D. RUSSO INC. et al v. ROMANKOW et al

Filing 90

OPINION AND ORDER granting in part and denying in part 78 Motion for Summary Judgment: Denying Defendants' affirmative defense of qualified immunity to claims of violation of 42 U.S.C. § 1983; Granting all claims against Defendant, The T ownship of Union Police Department and Judgment on all claims is hereby entered in Defendants' favor; Granting the Fifth Count of the SAC and Judgment on the Fifth Count is hereby entered in Defendantsfavor; Denying 83 Motion for Partial Summary Judgment, etc. Signed by Judge Stanley R. Chesler on 08/02/2017. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
D. RUSSO INC. et al.,
:
:
Plaintiffs,
:
:
v.
:
:
JEFFREY CHIESA et al.,
:
:
Defendants.
:
____________________________________:

Civil Action No. 12-2397 (SRC)

OPINION & ORDER

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
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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
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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 in their favor at trial.
Plaintiffs’ brief fails to even identify what constitutional right was violated – much less
offered sufficient evidence to lead a jury to conclude that such a violation had occurred. As to
the Monell claim, Plaintiffs have pointed to a single letter as a “smoking gun,” but have not even
dipped a toe into the topic of what constitutional right the letter violated, or how it did so. The
Supreme Court has held: “As in any action under § 1983, the first step is to identify the exact
contours of the underlying right said to have been violated.” County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998). Plaintiffs have failed to take this first step, and the First Count of
the Second Amended Complaint gives only a long and general list of constitutional rights. (SAC
¶ 164.) Plaintiffs have failed to point to sufficient evidence to allow a jury to find at trial that a
constitutional violation has occurred.1 As to the First Count, as to the Township only, Plaintiffs

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Because Plaintiffs have failed to point to sufficient evidence to allow a jury to find a
constitutional violation, this Court need not reach the legal questions involved in determining
whether the Antonelli letter can give rise to Monell liability for the Township, such as whether a
letter from the Township attorney is the kind of official action from which municipal liability can
arise, or whether a municipal action warning of future enforcement of a state statute is policy
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have failed to defeat the motion for summary judgment. As to the First Count, as to the
Township only, the motion for summary judgment will be granted, and Judgment on the First
Count will be entered in the Township’s favor.
Defendants next move for summary judgment on the affirmative defense of qualified
immunity for the individual Defendants, as to the claim under § 1983 that the individual
Defendants violated the constitutional rights of Plaintiffs. Defendants cite Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982), in which the Supreme Court held: “government officials performing
discretionary functions, generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” A movant seeking summary judgment on an affirmative
defense “bear[s] the burden of proof at trial and therefore must show that it has produced enough
evidence to support the findings of fact necessary to win.” El v. SEPTA, 479 F.3d 232, 237 (3d
Cir. 2007). The problem here, as Defendants state, is this:
Furthermore, plaintiffs have failed to identify the actions of each individual
defendant in this matter. Plaintiffs seem to have included certain defendants
simply because they were copied on a letter to Hott 22 dated April 13, 2012. The
Complaint does not allege any specific facts and plaintiffs have taken no
discovery, including depositions, which would reveal any such actions. There is
no evidence whatsoever that the actions of the defendants were unreasonable
under the circumstances, and they are entitled to summary judgment as a matter
of law.
(Defs.’ Br. 14.) Because Plaintiffs have not identified which actions by which individual
Defendants are alleged to have violated which constitutional rights of which Plaintiff,
Defendants are in no position at this juncture to show that they have produced enough evidence

attributable to the municipality for purposes of Monell liability.
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to support the findings of fact necessary to win on their affirmative defense. As to the
affirmative defense of qualified immunity, the motion for summary judgment will be denied.
Defendants have, however, made the argument that Plaintiffs have no evidence “that the
actions of the defendants were unreasonable under the circumstances, and they are entitled to
summary judgment as a matter of law.” (Id.) They have thus also moved for summary judgment
on the § 1983 claim against the individual Defendants. Here, Defendants are the movant without
the burden of proof at trial, and they satisfy their initial summary judgment burden by pointing to
the absence of evidence to support Plaintiffs’ case. The burden then shifts to Plaintiffs to point
to sufficient evidence to allow a jury to find in their favor on the § 1983 claim at trial.
Plaintiffs’ opposition brief contains a section devoted to their § 1983 case against
Defendants. The brief presents Plaintiffs’ § 1983 case as follows:
In reviewing the matter at bar, the violations by Defendants under color of law are
as follows:
1. Violations of the First Amendment by chilling and intimidating free expression
by threatening criminal prosecution for something which is not a crime, and for
which no lasting conviction could be obtained despite three attempted
prosecutions. This includes evidence that the 1000-foot distance was disputed at
least as early as 2008, four years before this action commenced.
2. Violations of the Due Process Clause: Defendants sought to shut Plaintiffs’
business using the force of law, including the Police Department when a stay of
future litigation continued to be in place, and when the Russo conviction had been
vacated. The same was ultimately never reinstated but Defendants attempted
extra-judicial punishment regardless;
3. Violations of the Fourth Amendment: The Police Department engaged in a
warrantless search and seizure shortly after this case began, apparently to using
the color of law to attempt to commence a false prosecution (the indictment that
flowed from said raid was dismissed and resulted in the published opinion in State
v. Eldakroury) to gain an unfair advantage in this litigation and further the errant
policy of the Township, its Corporation Counsel and its Mayor.

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This quote is Plaintiffs’ brief’s most detailed statement of their § 1983 case. What is
immediately apparent is that there are no citations to any evidence of record in support.2
Furthermore, the statements are merely conclusory summary statements, containing no specific
allegations about who did what to whom. Nor does Plaintiffs’ Rule 56.1 statement of undisputed
facts fill in these voids: it does not specifically identify any individual Defendant who is alleged
to have engaged in any specific action which violated the constitutional rights of any particular
Plaintiff, accompanied by supporting evidence.
“One of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.” Celotex, 477 U.S. at 323. Defendants challenged
Plaintiffs to show that they have evidence to support a viable case against any individual
Defendant for violation of § 1983, and Plaintiffs have failed to meet their burden. This Court
concludes that Plaintiffs lack sufficient evidence to prove any § 1983 claim against any
individual Defendant. As to the § 1983 claim against the individual Defendants, the motion for
summary judgment will be granted, and Judgment on the § 1983 claim will be entered in favor of
the individual Defendants.
Defendants next move for judgment on the issue of whether the Township has enacted
any ordinance that reduces the radius of N.J.S.A. § 2C:34-7. Defendants’ brief does not connect

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The Third Circuit has stated:

It has been oft-noted that “Judges are not like pigs, hunting for truffles buried in
the record.” And this Court has frequently instructed parties that they bear the
responsibility to comb the record and point the Court to the facts that support their
arguments.
United States v. Claxton, 766 F.3d 280, 307, 61 V.I. 715 (3d Cir. 2014) (citations omitted).
Plaintiffs have not taken heed of this guidance.
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this point to a particular claim, but it appears to address the Fifth Count of the SAC. Paragraph
178 of the SAC alleges that, in January of 2011, the Township passed an ordinance “which
shrunk the buffer zone for sexually oriented businesses from 1000 feet to 600 feet.” The Fifth
Count seeks a declaration that, prior to enactment of this ordinance, Hott 22 was outside the 600
foot buffer zone. Defendants argue that the ordinance referred to in the SAC does not apply to
Hott 22 because it only applies to “go-go” dancing establishments, and Hott 22 does not fall
within this group. Plaintiffs’ opposition brief does not respond to this part of Defendants’
motion, and this Court construes Plaintiffs’ silence as both a concession that Defendants are
correct and as an abandonment of the Fifth Count. As to the Fifth Count, the motion for
summary judgment will be granted, and Judgment on the Fifth Count will be entered in favor of
Defendants.
Defendants next argue that Plaintiffs are not entitled to nonconforming use protection
based on the assertion that their property use pre-dated the enactment of SOBA. Plaintiffs
respond that they have not sought relief under any such argument. It appears that Defendants’
argument pertains to paragraph 182 in the Fifth Count of the SAC, which alleges that Hott 22
was engaged in lawful use prior to the enactment of the new zoning ordinance by the Township;
given that this Court has just decided to grant the motion for summary judgment on the Fifth
Count, this point is moot.
Plaintiffs opposed Defendants’ summary judgment motion and filed a cross-motion for
summary judgment. The cross-motion seeks summary judgment on two matters: 1) Plaintiffs
move for a declaratory judgment that they are not in violation of SOBA, N.J.S.A. § 2C:34-7; and
2) Plaintiffs move for judgment on their claims pursuant to 42 U.S.C. § 1983. As to Plaintiffs’

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motion for summary judgment on their claims pursuant to 42 U.S.C. § 1983, the motion will be
denied for the reasons already stated.
As to the motion for a declaratory judgment of no violation of SOBA, Defendants, in
opposition, argue that this matter has already been adjudicated both in the courts of the State of
New Jersey, and in this Court’s Opinion of May 16, 2013. In the Opinion of May 16, 2013, this
Court dismissed with prejudice the Second, Sixth, Eighth, and Ninth counts in the First
Amended Complaint on the basis of various preclusion doctrines. The Second Count of the First
Amended Complaint sought a declaratory judgment that Plaintiffs are not in violation of SOBA.
Thus, the “Tenth Count” (which is really the Sixth Count) in the Second Amended Complaint, to
the extent that it seeks a declaratory judgment that Plaintiffs do not violate SOBA, reasserts a
claim that this Court has already dismissed with prejudice. (SAC ¶ 188.) To the extent that the
Second Amended Complaint seeks to reassert claims previously dismissed with prejudice, those
claims are a nullity, and are hereby stricken from the Second Amended Complaint. The present
cross-motion for a declaratory judgment therefore seeks judgment on a claim that is not present
in the SAC, and will be denied.
For these reasons,
IT IS on this 2nd day of August, 2017
ORDERED that Defendants’ motion for summary judgment (Docket Entry No. 78) is
GRANTED in part and DENIED in part; and it is further
ORDERED that, as to Defendants’ affirmative defense of qualified immunity to claims
of violation of 42 U.S.C. § 1983, Defendants’ motion for summary judgment is DENIED; and it
is further

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ORDERED that, as to all claims against Defendant The Township of Union Police
Department and all claims pursuant to 42 U.S.C. § 1983, Defendants’ motion for summary
judgment is GRANTED, and Judgment on all claims against Defendant The Township of Union
Police Department and all claims pursuant to 42 U.S.C. § 1983 is hereby entered in Defendants’
favor; and it is further
ORDERED that, as to the Fifth Count of the SAC, Defendants’ motion for summary
judgment is GRANTED, and Judgment on the Fifth Count is hereby entered in Defendants’
favor; and it is further
ORDERED that, to the extent that the Second Amended Complaint asserts claims
seeking a declaration that Plaintiffs are not in violation of SOBA, such matter is hereby
STRICKEN from the Second Amended Complaint; and it is further
ORDERED that Plaintiffs’ cross-motion for summary judgment (Docket Entry No. 83)
is DENIED.

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

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