The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
REBECCA PETERSEN & JOHN
PETERSEN,
Plaintiffs,
Civil Action No. 23-2189 (ZNQ) (JBD)
v.
OPINION
JEFFREY MOORE & HUNTERDON
CENTRAL REGIONAL HIGH SCHOOL
BOARD OF EDUCATION,
Defendants.
QURAISHI, District Judge
THIS MATTER comes before the Court upon a Motion for Temporary Restraining Order
filed by Plaintiffs Rebecca Petersen and John Petersen (“Plaintiffs”). (“Motion”, ECF No. 2.)
Plaintiffs filed a Brief in Support of their Motion. (“Moving Br.”, ECF No. 2-1.) Defendants
Jeffrey Moore (“Moore”) and the Hunterdon Central Regional High School Board of Education
(the “Board”) (collectively, “Defendants”) have not yet filed an opposition. In light of the
emergent relief sought by the Motion, the Court will address it without the benefit of Defendants’
response.
The Court has carefully considered Plaintiffs’ submissions and decides the Motion without
oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the
reasons set forth below, the Court will DENY Plaintiffs’ Motion for Temporary Restraining Order.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs initiated the instant matter on April 19, 2023 by filing a Verified Complaint
(“Compl.”, ECF No. 1) and Motion for Temporary Restraining Order (ECF No. 2). They allege
that Mrs. Petersen is a duly elected member of the Hunterdon Central Regional High School
(“Hunterdon High”) district Board of Education. (Compl. ¶ 9.) Mrs. Petersen and her co-Plaintiff
husband Mr. Petersen are parents of a child that attends Hunterdon High. (Id. ¶ 10.) In support of
Women’s History Month, Hunterdon High created a commemorative display which included
photographs of two transgender women. (Id. ¶ 1.) A photograph of the display was taken and
subsequently posted on Twitter under the Twitter account “mammallama” wherein certain
anonymous tweets related to transgender issues—including controversial issues of public
concern—were made. (Id.) Plaintiffs allege that Defendants attributed the “mammallama”
account and the posting of the photograph to Plaintiff Mrs. Petersen. (Id. ¶ 2.) Following the
tweet, Defendants launched an investigation surrounding the tweeted photograph. (Id. ¶ 3.) As a
result, Plaintiffs allege that the investigation violates their First Amendment rights and filed the
instant Motion to enjoin the investigation. (See generally, id).
II. LEGAL STANDARD
To obtain a preliminary injunction, the moving party must demonstrate: “(1) the reasonable
probability of eventual success in the litigation, and (2) that it will be irreparably injured if relief
is not granted. Moreover, the district court also should take into account, when relevant, (3) the
possibility of harm to other interested persons from the grant or denial of the injunction, and (4)
the public interest.” South Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771,
777 (3d Cir. 2001). “[A] district court—in its sound discretion—should balance those four factors
so long as the party seeking the injunction meets the threshold on the first two.” Id. (citing Oburn
v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975)). It follows that a “failure to show a likelihood of
success or a failure to demonstrate irreparable injury must necessarily result in the denial of a
preliminary injunction.” See id. at 777 (citing In re Arthur Treacher’s Franchisee Litig., 689 F.2d
1137, 1143 (3d Cir.1982)). As a threshold matter, the Court therefore considers the first two
prongs together. “Only when a plaintiff has sufficiently met the first two prongs, does the Court
consider the third prong relating to the possibility of harm to other parties and finally, evaluate
whether public interest is served by granting injunctive relief.” Love v. Does, Civ. No. 17-1036.
2023 LEXIS 19495, at *4 (D.N.J. Feb. 6, 2023).
III. DISCUSSION
In this case, the Court need only analyze the second factor of the preliminary injunction
analysis, because, for the reasons set forth below, the Court finds that Plaintiffs have failed to show
that he will suffer irreparable harm. See Exec. Home Care Franchising LLC v. Marshall Health
Corp., Civ. No. 15-760, 2015 WL 1422133, at *3 (D.N.J. Mar. 26, 2015).
Plaintiffs argue that Defendants’ investigation into the Twitter post violates their First
Amendment rights. (Moving Br. at 11.) According to Plaintiffs, this investigation “violate[s] the
rights of all citizens of the District, and their ‘government approved speech’ is damaging all
students at [Hunterdon High].” (Id.)
Plaintiffs, as the moving party, “ha[ve] the burden of establishing a ‘clear showing of
immediate irreparable injury.’” Tracey v. Recovco Mortg. Mgmt. LLC, 451 F. Supp. 3d 337, 344
(D.N.J. 2020) (quoting Louis v. Bledsoe, 438 F. App’x 129, 131 (3d Cir. 2011)). Irreparable injury
means harm “such that legal remedies are rendered inadequate.” Tilden Recreational Vehicles,
Inc. v. Belair, 786 F. App’x 335, 342 (3d Cir. 2019) (citing Anderson v. Davila, 125 F.3d 148, 163
(3d Cir. 1997).
Demonstrating irreparable harm is perhaps the single most important prerequisite for
issuing a preliminary injunction. Donlow v. Garfield Park Acad., Civ. No. 09-6248, 2010 WL
1381010, at * 1 (D.N.J. Apr. 1, 2010) (internal citations omitted). The party seeking injunctive
relief must demonstrate irreparable harm by “a clear showing of immediate irreparable injury.”
Id. (quoting Florence v. Bd. of Chosen Freeholders, 595 F.Supp.2d 492, 514 (D.N.J. 2009)).
Before a court may issue preliminary injunctive relief, it must be convinced that the injunction is
“the only way of protecting the plaintiff[s] from [the] harm” in question. See Ace Am. Ins. Co. v.
Wachovia Ins. Agency Inc., 306 F. App’x 727, 731 (3d Cir. 2009). “The dramatic and drastic
power of injunctive force may be unleashed only against conditions generating a presently existing
actual threat” of irreparable harm. See Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d
Cir. 2000). “Establishing a risk of irreparable harm is not enough. [Rather,] a clear showing of
immediate irreparable injury is required.” Naccarati v. Wilkins Twp., 846 F. Supp. 405, 408 (W.D.
Pa. 1993) (citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)). In other words,
the risk of irreparable harm must not be speculative. Acierno, 40 F.3d at 655. Furthermore, a court
cannot find irreparable harm where a defendant’s breach can be adequately remedied by monetary
damages. Peterson v. HVM L.L.C., Civ. No. 14-1137, 2015 WL 3648839, at *6 (D.N.J. June 11,
2015).
“While other circuits relax the irreparable harm requirement in First Amendment cases,
[the Third Circuit] requires a First Amendment plaintiff seeking a preliminary injunction to prove
irreparable harm.” Conchatta, Inc. v. Evanko, 83 F. App’x 437, 442 (3d Cir. 2003). In Hohe v.
Casey, 868 F.2d 69, 72‒73 (3d Cir. 1989), the Third Circuit observed that “the assertion of First
Amendment rights does not automatically require a finding of irreparable injury.” Instead, the
Third Circuit wrote, “plaintiffs must show ‘a chilling effect on free expression.’” Id. In Anderson,
125 F.3d at 164, the Third Circuit held that plaintiffs who had shown a likelihood of success on
the merits of their First Amendment claim would not be entitled to preliminary injunctive relief
unless they could show a “‘real or immediate’” danger to their rights “in the near future.”
In their Moving Brief, Plaintiffs devote three sentences to articulating their irreparable
harm.
“Mrs. Peterson is already being punished via the
investigation with respect to her perceived political association with
mammallama. Similarly, the public at large and students are being
punished for potentially thinking in ways that are not officially
sanctioned by defendants, such that defendants are harming all
citizens, including students, with respect to viewpoint
discrimination which violated the First Amendment. As noted
above, ‘[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.’”
Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67 (2020).”
(Moving Br. at 15‒16.) Plaintiffs quote Roman Catholic Diocese to support the proposition that
an allegation of a First Amendment violation automatically satisfies the irreparable harm
requirement. Plaintiffs quote the Supreme Court’s language out of context. Roman-Catholic
Diocese involved two religious institutions seeking to enjoin a COVID-related Executive Order
by the Governor of New York that would have severely restricted the number of attendees at
religious services. The Executive Order would have prevented anyone who wished to attend
service but exceeded the permissible number to forgo in-person rituals central to their faith. In
short, if not enjoined, the Executive Order would have prevented would-be attendees from
exercising their First Amendment rights to the free exercise of their religion. Here, in contrast, the
speech that Plaintiffs seek to protect has already occurred. It is the investigation and potential
repercussions they seek to enjoin. Plaintiffs have not articulated, however, how this investigation
and these repercussions are irreparable.
Plaintiffs’ professed harm is less than clear, much less its irreparability. To the extent they
contend that Board’s investigation into the dissemination and subsequent tweet of the photograph
constitutes irreparable harm, that argument is insufficient. Courts have consistently held that
employer investigations and a plaintiff’s requirement to comply with an investigation do not
constitute irreparable harm. See, e.g., Univar Sols. Inc. v. Geisenberger, Civ. No. 18-1909, 2022
WL 2064990, at *9 (D. Del. June 8, 2022).
Moreover, by Plaintiffs’ own admission, Mrs. Petersen has not suffered any adverse
consequence by taking part and complying with the investigation. Plaintiffs for example, do not
allege that Mrs. Petersen has been discharged, suspended or demoted. In fact, Mrs. Petersen is
still employed by the Board. See Whistleblower 1 v. Bd. of Educ. Of City of Elizabeth, N.J., Civ.
No. 11-6480, 2011 WL 5882165, at *2 (D.N.J. Nov. 22, 2011) (denying motion for preliminary
injunction because “[p]laintiffs d[id] not allege that they have been discharged, suspended or
demoted. In fact, Plaintiffs are still employed by the Board.”). To be clear, the Court reaches no
conclusion with respect to the ultimate merits of Plaintiffs’ case. The Court merely concludes that,
at this stage of the litigation, Plaintiffs’ failure to show irreparable harm compels the denial of his
Motion.
IV. CONCLUSION
For the reasons stated above, the Court will DENY Plaintiffs’ Motion for Temporary
Restraining Order. An appropriate Order will follow.
Date: April 21, 2023
s/ Zahid N. Quraishi
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE