NJ Slams Gym's Bid To Undo COVID-19 Shutdown Order

By Jeannie O'Sullivan
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Law360 (June 17, 2020, 3:23 PM EDT) -- The state of New Jersey shot back at a gym's high-profile bid to invalidate COVID-19 shutdown orders, arguing Tuesday that the gym's federal court action is precluded by a state court battle already underway.

Atilis Gym in Bellmawr is already facing summonses and a civil action in Superior Court for opening in defiance of Gov. Phil Murphy's nonessential business ban during the pandemic, the state said in an opposition brief. The filing came in response to the constitutional challenge filed by the Camden County gym, which gained media attention and scrutiny from local law enforcement for opening for three days in May.

That challenge, lodged in New Jersey federal court, is barred by the abstention doctrine against disputes over the same set of facts being heard in two different courts, the brief said. The state argued that Atilis Gym could have challenged the constitutionality of Murphy's coronavirus business restrictions in the existing Superior Court actions.

"Those state courts present available and adequate forums in which to raise plaintiff's challenges to New Jersey law. Instead of raising defenses in those proceedings, however, plaintiff rushed to federal court, seeking an injunction that would directly interfere with — and, in fact, control — the disposition of those ongoing criminal and civil enforcement proceedings," the state's opposition brief said.

Further, the pandemic presents a "public health emergency unprecedented in modern times," the state said.

Though the numbers of positive coronavirus cases and casualties have begun to slow in New Jersey, the state remains one of the states hit hardest by the virus, trailing only New York. Murphy has begun easing restrictions as part of a paced plan to reopen the economy, but hasn't set a date for gyms to resume operations.

In its brief Tuesday, the state justified its exclusion of gyms and other personal care services from businesses that can reopen for now.

The state pointed to an executive order from June 9 explaining why some businesses, like retailers and restaurants that offer outdoor dining, could resume limited operations while others must stand down.

Murphy's executive order 153 said that "indoor recreation typically involves individuals congregating together in one location for a prolonged period of time, while in indoor retail settings, individuals [do not] remain in close proximity for extended periods."

"It thus in no way shocks the conscience that New Jersey — like so many other states — would adopt measures to prevent person-to-person interaction from taking place in indoor gyms, and instead require physical activity to take place outdoors, where the transmission risks are lower," the brief said.

The state also targeted the gym's approach in the state court actions. In that forum, the gym hasn't raised a challenge to the executive orders and so far has only sought relief to sell supplements and apparel from its premises.

Yet despite the parties' agreeing to that relief, the gym still hasn't withdrawn its federal lawsuit, the state said.

The litigation stems from Murphy's mid-March directive to shut down all nonessential businesses and limit the operations of others in order to contain the spread of the coronavirus. Murphy has justified the shutdown orders during daily press updates about the coronavirus case count and death toll, frequently emphasizing the need for social distancing.

Atilis made local and national headlines after it reopened on May 18 and co-owner Ian Smith became a vocal critic of Murphy's orders, appearing on the Fox News show "Tucker Carlson Tonight" and drawing coverage from Philadelphia-area newspapers and TV news stations.

Police issued summonses after the gym continued to defy health officials' orders to close, and the state filed a civil action enjoining it from opening. Atilis responded with a May 26 lawsuit in federal court targeting Murphy's original March shutdown order and two 30-day extensions Murphy signed in May amid the continuing pandemic.

The gym claimed the orders run afoul of federal civil rights laws as well as the due process and equal protection clauses of the Fifth and 14th Amendments to the U.S. Constitution. Atilis warned the orders would inflict "massive and widespread economic damage" if left intact.

Representatives for the gym didn't immediately respond to requests for comment.

The gym is represented by Christopher Arzberger of the Russell Friedman Law Group LLP and James G. Mermigis of The Mermigis Law Group PC.

The state is represented by New Jersey Attorney General Gurbir S. Grewal, Assistant Attorneys General Jeremy M. Feigenbaum, Daniel M. Vannella and Michael C. Walters, and Deputy Attorneys General Deborah A. Hay, Bryan Edward Lucas, Robert J. McGuire, Jessica Jannetti Sampoli and Michael R. Sarno.

The case is Atilis Gym Bellmawr LLC v. Philip D. Murphy et al., case number 1:20-cv-06347, in the U.S. District Court for the District of New Jersey.

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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