N.A. of Theatre Owners v. Murphy
| Decision Date | 18 August 2020 |
| Docket Number | Case No. 3:20-cv-8298 (BRM) (TJB) |
| Parties | NATIONAL ASSOCIATION OF THEATRE OWNERS; NATIONAL ASSOCIATION OF THEATRE OWNERS OF NEW JERSEY; AMERICAN MULTI-CINEMA, INC.; CINEMARK USA, INC.; REGAL CINEMAS, INC; BJK ENTERTAINMENT INC.; BOW TIE CINEMAS, LLC; and COMMUNITY THEATERS LLC, Plaintiffs, v. PHILIP D. MURPHY, in his official capacity as Governor of New Jersey; and JUDITH PERSICHILLI, in her official capacity as Acting Commissioner of Health of New Jersey, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court is Plaintiffs National Association of Theatre Owners ("NATO"); National Association of Theatre Owners of New Jersey ("NATO NJ") (collectively, the "NATO Plaintiffs"); American Multi-Cinema, Inc. ("AMC"); Cinemark USA, Inc. ("Cinemark"); Regal Cinemas, Inc. ("Regal"); BJK Entertainment Inc. ("BJK"); Bow Tie Cinemas, LLC ("Bowtie"); and Community Theaters LLC's ("Community Theaters") (collectively, the "Exhibitor Plaintiffs") (with the NATO Plaintiffs, "Plaintiffs") Motion for Preliminary Injunction (ECF No. 21), filed on July 14, 2020, seeking to enjoin Defendants Philip D. Murphy ("Governor Murphy") and Judith Persichilli ("Commissioner Persichilli") (collectively, "Defendants") from "applying or enforcing any [e]xecutive [o]rders (including, without limitation, Executive Order No. 157), or other actions, against movie theatres, requiring their closure, or imposing different terms for opening to the public than those imposed upon religious or political indoor gatherings." (ECF No. 21-1 at 1-2.) Defendants oppose Plaintiffs' Motion. (ECF No. 26.) Pursuant to Federal Rule of Civil Procedure 78(a), the Court heard oral argument on August 5, 2020.1 (ECF No. 35.) Having reviewed the submissions filed in connection with the Motion and having heard the arguments of the parties, for the reasons set forth below and for good cause appearing, Plaintiffs' Motion for Preliminary Injunction is DENIED.
This action arises out of the State of New Jersey's—through Governor Murphy and Commissioner Persichilli—response to the COVID-19 pandemic. On March 4, 2020, Governor Murphy announced the state's first presumptive-positive case of coronavirus.2 Since then, the state has recorded 187,767 cases and 14,077 deaths.3 Indeed, "[t]hese are the times that try men's souls." Thomas Paine, The American Crisis I (1776).
On March 9, 2020, Governor Murphy declared a public health emergency and a state of emergency.4 One week later, on March 16, 2020, Governor Murphy issued Executive Order 104("EO 104"), which mandated the closure of all recreational facilities, amusement centers, shopping malls, bars and restaurants (except for take-out and delivery services), and gyms and fitness centers. N.J. Exec. Order 104 (Mar. 16, 2020). Further, on March 21, 2020, Governor Murphy issued Executive Order 107 ("EO 107"), which superseded EO 104 and included two main components. First, the order required all New Jersey residents to remain home unless they were leaving for any of the enumerated reasons. N.J. Exec. Order 107 (Mar. 21, 2020). Second, EO 107 mandated the closure of all retail businesses, save for certain "essential" retail stores including pharmacies, grocery stores, and medical supply stores. Id. Specifically excluded from the list of "essential" business were "recreational and entertainment businesses," which included theaters and cinemas. See id. None of Governor Murphy's executive orders mandated the closure of churches.5,6 EO 107 also strictly limited the number of persons who could participate in a gathering—for any purpose—to ten people. Id.
On May 18, 2020, Governor Murphy announced "New Jersey's Road Back Plan"—a plan designed to gradually reopen the state to prevent a resurgence of the virus. (ECF No. 21-3, Ex. C.) The plan describes a series of reopening "stages"—beginning with what Defendants deem to be low-risk activities and advancing toward what Defendants deem to be higher-risk activities. (See id.) Since then, New Jersey has moved through "Stage 1" to "Stage 2" of the reopening roadmap. In that time, through a series of executive orders, Governor Murphy has allowed the reopening ofoutdoor premises including state parks, outdoor recreational and entertainment businesses, and outdoor service for bars and restaurants. See, e.g., N.J. Exec. Orders 142 (May 13, 2020), 150 (June 3, 2020), and 153 (June 9, 2020).
Furthermore, Governor Murphy has allowed the reopening of several indoor businesses. On June 3, 2020, Governor Murphy issued Executive Order 150 ("EO 150") authorizing the opening of "brick-and-mortar premises of non-essential retail businesses," subject to capacity and sanitization limits, effective June 15, 2020. N.J. Exec. Order 150 ¶ 8. Additionally, on June 13, 2020 Governor Murphy issued Executive Order 154 ("EO 154"), which permitted personal care service facilities to open as of June 22, subject to health and safety standards issued by the New Jersey Department of Health. N.J. Exec. Order 154 (June 13, 2020). On June 26, 2020, Governor Murphy issued Executive Order 157 ("EO 157"), which allowed the reopening of indoor operations of certain recreational and entertainment businesses, restaurants, and bars—subject to even stricter capacity limitations and mask mandates than what was required for indoor retail businesses. N.J. Exec. Order 157 (June 26, 2020).7 In so doing, Governor Murphy highlighted the differences between the COVID-19 transmission risk at indoor retail operations as compared to indoor entertainment venue operations, stating:
[B]ecause indoor dining and indoor recreational and entertainment businesses also both entail a higher risk than indoor retail settings, as the former involves individuals congregating together in one location for a prolonged period of time, while in indoor retail settings, individuals neither congregate in large groups nor remain in close proximity for extended periods and so the risk of COVID-19 spread is reduced, it is also appropriate to impose stricter capacity limits on indoor dining and indoor recreational and entertainment businesses than are currently imposed on indoor retail setting.
N.J. Exec. Order 157 (June 26, 2020).
Governor Murphy affirmed the continued closure of certain indoor entertainment premises, including "performance-based locations such as movie theaters, performing arts centers, and other concert venues." Id. at 4-5. Specifically, in his reasoning for the continued closure, Governor Murphy stated (1) "such businesses necessitate a large number of individuals congregating together concurrently in one indoor location for an unusually prolonged period of time, even more so than in other recreational and entertainment businesses"; and (2) "there are an especially high number of available outdoor and virtual options for members of the public to view and listen to movies and other performances." Id.
In addition to relaxing limits on business closures, Governor Murphy relaxed the limits on the number of people allowed to gather at both indoor and outdoor premises. For indoor spaces, Governor Murphy set a limit of 25 percent of a room's total capacity or 100 persons (whichever is lower) and required all persons to be wearing masks. See N.J. Exec. Order 152 (June 9, 2020). For outdoor spaces, Governor Murphy set the limit at 500 people, with political protests and religious services being exempt from this restriction. See N.J. Exec. Order 161 (July 2, 2020). However, given the rising number of confirmed COVID-19 cases in New Jersey, on August 3, 2020, Governor Murphy issued Executive Order 173 ("EO 173") which lowered the indoor gathering limit from 100 people to 25 people. See N.J. Exec. Order 173 (Aug. 3, 2020). Exempt from this limit are "religious services or celebrations, political activities, wedding ceremonies, funerals, and memorial services." Id. at 5.
NATO is a voluntary membership, non-profit organization of movie theater owners throughout the United States and abroad. (ECF No. 21-2 at 10.) It represents over 35,000 movie screens around the world, and its membership includes owners of movie theaters throughout New Jersey that are affected by Governor Murphy's executive orders. (Id.)
NATO NJ is also a voluntary membership, non-profit organization of movie theater owners, operators, executives, and managers throughout New Jersey. (Id.) NATO NJ's purpose is to provide its members with advice and guidance and to promote the welfare of New Jersey's movie theaters. (Id.)
The remaining Plaintiffs are a group of movie theater companies that show movies in New Jersey. (Id. at 11.) BJK, Bow Tie, and Community Theaters each own from one to five theaters in New Jersey, while AMC, Cinemark, and Regal are the three largest movie theater chains in the country and own many theaters throughout the State. (Id.) Each Exhibitor Plaintiff is a member of both NATO and NATO NJ. (Id.)
Prior to the filing of this suit, representatives of Plaintiffs met with representatives of the Governor's Office to present comprehensive safety plans for the reopening of movie theaters in New Jersey. (ECF No. 21-2 at 17.) Plaintiffs contend these proposed protocols are "morehealth-protective" than the measures Defendants have required for "other indoor activities" that have been allowed to reopen. (Id.) Specifically, Plaintiffs' comprehensive protocols address many aspects of theater operations, "including employees, patrons, ticket sales, concessions sales, seating, security, training, and other...
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