Amato v. Elicker

• Decision Date: 15 April 2021
• Docket Number: No. 3:20cv464 (MPS),3:20cv464 (MPS)
• Parties: Michael AMATO, Joy Monsanto, and 50's Lounge, LLC, Plaintiffs, v. Mayor Justin ELICKER, Gage Frank, and Governor Ned Lamont, Defendants.
• Court: U.S. District Court — District of Connecticut

534 F.Supp.3d 196

Michael AMATO, Joy Monsanto, and 50's Lounge, LLC, Plaintiffs,

v.Mayor Justin ELICKER, Gage Frank, and Governor Ned Lamont, Defendants.

No. 3:20cv464 (MPS)

United States District Court, D. Connecticut.

Signed April 15, 2021

Kevin Murray Smith, Norman A. Pattis, The Pattis Law Firm, LLC, New Haven, CT, for Plaintiffs.

James Newhall Tallberg, Patrick D. Allen, Karsten & Tallberg LLC, Rocky Hill, CT, Patricia A. King, City of New Haven, Roderick Ryan Williams, Office Of Corporation Counsel, New Haven, CT, for Defendant Justin Elicker.

Philip Miller, Robert J. Deichert, Connecticut Attorney General's Office, Hartford, CT, for Defendant Ned Lamont.

James Newhall Tallberg, Karsten & Tallberg LLC, Rocky Hill, CT, for Defendant Gage Frank.

RULING ON GOVERNOR LAMONT'S MOTION TO DISMISS

Michael P. Shea, U.S.D.J.

The COVID-19 virus has caused a global pandemic of unprecedented scale. In Connecticut, more than 7,800 people have died from the virus. https://portal.ct.gov/coronavirus (last accessed March 29, 2021). On March 10, 2020, Governor Lamont declared a public health emergency and civil preparedness emergency under Conn. Gen. Stat. §§ 19a-131a and 28-9. Plaintiffs, Michael Amato, Joy Monsanto, and their restaurant, 50's Lounge, LLC, have sued the Governor in his individual and official capacity challenging executive orders he issued in March 2020 in an attempt to reduce the spread of the virus.¹ In pertinent part, the orders at issue restricted the size of social and recreational gatherings and required that restaurants serve food and beverages only for off premises consumption. Executive Orders 7, 7D, 7G, and 7N. The Plaintiffs allege that the orders violate their right to assembly under the First Amendment, and Article First, § 14 of the Connecticut Constitution (count 8); right to freedom of association under the First, Ninth, and Fourteenth Amendments, and Article First, §§ 8 and 14 of the Connecticut Constitution (count 9); right to pursue a living under the Privileges or Immunities and Due Process Clauses of the Fourteenth Amendment and Article First, § 8 of the Connecticut Constitution (count 10); right to receive compensation for a taking of property under the Fifth and Fourteenth Amendments, and Article First, § 11 of the Connecticut Constitution (counts 11 and 12). They seek compensatory and punitive damages, a declaratory judgment that the restrictions are unconstitutional, and an injunction staying their enforcement. Governor Lamont moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and 12(b)(6) for failure to state a claim. ECF No. 60. For the reasons set forth herein, the motion is granted.

I. PROCEDURAL HISTORY

In April 2020, the Plaintiffs filed a motion for a temporary restraining order and preliminary injunction seeking to stay the enforcement of Governor Lamont's executive orders. ECF No. 11. On May 19, 2020, I denied the motion. ECF No. 32. The Plaintiffs thereafter filed a Second Amended Complaint, ECF No. 41, and in September 2020, filed the operative Third Amended Complaint. ECF No. 62. Governor Lamont incorporates in his presently pending motion to dismiss, ECF No. 60, the arguments set forth in his prior submissions, ECF Nos. 22, 48, 54, and the Plaintiffs in their opposition do the same. ECF Nos. 52, 63.

II. FACTUAL ALLEGATIONS

The Third Amended Complaint sets forth the following factual allegations, which the Court accepts as true for purposes of this ruling.

Joy Monsanto and Michael Amato own and operate a restaurant in the "Westville" neighborhood of New Haven called the 50's Lounge, LLC. ECF No. 62 at ¶¶ 9-10. As the coronavirus began to take hold in Connecticut, they decided to close the restaurant on March 15, 2020. Id. at ¶ 13.

Beginning March 12, 2020, Governor Lamont issued a series of executive orders:²

Executive Order 7, issued on March 12, 2020, prohibited "gatherings of 250 people or more for social and recreational events."³ Id. at ¶ 19. Executive Order 7D, issued on March 16, 2020, went further, prohibiting gatherings of 50 or more people. It also placed limits on restaurant, bar, and private club operations, requiring that "any restaurant or eating establishment and any location licensed for on-premise consumption of alcoholic liquor ... shall only serve food or non-alcoholic beverages for off-premises consumption." Executive Order 7D at 2. ECF No. 62 at ¶ 20. Executive Order 7G, issued March 19, 2020, modified Executive Order 7D to allow restaurants and bars to sell alcohol for off-premises consumption provided it was sold in a sealed container and accompanied by an order of food. Id. at ¶ 21.

Executive Order 7N, issued March 26, 2020, stated that "social and recreational gatherings ... of six (6) or more people ... are prohibited throughout the State of Connecticut." Executive Order 7N at 4. The order "d[id] not apply to government operations, private workplaces, retail establishments, or other activities that are not social or recreational gatherings." ECF No. 62 at ¶ 22; Executive Order 7N at 4.⁴

The Plaintiffs’ voluntary closure of their restaurant on March 15, 2020 was a temporary measure to allow them to evaluate whether they could safely operate their business. ECF No. 62 at ¶ 23. They decided that they would "fully reopen their business approximately a week" after they closed it. Id. at ¶ 24. After further consideration, however, the Plaintiffs "realized that they could not reopen their business without violating Defendant Lamont's executive orders and risking substantial penalties including arrest, incarceration, fines, and the revocation of their business licenses." Id. at ¶ 25. The Plaintiffs "have lost, and are losing, an unsustainable amount of approximately $5,000 per week due to Defendant Lamont's prohibitory bar on their reopening." Id. at ¶ 26. Defendant Lamont's orders have made it financially impossible for the Plaintiffs to continue to operate their business profitably. Id. at ¶ 27. The financial loss that Defendant Lamont's orders have imposed on the Plaintiffs has crippled their ability to remain in business, jeopardizing their ability to pay their employees and continue to exist as a business. Id. at ¶ 28.

III. LEGAL STANDARD

A. Rule 12(b)(1)

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction is proper where "the district court lacks statutory or constitutional power to adjudicate" the case. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). The court may consider evidence outside the pleadings when deciding whether subject matter jurisdiction exists. Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005).

B. Rule 12(b)(6)

In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must determine whether the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court accepts as true all of the complaint's factual allegations when evaluating a motion to dismiss, id. , and "must draw all reasonable inferences in favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 115 (2d Cir. 2008). However, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to survive a motion to dismiss. Mastafa v. Chevron Corp. , 770 F.3d 170, 177 (2d Cir. 2014).

IV. DISCUSSION

A. Rule 12(b)(1) Motion

1. Plaintiffs’ Claims for Prospective Relief

Governor Lamont argues that the Plaintiffs’ claims for declaratory and injunctive relief should be dismissed as moot because the executive orders at issue are no longer in effect. ECF No. 48-1 at 8. The Governor points out that the executive orders at issue were modified in several respects. As of June 16, 2020, indoor dining was permitted. Executive Order 7ZZ. In addition, indoor gatherings of up to 25 people were permitted and outdoor gatherings of up to 100 people were permitted. ECF No. 48-2 at 29, DECD Sector Rules.

Additional developments ensued after the Governor's motion was briefed. On March 19, 2021, the Department of Economic and Community Development ("DECD") issued updated rules applicable to "all businesses/organizations" that "[c]apacity limits are now up to 100%, subject to social distancing requirements."⁵ https://portal.ct.gov/DECD/Content/Coronavirus-Business-Recovery/Sector-Rules-for-Reopen. Further, for restaurants, "6 ft. spacing or non-porous barrier continue to be required between tables, with an 8-person maximum table capacity" and "[a]ll restaurants and indoor recreation continue to be subject to an 11:00 pm closing time." Id.

Under the "case or controversy" requirement of Article III of the Constitution, "at all times, the dispute before the court must be real and live, not feigned, academic, or conjectural." Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). See Steffel v. Thompson , 415 U.S. 452, 459 n.10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (actual controversy must be "extant at all stages of the review, not merely at the time the complaint is filed.") "A case becomes moot—and therefore no longer a Case or Controversy for purposes of Article III—when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (...