YATES HOUSE FOR MILITARY VETERANS, INC. v. PLAINFIELD ZONING BOARD OF ADJUSTMENT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Yates Real Estate, Inc,; Yates House

rane Doe Inc.; and John Civ. No. 18-12700-KM-CLW

Plaintiffs, MEMORANDUM and

PROCEDURAL ORDER

Plainfield Zoning Board of

Adjustment; City of Plainfield,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

On July 31, 2019, I issued an Opinion (“Op.”, DE 26) and Order (DE 27)

denying the plaintiffs’ motion for a preliminary injunction. That ruling was

substantially based on the extensive record compiled before the local zoning

board. See Op. Section II.B (standard of review of zoning board decision). I

found, inter alia, that the plaintiffs did not have a substantial likelihood of

success on their claims.

By letter dated September 20, 2019 (DE 30), counsel for the City relates

the parties’ agreement before Magistrate Judge Waldor that no further

discovery was needed, in that the full record of proceedings before the zoning

board was already before the Court. Thus defense counsel requests that the

court’s decision on the preliminary injunction application simply be converted

to a ruling granting summary judgment to the defendants, without further

motion practice.

There are cases in which the grant or denial of a preliminary injunction

is tantamount to a decision on the merits, and may justify an award of

summary judgment. Any such conversion of one to the other, however, must be

approached with care:

Rule 65 of the Federal Rules of Civil Procedure “empowers

district courts to grant preliminary injunctions.” Doe v. Banos, 713

F, Supp. 2d 404, 410 (D.N.J.), affd, 416 F. App’x 185 (3d

Cir.2010). “Because the scope and procedural posture of a hearing

for a preliminary injunction is significantly different from a trial on

the merits ... ‘it is generally inappropriate for a federal court at the

preliminary-injunction stage to give a final judgment on the

merits.’ Anderson v. Davila, 125 F.3d 148, 157 (3d Cir. 1997)

(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct.

1830, 68 L.Ed.2d 175 (1981)), In appropriate circumstances,

however, Rule 65(a)(2) provides a district court with the discretion

to “advance the trial on the merits and consolidate it with the

[preliminary injunction] hearing.” Fed. R. Civ. P. 65(a)(2). A district

court may also convert a decision on a preliminary injunction

application into a final disposition on the merits by granting

summary judgment as long as sufficient notice is provided

pursuant to Rule 56 of the Federal Rules of Civil Procedure. See

Krebs v, Rutgers, 797 F. Supp. 1246, 1253 (D.N.J. 1992); Air Line

Pilots Ass'n, Int'l v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 n. 4

(9th Cir. 1990); see also Fed. R. Civ. P. 56(f).

Under Rule 56, summary judgment is appropriate if the

record shows “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).....

The Third Circuit has held, in accordance with principles of

due process, that a district court should give the parties notice of

its intent prior to entering summary judgment sua sponte. See

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 280 (3d Cir.

2010). Notice is sufficient, however, “when ‘the targeted party had

reason to believe the court might reach the issue and received a

fair opportunity to put its best foot forward.’” Zimmerlink v.

Zapotsky, 539 Fed.Appx. 45, 49 (3d Cir. 2013) (quoting Gibson v.

Mayor & Council of City of Wilmington, 355 F.3d 215, 223-24 (3d

Cir. 2004) (finding no notice is required if there is a fully developed

record, a lack of prejudice to the parties, and a decision on a

purely legal issue)). “Even if a court fails to comply with the

requirements of Rule 56(f), however, any such error ‘may be

excused if the failure was a harmless error.’” Zimmerlink, 539 F.

App’x at 49 (quoting Rose v. Bartle, 871 F.2d 331, 342 (3d Cir.

1989)).

Nat'l Collegiate Athletic Ass'n v. Christie, 61 F. Supp. 3d 488, 496-97 (D.N.J.

2014).!

By letter dated September 23, 2019, counsel for the plaintiffs opposed

the defense request. They acknowledge that the Court’s review is confined to

the administrative record. Nevertheless, they express concern that plaintiffs

have not had notice or the opportunity to respond to the factual findings and

legal conclusions contained in the court’s Opinion.

I agree that the plaintiffs were not given notice that they faced the

equivalent of a motion for summary judgment. To that concern, I would add

that the standards for a preliminary injunction (e.g., the likelihood, or not, of

success) are not the same as those on a motion for summary judgment (the

existence, or not, of a genuine issue of material fact and entitlement to

judgment as a matter of law). Compare Fed. R. Civ. P. 65 with Fed. R. Civ. P.

56.

I will therefore enter the following procedural order.

ORDER

IT IS, this 24 day of September, 2019,

ORDERED as follows:

1. Within 30 days after the entry of this Order, the plaintiffs may file a

brief, not to exceed 25 pages, showing cause why the court’s Opinion

and Order (DE 26, 27) should not be converted into a ruling granting

summary judgment to the defendants.

2. Within 21 days thereafter, the defendants may file a responding brief,

not to exceed 25 pages.

The procedural principles outlined in the quotation in text are not affected by

the lengthy subsequent history of that case: affd sub nom. Nat'l Collegiate Athletic

Ass'n v. Governor of New Jersey, 799 F.3d 259 (3d Cir. 2015), reh'g en banc granted,

opinion vacated (Oct. 14, 2015), on reh'g en banc, 832 F.3d 389 (3d Cir. 2016), rev'd

sub nom. Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 200 L. Ed. 2d 854

(2018), and affd sub nom. Nat'l Collegiate Athletic Ass'n v. Governor of New Jersey, 832

F.3d 389 (3d Cir. 2016), and rev'd sub nom. Murphy v. Nat'l Collegiate Athletic Ass'n,

138 S. Ct. 1461, 200 L. Ed. 2d 854 (2018).

3. The parties may assume that the Court is familiar with the arguments

made for and against preliminary injunctive relief, and shall not

repeat them unnecessarily.

Kur

Kevin McNulty

United States District Judge