey law. N.J. STAT ANN. § 27:25A-1 (West 2013) (authorizing
SJTA); N.J. STAT ANN. § 27:23-1 (West 2013) (authorizing NJTA).
The rest stops are operated by Host, which leases the spaces
from NJTA and SJTA. Defendant’s Statement of Material Facts ¶¶
3-7. While Host leases the spaces, it is an independent Delaware
corporation, and state employees are not involved in its
management and routine operations. Vargas-Garrison Aff. ¶ 7;
Heck Aff. ¶ 8.
Plaintiff’s brochures, which consist of a woman’s face with
the masthead “Bare Exposure . . . Atlantic City’s Only All Nude
Entertainment,” (Plaintiff’s Complaint Exhibit A) was displayed
without incident at CTM owned display racks until the fall of
2012. At that time, however, Host employee Greg Dion learned of
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the brochure’s placement, and concerned that the brochures were
potentially inappropriate, Dion removed the brochures from the
display racks. Dion Aff. ¶ 12. According to Dion, he: (1) “did
not consult with, report to, or receive any direction, input, or
encouragement from any representative of the New Jersey Turnpike
Authority or the South Jersey Transportation Authority;” and (2)
was not aware of “New Jersey Administrative Code Sections 19:21.2, 19:2-5.7, or 19:9-1.13(d)” (the “NJAC Provisions”).

Id. at

¶¶ 12-13.
Section 19:2-5.7 previously regulated distrubition of
certain materials on the expressway, but expired in November 22,
2012.

See N.J. ADMIN. CODE § 19:2-5.7 (2012). Section 19:2-1.2 is

a definitional section that does not proscribe any conduct. N.J.
ADMIN. CODE § 19:2-1.2. Section 19:9-1.13 prohibits persons from
entering the New Jersey Turnpike or Garden State Parkway for the
purpose of distributing samples, pamphlets or advertising matter
of any sort, except as expressly authorized by the NJTA. N.J.
ADMIN. CODE § 19:9-1.13; N.J. ADMIN. CODE § 19:9-1.1 (providing
definitions).
According to Dion, Dion was unaware of any of these
provisions and instead “believed [he] was exercising HMS Host’s
authority under the CTM” contract. Id. at ¶ 13. Officials at
NJTA and SJTA corroborated Dion’s account, affirming that they
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were not personally involved in or aware of the decision to
remove the brochures, nor aware of anyone else at NJTA or SJTA
being involved. Vargas-Garrison Aff. ¶ 7; Heck Aff. ¶ 8.
B.

Procedural

On December 28, 2012, Plaintiff filed this action. On
February 13, 2013, Plaintiff filed an amended complaint alleging
four counts - all based on the removal of Plaintiff’s brochures.
They are:
(1)

a First Amendment violation;

(2)

a First Amendment facial challenge to the NJAC
Provisions;

(3)

Fourteenth Amendment due process and equal protection
violations; and

(4)

speech, association, due process, and equal protection
violations of article 1 of the New Jersey
Constitution.

Amended Complaint ¶¶ 34-45.
On March 18, 2013, Plaintiff moved for a preliminary
injunction against Defendants, seeking to enjoin them from
removing the brochures. On April 1, 2013, Defendants moved for
summary judgment. Plaintiff opposes Defendant’s motion. It also
argues that, pursuant to Federal Rule of Civil Procedure 56(d),
summary judgment is premature because further discovery is
needed. In support of that argument, it has submitted a
declaration consistent with Rule 56(d) that “[P]laintiff has had
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[no] opportunity to conduct discovery. As a result the
[P]laintiff is unable to present any facts that would contradict
Defendants’ Material Statement of Facts #12, 15, 16, 17, 26, 27,
28, and 29.” Declaration of Michael Daily in Opposition to
Motion for Summary Judgment (“Daily Declaration”).
II.

Discussion
The Court first addresses Plaintiff’s motion for

preliminary injunction. It then addresses Defendants’ motion for
summary judgment.
A.

Motion for Preliminary Injunction

A party moving for a preliminary injunction must establish
that: (1) it is likely to succeed on the merits; it is likely to
suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in its favor; and (4) an
injunction is in the public interest. Winter v. Natural Resource
Defense Council, 555 U.S. 7, 20 (2008). The moving party’s
failure to establish a likelihood of success on the merits “must
necessarily result in the denial of a preliminary injunction.”
Am. Express Travel Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366
(3d Cir. 2012) (quoting In re Arthur Treacher’s Franchisee
Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). Here, because
Plaintiff cannot satisfy the likelihood of success factor for
any of its claims at this juncture, Plaintiff is not entitled to
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a preliminary injunction, and it is unnecessary to address the
remaining factors.
1.

Count 1

Plaintiff cannot establish a likelihood of success on Count
1 because that claim requires, and Plaintiff has failed to
offer, evidence of state action. See Benn v. Universal Health
Sys., 371 F. 3d 164 (3d Cir. 2004)(holding that constitutional
claims require state action).
State action may be found only if there is such a “close
nexus” between the State and the challenged action that
seemingly private behavior may be attributed fairly to the
state. Brentwood Academy v. Tennessee Secondary School Athl.
Ass’n, 531 U.S. 288, 296 (2001). This inquiry is fact-intensive,
and there is no single test for establishing such an
attribution. Id.; see also Benn, 371 F. 3d at 171. The Supreme
Court in Brentwood has, however, identified five separate
approaches for attributing conduct to the state:
(1)

When the conduct results from the State’s exercise of
coercive power or when the State has provided
significant encouragement, either overt or covert; or

(2)

When a private actor operates as a willful participant
in joint activity with the State; or

(3)

When a nominally private entity is controlled by an
agency of the State; or

(4)

When a nominally private entity has been delegated a
public function by the State; or
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(5)

When a nominally private entity is entwined with
governmental policies, management, or control.

Brentwood, 531 U.S. at 296. Applying these five approaches to
the facts of Plaintiff’s case, “none of these . . . points
toward the presence of state action.” Benn, 371 F.3d at 171.1
First, it is unlikely that Plaintiff can establish that New
Jersey has “exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.” Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982). At present, the only
evidence is that NJTA and SJTA were uninvolved in the removal of
the brochures. Vargas-Garrison Aff. ¶ 7; Heck Aff. ¶ 8.
Second, for the same reason, it is unlikely that Plaintiff
can establish that Host was a “willful participant in joint
activity” with New Jersey. Lugar v. Edmondson Oil Co., 457 U.S.
922, 941 (1982) (internal quotation marks omitted).
Third, it is unlikely that Plaintiff can establish that
Host was “controlled by an agency of the state.” Brentwood, 531

1

Plaintiff has argued that this Court’s state action analysis should be
guided by the Supreme Court’s decision in Burton v. Wilmington Parking
Auth. Burton, 365 U.S. 715 (1961). But the Supreme Court has since
cast doubt on Burton, describing it as an “early” case with a “vague”
standard of state action that has since been refined. Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999). And the Third Circuit has
suggested that Burton is limited to its specific facts. Crissman v.
Dover Downs Entertainment Inc., 289 F.3d 231, 242 (3d Cir. 2002).
Accordingly, this Court will not rely on Burton in considering whether
Plaintiff is likely to succeed in demonstrating state action.

7

U.S. at 296 (internal quotation marks omitted). Host is an
independent Delaware corporation, Amended Complaint ¶ 2, and
state employees are not involved in its management or routine
operations. Vargas-Garrison Aff. at ¶ 5; Heck Aff. at ¶ 5.
Fourth, it is unlikely that Plaintiff can establish that
Host’s conduct was part of a public function that the state
delegated to Host. Brentwood, 531 U.S. at 296. “In considering
the public function issue, we must ask whether the challenged
action relates to a function that has been traditionally the
exclusive prerogative of the State.” Benn, 371 F.3d at 172
(emphasis added)(internal quotation marks omitted)(citing
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)). It was
Plaintiff’s burden, and Plaintiff has failed, to present any
factual evidence or legal citation that the maintenance of rest
stop brochure racks has been traditionally the exclusive
prerogative of the State.

See Gannett Satellite Information

Network, Inc. v. Berger, 894 F.2d 61, 67 (3d Cir. 1990)(finding
airport newspaper concessionaires were not performing public
function).
Fifth, it is unlikely that Plaintiff can establish that
Host’s conduct is “entwined with governmental policies,”
management, or control. Brentwood, 531 U.S. at 296; Benn, 371
F.3d at 172. That Defendant Host leases the facilities from the
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NJTA and SJTA is insufficient to establish the type of
entanglement necessary for state action. See Gannett, 894 F.2d
at 67 (finding no entanglement between private newsstands that
leased space from the Port Authority at Newark Airport).
Plaintiff has also failed to present evidence that SJTA or NJTA
were involved in the decision to remove the brochures, nor
evidence that the removal was motivated by an effort to comply
with governmental policies or regulations, such as the NJAC
Provisions.2
Because Plaintiff is unlikely to establish state action
using any of these five approaches, Plaintiff is unlikely to
succeed on the merits of Count 1.
2.

Count 2

Plaintiff is unlikely to succeed on the merits of its
facial challenge to the NJAC Provisions because this challenge
does not appear justiciable. To begin with, § 19:2-5.7 expired
on November 22, 2012, and § 19:2-1.2 merely provided definitions

2

After briefing in this matter was completed, Plaintiff submitted notice
of supplemental authority highlighting the decision in Am. Atheists,
Inc. v. Port Auth. of N.Y. & N.J., No. 11-6026, 2013 WL 1285321
(S.D.N.Y. March 28, 2013). In that case, the New York court found that
the decision of the National September 11 Memorial and Museum at the
World Trade Center Foundation, Inc. to display a large metal cross
pulled from the wreckage of the World Trade Center constituted state
action based on pervasive entwinement. Id. at 6. That decision is
inapposite. There, unlike here, there was significant evidence of
state action, in that the Port Authority of New York and New Jersey
donated the cross, provided property and constructed the facility for
its display, had an ongoing relationship with the Foundation, and some
directors of the Foundation were state-appointed. Id.

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for that provision.

Thus, Plaintiff’s claim with respect to

those statutes appear moot.3 See generally Kremens v. Bartley,
431 U.S. 119, 128 (1977)(mooting claims based on a repealed
statute).
In addition, Plaintiff appears to lack standing to
challenge any of the NJAC Provisions. To assert a facial
constitutional challenge to these provisions, Plaintiff must
demonstrate (1) an injury in fact (2) fairly traceable to the
code provision, which (3) can be redressed by the court. See
SEIU v. Municipality of Mt. Lebanon, 446 F.3d 419, 422-23 (3d.
Cir. 2006).
First, Plaintiff has failed to establish an injury in fact.
To meet this burden, a plaintiff must have suffered an invasion
of a legally protected interest that is actual or imminent, not
conjectural or hypothetical. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992); Kress v. New Jersey, 455 Fed. App’x.
266, 270 (3d. Cir. 2011). “[A]llegations of a subjective chill
are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm” and a “real
and imminent fear” is required.

Clapper v. Amnest Inter. USA,

133 S.Ct. 1138, 1152 (2013)(quotation omitted); National

3

Plaintiff does not dispute that this provision has expired.

10

Organization for Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d
Cir. 2013).
Here, the only one of the NJAC Provisions that remains in
effect, § 19:9-1.13, prohibits persons from entering the Garden
State Parkway or New Jersey Turnpike for the purpose of
distributing samples, pamphlets or advertising matter of any
sort, except as expressly authorized by the NJTA or SJTA.

But

Plaintiff has offered no evidence that: (1) its brochures were
removed pursuant to this provision; (2) the NJTA or SJTA has
threatened to enforce this provision against Plaintiff in the
future, and the NJTA would not authorize Plaintiff’s brochure
display; or (3) the provision would even apply to Plaintiff’s
display of brochures, given that it would be displayed at a rest
stop and not on the expressway itself.

Without more,

Plaintiff’s claim is, at best, a conjectural concern about
future harm or a subjective chill - not an injury in fact. See
Dealmagro v. New Jersey Election Law Enforcement Comm’n, No. 104149, 2011 WL 255819, at *4 (D.N.J. Jan. 25, 2011) (citing
Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir.
1997) for the proposition that litigants only have standing
based on threat of future injury if the injury is “credible and
immediate, and not merely abstract or speculative.”).

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Second, for these same reasons, Plaintiff cannot fairly
trace any injury in fact to the NJAC Provisions. Third,
Plaintiff’s injury cannot be redressed by this Court, since any
finding by this Court with respect to the NJAC Provisions would
not prevent Host, a private company, from removing Plaintiff’s
brochures.
Because Plaintiff is unlikely to establish standing to
challenge the NJAC Provisions, and because Plaintiff’s claim
against § 19:2-5.7 appears moot, Plaintiff is unlikely to
succeed on the merits of Count 2.4
3.

Count 3

Plaintiff is unlikely to succeed on the merits of its
Fourteenth Amendment due process and equal protection claims.
Those claims require, like Plaintiff’s First Amendment claim,
the presence of state action and, for the reasons discussed
above, Plaintiff has failed to show a likelihood of success in
demonstrating state action under federal law. See Benn, 371 F.3d
at 164.
4.

4

Count 4

Plaintiff also challenges § “19:2-1.2(a)” and quotes language
purportedly from this provision. Plaintiff’s Brief in Support of Motion
for Preliminary Injunction at 20. However, no such provision exists in
the New Jersey Administrative Code. The Court therefore does not
address this provision further.

12

Finally, Plaintiff is also unlikely to succeed on the
merits of its state law constitutional claims. Plaintiff bore
the burden of showing a likelihood of success on the merits of
these claims, but failed to address them. See Winter, 555 U.S.
at 20. Plaintiff has thus failed to establish a likelihood of
success on the merits of its due process, equal protection,
speech, and association claims under the New Jersey
Constitution.
In any event, from this Court’s own analysis, it appears
that Plaintiff would be unlikely to succeed on these claims.
Plaintiff’s due process and equal protection claims require,
without exception, the presence of state action. See Elias v.
Educational Comm’n for Foreign Medical Graduates, No. C-82-08,
2010 WL 4340640, at *2 (N.J. Super. Ct. App. Div. Nov. 4, 2010)
(dismissing due process and equal protection claims under the
New Jersey and Federal Constitutions after establishing a lack
of state action pursuant to federal state action standards).
Plaintiff’s free speech and association claims generally require
the presence of state action, but New Jersey courts have allowed
claims without state action where the speech was made in a
public-like forum such as shopping malls and universities. E.g.,
New Jersey Coalition Against War in the Middle East v. JMB
Realty Corp., 650 A.2d 757 (N.J. 1994). While New Jersey courts
13

have not specifically opined on whether highway rest stops are
within the ambit of this exception, they have held that highway
strip malls are outside it. Coalition, 650 A.2d at 781. They
have also cast “doubt” on whether this exception is at all
applicable to commercial speech. Id. In determining whether
there is state action under New Jersey law, courts have
generally tracked the federal state action doctrine analysis.
See Elias, 2010 WL 4340640 at *2; Moe v. Seton Hall University,
No. CIVA2:09-01424, 2010 WL 1609680, at *3 (D.N.J. April 20,
2010).
With respect to Plaintiff’s due process and equal
protection claims, Plaintiff is unlikely to be able to
demonstrate state action under New Jersey law, given the large
extent to which New Jersey law tracks federal law, and this
Court’s federal state action doctrine analysis detailed above.
With respect to Plaintiff’s free speech claim, the state action
exception does not appear applicable given that: (1) the most
analogous locale to highway rest stops that has been ruled upon,
highway strip malls, are firmly outside the exception; and (2)
the speech at issue is commercial speech, which has strongly
been suggested to be outside the exception. Accordingly, state
action appears to be required for this claim, and thus this

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claim would fail for the same reason as the Plaintiff’s other
state law claims.
Accordingly, Plaintiff has failed to demonstrate a
likelihood of success on its state law claims.
5.

A Preliminary Injunction Is Unwarranted

Because Plaintiff is unlikely to establish state action or
any exception to the state action requirement, Plaintiff is
unlikely to succeed on the merits, and a preliminary injunction
is unwarranted. Sidamon-Eristoff, 669 F.3d at 366 (holding that
a preliminary injunction is unwarranted where a movant cannot
demonstrate a likelihood of success on the merits). Accordingly,
Plaintiff’s motion for preliminary injunction is DENIED without
prejudice.
B.

Motion for Summary Judgment

Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The nonmovant can challenge a motion for summary
judgment by “asserting that a fact cannot be or is genuinely
disputed[.]” Fed. R. Civ. P. 56(c)(1). In some cases, a motion
for summary judgment may be “premature” if made before the
parties have conducted discovery. Celotex v. Catrett, 477 U.S.
317, 326 (1986). Pursuant to Federal Rule of Civil Procedure
15

56(d), a district court may deny summary judgment where the
party opposing summary judgment demonstrates, by affidavit or
declaration, that it cannot present facts essential to justify
its opposition and indicates to the district court its needs for
discovery, what material facts it hopes to uncover, and why it
has not previously discovered the information. Abulkhair v. City
Bank & Assocs., 43 F. App’x 58, 61-62 (3d Cir. 2011).
Here Plaintiff contends that Defendant’s motion is
premature pursuant to Rule 56(d). This Court agrees. See DiMarco
v. Rome Hosp. and Murphy Hosp., No. 88-CV-1258, 1991 WL 336000,
at *3 (July 1, 1991 N.D.N.Y.) (denying motion for summary
judgment as premature and allowing parties to conduct discovery
on the question of state action). Plaintiff properly proffered a
Rule 56(d) declaration indicating that it lacked vital
information on the state action issue and that it had been
unable to obtain information because discovery is not yet
underway. Daily Declaration ¶¶ 2-3. Accordingly, the Defendants’
summary judgment motion is DENIED without prejudice.
III. Conclusion
For the foregoing reasons:
(1)

Plaintiff’s motion for a
denied without prejudice;

(2)

Defendants’ motion for
without prejudice; and
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preliminary

summary

injunction

judgment

is

is

denied

(3)

The parties shall meet and confer to develop a joint
discovery plan, and shall notify Magistrate Judge
Schneider, on or before August 9, 2013, whether they
have agreed to a joint discovery plan.

s/Renée Marie Bumb
RENEE MARIE BUMB
United States District Judge
Date: July 19, 2013

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