Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-6-2004
308 Hwy 35 Inc v. Eatontown
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2007
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"308 Hwy 35 Inc v. Eatontown" (2004). 2004 Decisions. Paper 1016.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2007
308 HIGHWAY 35, INC., a
New Jersey Corporation,
Appellant
v.
THE BOROUGH OF EATONTOWN
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 02-cv-05161
District Judge: The Honorable Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
January 8, 2004
Before: BARRY, SMITH, Circuit Judges, and POLLAK,* District Judge
(Opinion Filed: February 6, 2004)
OPINION
*
The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Plaintiff 308 Highway 35, Inc., a New Jersey Corporation (“the Corporation”),
appeals from the District Court’s denial of a motion for partial summary judgment on the
issue of liability or, in the alternative, for a preliminary injunction. Because we write only
for the parties in this matter, we will dispense with a full recitation of the facts and limit
our discussion only to those facts necessary to reach our decision.
On October 23, 2002, the Corporation filed suit pursuant to 42 U.S.C. § 1983
against defendant Borough of Eatontown, in Monmouth County, New Jersey (“the
Borough”), in the United States District Court for the District of New Jersey. The
complaint alleged that N.J.S.A. 2C:34-6 & -7 and the Borough’s Land Use Ordinance, to
the extent that they prohibit live entertainment in all zoning districts generally, and live
entertainment in the form of nude and semi-nude dancers specifically, violate the First
Amendment of the U.S. Constitution. The Borough answered the complaint and the
Corporation subsequently filed the above-referenced motion for partial summary
judgment or a preliminary injunction. The Borough opposed the motion, and filed a Fed.
R. Civ. P. 56(f) affidavit. The District Court heard oral argument on March 17, 2003, and
denied the Corporation’s motion the same day. The Corporation timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) only over the denial of the
preliminary injunction, and will affirm that denial.
2
I.
Under 28 U.S.C. § 1291, a party may appeal only from a final judgment of the
District Court. The rule, however, is subject to limited exceptions. 28 U.S.C. §
1292(a)(1) provides that a party may appeal from an interlocutory order “granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions . . . .” Thus, where a district court denies preliminary injunctive relief,
we have jurisdiction to consider the appeal. See, e.g., Shire U.S., Inc. v. Barr Labs., Inc.,
329 F.3d 348, 351-52 (3d Cir. 2003).
The Borough contends that we lack jurisdiction over this matter because the
District Court denied the Corporation’s motion for summary judgment, and the
Corporation sought in the District Court permanent injunctive relief, not preliminary
relief. In support of its contention, the Borough relies on Lermer Germany v. Lermer
Corp., 94 F.3d 1575 (Fed. Cir. 1996). The facts of this case, however, are inapposite to
those of Lermer. In Lermer, even though the District Court’s order indicated that it was
denying a preliminary injunction, plaintiffs had not sought preliminary injunctive relief.
Rather, “plaintiffs’ notice of motion state[d] only that they [were] moving for summary
judgment . . . .” Id. at 1577. Here, however, as our opening paragraph indicates, the
Corporation sought a preliminary injunction,1 with the caption of its notice of motion
1
Based on the moving papers before the District Court, it appears that the Corporation
sought both a preliminary injunction and a permanent injunction. Although the caption of
the notice of motion stated that it was seeking a preliminary injunction, the substance of
3
stating: “Notice of Motion for Partial Summary Judgment on Issue of Liability, or,
Alternatively, a Preliminary Injunction.” Its brief was entitled, “Brief in Support of
Plaintiff’s M otion for Partial Summary Judgment on Issue of Liability or, Alternatively, a
Preliminary Injunction,” and the heading in Section IV of the brief stated, “The Plaintiff
is Entitled to a Permanent or, Alternatively, a Preliminary Injunction.” In its conclusion,
the Corporation requested that the District Court alternatively “award a preliminary
injunction.” Accordingly, we conclude that the Corporation sought a preliminary
injunction.
We also conclude that the District Court denied the Corporation’s application for a
preliminary injunction, not a permanent injunction. Although the Court’s order initially
stated that the matters came “before the Court upon Plaintiff’s motion for partial summary
judgment or, in the alternative, for a permanent injunction,” it went on to provide the
following: “ORDERED that the Plaintiff’s motion for partial summary judgment is
DENIED; and it is further, ORDERED that the Plaintiff’s motion for a preliminary
injunction is DENIED.” Furthermore, it is quite clear from the transcript of the oral
argument before the District Court that the Court was referring to preliminary injunctive
relief. Accordingly, while we do not have jurisdiction to consider at this juncture the
the notice referred to both “permanent” and “preliminary” injunctions. One of the
proposed orders submitted by the Corporation to the District Court indicated that the
Borough be “permanently enjoined” from enforcing the New Jersey statute and the
Borough’s ordinance. Another proposed order stated that the Borough be “preliminarily
enjoined.”
4
denial of the Corporation’s motion for partial summary judgment, we do have jurisdiction
to consider the appeal from the denial of the motion for a preliminary injunction.2
II.
The Corporation argues that the District Court erred in not granting its motion for
preliminary injunctive relief. Our review of the District Court’s decision “is limited to
determining whether there has been an abuse of discretion, a clear error of law, or a clear
mistake on the facts.” Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.
1999) (internal quotations and citations omitted). In determining whether to grant
preliminary injunctive relief, a court must be convinced of the following four elements:
“(1) the likelihood that the moving party will succeed on the merits; (2) the extent to
which the moving party will suffer irreparable harm without injunctive relief; (3) the
extent to which the nonmoving party will suffer irreparable harm if the injunction is
issued; and (4) the public interest.” Shire U.S. Inc. v. Barr Labs., Inc., 329 F.3d 348, 352
(3d Cir. 2003). Here, the District Court denied the preliminary injunction because the
Corporation had shown neither that it would succeed on the merits nor that it would suffer
irreparable harm.
The District Court did not abuse its discretion in refusing to grant the preliminary
2
The Corporation has moved before this Court, pursuant to Fed. R. Civ. P. 11, to strike
portions of the Borough’s brief and for sanctions, and the Borough has moved for an
order requiring the withdrawal of the Rule 11 motion. By separate order, the
Corporation’s motion will be denied and the Borough’s motion will be denied as moot.
5
injunction. The Corporation had not demonstrated a likelihood of success on the merits;
indeed, among other things, it remains unclear even now whether the Borough prohibits
live entertainment in Eatontown and unclear whether there are alternative avenues
available for the operation of a sexually oriented business. For that reason alone, the
Corporation has also failed to demonstrate that the denial of a preliminary injunction will
result in irreparable injury to it or that the injunction will be in the public interest.
III.
For the foregoing reasons, we will affirm the March 17, 2003 order of the District
Court insofar as that order denied the motion for a preliminary injunction.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge