Pomicter v. Luzerne Cnty. Convention Ctr. Auth.
| Decision Date | 27 April 2016 |
| Docket Number | 3:16-CV-00632-RDM |
| Parties | SILVIE POMICTER and LAST CHANCE FOR ANIMALS Plaintiffs, v. LUZERNE COUNTY CONVENTION CENTER AUTHORITY and SMG Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
On April 15, 2016, Plaintiffs Silvie Pomicter and Last Chance For Animals ("Plaintiffs") filed a verified complaint against Defendants Luzerne Country Convention Center Authority (the "Authority") and SMG ("SMG" and, together with the Authority, "Defendants"). (Doc. 1). Plaintiffs also moved for preliminary injunctive relief. (Doc. 3). Plaintiffs allege that Defendants policies and practices violate the First and Fourteenth Amendments and seek both declaratory and injunctive relief prohibiting the Defendants from enforcing its policy of confining all leafletting and protesting to barricaded designated areas on the concrete and sidewalk outside of the Mohegan Sun Arena (the "Arena").
The Court held a telephonic conference on April 20, 2016, and on April 25, 2016 the Court held an evidentiary hearing on Plaintiffs' motion for a preliminary injunction. For the reasons that follow, the Court will grant Plaintiffs' Motion for Preliminary Injunction.
Plaintiff Silvie Pomicter ("Pomicter") is an individual residing in Lackawanna County Pennsylvania and has been animal rights activist for over thirty years. (Decl. of Silvie Pomicter In Support of Plaintiffs' Motion For Preliminary Injunction ("Pomicter Decl.") at ¶ 2), Pomicter and a group of approximately 20 animal rights activists seek to protest outside the Arena. Specifically, Plaintiffs seek to stand outside the Arena with signs and distribute literature to patrons attending the Ringling Brothers Barnum & Bailey Circus, which will be holding several shows at the Arena from April 28, 2016 through May 1, 2016. The literature includes coloring books for children and flyers about circus animals. Apr. 25, 2016 Preliminary Injunction Hearing Tr. ("Hr'g Tr.") at 5:7-25; see also (Exs. P-1, P-2).
Ms. Pomicter does not create the literature she distributes. Rather, she obtains the literature free of charge from People for the Ethical Treatment of Animals, also known as "PETA," a large animal rights organization. (Hr'g Tr. at 6:11-19). Ms. Pomicter uses Facebook, e-mail, and the telephone to organize animal rights activists to attend protests, including protests at the Arena. (Id. at 6:25-7:7). Ms. Pomicter has protested at the Arena in the past and was confined to a barricaded area located in the parking lot outside the Arena. (Id. at 7:8-10); see also (Pomicter Decl. at ¶ 3).
Plaintiff Last Chance for Animals ("LCA") is a non-profit organization dedicated to eliminating animal exploitation through education, investigations, legislation, and mediaattention. (Verified Compl. at ¶ 3). LCA is organized in California with an address in Los Angeles. (Id.).
Defendant Luzerne County Convention Center Authority is an authority organized pursuant to the Municipal Authorities Act of Pennsylvania. (Verified Compl. at ¶ 4). The Authority is located in Wilkes-Barre Pennsylvania and owns the Arena, Casey Plaza, and the surrounding parking lots. (Id.). The purpose of the Authority is to "operate, own and oversee the operations" at Mohegan Sun Arena, an Arena designated for public recreational use. (Hr'g Tr. at 56:10-13); see also (Ex. D-G). David Palermo is the Commissioner of the Authority. (Hr'g Tr. at 55:13-15).
Defendant SMG is a Pennsylvania general partnership located in West Conshohocken Pennsylvania. (Verified Compl. at ¶ 5). SMG is a private facility management company that performs management services and systems to operate, manage, and promote the Arena pursuant to a contract with the Authority. (Id.). Brian Sipe is the general manager of the Arena and is an employee of SMG. (Hr'g Tr. at 27:24-28:23). Pursuant to the contract between SMG and the Authority, SMG is responsible for overseeing the day-to-day operations of the Arena, including booking, finance, food and beverage, marketing, and sales. (Id.).
In general, the Arena hosts concerts of national touring acts, the Circus, Disney on Ice, the Harlem Globetrotters, World Wresting Entertainment, district basketball, and AHL hockey, among other events. (Hr'g Tr. at 34:23-4). Patrons attending events at the Arena arrive primarily by car, turn into an access road from Highland Park Boulevard, park in one of the lots outside the Arena, and then proceed on foot to one of the two entrance points for the Arena known as the East and West Gates. (Pomicter Decl. at ¶ 5). The East Gate is where most of the patrons enter the Arena and where the ticket box office is located. (Hr'g Tr. at 13:15-22).
The concrete outside the East and West gates has distinctive colors: a "dark" concrete and a "light" concrete. (Hr'g Tr. at 13:23-14:3); see also . The light colored concrete is closest to the entrance of the Arena, is approximately 37 feet wide, and is identified on CAD drawings as the "entry bridge." (Hr'g Tr. at 14:4-8; 49:2-16); see also (Ex. D-C). The dark colored concrete is approximately 60 feet wide. (Id.). A sidewalk connects the East and West gates and is approximately 30 feet wide and 321 feet long. (Hr'g Tr. at 33:2-12); see also (Ex. D-C). The sidewalk is generally open to the public, although it is primarily used for individuals attending events at the Arena or purchasing tickets to upcoming events. (Hr'g Tr. at 35:5-10). The total square footage of the concrete in front of the East Gate is 18,746 square feet. (Hr'g Tr. at 31:17-19); see also (Ex. D-C).The total square footage of the concrete in front of the West Gate is 10,560 square feet. (Id. at 31:20-21).
In 2008 SMG promulgated a protest policy for all events at the Arena (the "Initial Protest Policy"). (Ex. D-B). Plaintiffs have protested at the Arena in the past and were subject to the Initial Protest Policy. Pursuant to Defendants' Initial Protest Policy and practices in place at that time, Plaintiffs were confined to a barricaded designated area in the parking lot outside the East Gate which prevented them from approaching patrons of the Circus and providing them with literature. (Hr'g Tr. at 7:8-8:10, 9:24-10); see also (Exs. P-3, P-4). Because Defendants' policies required Plaintiffs to be confined to a designated protest area, Plaintiffs were greatly limited in their ability to distribute literature and communicate their message. (Pomicter Decl. at ¶12); see also (Hr'g Tr. at 9:24-10:16, 11:2-12:4). Ms. Pomicter testified that when she and other protestors are confined to a barricaded area people are intimidated to approach her and receive literature. (Hr'g Tr. at 10:11-11-1).
In March 2016, prior to the filing of the instant action, Defendants revised the Initial Protest Policy to include two barricaded protest areas located on the so-called "dark concrete" outside both the East and West Gates (the "Revised Protest Policy"). (Hr'g Tr. at 12:4-16, 29:22-30-17, 47:848:3); see also (Ex. D-A, D-D). The two designated protest areas outside of the East and West gates measure approximately 500 to 700 square feet,which Mr. Sipe testified could hold approximately 100 persons per designated area.1 (Hr'g Tr. at 30:16-21). As of the date of the hearing, Defendants had not posted the Revised Protest Policy on its website, although Mr. Sipe testified that the Defendants would do so. (Id. at 47:8-48:3).
Plaintiffs allege that the Defendants' Revised Protest Policy and practices unconstitutionally infringes on their First Amendment rights because the regulations prohibit them from approaching Arena patrons in order to distribute literature and communicate their message.
Federal Rule of Civil Procedure 65 governs the issuance of a preliminary injunction. In ruling on a motion for a preliminary injunction, the Court must consider: "'(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 non-moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest.'"2 McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007) (quoting Shire U.S. Inc. v. Barr Labs. Inc., 329 F.3d 348, 352 (3d Cir. 2003)). Although the moving party bears the burden to show its entitlement to the requested relief,"each factor need not be established beyond doubt," Stilp v. Contino, 629 F. Supp. 2d 449, 457 (M.D. Pa. 2009), aff'd and , 613 F.3d 405 (3d Cir. 2010).
In order to establish likelihood of success on the merits, the moving party must proffer sufficient evidence to satisfy the elements of its underlying cause of action. Highmark, inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 171 (3d Cir. 2001). The mere possibility that the moving party's claim may be defeated does not preclude a finding that it is likely to succeed on the merits. Id. at 172-73. Indeed, "in order to demonstrate a likelihood of success on the merits '[i]t is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.'" Am. Freedom Defense Initiative v. Southeastern Pennsylvania Transp. Auth., 92 F. Supp. 3d 314, 322 (E.D. Pa. 2015) (quoting Oburn v. Shapp, 521 F.3d 142, 148 (3d Cir. 1975)).
In this matter, Plaintiffs' federal constitutional claims are brought pursuant to 42 U.S.C. § 1983, alleging that Defendants' protest policies and practices violate their constitutional rights under the...
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