ACRA TURF CLUB, LLC et al v. ZANZUCCKI

Filing 110

MEMORANDUM OPINION and ORDER granting in part and denying in part 101 Motion to Intervene. NJTHA and SBOA's Motion to Intervene under Federal Rule of CivilProcedure 24(a) is DENIED; NJTHA and SBOA's Motion to Intervene under Federal Rule of Civil Procedure 24(b) is DENIED; NJTHA and SBOA's Motion for leave to file an Amicus Brief is GRANTED; NJTHA and SBOA may jointly file a single Amicus Brief, which complies with the requirements of Local Civil Rule 7.2, within 30 days of the entry of this Order. Signed by Magistrate Judge Douglas E. Arpert on 10/28/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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ACRA TURF CLUB, LLC, et al.,

Plaintiffs,
v.

FRANCESCO ZANZUCCKI
Defendant.

Civil Action No. 12-2775 (MAS)(DEA)
MEMORANDUM OPINION
AND ORDER

ARPERT, Magistrate Judge
This matter comes before the Court on a Motion to Intervene, or, in the alternative, for
leave to file an Amicus Brief, by the New Jersey Thoroughbred Horsemen’s Association
(“NJTHA”) and the Standardbred Breeders’ and Owners’ Association of New Jersey (“SBOA”)
(collectively the “Horsemen”) [Dkt. No. 101].1 Plaintiffs and Defendant both oppose the
Horsemen’s Motion [Dkt. Nos. 108 and 106 respectively]. For the reasons set forth below, the
Horsemen’s Motion is GRANTED in part and DENIED in part.

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As part of the present Motion to Intervene, the Horsemen seek relief under Federal Rule of Civil Procedure 60(b)
from the Court’s Order, which was affirmed by the Third Circuit, denying their initial Motion to Intervene. The
Horsemen argue that relief from the Court’s Order is proper under Rule 60(b)(3), which provides relief from “a final
judgment, order, or proceeding” because of “newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(3). Additionally, a
motion under 60(b)(3) must be made “no more than a year after the entry of the judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1). The Court’s Order denying the Horsemen’s Motion to Intervene was entered
on February 27, 2013, and the present Motion was filed on August 9, 2014, well after one year passed. Accordingly,
the Horsemen’s Motion for relief from the Court’s Order under Rule 60(b), even if proper, would be denied as
untimely.

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I.

BACKGROUND
A. Brief Factual Background
This matter arises out of New Jersey's Off–Track Account Wagering Act (“OTAWA”)

and the Participation Agreement (“Agreement”) between Plaintiffs and the State of New Jersey,
which afforded Plaintiffs ownership, economic, and operational rights in off-track wagering
facilities. Plaintiffs seek a declaratory judgment that three amendments which were subsequently
enacted; (1) 2011 N.J. Laws 26, 2011 P.L. ch.26 (the “Forfeiture Amendment”); (2) 2011 N.J.
Laws 205, 2011 P.L. ch.205, § 2 (the “Deposit Amendment”); and (3) 2011 N.J. Laws 228, 2011
P.L. ch.228 (the “Pilot Program Act”)2 (collectively “the Amendments”), violate Plaintiffs'
constitutional rights under the Contracts Clause, the Fifth Amendment, and the Takings Clause,
and violate Plaintiffs' Equal Protection and Substantive Due Process rights.
During the pendency of this matter, the State Attorney General stayed enforcement of the
OTAWA, and, according to the Horsemen, has taken the position that the New Jersey Racing
Commission (the “Commission”) must work with industry leaders to develop a solution to the
present problems. The Horsemen claim that because the Commission wants the horseracing
industry, including the Horsemen, to develop a solution, “it has failed to protect the interests that
the New Jersey Legislature has granted to the NJTHA to develop off-track wagering in New
Jersey, and to obtain a right to other off-track wagering permits that [P]laintiffs fail to
demonstrate progress to develop.” Dkt. No. 101, Horsemen’s Br. at p. 1-2.

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The Pilot Program, which was designed to assist the struggling horse racing industry and raise revenue, permitted
each holder of a permit under the program to operate a maximum of twenty Off Track Wagering (“OTW”) machine
terminals in a maximum of twelve bars and restaurants throughout northern New Jersey. The Horsemen claim that
the Pilot Program permitted a smaller-scale test to develop mini-OTWs within bars and restaurants, and although it
was initially limited to northern New Jersey, if the Pilot Program was successful, it would eventually be expanded
throughout the entire state. NJTHA has “taken actions to establish a Pilot Program at Jamie’s Cigar Bar in Clifton,
New Jersey.” Horsemen’s Br. at p. 10.

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B. Procedural History
Relevant to the present Motion, NJTHA filed a Motion to Intervene and Dismiss the
Complaint on July 27, 2012 [Dkt. No. 36], which was joined by SBOA on August 7, 2012 [Dkt.
No. 39]. By Order dated August 13, 2012, the Court struck the elements of the Horsemen’s
Motion which sought to dismiss Plaintiffs’ Complaint, finding that “unless and until the Court
grants NJTHA and SBOA leave to intervene, their motions are premature.” Dkt. No. 41 at p. 2.
Subsequently, the Court denied the Motion to Intervene [Dkt. No. 72]. On June 27, 2013,
NJTHA filed an appeal of the Court’s decision with the Third Circuit [Dkt. No. 76]. The Third
Circuit affirmed the Court’s denial of the Motion to Intervene on March 31, 2014 [Dkt. 88]. The
Horsemen filed the present Motion to Intervene on August 9, 2014 [Dkt. No. 101].
II.

DISCUSSION
The Horsemen argue that although their first Motion to Intervene was denied, “a change

in [Defendant’s] legal position demonstrates that intervention is now warranted.” Horsemen’s
Br. at p. 1. In opposition, Plaintiffs and Defendant argue that the Horsemen’s Motion to
Intervene has already been decided by this Court, and is improper under the law of the case
doctrine, and that the Horsemen’s interests continue to be adequately represented by the Attorney
General.
“The law of the case doctrine acts to preclude review of those legal issues that the court
in a prior appeal actually decided, either expressly or by implication.” Pendleton v. Nepa Cmty.
Fed. Credit Union, 303 Fed. Appx. 89, 90 (3d Cir. 2008) (citing In re City of Philadelphia Litig.,
158 F.3d 711, 718 (3d Cir. 1998)). Under the “law of the case” doctrine, “when a court decides
upon a rule of law, that decision should continue to govern the same issues in subsequent states

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of the same litigation.” In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d
Cir. 2009) (citation omitted). “This rule of practice promotes the finality and efficiency of the
judicial process by protecting against the agitation of settled issues.” In re Continental Airlines,
Inc., 279 F.3d 226, 233 (3d Cir. 2002) (quoting Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816 (1988)).
However, because the law of the case doctrine “is a rule of discretion rather than a limit
on authority, it does not apply in ‘extraordinary circumstances.’” Schneyder v. Smith, 653 F.3d
313, 332 (3d Cir. 2011) (citations omitted). Extraordinary circumstances “include situations in
which: (1) new evidence is available; (2) a supervening new law has been announced; or (3) the
earlier decision was clearly erroneous and would create manifest injustice.” Id. at 332-33 (citing
Pub. Interest Research Grp. V. Magnesium Elektron, 123 F.3d 111, 116 (3d Cir. 1997)).
A. Intervention as of Right
Pursuant to Federal Rule of Civil Procedure 24(a), “[o]n timely motion, the court must
permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal
statute; or (2) claims an interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties adequately represent that
interest.”
In their first Motion to Intervene, the Horsemen did not claim an unconditional right to
intervene conferred by federal statute under Rule 24(a)(1). Instead, they argued a right to
intervene under Rule 24(a)(2). A party seeking to intervene pursuant to Rule 24(a)(2) must
demonstrate: (1) the motion to intervene is timely; (2) a sufficient interest in the underlying
action has been established; (3) the interest will be impaired or affected by the disposition of the

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underlying action; and (4) the interest is not adequately represented by an existing party to the
litigation. Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005).
The Court, addressing the Horsemen’s first Motion to Intervene, determined that:
“[t]he limited issue in this action is whether the three challenged
Amendments are constitutional. Here, NJTHA’s and the SBOA’s
interests in establishing that the Amendments are constitutional are
adequately represented by the Attorney General. In fact, the
Attorney General is charged with defending the constitutionality of
the law challenged here.”
Dkt. No. 72 at p. 4. The Court found that NJTHA and SBOA failed to establish the fourth prong
and overcome the presumption that the Attorney General adequately represented their interests.
Id. Accordingly, because the Horsemen failed to demonstrate that their interests were “divergent
from that of the Defendant,” the Court denied the Horsemen’s Motion to Intervene under Rule
24(a)(2). Id.
The Third Circuit, addressing the Horsemen’s appeal, stated that “[i]n this situation ‘a
presumption of adequate representation generally arises when the representative is a
governmental body or officer charged by law with representing the interests of the absentee.”
561 Fed. Appx. 219, 222 (3d Cir. 2014) (citing Commonwealth of Pa. v. Rizzo, 530 F.2d 501,
505 (3d Cir. 1976)). The Third Circuit found that the “Attorney General is charged with
defending the constitutionality of state statutes, N.J. Stat. Ann. § 52:17A-4, and there is no
indication here that the Attorney General, as representative of the Commission, has not actively
fulfilled his statutory role and vigorously defended the Amendments.” Id. Further finding that
“NJTHA and the Commission here have aligned interests: they both want the Amendments to be
upheld and the off track wagering programs to succeed,” the Third Circuit affirmed the Court’s
denial of the Horsemen’s Motion to Intervene. Id.

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In support of their present Motion to Intervene, the Horsemen argue that by permitting
the Commission to stay enforcement of the Amendments, the Attorney General is “selectively
choosing not to enforce the Laws of New Jersey” and therefore no longer adequately represents
the Horsemen’s rights. Horsemen’s Br. at p. 16. In opposition, the Attorney General argues that
the Commission’s choice to stay enforcement of the Amendments pending the Court’s resolution
of their constitutionality “does not contravene the Act and is eminently reasonable under the
circumstances” and states that the Attorney General “is fully and vigorously defending the
enforceability of the Act.” Def.’s Br. at P. 2.
While the Horsemen may disagree with the Attorney General’s decisions in defending
this matter, the Court finds that they have failed to demonstrate an extraordinary circumstance
justifying a deviation from this Court’s and the Third Circuit’s prior rulings on this issue.
Furthermore, even in the absence of the previous rulings denying the Horsemen’s right of
intervention, the Court finds that the Horsemen have again failed to demonstrate that the
Attorney General does not adequately represent their interests in this matter. Therefore, because
the Horsemen have not satisfied the requirements for intervention under Rule 24(a)(2), their
Motion to Intervene is DENIED.
B. Permissive Intervention
Under Federal Rule of Civil Procedure 24(b), “[o]n a timely motion, the court may permit
anyone to intervene who: (A) is given a conditional right to intervene by federal statute; or (B)
has a claim or defense that shares with the main action a common question of law or fact.” When
considering whether to exercise its discretion and allow intervention under Rule 24(b), “the court
must consider whether the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

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In denying the first Motion to Intervene under Rule 24(b), the Court found that where, as
in this matter, “the interests of a party are already adequately represented . . . allowing
intervention would be duplicative . . .” Dkt. No. 72 at p. 5 (citing Hoots v. Commonwealth of Pa.,
672 F.2d 1133, 1136 (3d Cir. 1982)). The Court further found that permitting the Horsemen to
interject new claims would create undue delay “in stark contravention to the mandates of Rule
24(b),” especially because of the limitation of this matter to the constitutionality of the
Amendments.”3 Dkt. No. 72 at p. 5.
The Third Circuit also affirmed the Court’s decision to deny permissive intervention
under Rule 24(b), finding that “[t]he District Court had good reason to deny permissive
intervention” because:
“where, as here, the interests of the applicant in every manner
match those of an existing party and the party’s representation is
deemed adequate, the district court is well within its discretion in
deciding that the applicant’s contributions to the proceedings
would be superfluous and that any resulting delay would be
‘undue.’”
Acra Turf Club, LLC, 561 Fed. Appx. at 222 (citing Hoots, 672 F.2d at 1136). Accordingly, the
Third Circuit held that “[t]he District Court appropriately exercised its discretion when it
concluded that the Horsemen’s interests are aligned with those of the Attorney General and its
unrelated claims would delay the proceeding.” Id.
In support of their present Motion, the Horsemen argue permissive intervention is proper
because while the Court previously “exercised its discretion to deny intervention on the basis that

Addressing the concern of undue delay, the Court noted that “NJTHA has (1) moved to dismiss, which ultimately
was stricken by the Court as premature, (2) appealed the Court’s decision to strike to the Third Circuit Court of
Appeals, which dismissed the appeal for lack of jurisdiction, and (3) sought to file a supplemental brief, arguing in
essence, the same points made in its motion to intervene.” Dkt. No. 72 at n. 1. The Court now notes, as it relates to
undue delay, that since the first Motion to Intervene was denied on February 27, 2013, NJTHA has (1) appealed the
Court’s decision denying its Motion to Intervene to the Third Circuit, which affirmed the Court’s holding, and (2)
filed the present Motion to Intervene.
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NJTHA’s additional claims would complicate the case . . . on this motion, the Horsemen [have]
not raised any additional claims.” Horsemen’s Br. at p. 25. The Horsemen claim their present
intention is only to “participate in the action to provide the Court with the benefit of its expertise
. . .” Id.
The Court finds the Horsemen’s argument unavailing. Although the Horsemen no longer
seek to add new claims to this action, as previously noted, their interests are aligned with and
adequately represented by an existing party. Therefore, it is still within the Court’s discretion to
decide that their “contributions to the proceedings would be superfluous and that any resulting
delay would be ‘undue.’” Acra Turf Club, LLC, 561 Fed. Appx. at 222 (citing Hoots, 672 F.2d at
1136). Accordingly, because the interests of the Horsemen are still aligned with those of the
Attorney General, the Court finds that the Horsemen have failed to establish the existence of any
extraordinary circumstance warranting a deviation from the Court’s decision to deny the
Horsemen’s first Motion to Intervene or demonstrate the propriety of permissive intervention
pursuant to Rule 24(b). Therefore, the Horsemen’s Motion to Intervene under Rule 24(b) is
DENIED.
C. Request to File an Amicus Curiae Brief
As an alternative to intervention, the Horsemen request the Court’s permission to file an
amicus curiae brief in opposition to Plaintiffs’ Motion for Summary Judgment [Dkt. No. 99] and
in support of Defendant’s Cross-Motion for Summary Judgment [Dkt. No. 100]. Plaintiffs and
Defendant also oppose this request.
“District courts have the inherent authority to appoint amicus curiae to assist in their
proceedings.” Price v. Corzine, 06–1520, 2006 WL 2252208 (D.N.J. August 7, 2006) (citing
Liberty Resources, Inc. v. Phila. Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D.Pa.2005)); Avellino

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v. Herron, 991 F.Supp. 730, 732 (E.D.Pa.1998); Liberty Lincoln Mercury, Inc. v. Ford
Marketing Corp., 149 F.R.D. 65, 82 (D.N.J. 1993). “The extent, if any, to which an amicus
curiae should be permitted to participate in a pending action is solely within the broad discretion
of the district court.” Waste Mgmt. of Pa., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D.Pa. 1995)
(citations omitted).
There is no rule in the district court governing the appearance of amicus curiae.
Accordingly, district courts have been guided by the Third Circuit's application of Federal Rule
of Appellate Procedure 29, which governs the appearance of amici in the circuit courts. U.S. v.
Alkaabi, 223 F. Supp. 2d 583, 592 (D.N.J. 2002). However, “[a]t the trial level, where issues of
fact as well as law predominate, the aid of amicus curiae may be less appropriate than at the
appellate level.” Id. at 592 n. 16. A motion to participate amicus curiae is generally granted
when: (1) the amicus curiae has a “special interest” in the particular case; (2) the amicus curiae's
interest is not represented competently or at all in the case; (3) the proffered information is
timely and useful; and (4) the petitioner is not partial to a particular outcome in the case. Liberty
Resources, Inc., 395 F. Supp. 2d at 209.
Although the Horsemen may have a “special interest” in this case under the first prong
and the information they seek to proffer may be timely and useful under the third prong, the
Horsemen fail to meet to requirements of the second and fourth prong. Under the second prong,
as previously discussed, the Horsemen have failed to demonstrate that their interests in this case
are not competently represented by the existing parties. Under the fourth prong, the Horsemen
admit that they are “interested in the outcome.” Horsemen’s Br. at p. 28.
However, in Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128 (3d Cir. 2002), the
Third Circuit questioned the continued propriety of the second and fourth prongs when deciding

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whether to allow the filing of an amicus brief. Addressing the second requirement, that the
interests of the amicus curiae not be competently represented or at all in the case, the Third
Circuit reasoned that “[e]ven when a party is very well represented, an amicus may provide
important assistance to the court” by contributing: (1) “background or factual references that
merit judicial notice”; (2) “particular expertise not possessed by any party to the case”; or (3) an
explanation of “the impact a potential holding might have on an industry or other group.” Id. at
132.
Regarding the fourth requirement, that the petitioner be impartial to the outcome of the
case, the Third Circuit stated that the implication that “a strong advocate cannot truly be the
court’s friend . . . is contrary to the fundamental assumption of our adversary system that strong
(but fair) advocacy on behalf of opposing views promotes sound decision making.” Id. at 131.
Accordingly, the Third Circuit found that “an amicus who makes a strong but responsible
presentation in support of a party can truly serve as the court’s friend.” Id.
Here, the Horsemen wish to present historical information to the Court regarding the
OTAWA Amendments in 2011 and the Pilot Program, which the Horsemen claim has not been
provided to the Court by the parties. The Horsemen argue that this historical information is
required for the Court to “find that the Legislature had a rational basis for amending the
OTAWA and creating the pilot program.” Dkt. No. 109, Horsemen’s Reply Br. at p. 2.
Although the delay caused by the Horsemen in relitigating previously decided issues
gives the Court pause in granting their request to file an amicus brief, in order to preclude the
possibility that a resource that could have been of assistance is absent from the record, will grant
the Horsemen leave to file an amicus brief setting forth the history they believe is required to
complete the record before the Court. See Neonatology Associates, P.A., 293 F.3d at 133 (“[I]t is

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preferable to err on the side of granting leave . . . [and] if an amicus brief that turns out to be
unhelpful is filed, the [Court] . . . can simply disregard the amicus brief.”).
III.

CONCLUSION AND ORDER
Having considered the papers submitted pursuant to Fed. R. Civ. P. 78 and for the

reasons set forth above;
IT IS on this 28th day of October, 2014,
ORDERED that NJTHA and SBOA’s Motion to Intervene, or in the alternative, for
leave to file an Amicus Brief [Dkt. No. 101] is GRANTED in part and DENIED in part; and it
is further
ORDERED that NJTHA and SBOA’s Motion to Intervene under Federal Rule of Civil
Procedure 24(a) is DENIED; and it is further
ORDERED that NJTHA and SBOA’s Motion to Intervene under Federal Rule of Civil
Procedure 24(b) is DENIED; and it is further
ORDERED that NJTHA and SBOA’s Motion for leave to file an Amicus Brief is
GRANTED; and it is further
ORDERED that NJTHA and SBOA may jointly file a single Amicus Brief, which
complies with the requirements of Local Civil Rule 7.2, within 30 days of the entry of this Order.

Dated: October 28, 2014

/s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge

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