The opinion
[Docket No. 52]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CHERRY HILL TOWNE CENTER
PARTNERS, LLC,
Plaintiff, Civ. No. 18-12868 (RMB/KMW)
v. OPINION
GS PARK RACING, L.P.,
GREENWOOD NEW JERSEY, INC.,
GREENWOOD RACING, INC.,
Defendants.
APPEARANCES:
BROWN & CONNERY, LLP
By: William M. Tambussi, Esq.
Mark P. Asselta, Esq.
Andrew S. Brown, Esq.
360 Haddon Avenue
Westmont, New Jersey 08108
Counsel for Plaintiff
BALLARD SPAHR LLP
By: Roberto A. Rivera-Soto, Esq.
210 Lake Drive East-- Suite 200
Cherry Hill, New Jersey 08002
Counsel for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
By operation of New Jersey’s Sports Wagering Act, Plaintiff
Cherry Hill Towne Center-- after obtaining the requisite
license-- could open a sports wagering facility on the property
at issue in this case but for the restrictive covenant held by
Defendants GS Park Racing, L.P., Greenwood New Jersey, Inc., and
Greenwood Racing, Inc. (collectively “GSPR”). That covenant
exclusively reserves to GSPR the right to operate “wagering
activities and gambling and gaming of any sort.” Approximately
one year ago, this Court held, in the context of a Motion for
Preliminary Injunctive Relief, that GSPR would likely prevail on
its position that the restrictive covenant is enforceable. See
Cherry Hill Towne Ctr. Partners, LLC v. GS Park Racing, L.P.,
2019 WL 4187836 (D.N.J. Sept. 4, 2019).1 Since that decision,
two relevant events have occurred: (1) GSPR filed a Motion for
Summary Judgment after the parties had exchanged discovery, and
(2) the COVID-19 global pandemic arose.
Cherry Hill Towne Center now claims that it no longer
wishes to pursue this litigation because its business plans have
changed as a result of the pandemic and related public health
restrictions.2 Thus, instead of filing opposition to GSPR’s
1 The Court, however, denied the Motion for Preliminary
Injunctive Relief, additionally holding that GSPR had not
established that, absent provisional injunctive relief,
immediate irreparable harm would result before this Court could
render a final judgment on the merits.
2 Specifically, Cherry Hill Towne Center states, “as a
result of the ongoing global pandemic and the concomitant
governmental restrictions, it no longer makes sense from a
business perspective to open a ‘bricks and mortar’ sports
wagering facility, at least for the foreseeable future.” (Moving
Brief, Dkt. 52-1, p. 1-2)(emphasis added by the Court).
Motion for Summary Judgment, Cherry Hill Towne Center presently
moves to dismiss this suit without prejudice, and without costs,
pursuant to Fed. R. Civ. P. 41(a)(2). GSPR opposes the motion
insofar as Cherry Hill Towne Center seeks a dismissal without
prejudice. GSPR contends that, in light of the Court’s holding
that GSPR would likely prevail on the merits of this suit, and
GSPR’s pending Motion for Summary Judgment, the dismissal should
be with prejudice. For the reasons stated herein, the Court
will dismiss this case without prejudice but with certain
“terms,” Fed. R. Civ. P. 41(a)(2), intended to mitigate any
prejudice to GSPR that might arise if Cherry Hill Towne Center
were to refile this suit in the future.
I. BACKGROUND
The Court incorporates herein by reference the Court’s
Opinion addressing GSPR’s Motion for Preliminary Injunction,
Cherry Hill Towne Ctr. Partners, LLC v. GS Park Racing, L.P.,
2019 WL 4187836 (D.N.J. Sept. 4, 2019).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 41(a)(2) provides, in
relevant part, “an action may be dismissed at the plaintiff’s
request only by court order, on terms that the court considers
proper.”3 Such “terms” must be “designed to protect the
3 Federal Rule of Civil Procedure 41(a)(1)(A)(i) does not
apply because GSPR answered the Complaint on September 12, 2018,
defendant” and must “not create burdensome obstacles to
refiling” by the plaintiff. S.B. v. KinderCare Learning
Centers, LLC, 815 F.3d 150, 152–53 (3d Cir. 2016).
III. ANALYSIS
This Court’s dismissal order must reflect a balancing of
two competing interests: Cherry Hill Towne Center’s right to
dismiss its claims, and the prejudice to GSPR that may result
from such dismissal. Contrary to Cherry Hill Towne Center’s
argument, a bare dismissal without prejudice does carry with it
the potential for prejudice to GSPR if Cherry Hill Towne Center
were to refile this suit in the future. As GSPR understandably
emphasizes, this Court has held that the restrictive covenant is
likely enforceable and in GSPR’s view there is little left to do
or say in this litigation. While this Court’s holding, of
course, is not a final adjudication of the issue, it nonetheless
has value to GSPR. In the event that Cherry Hill Towne Center
refiles its suit, GSPR should not be required to litigate the
new suit as if this Court had never ruled anything as to the
enforceability of the restrictive covenant. Nor should GSPR be
exposed to the additional time and expense of conducting
previous discovery, re-drafting and re-filing previous
and filed a motion for summary judgment on March 3, 2020. Rule
41(a)(1)(A)(ii) does not apply because GSPR does not stipulate
to the type of dismissal Cherry Hill Towne Center seeks.
pleadings, and re-drafting and re-filing its summary judgment
motion. Nor should GSPR face the threat of another judicial
forum. In the end, this Court agrees with GSPR and finds that
GSPR would be prejudiced by having to litigate a new, refiled
suit from scratch.
Although GSPR’s concerns are certainly well-founded,
dismissal with prejudice, as GSPR requests, would shift the
balance too far, and might also erroneously suggest that this
Court has rendered a final judgment as to the enforceability of
the restrictive covenant, which it has not. Thus, the Court
concludes that the following terms will adequately mitigate
prejudice to GSPR while allowing Cherry Hill Towne Center to
dismiss, without prejudice, and without costs, its claims.
First, any future suit by Cherry Hill Towne Center against GSPR,
seeking a declaration that the restrictive covenant at issue in
this suit is unenforceable, filed in the District of New Jersey,
or filed in New Jersey state court and removed to this District4,
shall be designated as related to this case and directly
assigned to the undersigned pursuant to Local Rule 40.1(c).
Second, upon assignment of the new case to the undersigned, the
Court’s prior ruling on GSPR’s Motion for Preliminary Injunction
will be deemed as rendered in the new case, GSPR’s Motion for
4 GSPR removed this suit from New Jersey Superior Court,
Chancery Division on the basis diversity of citizenship.
Summary Judgment will be deemed as pending in the new case, and
a new briefing schedule on the Motion for Summary Judgment will
be set by the Court. In essence, the case will pick-up where it
left off when Cherry Hill Towne Center makes its business
decision to proceed with building a sports betting facility.
IV. CONCLUSION
For the foregoing reasons, the Court will grant, in part,
and deny, in part, Plaintiff’s Rule 41(a)(2) Motion. An
appropriate Order: (1) dismissing this case without prejudice,
without costs, and upon the terms set forth above, and (2)
dismissing as moot GSPR’s Motion for Summary Judgment shall
issue on this date.
Dated: September 15, 2020 _s/ Renée Marie Bumb _____
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE