NAZAROV v. CITY OF BRIGANTINE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

VLADISLAV NAZAROV and

HONORABLE KAREN M. WILLIAMS

BRIGANTINE’S FRESHERY LLC, i

Plaintiffs, | Civil Action

No. 22-5478 (KMW-AMD)

CITY OF BRIGANTINE, ef al, :

OPINION

Defendants.

tn

APPEARANCES:

PETER M. KOBER. ESQ.

1864 RTE 70 EAST

CHERRY HILL, NJ 08003

Counsel for Plaintiffs

ERIN R. THOMPSON, ESQ.

BIRCHMEIER & POWELL, ESQ.

1891 STATE HIGHWAY 50

P.O. BOX 582

TUCKAHOE, NJ 08250-0582

Counsel for Defendants

WILLIAMS, District Judge:

INTRODUCTION

Plaintiffs Vladislav Nazarov and Brigantine’s Freshery LLC (together, “Plaintiffs”) bring

this action against the City of Brigantine and seven government-afftliated individuals (collectively,

‘“Defendants’”), alleging various federal and state constitutional violations. Specifically, Plaintiffs

claim that Defendants violated their rights by not allowing them to participate in the Brigantine

Farmers’ Market during the 2022 and 2023 seasons.

Presently before the Court is Defendants’ Motion for Summary Judgment and Plaintiffs’

Cross-Motion for Summary Judgment. (ECF Nos. 41, 43). For the reasons set forth below,

Defendants’ Motion will be granted and Plaintiffs’ Motion will be denied,!

I BACKGROUND?

A. The Brigantine Farmers’ Market

On February 15, 2017, the City Council of the City of Brigantine (the “City”) adopted

Ordinance No. 3-2017, which created the “Brigantine Green Team’”—an advisory committee to

the City’s Department of Public Works. (Pis.’ Cross SMF 4 1; Defs.’ Resp. Cross SMF § 1; SMF

{ 26; RSMF § 26; ECF No, 41-3 at 99.) Members of the Green Team were appointed by the

Brigantine City Council and were responsible for recruiting volunteers to work on various Green

Team projects, (SMF { 26; RSMF € 26; ECF No. 41-3 at 99.) One of the Green Team’s projects

was managing and coordinating the activities of the Brigantine Farmers’ Market—a non-profit

entity that organizes a seasonal farmers’ market (the “Market”). (SMF [ff 14, 26; Pls.’ CSMF {ff

2, 3; Defs.’ Resp. Cross SMF {ff 2, 3; ECF No. 41-3 at 25.) The City dedicates public property in

Brigantine to host the Market’s four-hour events, which take place weekly between Memorial Day

and Labor Day. (Pls.’ Cross SMF { 5-7; Defs.’ Resp. Cross SMF { 5-7.) The stated goals of the

Market during the relevant time period were primarily to: (1) provide local access for acquiring

fresh and healthy food; (2) support and promote local businesses’; (3) enhance exposure for

Brigantine businesses; and, (4) increase community awareness of sustainability by interacting with

farmers and artisans. (Pls.’ Cross SMF 8; Defs.’ Resp. Cross SMF { 8.)

' Pursuant to Local Civil Rule 78.1(b), this motion will be decided on the papers without oral argument.

2 For purposes of the instant Motion, this Court shall refer to Defendants’ Statement of Undisputed Material Facts

as “SMF,” Plaintiffs’ Response as “RSMF,” Plaintiffs’ Cross Statement of Material Facts as “Pls.* Cross SMF” and

Defendants’ Response thereto as “Defs.’ Resp. Cross SMF.”

3 Brigantine businesses were the priority and businesses within 50 miles of the City were considered “local”

45

Before the start of every season, returning or prospective full-time vendors were required

to submit applications to the Market for space. (Pls.’ Cross SMF 4 9; Defs.’ Resp. Cross SMF

9.) These vendor applications were then reviewed and “scored” by seven Market volunteers

(together, the “Committee), all of whom have been named as defendants in this action.’ (SMF 4

28; RSME 4 27, 28; Pis.’ Cross SMF § 4; Defs.’ Resp. Cross SMF § 4; ECF No. 41-3 at 60, 82,

117.) Though the selection of vendors was at least partly discretionary, the Committee’s Rules and

Regulations prescribed the weighing of five factors when reviewing vendor applications: (1)

whether the business is located in Brigantine or operated by a Brigantine resident; (2) whether the

operation is located in New Jersey; (3) whether the vendor is a returning vendor; (4) percentage of

product that is directly agricultural or produced in New Jersey with New Jersey materials; and, (5)

saturation of that type of product at the market (exclusivity should not be assumed). (Pis.’ Cross

SMF 4 11; Defs.’ Resp. Cross SMF 4 11.) The Committee also utilized the following rubric or

“score card”:

4 These individuals are John Addrizzo, Karen Geller, Jeanette Kessler, Sharon Lavinson, Janet Lieberman, Donna

Piekarski, and Fran Paullin.

“

Applleart Fariiers Market Applicant Score Card .

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Freduct Mevts Criteria ~ Farmed, flshad, crafter, cooked,

A/ouchars accepted : :

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Reglslered Business! Insuredficansad olready

Established commercial kiichenvidealtn Dept, tirensad

Application coinpleta and all requirements met,

Webglta/hotes orsamplsy submllted

Decunented paior suger ss selling product :

Subjective Scoring □ wt od . . we □ a :

Rent a food fit far Market □□

vo Mociot of high quallly ane will add Valies

Vendor Ia already of Is aniticlnsted to be be a

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(SMF 4 28; RSMF { 28; ECF No. 41-3 at 104.) The responses to the “Subjective Scoring” portion

of the rubric were left to the sole discretion of each Committee member, who “reserve[d] the right

to accept or reject any and all applications if it is in the best interest of the Market.” (ECF No, 41-

3 at 88.)° An explanation of the discretionary aspect of the review process was contained in “Step

2” of the Vendor Application documents provided to each applicant. (ECF No. 41-3 at 88.)

The vendor applications themselves also notified applicants of the following:

- The Brigantine Farmers Market Committee will fully evaluate every application to

determine if “your product meets the criteria for participation in the Brigantine

Famers Market. Each application is reviewed and voted on based on our

requirements, and how to best serve our community and the best interest of the

vendors. You will be notified of the BFMS’s decision”;

See also ECF No. 41-3 at 81 (“The Brigantine Farmers Market Committee, further known as the BFMC, will fully

evaluate every application to determine if your product ineets the criteria for participation in the Brigantine Farmers

Market, Each application is reviewed and voted on based on our requirements, and how to best serve our community

and the best interest of the vendors, You will be notified of the BFMC’s decision.”)

at

- The Brigantine Farmers Market is “‘a sub-det of the Brigantine Green Team.

The BFMC is an all-volunteer group of full and part-time Brigantine residents”;

- “The number of vendors shall be determined [by the Brigantine Farmers Market

Committee] at the sole discretion of the BFMC within the confines of available

space”;

- The Brigantine Farmers Market Committee “shall be the sole judge concerning

the merits of all applications submitted”;

- “Vendors area selected at the discretion of the BFMC. All applications will be

kept for reference should it be determined that the Market would benefit by the

addition of vendors”;

- “2.05 EXCLUSIVITY There is no assumption of exclusivity when a vendor is

approved. The BFMC reserves the right to approve vendors that may have some

crossover products, We are careful in our selection process”; and,

- “2.06 REJECTION OF APPLICATION The BFMC reserves the right to accept

or reject any and all applications and to waive any immaterial defects or

informality in any application if it is in the best interest of the Market to do so.

The determination of a material defect shall be a matter solely within the

discretion of the BFMC.”

(SMF □ 25; RSMF 25.)

B. Plaintiff Nazarov Moves to Brigantine and Opens “Brigantine’s Freshery”

In 2018,° Plaintiff Vladislav Nazarov moved from New York fo Brigantine, and in

September 2019 opened Brigantine’s Freshery (the “Freshery’”)}—a “clean food store” that offers

produce from local farmers, as well as homemade food and fresh-squeezed/cold-pressed juices.

(SMF {ff 5—6; ECF No, 41-3 at 56; Pls.” Cross SMF {] 13; Defs.’ Resp. Cross SMF § 13.) The

Freshery’s offerings were not exclusively organic. (SMF €{ 7, 8.) From Memorial Day through

October 31% each year, the Freshery is open from 8:00 a.m. until 5:00 p.m. (SMF 10; RSMF

10.)

6 On August 14, 2023, Nazarov testified that he moved to Brigantine five years earlier. (ECF No, 41-3 at 56.)

C. ‘Plaintiffs Seek Vendor Space at the Market

In 2020, Plaintiffs joined the Brigantine Chamber of Commerce and also applied to the

Market to sell organic and vegan/plant-based hot dogs purchased from a supplier and cooked on-

site. (SMF {ff 6, 15; ECF No. 41-3 at 62.) The Committee, however, denied Plaintiffs’ applications

because the hot dogs were deemed “not a good fit” for the Market. (SMF § 15; ECF No, 41-3 at

63.)

In 2021, Nazarov again applied to secure space at the Market for the upcoming summer

season, this time as an artisan selling resin dining room and coffee tables. (SMF 16; ECF No.

41-3 at 64.) The Committee denied this application as well, citing a lack of available space. (SMF

4| 16; ECF No. 41-3 at 64.)

On January 22, 2022, Nazarov applied as a “non-returning” Brigantine-based business

seeking to sell organic juices at the Market. (SMF ff] 17, 29; RSMF 4 17, 29; Pls.” Cross SMF

{4 14, 15, 16; Defs.’ Resp. Cross SMF {ff 14, 15, 16; ECF No. 41-3 at 112, 117.) The Committee

unanimously voted to deny this application because “they had two returning fresh juice vendors.”

(Defs.’ Resp. Cross SMF § 18.) Specifically, the Committee informed Plaintiffs that they have

“become highly successful in part because we carefully curate the selection of products. From a

business perspective, we also limit the number of the same or similar offerings based upon

experience and market trends. We do not guarantee exclusivity to any vendor, yet we do not want

to oversaturate the market. It is a careful balance that has proven to be successful.” (SMF { 30;

ECF No. 41-3 at 108.) On March 6, 2022, Committee member/Defendant Fran Pauilin sent

Plaintiffs the following email:

Thank you for your interest in being a part of the 2022 Brigantine Farmers Market.

You have participated in the Market, so you know that our primary focus is on

produce, meat and dairy products from area farms along with locally harvested

seafood and freshly prepared foods. You also know that we have a limited footprint.

Despite this constraint, we try to accommodate farmers needing extra space. In our

selection process we give priority to Brigantine residents whose product meets

Market standards and to returning full-season vendors, This leaves us with few

spaces for new artisan vendors. To ensure profitability for all, we limit the number

of vendors with the same or comparable products. Unfortunately, despite the high

quality of your offerings, we are not able to accommodate you this year because we

already have two returning fresh juice vendors. Since you are a Brigantine business,

you are likely a Chamber Member. This year the Market is reserving five spaces

each week for a rotating group of Chamber Members. If you are a member in good

standing, you can contact Kelly Lentz to request a spot in the Chamber Corner.

Thank you again and we wish you a fun and successful summer.

(SMF 4 31; RSMF ¥ 31; Pls.” Cross SMF ff 20, 23; Defs,” Resp. Cross SMF {ff 20, 23.)

In a subsequent correspondence prepared on Brigantine Farmers Market letter, a

Committee member further explained: “[f]rom a business perspective, we... . limit the number

of the same or similar offerings based upon experience and market trends. We do not guarantee

exclusivity to any vendor, yet we do not want to oversaturate the market. It is a careful balance

that has proven successful.” (Pls.’ Cross SMF { 21; Defs.’ Resp. Cross SMF § 21.)

Plaintiff Nazarov estimates he lost $2,000 for each Saturday event he would have

participated in throughout the 2022 season, had the Committee approved his application. (SMF 4

22; RSMF 4 22.) In reaching this figure, Nazarov assumed approximately 250 people would have

purchased his fresh-squeezed juices at a cost of $8.00 per drink and that most of his earnings would

have been profit. (SMF § 22; RSMF { 22.) In reaching these figures, Nazarov does not take costs

into consideration, which would have included materials and labor. (SMF § 22; ECF No. 41-3 at

72-73.)

After receiving the Committee’s 2022 denial letter, Nazarov received a telephone cail from

an individual affiliated with the Market, inquiring if Plaintiffs would like to participate in the

Market’s spring event. (SMF § 20; RSMF 20.) Nazarov testified that although he would have

loved to participate, he had to decline because the Freshery would not open before the event took

place. (SMF 4 20; RSME 4 20; ECF No. 41-3 at 66.) Additionally, Plaintiffs were also offered

space al the Market that was specifically designated for Chamber of Commerce members, free of

charge. (SMF § 21; 41-3 at 83.) Although only a maximum of six members may utilize the

Chamber of Commerce space at the Market, Plaintiff was provided with an opportunity to sell his

juices there for nine out of fifteen weekends during the 2022 season. (SMF {fj 21, 32; ECF No. 41-

3 at 83, 114.)

In November 2022, Plaintiff Nazarov listed the Freshery for sale with a realty group and

subsequently began a construction and interior design company the following year, which he

named “Kitchen and Bathroom Rescue.” (SMF { 9; ECF No. 41-3 at 57, 59.) For the 2023 season,

Nazarov again applied to be a vendor at the Farmers’ Market selling fresh-squeezed juices and his

request was once more denied because the Market already had two returning juice vendors. (SMF

{ 23; RSMF § 23; Defs.” Resp. Cross SMF § 28; ECF No. 41-3 at 112.) Specifically, the

Committee informed Plaintiffs “We have limited space each year, To ensure profitability for all

vendors, we carefully curate our vendors and while exclusivity is not guaranteed, we limit the

number of vendors with the same or similar type of products. We have returning vendors with

similar products and thereafter we are not able to accommodate you this year[.]” (Pls.’ Cross SMF

qf 21, 30, 32, 33; Defs.’ Resp. Cross SMF {J 21, 30; ECF Nos. 41-1 at 10, 44-1 at 4.)

Plaintiffs were no longer members of the Chamber of Commerce and were therefore unable

to use its reserved space for the 2023 summer season. (SMF { 24; RSMF 4 24.) Plaintiff Nazarov

testified that he did not renew the membership in 2023 because he felt it was no longer a “good

fit,|” he “didn’t see any reason for it[,]” and “the application fee was a little bit of a problem”

because “it was a very tough year for us.” (SMF 4f 12, 13; RSME 4] 12, 13; ECF No. 41-3 at 23,

76.)

I. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitied to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A fact is ‘material’ under Rule 56 if its existence or nonexistence might impact the

outcome of the suit under the applicable substantive law.” Santini v. Fuentes, 795 F.3d 410, 416

(3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also ALS.

by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (“A fact is

material if—taken as true—it would affect the outcome of the case under governing law.”).

Moreover, “[a] dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict

for the nonmoving party.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S, at 248).

The moving party bears the burden of identifying portions of the record that establish the

absence of a genuine issue of material fact. /d. (citing Celotex Corp. v. Catrett, 477 U.S, 317, 323

(1986)}. The burden then “shifts to the nonmoving party to go beyond the pleadings and come

forward with specific facts showing that there is a genuine issue for trial.” fd. (quoting Matsushita

Elec. Indus. Co, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)} (internal quotations omitted).

To survive a motion for summary judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict these offered by the moving party. Anderson, 477 U.S. at

256-57, “A nonmoving party may not ‘rest upon mere allegations, general denials or... vague

statements{.]’” Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng’rs, 982 F.2d

884, 890 (3d Cir, 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 Gd Cir, 1991)).

When considering a motion for summary judgment, the court views the facts and all reasonable

inferences drawn from the facts in the light most favorable to the nonmoving party. Matsushita

Indus. Co., 475 U.S, at 587,

I, DISCUSSION

As previously indicated, Plaintiffs bring this suit against the City of Brigantine and the

seven Committee volunteers over the denial of their vendor applications to participate in the

Brigantine Farmers’ Market during the 2022 and 2023 seasons. To this end, Plaintiffs assert

various federal and state law claims, each of which generally allege that Defendants have deprived

them of equal protection under the constitutions of both the United States and the State of New

Jersey. The Court addresses each claim in turn,

A. Fourteenth Amendment — Facial Validity

Invoking the Equal Protection Clause of the Fourteenth Amendment, Plaintiffs challenge

the facial validity of the “five factors” the Committee utilizes when assessing a prospective

vendor’s application for space at the Market:

* Whether the business is located in Brigantine or operated by a Brigantine resident;

¢ Whether the operation is located in New Jersey;

¢ Whether the vendor is a returning vendor;

* Percentage of product that is directly agricultural or produced in New Jersey with

New Jersey materials; and,

* Saturation of that type of product at the market (exclusivity should not be assumed),

(ECF No. 41-3 at 88.) According to Plaintiffs, these factors constitute an unconstitutional,

government “regulation” because they “createfe] a classification of applicants for full-season

vendor space for a Market season who are denied vendor space, who, collectively, are treated

differently from other, similarly situated applicants for full-season vendor space for a Market

season who are granted vendor space.” (ECF No. 39 at 18; ECF No. 43-2 at 6-7.)

The Equal Protection Clause “is essentially a direction that all persons similarly situated

should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S, 432, 439 (1985).

It provides that “[n]o State shall... deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. When reviewing an Equal Protection claim, courts

must first determine “whether the alleged state action burdens a fundamental constitutional right

or targets a suspect class.” Safe Troopers Non-Commissioned Officers Ass’n of New Jersey v. New

Jersey, 399 F. App’x 752, 754 (3d Cir. 2010). A classification that “trammels fundamental

personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage

must meet the strict scrutiny standard, under which a law must be narrowly tailored to further

a compelling government interest.” Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir, 1992)

(citation and internal quotation marks omitted), However, “{i}f a classification neither burdens a

fundamental right nor targets a suspect class, [courts] will uphold it so long as it bears a rational

relation to some legitimate end.” Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir.

2013) (internal quotation marks omitted),

As an initial matter, the Court first observes Plaintiffs’ concession that the challenged

factors do not implicate a fundamental right or otherwise draw distinctions based on a suspect

classification, and that rational basis scrutiny thus governs their challenge. Against this backdrop,

Plaintiffs theorize that the factors amount to an unconstitutional social and/or economic regulation

because they do not bear a rational relation to a legitimate government interest. The Court is

unpersuaded.,

“In areas of social and economic policy, a statutory classification that neither proceeds

along suspect lines nor infringes fundamental constitutional rights must be upheld against equal

protection challenge if there is any reasonably conceivable state of facts that could provide a

tational basis for the classification,” FCC v. Beach Communications, 508 U.S, 307, 313 (1993).

Thus, to succeed on an Equal Protection challenge, a plaintiff must demonstrate that “no set of

circumstances” exist under which the challenged legislative measure would be valid. See United

States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011) (quoting United States v. Salerno, 481 U.S.

739, 745 (1987)).

Despite raising a facial challenge, Plaintiffs do not articulate how exactly the interests

underlying these factors are illegitimate. Nor do they meaningfully explain how these factors are

wholly unrelated to the furtherance of those interests. In this Court’s view, the interests underlying

the challenged factors appear to be entirely legitimate on their face. The Committee’s reliance on

those factors likewise appear to further those interests.

instructive to this Court’s assessment of the Factors at issue, is the legislative provision

from which they arise:

The Court first observes the legislative provision from which these factors arise:

§ 65-2 Purpose.

The general purpose for the Green Team shall include, but not be limited to:

A, Managing Brigantine’s participation in the Sustainable Jersey program;

B. Encouraging the City’s staff to pursue sustainable practices where possible

and implement the City Council’s environmental goals;

C, Work with the existing groups within the City whose actions affect

environmental issues so as to eliminate duplication and assure that

important tasks are covered;

D. Provide input for the City of Brigantine website;

E. Provide suggestions for further research and action to the City Council;

F. Provide advice and suggestions to the Planning Board, Zoning Board of

Adjustment and other environmental entities to assure that environmental

issues are considered in their deliberations and actions;

G. Manage and coordinate the Brigantine Farmers’ Market,

H. Solicit and evaluate environmental ideas and suggestions from the

community; and

I. Promote the causes of sustainability with the City.

City of Brigantine, N.J., Ordinance 3-2017 (Feb. 15, 2017) (emphasis added). The express goals

of the Market are as follows:

* Provide local access for acquiring fresh and healthy good[;]

« Support and promote local businesses (Brigantine businesses as our

priority and up to 50 miles considered localj; |

* Enhance exposure for Brigantine businesses];] [and,]

« Increase community awareness of sustainability by interacting with

farmers and artisans[.]

(ECF No. 41-3 at 87.) Prospective vendors, including Plaintiffs, were apprised of these very same

goals:

[t]he goal of the BRIGANTINE FARMERS MARKET is to bring fresh and locally

grown produce and artisanal products to Brigantine residents and visitors. This

mission helps to sustain and preserve farms in our Garden State, contributes to the

public health and increases community awareness of sustainability by interacting

with farmers and artisans.

The market is backed by the City of Brigantine and operated as a community

service by the Brigantine Farmers Market Committee, a sub-set of the Brigantine

Green Team, The BFMC is an all-volunteer group of full and part- time Brigantine

residents. The BFMC plans, manages, and promotes the market, assisted by a larger

eroup of volunteers and friends who provide essential market day support. The

Market’s yearly operating budget is comprised of participants’ Market fees and

sponsor contributions,

The market rules are the standards by which the BRIGANTINE FARMERS

MARKET operates. Participants must abide by these standards: failure to adhere to

the standards may result in loss of permission to sell.

(ECF No. 41-3 at 82) (emphasis in original).

Plaintiffs have provided no evidence suggesting that these goals are illegitimate. Nor have

they offered any meaningful argument demonstrating that the five factors they challenge are

wholly and irrationally unrelated to these goals. As far as the Court can discern, Plaintiffs take

issue with the factors insofar as they appear to draw distinctions that tend to favor some vendors

over others. That alone, however, does not portend facial invalidity. As observed by another

district court in a remarkably similar case:

The Equal Protection Clause does not forbid classifications, It simply keeps

governmental decision makers from treating differently persons who are in all

relevant respects alike. Unless a suspect class or fiindamental right is at issue,

classifications made by governmental entities need only be rationally related to a

legitimate state interest. The great deference granted to lawmakers is especially

lenient in cases involving economic classifications. Although the distinctions made

between groups may seem arbitrary, the fact [that] the line might have been drawn

differently at some points is a matter for legislative, rather than judicial,

consideration. The regulating body is not required to achieve perfection or

mathematical exactitude. Furthermore, the actual legislative intent is irrelevant,

Levin v. City of Palm Beach Gardens, CASE NO. 06-81315-CTV, 2007 U.S. Dist. LEXIS 112212,

at *7-8 (S.D. FL. Nov. 19, 2007). The Levin court further observed:

The City also stated that “[s]urely, support of agriculture and home grown business

is a legitimate, local governmental interest .. . [and] is clearly an economic, ‘line

drawing’ that is within the purview of the City in keeping with the mission of the

event and an area where courts have to show a paradigm of judicial restraint.” The

Court in its prior Order agreed and found that “the City clearly has stated a

legitimate purpose, as demonstrated by Plaintiff's inclusion of the GreenMarket’s

mission statement. Furthermore, it is not irrational for the City to believe that

classification of potential vendors, with corresponding differentiation in access,

may assist the City in creating the type of event it desires. Consequently, the basic

policy of categorizing vendors passes rational basis scrutiny.” Therefore, as a

matter of law, the vendor classifications pass rational basis scrutiny.

at *9-10,

This ruling was subsequently affirmed by the Eleventh Circuit:

Upon review of the record and the parties’ briefs, we conclude that the district court

did not err in finding that the City’s vendor classifications were rationally related

to a legitimate government interest. Appellant’s argument is based on his claim that

the only valid governmental interest in running the Market is the promotion of local

growers and agriculture. However, the Market’s mission statement for 2006-2007,

the first Market season which used the vendor subcategories that Appellant

challenges, sets forth a legitimate municipal objective of providing a “‘green’

1A

shopping opportunity and a cultural event” for the northern Palm Beach County

area. The City could rationally have concluded that “Business/Exporter/Importer”

vendors were not “essential to the mission of the Market,” and that limiting their

presence to certain special market days would help create the type of shopping

opportunity and cultural event the City desired to provide to the area. As a result,

we affirm the district court’s finding that the vendor classifications passed rational

basis review.

Levin y. City of Palm Beach Gardens, 303 F. App’x 847, 850 (11 Cir. 2008).

But even if Plaintiffs could come forward with some articulable imperfections in these

measures, that would still not be enough to succeed on an Equal Protection claim. As one

California court accurately recognized,

Rational-basis review in equal-protection analysis is not a license for courts to

judge the wisdom, faimess, or logic of legislative choices. Because the court is not

a super-legislature that sits in judgment of the wisdom or desirability of legislative

policy, there is a strong presumption that governmental classifications do not

violate the Equal Protection Clause unless they burden a suspect class or a

fundamental interest. Rational-basis review does not require the government’s

action actually advance its stated purposes, but merely that the government could

have had a legitimate reason for acting as it did.

Wal-Mart Stores, Inc. vy, City of Turlock, 483 F. Supp. 2d 987, 1008-1009 (E.D. Cal. July 3, 2006)

(citations omitted).

Plaintiffs have failed to carry their burden of showing that “no set of circumstances” exists

under which the challenged factors would be valid. See United States v. Mitchell, 652 F.3d 387,

405 (3d Cir. 2011). Consequently, their facial challenge to the same under the Equal Protection

Clause necessarily fails.

B. Fourteenth Amendment — Class-of-One Theory

Plaintiffs have also asserted an Equal Protection claim based on a “class-of-one” theory.

Although Equal Protection challenges most often allege class-based discrimination, such claims

may be sustained where a plaintiff claims that she has been irrationally singled out as a so-called

“class of one.” See Engquist v. Or, Dep’t of Agric., 553 U.S. 591, 601 (2008). To prevail under a

class-of-one theory, a plaintiff must come forward with evidence demonstrating that (1) the

defendant treated him differently from others similarly situated, (2) the defendant did so

intentionally; and (3) there was no rational basis for the difference in treatment. See Thomas v. E.

Orange Bd. of Educ., 998 F. Supp. 2d 338, 352 (D.NJ. 2014); see also Hill vy, Borough of

Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). Here, Plaintiffs’ class-of-one theory fails on all fronts.

First, Plaintiffs have pointed to no evidence suggesting that they were treated less favorably

than other, similarly situated vendors. For purposes of an Equal Protection analysis, persons ate

“similarly situated” when they are “alike in all relevant respects.” Joey's Auto Repair & Body Shop

vy. Fayette Cty., 785 Fed. Appx. 46, 49 (3d Cir. 2019) Gnternal quotation marks omitted). In their

Opposition to Defendants’ Motion, Plaintiffs state they “can show others who were similarly

situated who were treated better, so their class of one equal protection claims does not fail for lack

of comparators.” (ECF No. 44 at 8.) Clearly, Plaintiffs have misapprehended their burden. This

matter is currently at the summary judgment stage. To the extent such evidence exists, now is the

time for Plaintiffs to present it. As far as this Court can discern, no such evidence has been

presented because no such evidence exists.

There is nothing in the record suggesting that new applicants other than Plaintiffs were

denied space at the Market solely because said applicants were not “returning” vendors. The record

is further devoid of any evidence to demonstrate the number of new vendors versus the number of

returning vendors and what they were selling for the 2022 and 2023 seasons, as the Factors take

into consideration “saturation” of any particular “type” of product at the Market, (ECF No. 41-3

at 88.)’

7 See also ECF 41-3 at 108 (All vendors, including farmers and those who have been partners since our first year,

are required to complete an application every year and to meet the current requirements outlined in our rules, such as

commercial kitchens for food vendors, licenses and liability insurance. Between January and March, applications are

reviewed regularly as they arrive. Once ail available spots are filled, an applicant may be declined.”)

re

Second, Plaintiffs have failed to establish any intentional treatment by Defendants. Beyond

citing to his subjective beliefs, Plaintiffhas adduced no evidence demonstrating that the challenged

factors were adopted or applied for the purpose of excluding Plaintiffs from the Market. The record

shows that Plaintiffs’ 2022 and 2023 applications were rejected on completely objective grounds—

the items Plaintiff Nazarov intended to sell were not original or unique and would have resulted in

oversaturation because the Market already had two returning juice vendors, (ECF No. 41-3 at 112,

120.) The fact that Committee members exercised some degree of discretion when deciding on

applications does not alter this conclusion. Indeed, when one considers the goals of the Green

Team/Committee—to help “sustain and preserve farms in our Garden State, contribute[] to the

public health and increase[|community awareness of sustainability by interacting with farmers and

artisans” □□□ is clear the factors are nothing more than a tool used by the Cominittee to ensure

these goals are met. See McKeithan, 2014 U.S. Dist. LEXIS 102687, at *19-20 [I]t is clear that

a rational basis exists that permit the discretionary decision makers at SC]-Mahanoy to make

individual determinations about which privileges to reward to different inmates who are on RRL

status within each institution.”).®

Contrary to Plaintiffs’ conclusory assertions, the record more readily suggests that

Plaintiffs were treated better than “equal.” On numerous occasions, Defendants tried to offer

Plaintiffs assistance by inviting them to participate in the Spring Market, providing them with

detailed information regarding the “scoring” of applicants, informing them of the free space they

could obtain through the Chamber of Commerce, and encouraging them to apply again for the

® Separately, the Court notes that Plaintiffs have failed to submit testimony from any of the Committee members

that could ostensibly provide further insight into the decisionmaking regarding Plaintiffs’ 2022 and 2023

applications. In this regard, the only remotely probative evidence is select interrogatory responses from volunteer

Committee member Donna Piekarski, who attests to the fact that Plaintiffs’ 2022 application was denied by unanimous

vote of the entire Committee because the Market already had two returning juice vendors for that season. (ECF No.

41-3 at 117.)

+77

following season. (SMF ¥J 20, 31; RSMF {ff 20, 31; Pls.’ Cross SMF ff] 20, 23; Defs.’ Resp,

Cross SMF {if 20, 23.) Notwithstanding the fact there were already two juice vendors accepted to

participate in the 2022 Market, the Committee extended an invitation for Plaintiffs to participate

in the 2022 Spring Market, but they declined to do so. Plaintiff Nazarov was also informed by the

Comunittee that he could request space at the Market through the Chamber of Commerce. He did

so and was provided nine free weeks of vendor space. But for the fact Nazarov declined to join

the Chamber of Commerce in 2023, the possibility that he would have been afforded the same

benefit during the 2023 Market season cannot be precluded. But even if Plaintiffs could

substantiate their complaints over the lack of an “even playing field,” such a complaint evinces

nothing more than a disproportionate effect of the factors, which is insufficient to carry an Equal

Protection claim. See Stehney v. Perry, 101 F.3d 925, 937 (3d Cir, 1996) (“[A] facially neutral

policy does not violate equal protection solely because of disproportionate effects.”).

Lastly, Plaintiffs have failed to show that there was no rational basis for the treatment of

which they complaint. As with any Equal Protection challenge, a plaintiff proceeding under a

class-of-one theory also bears the burden of “negating all conceivable rational justifications for the

allegedly discriminatory action or statute.” RAJ Med. Ctr., Inc. v. City of Dubois, CIVIL ACTION

NO. 3:09-cv-131, 2012 U.S. Dist, LEXIS 197379, at *60-61 (W.D. Pa. Aug, 17, 2024) Gnternal

quotation marks omitted). Here, Plaintiffs submit that the Committee was equivalent to a local

government agency and that—by promulgating “a regulation to govern its selection process of

full-season vendors”-—it “clearly evoke[d] economic protectionism of the returning full-season

fresh juice vendors as the reason for the denial of space at the 2022 and 2023 Markets[.] (ECF

No. 43-2 at 10-11.) Plaintiffs conclude that, “[slince the plain reason was to protect the profits of

the returning full-season fresh juice vendors from competition by a newcomer, the denial violated

19

Plaintiffs’ right. The regulation which allowed protection of the profits of returning full-season

vendors to be a factor was unconstitutional.” (ECF No. 43-2 at 10-11; ECF No, 44 at 14-15.) The

Court is unpersuaded.

The doctrine of economic protectionism is a “regulatory measure[| designed to benefit in-

state economic interests by burdening out-of-state competitors.’” NJ Staffing All. v. Fais, No.

1:23-cv-02494, 2023 U.S. Dist. LEXIS 129331, at #22 (D.N.J. July 26, 2023) (quoting Dep □□ of

Revenue of Ky. v. Davis, 553 U.S, 328, 337-38 (2008)); see also American Resort Dev. Ass'n v.

of the V.L, 848 F. App’x 79, 82 Gd Cir. 2021) (“[T]he differential treatment that justifies a

finding of discriminatory effect occurs when a state engages in economic protectionism that

‘creates .., barriers ... against interstate’ firms, ‘prohibit{s] the flow of interstate goods, place[s]

added costs upon them, or distinguish[es] between in-state and out-of-state companies’ in a state’s

internal market.) (quoting Exven Corp. v. Governor, 437 U.S. 117, 126 (1978)); MARJAC, ELC

v. Trenk, 380 F. App’x 142, 146 (3d Cir, 2010) (recognizing economic protectionism as a law that

“disadvantages out-of-state businesses to benefit in-state ones.”) (quoting Cloverland-Green

Spring Dairies, Inc. y. Pa, Milk Mktg. Bd., 462 F.3d 249, 261-62 (3d Cir. 2006); Old Bridge

Chemicals, Inc. v. New Jersey Dep't of Environmental Protection, 965 F.2d 1287, 1294 n.5 □□□

Cir, 1992) (“A state law may constitute ‘economic protectionism’ on proof of either discriminatory

purpose or discriminatory effect” on interstate commerce.)

Notwithstanding the absence of any interstate commerce issue here, Plaintiffs do not

specify what “right” they have to sell juice at a local farmers’ market. In support of their argument,

Plaintiffs rely heavily on the Kentucky matter of Tiwari v. Friedlander, 26 F, 4th 355 (6" Cir.

2022), cert. denied, 143 S. Ct. 444, 214 L. Ed. 2d 253 (Nov. 21, 2022). In Tiwari, the

Commonwealth of Kentucky denied Plaintiffs a “certificate-of-need,” which was necessary in

wo

order for Plaintiffs to open a home health care facility in Kentucky. The District Court granted

summary judgment to Defendants and Plaintiffs appealed. The policy at issue required “new

entrants to show that at least 250 patients need the service while it requires existing companies to

show that at least 125 patients need the expanded service.” fd. at 359, Plaintiffs argued this

constituted economic protectionism and the appeals court determined Plaintiffs failed to prove

there was no rational basis between the statute and the State’s goal of “further[ing] healthcare in

Kentucky.” fd. at 364, The court further noted that “[nJone of [Plaintiffs’] evidence puts the law’s

connection to quality beyond dispute, even if it strengthens considerably one side of the policy

dispute.” Jd. at 366. Therefore, the court concluded Plaintiffs’ “evidence does not reject beyond

question.the notion that a legislator could at least rationally think that the law would facilitate cost

efficiency and that cost efficiency could benefit the public down the road.” at 367.

Additionally, the court opined that “[nJew entrants will likely have more overhead and more

difficulty spreading those costs than existing market participants with higher patient volumes.

Hence the lower threshold for the incumbent. The disparity comports with the law’s justifications,

or at least a legislator plausibly could think so.” /d. at 368. In the end, the question remains “not

whether a law in fact is rational [but] whether a legislator could plausibly think so.” Jd, at 369.

Assuming arguendo economic protectionism may be properly construed to apply to this

matter, Plaintiffs have failed to set forth evidence of record to show the Committee could not have

plausibly thought there was a rational basis underlying the factors that supported the goals of the

City, the Green Team, and its Market insist that their vendor applications were not assessed on an

“even playing field” on the basis of market saturation and the existence of two returning juice

vendors, (ECF No, 41-3 at 71.) Again, “a facially neutral policy does not violate equal protection

solely because of disproportionate effects.” Stehney v. Perry, 101 F.3d 925, 937 (3d Cir. 1996).

af

In conclusion, Plaintiffs’ Equal Protection claim fails because they cannot establish any of

the necessary elements fo sustain a class-of-one theory. Summary judgment must accordingly be

entered.”

C. Plaintiffs’ State Law Claims

A district court has discretion to decline to exercise supplemental jurisdiction over a

plaintiff's state law claims if it “has dismissed all claims over which it had original jurisdiction.”

28 ULS.C. § 1367(c)(3). “Where the claims over which the district court had original jurisdiction

ate dismissed before trial, ‘the district court must decline to decide the pendent state claims unless

considerations of judicial economy, convenience, and fairness to the parties provide an affirmative

justification for doing so.’” Ass'n of New Jersey Rifle & Pistol Clubs, Inc. v. Christie, 850 F. Supp.

2d 455, 462 (D.N.J. 2012) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d

Cir. 1995)) (emphasis added).

Inasmuch as judgment is being granted in favor of Defendants on all of Plaintiffs’ federal

claims and there is no affirmative justification for retaining jurisdiction over Plaintiffs’ remaining

state law claims, the court shall decline to exercise supplemental jurisdiction in this matter. See D

& D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 552 F. App’x 110, 117 Gd Cir, 2014) (affirming

° Because Plaintiffs have failed to establish the violation of a constitutional right, Plaintiff's remaining Monel/

claims necessarily fail as a result, See Citade/, 2023 U.S. Dist, LEXIS 210115, at *45 (Plaintiff having failed to make

outa claim ofa constitutional violation cannot make out a Monel/ claim against the municipality.”), The Court likewise

need not weigh in any arguments the parties have raised concerning individual immunity or the availability of punitive

damages. See Betinme v. Owens, Civil Action No. 17-cv-0977, 2019 U.S, Dist. LEXIS 135993, at #5 (D.NJ. Aug. 12,

2019) (“Given that summary judgment is proper, there being no proof of a constitutional violation, the Court need not

address the qualified immunity defense.”); Gentile v. DES, Props., 3:08-CV-2330, 2012 U.S. Dist. LEXIS 94657, at

*28 nll (M.D. Pa. July 9, 2012) (concluding entry of summary judgment mooted defendants’ absolute immunity

defense); Bradley v. Atl. City Bd. of Educ., 736 F. Supp. 2d 891, 893 n.3 (D.N.J. 2010) (denying as moot Defendant’s

motion for summary judgment on the issue of punitive damages after granting “judgment in favor of Defendants on

all liability issues”).

yd

district court Order that declined to exercise supplemental jurisdiction over a plaintiff's remaining

state law claims following entry of summary judgment as to federal Jaw claims).

CONCLUSION

For the reasons set forth above, the Court grants Defendants’ Motion insofar as it seeks the

entry of summary judgment on Plaintiffs’ federal law claims. The Court declines to exercise

supplemental jurisdiction over Plaintiffs’ remaining state law claims and dismisses them

accordingly without prejudice. Plaintiffs’ Cross-Motion for Summary Judgment is denied in its

entirety. An Order consistent with this Opinion will be entered.

Date: June 25, 2024

Gren artn

KAREN M. WILLIAMS

U.S. DISTRICT COURT JUDGE

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