HARMON et al v. BOROUGH OF BELMAR et al

Filing 63

MEMORANDUM AND ORDER that Defendant's 56 Motion to Dismiss is granted in part. Counts I, II, III, IV, V, VI, VII and VIII are dismissed with prejudice. Defendant must effectuate service on Defendant Thomas Palmisano within sixty (60) days of the date of this Order. Signed by Judge Peter G. Sheridan on 11/20/2018. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TIMOTHY HARMON, et at.,

Civil Action No.
3:17-cv-2437 (PGS) (TJB)

Plaintiffs,
MEMORANDUM
AND ORDER

v.
BOROUGH OF BELMAR. et at.,
Defendants.

SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion by Defendants to dismiss Plaintiffs’ Third
Amended Complaint for failure to state a claim upon which relief can be granted. The nine-count
complaint alleges: (1) due process violations under the Fourteenth Amendment, pursuant to 42
U.S.C.

§

1983; (2) violations of the equal protection clause of the Fourteenth Amendment,

pursuant to 42 U.S.C.

§

Act (RICO), 18 U.S.C.

1983; (3) violations of the Racketeer Influenced Corrupt Organizations

§

1961 et seq.; (4) violations of the New Jersey counterpart of RICO,

N.J.S.A. 2C:41-1 to -6.2; (5) intentional interference with a contractual relationship; (6) intentional
interference with prospective economic advantage; (7) intentional infliction of emotional distress;
(8) violation of the New Jersey Civil Rights Act; and (9) retaliation for exercise of First
Amendment rights.

In addition to damages, Plaintiffs seek injunctive relief, directing the Borough to approve
their transfer application and to permit them to operate their leased restaurant facility for a threeyear period. Defendants seek dismissal of Plaintiffs’ Complaint in its entirety.
FACTUAL BACKGROUND

Plaintiffs Timothy and Matthew Harmon (Harmon Plaintiffs) maintain restaurants and bars
in the Borough of Belmar, New Jersey, including the Boathouse Bar and Grill (Boathouse). (Third
Amended Complaint (TAC), ¶ 2-3). Plaintiff 1309 Main Street Associates (1309 Main) is an entity
owned by the Harmon Plaintiffs, which, in turn, owns the property on which the Boathouse is
located. (Id. at

¶

3). In January 2014, the Borough entered into a redevelopment agreement with

real estate developer, Loko, LLC. (Id. at ¶ 8). The plan included the construction and operation of
an outdoor cafe and bar, located at the northern boundary of the Borough by the Shark River Inlet
(Loko property). (Id. at

¶

10, 13). Thereafter, Plaintiffs entered into an agreement with Loko to

construct the outdoor cafe and bar, and to operate the facility for a three-year period. (Id. at ¶ 13).
As part of the agreement, Plaintiffs were to transfer the alcoholic beverage license from another
restaurant that they controlled, 507 Main, to the Loko property, which would operate a facility to
be known as Salt. (Id. at

¶

15).

Plaintiffs ceased operation of 507 Main and, on April 24, 2015, applied to the Borough for
the transfer of the alcoholic beverage license at 507 Main to the Loko property. (Id. at

¶

16). To

secure the transfer, Plaintiffs submitted a “Retail Liquor License Application.” (Id. at

¶

17;

Declaration of April Claudio, ECF No. 56-2, Ex. H, Liquor License Application). During this same
period, Loko demolished the existing structure on its property, in preparation for the construction
of the Salt facility and other improvements. (TAC at

2

¶

14). Thereafter, Plaintiffs claim to have

“engaged contractors, expended substantial funds, obtained construction and other permits from
the Borough and began the process of constructing the Salt facility.” (Id.).
According to Complaint, Plaintiffs expected their application would be handled by the
Belmar Police Department, which would have a detective investigate the application and prepare
a report for the Mayor and Borough Council within sixty days. (Id. at

¶

19). Plaintiffs allege that

the Belmar Police Department handled similar liquor license applications for other local
restaurants, Chefs International, Inc., and 10th Avenue Burrito Company, which were both outdoor
bars and dining areas with live music, and were near residential structures, including a senior
citizens’ apartment building. (Id. at ¶ 20-2 1). However, the Complaint alleges that, contrary to the
“policies and procedures” of the Belmar Police Department, Palmisano, as former Chief of Police,
assigned Plaintiffs’ application to Huisman, then a Captain of the Police Department who did not
ordinarily investigate alcoholic beverage licenses. (Id. at ¶ 22).
At an April 2015 meeting, Mayor Doherty allegedly made the following statements: (1)
“The Borough will approve D’Jais or Ollie Klein’1 at that location, but not the Harmon brothers”;
(2) “The Harmons’ application is going to get lost at police headquarters and it’s going to take
forever to come to the Council”; (3) “When the Harmons’ application comes before the Council,
we will deny the liquor license and force them to go to the ABC”; and, (4) “We know people there
(at the ABC) and if by chance they approve the transfer, we will appeal. They will never open.”
(Id. at

¶ 48). Nevertheless, on June 8, 2016, over one year after Plaintiffs filed their liquor license

application, it was heard before Councilmen Brennan and Magovern, and Councilwomen Keown
Blackburn and Nicolay (hereinafter, “Council Defendants”). (Id.

¶ 62,

65, 66, 6870, 72). Prior to

the hearing, Mayor Doherty and Connolly allegedly urged Belmar residents and business owners

The names of two other local restaurants.

3

to appear at the meeting and oppose Plaintiffs’ license transfer, (Id. at ¶ 63), and instructed Nicolay,
Keown-Blackburn, and Magovern to vote “no,” (Id. at ¶ 70). At the hearing, Councilman Brennan
recused himself from deliberations, due to a potential conflict of interest, since his band plays at
many local establishments. (Id. at

¶ 67).

During the public deliberation, Councilwoman Keown

Blackburn stated that she did not believe the license transfer was in the best interests of the
Borough and voted against it. (Id. at

¶

68; Claudio Deci., ECF No. 56-2, Ex. I Council Meeting

Minutes, at 2). Similarly, Councilwoman Nicolay expressed concern about the potential “security,
parking, and noise” issues, and voted against the transfer as well. (TAC, at ¶ 68; Council Meeting
Minutes, at 3). Councilman Magovem disagreed, noting that the impact of the transfer would be
no different than similar establishments; he also acknowledged that he knew the Harmons and
“fe[lt] they would do a good job.” (Council Meeting Minutes, at 3). He voted in support of the
application; however, since there was only one vote in favor, it did not pass. (Id.).
Plaintiffs Dockside Dining and DCJ Belmar, interests controlled by the Harmon Brothers,
appealed the denial a week later to the Division of Alcoholic Beverage Control (ABC), within the
Department of Law and Public Safety. (Cladio Deci., ECF No. 56-2, Ex. J, Appeal). On November
3, 2017, Plaintiffs withdrew the appeal, since their lease of the property had expired, and a new
Redevelopment Agreement had been entered between the Borough and Loko, LLC. (Claudio
Decl., ECF No. 56-2, Ex. L, Withdrawal Letter). Before withdrawing their appeal, Plaintiffs
Dockside Dining and the Harmon Brothers had filed a Tort Claim Form against the Borough on
August 17, 2015. (Claudio Decl., ECF No. 56-2, Ex. AA, Tort Claim Form I). Named defendants
included Doherty, Connolly, Huisman, and Palmisano. (Id.) The claim alleged, “[tjhe Borough
and its police department have negligently or intentionally failed to investigate and otherwise
process Claimants’ application for alcoholic beverage license transfer.” (Id.) The notice form was

4

amended two more times, first to add Nicolay, Brennan, Connolly, and Keown-Blackbum as
defendants, (Claudio Deci., ECF No. 56-2, Ex. BB “Tort Claim Form II”). In describing the
“wrongful acts” the amended claim added, “Maliciously, intentionally or in a grossly negligent
manner denied the aforesaid application without legal or factual basis.” (Id.). The Second
Amended Tort Claim Form made no changes to the parties involved or the description of the cause
of action. (Claudio, Deci., ECF No. 56-2, Ex. CC “Tort Claim Form III”).
In April 2015, while Plaintiffs’ liquor license application remained pending, Mayor
Doherty and Borough Administrator Connolly allegedly engaged in a “concerted effort to prevent
the Plaintiffs from constructing and opening the Salt facility.” (TAC at

¶

29). Mayor Doherty

allegedly told individuals “that the Plaintiffs ‘would never open a business’ in that location.” (Id.).
Doherty and Connolly allegedly directed Bianchi, as Borough Construction Officer, “to delay,
deny and/or refuse to issue permits” for Plaintiffs’ construction, despite already having received
approval from the Borough Planning Board, to which Bianchi complied. (Id. at ¶ 34). On another
occasion, Connolly directed Huisman and Palmisano to send police officers to the Salt property.
(Id. at

¶ 38).

The officers threatened to arrest the workers if they did not stop work. (Id.).

During that summer, Plaintiffs claim that Connolly and Huisman filed a false Coastal Area
Facility Review Act (CAFRA) claim with the New Jersey Department of Environmental
Protection, “in an effort to stop the project.” (Id. at ¶ 44). Neither Connolly nor Huisman were able
to produce a copy of any violation and Kapalko later verified that no violation existed. (Id.). That
fall, Huisman appeared before the Belmar Planning Board, to object to the site plan for the Salt
facility. (Id. at

¶

28). Huisman claimed that the facility’s lighting was inadequate, which

purportedly contradicted a report prepared by the Board’s licensed engineer. (Id.). At some point

5

thereafter, Plaintiff claims that Doherty and Connolly also directed a Stop Work Order on the Salt
project, which was later issued by Bianchi. (Id. at ¶ 37).
Plaintiffs also assert claims relating to the Boathouse, another restaurant they own in
Belmar. At its core, those allegations relate to Huisman’s alleged attempt to prevent the Boathouse
from obtaining a permit to expand its premises during the February 2016 St. Patrick’s Day parade.
(Id. at ¶ 59). According to the Complaint, Huisman also advised he would be “standing outside the
Boathouse on the day of the St. Patrick’s Day Parade” and would “immediately shut down the
Boathouse” if he found any violations. (Id. at ¶ 59). Plaintiffs do not allege that the permit was in
fact denied or that Huisman took any action to shut down the restaurant during the parade.
In addition, Plaintiffs allege Doherty had a personal desire to stop their project, claiming
that he received assistance from officers of Chef’s International to obtain a fifth mortgage on his
house. They also allege that Doherty indirectly received political contributions from D’Jais, and
that he was present at the grand opening of Anchor Tavern and stated that he had “a lot invested
in this place.” (TAC, at ¶J 80-9 1).
LEGAL ANALYSIS

On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the
Court is required to accept as true all allegations in the Complaint and all reasonable inferences
that can be drawn therefrom, and to view them in the light most favorable to the non-moving party.
See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.” Ashcrofl v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court will accept well-pleaded
allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported

6

conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual
allegations. Iqbal, 556 U.S. at 678-79; see also Morse v. Lower Merion School District, 132 F.3d

902, 906 (3d Cir. 1997). A complaint should be dismissed only if the well-pleaded alleged facts,
taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000).
1309 Main’s Standing
Defendants first contend that “the TAC does not allege that 1309 suffered any harm as a
result of Defendants’ alleged actions” and therefore lacks standing. (Defendants’ Brief, ECF 561, at 20). According to the TAC, 1309 Main is “an entity owned by Plaintiffs Timothy and Matthew
Harmon,” which owns the real estate where the Boathouse is located.
To have standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). As owner of the
property on which the Boathouse sits, 1309 Main has standing to assert claims relating to that
property, but only to the extent that the allegations affect development of the property or otherwise
diminished the its value. Toll Bros., Inc. v. Twp. ofReadington, 555 F.3d 131, 141 (3d Cir. 2009);
Taliaferro v. Darby Twp. Zoning Rd., 458 F.3d 181, 190 (3d Cir. 2006). As Plaintiffs’ Boathouse

allegations set forth no such claims, 1309 Main lacks standing to bring those claims and similarly
lacks standing to bring any claims relating to the Salt facility.
Substantive Due Process
“Section 1983 imposes civil liability upon any person who, acting under the color of state
law, deprives another individual of any rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Shuman v. Penn Manor Sch. Dist., 433 F.3d 141, 146
(3d Cir. 2005). “As a general matter, [courts have] always been reluctant to expand the concept of

7

substantive due process because guideposts for responsible decisionmaking in this uncharted area
are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992). “The history of
substantive due process ‘counsels caution and restraint.” Nicholas v. Pa. State. Univ., 227 F.3d
133, 140 (3d Cir. 2000) (quoting Regents of Univ. of Mich. V. Ewing, 474 U.S. 214, 229 (1985)
(Powell, J., concurring)). It is “a doctrine reserved for egregious official conduct that trenches upon
the most fundamental of civil liberties.” Armbruster v. Cavanaugh, 410 Fed. App’x 564, 565 (3d
Cir. 2011).
“To state a substantive due process claim, ‘a plaintiff must have been deprived of a
particular quality of property interest.” Nicholas, 227 F.3d at 140 (citation omitted). Determining
what is considered a “particular quality” “depends on whether that interest is ‘fundamental’ under
the United States Constitution.” Id. “[T]his Circuit has adopted an approach.

.

.

that focuses on

the nature of the property interest at stake.” Id. at 141. In this context, Plaintiffs aver that they have
three constitutionally viable substantive due process interests: (1) their interest in the property as
leaseholders; (2) their interest in engaging in business in the location; and (3) their interest in
pursuing their calling, occupation, or livelihood. 1309 Main also sets forth a substantive due
process claim relating to its ownership interest in the Boathouse property.
With regard to Plaintiffs’ first claimed interest, this Court found in its February 26, 2018
opinion that “fatal to Plaintiffs’

...

[a]llegations is the fact that they do not own the property where

the alleged misconduct took place.” (February 26, 2018 Opinion, at 13). Plaintiffs contend they
were deprived of their “property interest in developing and operating the business anticipated to
be established on the property leased from Loko,” (Plaintiffs’ Brief, at 19), and urge the Court to
depart from the law of this case.

8

As this Court’s prior opinion recognized, in Selig v. North Whitehall Township Zoning
Hearing Board, 653 Fed. App’x 155, 157 (3d Cir. 2016), the Third Circuit stated, “We are not
aware of any case in which we have found that something other than full property ownership
warrants substantive due process protection.” Further, in Nicholas, the Third Circuit stated, “[W]e
have so far limited non-legislative substantive due process review to cases involving real property
ownership.” 227 F.3d at 141. The Court notes this Third Circuit precedent and declines to depart
from the law-of-the-case-doctrine in this context despite nonbinding case law cited by plaintiffs.
See, e.g., Am. Marine Rail Ni, LLC v. City of Bayonne, 289 F. Supp. 2d 569, 582-83 (D.N.J.
2003).
Plaintiffs’ other claimed right to operate a business is not a recognized substantive due
process right. See Wrench Transp Sys., Inc. v. Bradley, 340 Fed. App’x 812, 815 (3d Cir. 2009)
(finding plaintiff’s claimed “right to ‘engage in business” was “not protected by substantive due
process”); Flanders v. Dzugan, 156 F. Supp. 3d 648, 665 n.10 (W.D. Pa. 2016) ([T]o the extent
[plaintiff] complains that Defendants interfered with his ability to run his business, this allegation
cannot serve as the basis for a substantive due process claim, because [plaintiff] did not have any
constitutionally protected property interest in his business.”). And Plaintiffs’ final substantive due
process argument, that they were deprived of their right to pursue their calling, occupation, or
livelihood, (Plaintiffs’ Brief, at 27), is similarly meritless. To allege a violation of their right “to
hold specific private employment and to follow a chosen profession free from unreasonable
government interference,

.

.

.

Plaintiffs must allege an inability to obtain employment within the

field, not just a particular job or at a specific location or facility.” Culinary Serv. of De. Valley,
Inc. v. Borough of Yardley, Pa., 385 Fed. App’x 135, 141 (3d Cir. 2010). Plaintiffs’ substantive
due process claims are therefore without merit.

9

Procedural Due Process
The Court similarly finds that Plaintiffs have failed to state a procedural due process claim,
which requires a plaintiff to “allege that (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2)
the procedures available to him did not provide ‘due process of law.” Hill v. Borough ofKutztown,
455 F.3d 225, 233-34 (3d Cir. 2006). “[T]he fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner but the concept is
flexible, calling for protection as dictated by the particular circumstances.” Kahn v. United States,
753 F.2d 1208, 1218 (3d Cir. 1985). “[S]ubstantive mistakes by administrative bodies in applying
local ordinances do not create a federal claim so long as correction is available by the state’s
judiciary.” Cohen v. City of Phila., 736 F.3d 81, 86 (3d Cir. 1984), superseded in part on other
grounds by Cleveland Park Bd. of Educ. V Loudermill, 470 U.S. 532 (1985). However, “[w]hen
access to [the] procedure is absolutely blocked or there is evidence that the procedures are a sham,
the plaintiff need not pursue them to state a due process claim.” Alvin v. Suzuki, 227 F.3d 107, 118
(3d Cir. 2000).
Although the Court recognizes “a New Jersey liquor license is an interest in property for
purposes of federal due process analysis,”2 see Sea Girt Restaurant & Tavern Owners Ass ‘n v.
Borough ofSea Girt, 625 F. Supp. 1482, 1488 (D.N.J. 1986), “a local agency may deny a license
application without a hearing so long as prompt administrative or judicial review of the action is
available thereafter.” Maple Prop., Inc. v. Twp. of Upper Providence, 151 Fed. App’x 174, 17778 (3d Cir. 2005). As the Court has already ruled, (see Feb. 26, 2018 Opinion, at 16-17), the delay
associated with the transfer application did not constitute a due process violation because Plaintiffs

Plaintiffs only argue that the delayed liquor license transfer not Boathouse- or construction-related claims
a denial of procedural due process. (See Plaintiffs’ Brief, ECF No. 60, at 2 1-24).

2

—

10

—

was

failed to avail themselves of appellate relief, which they could have done after sixty days of delay,
see N.J.A.C.

§

13:2-7.7(d), and they later withdrew their application.

Further, Plaintiffs fail to allege they were denied due process because Defendants blocked
their administrative remedies by amending the Redevelopment Agreement to preclude the use
proposed by Plaintiffs. (See Claudio Decl., Ex. L). Plaintiffs’ lease agreement expired on October
31, 2017, and on November 3, Plaintiffs withdrew their administrative appeal. (Claudio Decl. Ex.
L). In light of the short-lived nature of Plaintiffs’ lease, which
Agreement

—

—

in addition to the Redevelopment

resulted in the appeal being withdrawn as moot, the Court finds no due process

violation. The Court also reiterates that if Plaintiffs had availed themselves of appellate relief after
their application was delayed for sixty days pursuant to N.J.A.C. 13:2-7.7(d), they would likely
have avoided the problems allegedly caused by the Redevelopment Agreement.
First Amendment Retaliation
Plaintiffs allege that Defendants retaliated against them for their exercise of First
Amendment rights arising from their political opposition to a State Senate bill; a claim asserted
for the first time in the Third Amended Complaint. From June 2015 to January 2016, Plaintiffs
Timothy and Matthew Harmon advocated to state legislators their opposition to a proposed State
Senate bill “to extend the period of operation of seasonal alcoholic beverage licenses.” (TAC, at ¶
84). “At the end of 2015,” they testified before a State Assembly committee in opposition to the
bill. (TAC, at

¶ 85).

Plaintiffs allege that Defendants Doherty and D’Jais supported the bill, (id. at

¶ 84), and, in retaliation, “interfered with and harassed the Plaintiffs in the construction of the Salt
facility; issued illegal and improper stop work orders; and otherwise acted to disrupt and disturb
the Plaintiffs’ project,” (Id. at ¶ 173).

11

To successfully allege a

§

1983 claim for retaliation for exercise of First Amendment rights,

Plaintiff must set forth that “1) the plaintiff engaged in activity protected by the First Amendment;
2) the defendant took retaliatory action against the plaintiff ‘sufficient to deter a person of ordinary
firmness from exercising his or her rights’; and 3) a causal nexus existed between the protected
activity and the retaliation.” Rink v. Ne. Educ. Intermediate Unit 19, 717 Fed. App’x 126, 133 (3d
Cir. 2017) (quoting Lauren W. ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
The retaliatory acts alleged with respect to prong two must be sufficient to “deter a person
of ordinary firmness from exercising his or her First Amendment rights”; the test is not “whether
Defendant’s

.

.

.

[actionsj actually deterred Plaintiffs from speaking.” Citizens for a Better

Lawnside, Inc. v. Bryant, 2007 WL 1557479, at 6 (D.N.J. May 24, 2007). To establish a causal
nexus, the third prong, a plaintiff must show “either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” Lauren W, 480 F.3d at 267. The second
and third prongs of the test pose questions of fact, rather than of law. See Thomas v. Independence
Twp., 463 F.3d 285, 296 (3d Cir. 2006); Fredericks v. Twp. of Weehawken, 2012WL 5628196, at
7 (D.N.J. Nov. 15, 2012).
Although plaintiffs do not explicitly state that defendants knew of their protected activity,
they allege generally that they have opposed the legislation of which Doherty and others have been
proponents. Further, the alleged retaliatory acts, having begun at the same time as their advocacy,
were temporally connected to plaintiffs’ protected activity. In addition, Doherty’s statements and
the actions taken against plaintiffs and their businesses continued after plaintiffs’ public testimony.
The Court finds plaintiffs have sufficiently alleged a pattern of antagonism coupled with timing to
establish a causal link to satisfy the causal nexus requirement.

12

As to the retaliatory-action prong of the test, Plaintiffs contend “the threats of arrest, the
stopping of work at the site, the multiple acts of singling out the Boathouse for enforcement and
different rules, all clearly show a retaliatory force which is anything but de minimus.” (Plaintiffs’
Brief, ECF No. 60, at 43). The Court agrees that these allegations would deter a person of ordinary
firmness from exercising their First Amendment rights and therefore shall decline to dismiss
plaintiff’s claim for first amendment retaliation.
Equal Protection
Under a “class of one” claim

—

asserted herein

—

the plaintiff must demonstrate that: “1) it

‘has been intentionally treated differently from others similarly situated,’ and 2) ‘there is no
rational basis for the difference in treatment.” Highway Materials, Inc. v. Whitemarsh Twp., 386

F. App’x 251, 259 (3d Cir. 2010) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)). Plaintiffs contend this requirement is satisfied because the other establishments cited
“have (1) outdoor seating; (2) alcohol service; (3) entertainment; and (4) approved liquor license
transfers.” Plaintiffs’ Brief, at 46.
“[Djetermining whether an individual is ‘similarly situated’ to another individual is a caseby-case-fact-intensive inquiry.” Suber v. Guinta, 902 F. Supp. 2d 591, 607 (E.D. Pa. 2012). The
plaintiff “must allege facts sufficient to make plausible the existence of such similarly situated
parties.” Perano v. Twp. Of Tilden, 423 Fed. App’x 234, 238 (3d Cir. 2011). As to the second
prong, “[r]ational basis review is a very deferential standard. It is met ‘if there is any reasonably
conceivable state of facts that could provide a rational basis’ for the differing treatment.” Newark

Cab Assoc. v. City ofNewark, 901 F.3d 146, 156 (3d Cir. 2018) (quoting United States v. Walker,
473 F.3d 71, 77 (3d Cir. 2007)).

13

The TAC, like the initial complaint, fails to establish that Defendants treated Plaintiffs
differently from others similarly situated. The TAC does not allege that the other identified
businesses were tenants on the property, or whether a hearing was held before the Borough Council
concerning the viability of the outdoor facility. Moreover, as the Court stated previously, the TAC
“fails to demonstrate that there was an arbitrary or irrational basis for denying their application.”
Feb. 26, 2018 Opinion, at 18-19. The Court therefore finds Plaintiffs’ Equal Protection claims
must fail.
New Jersey Civil Rights Act Claims
Plaintiffs assert the same claims in alleging a violation of the NJCRA as they do in their
claim of a

§

1983 violation. “[T]he NJCRA was intended to serve as an analog to

[

1983]; it was

intended to incorporate and integrate seamlessly with existing civil rights jurisprudence.”
Chapman v. New Jersey, 2009 WL 2634888, at 3 (D.N.J. Aug 25, 2009) (citation omitted). The
Court’s ruling on Plaintiffs’ NJCRA claims shall reflect its already-discussed rulings on the

§

1983

claims.
Federal and State RICO Claims
The federal RICO act, 18 U.S.C.

§

1962(c), prohibits “any person employed by or

associated with any enterprise engaged in, or the activities of which affected interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity.” “To plead a RICO claim under

§

1962(c) the

plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity.” In re Brokerage Antitrust Litig., 618 F.3d 300, 363 (3d Cir. 2010). “A pattern of
racketeering activity requires at least two predicate acts of racketeering.” Lum v. Bank ofAm., 361
F.3d 217, 223 (3d Cir. 2004).

14

Plaintiffs allege that Defendants committed acts of extortion when Defendant Connolly
directed Defendants Huisman and Palmisano to send armed police officers to the Salt property.
TAC, at ¶ 38. “The term ‘extortion’ means the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence, or fear, or under color of official
right.” 18 U.S.C.

§

195 1(b)(2); N.J.S.A.

§

2C:20-5. Although the allegations “constituted threats

directed to the Plaintiffs,” (Plaintiffs’ Brief, at 55), there is no allegation that “any Defendant took
any property from a Plaintiff,” (Defendants’ Reply Brief, at 22).
Plaintiff similarly fails to claim an act of forgery as a predicate act under RICO. Paragraph
58 of the TAC, which provides in part that Defendants Cox, Scott, and Huisman “falsified reports
and intentionally misrepresented statements made by individuals” and “falsely characterized
statements as having created an undisclosed interest in the alcoholic beverage license,” fails to
allege forgery with any specificity and thus is a “mere conclusory statement[]” “not entitled to be
assumed true.” Iqbal, 556 U.S. at 678, 681.
Plaintiffs also fail to allege a pattern of racketeering activity despite identifying several
paragraphs of the TAC they contend constitute acts of extortion. (Plaintiffs’ Brief, at 44 (citing
TAC, at

¶ 29, 34, 43, 46, 48, 50, 77, 91, and

138)). Of the paragraphs cited, only paragraph 138

—

which alleges “Defendant Doherty and others threatened ‘to get’ the Plaintiffs and interfered with
Plaintiffs’ legitimate business operations”

—

could be construed as an act of racketeering. This

single allegation does not constitute a pattern. See Lum v. Bank ofAm., 361 F.3d 257, 267 (3d Cir.
2011) (requiring “at least two predicate acts” to establish a pattern of racketeering).
Finally, because “the pleadings do not state a substantive RICO claim, the RICO
conspiracy claim must fail.” Hlista v. Safeguard Prop., LLC, 649 Fed. App’x 217, 222 (3d Cir.
2016); Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12, 21(1st Cir. 2000).

15

Plaintiffs’ State Law Claims
Intentional Interference with Contract/
Prospective Economic Advantage
To establish tortious interference with “both contracts and prospective business
relationships,” a plaintiff must allege:
(1) they had some reasonable expectation of economic advantage;
(2) the defendants’ actions were malicious in the sense that the harm
was inflicted intentionally and without justification or excuse; (3)
the interference caused the loss of the prospective gain or there was
a reasonable probability that the plaintiff would have obtained the
anticipated economic benefit, and (4) the injury caused the plaintiff
damage.
Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 79-80 (App. Div. 2004). Plaintiffs fail to
adequately allege defendants tortuously interfered with a contract because according to the terms
of plaintiffs’ lease, it expired on October 31, 2017. (Claudio Deci., Ex. L).
Further, plaintiffs fail allege loss of prospective advantage, which requires “facts that, if
true, would give rise to a reasonable probability that particular anticipated contracts would have
been entered into.

.

.

.

‘[T]he claimed loss of.

.

.

unknown customers cannot, standing alone, state

a claim for tortious interference with prospective business relations.” Eli Lilly and Co. v. Roussel
Corp., 23 F. Supp. 2d 460, 494 (D.N.J. 1998) (quoting Advanced Power Sys., Inc. v. Hi-Tech Sys.
Inc., 801 F. Supp. 1450, 1459 (E.D. Pa. 1992)). Plaintiffs’ allegations fail to raise a reasonable
probability that they would have had the opportunity to enter into a specific contract.
Intentional Infliction ofEmotional Distress
A plaintiff must allege “intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe” to sustain a claim of intentional infliction of emotional distress.
Leang v. Jersey City Bd. Of Educ., 198 N.J. 557, 587 (2009). The conduct alleged must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
16

and to be regarded as atrocious, and utterly intolerable in a civilized society.” Buckley v. Trenton
Say. Fund. Soc’y, lii N.J. 355, 366 (1988). Plaintiffs’ allegations do not approach what is
necessary to establish a claim for intentional infliction of emotional distress and that claim is
therefore dismissed.

Notice of Claim
Defendants contend Plaintiffs failed to file proper notices of their claims. “The New Jersey
Tort Claims Act provides.

.

.

that no action shall be brought against a public entity unless the claim

upon which it is based shall have been presented in accordance with the procedure set forth.”

Estate of McGrath by McGrath v. N Jersey Dist. Water Supply Comm ‘n, 224 N.J. Super. 563,
570-71 (N.J. Super. Ct. Law Div. 1986) (citing N.J.S.A. 59:8-3). The notice must provide
“information sufficient to allow [the defendant] to investigate the facts and either settle the claim,
if meritorious, or prepare a defense to it.” Guerrero v. City ofNewark, 216 N.J. Super. 66, 72 (N.J.
Super. Ct. App. Div. 1987). Plaintiff submitted three notices of tort claims; each one alleges only
tortious conduct with respect to the license transfer application. (See Claudia Deci., Ex. AA, at 2;
Ex. BB, at 2; Ex. CC, at 2). Because the three notices made no mention of the construction- and
Salt-related claims, they did not provide Defendants with adequate notice and the state tort claims
must be dismissed to the extent that they related to those claims not noticed.
Service on Connolly, Palmisano, Poff, and Cox
“If a defendant is not served within 90 days after the complaint is filed, the court

—

on

motion or on its own after notice to the plaintiff— must dismiss the action without prejudice against
that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
Plaintiffs have indicated that they have “attempted many times to serve Defendant Palmisano, but,
upon information and belief, he is out of the country.” (Plaintiffs’ Brief, at 50). Plaintiffs have

17

therefore shown good cause for failing to serve Palmisano and the Court shall “extend the time for
service for an appropriate period.” Fed. R. Civ. P. 4(m).
Further, the record indicates Connolly, Poff, and Cox were served in August, less than two
months after the rule permits. (Summons Returned Executed, ECF No. 26, 27, 28). After they were
served, the Court dismissed the First Amended Complaint, (February 26, 2018 Memorandum and
Order, ECF No. 39), and plaintiffs filed their Second Amended Complaint, (SAC, ECF No. 40).
The Court therefore concludes that those defendants would not be prejudiced by permitting late
service. The Court shall, in its discretion, excuse plaintiff’s improper service. See MCI
Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086 1097-98 (3d Cir. 1995) (finding
that, although “absence of prejudice alone can never constitute good cause,” the district court,
under Rule 4(m), has “the discretion to allow [the] action to proceed even in the absence of ‘good
cause”).

18

ORDER

Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments advanced; for good cause shown, and for the foregoing reasons;
IT IS on this

W

day of November, 2018,

ORDERED that defendant’s motion to dismiss (ECF No. 56) shall be GRANTED in
part; and it is further
ORDERED that Counts I, II, III, IV, V, VI, VII, and VIII shall be DISMISSED WITH
PREJUDICE; and it is further
ORDERED that defendant must effectuate service on defendant Thomas Palmisano
within sixty (60) days of the date of this order.

PETER G. SHERIDAN, U.S.D.J.