NJ Cinema Owners Can't Get Virus Closure Lifted, For Now

By Bill Wichert
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Law360 (July 14, 2020, 9:51 PM EDT) -- A New Jersey federal judge on Tuesday rejected a bid from movie theater owners and their trade associations to immediately block state officials from enforcing orders keeping theater doors closed due to the COVID-19 pandemic, saying they didn't meet "the stringent standard for granting this extraordinary relief."

U.S. District Judge Brian R. Martinotti denied a request from the AMC movie theater chain and other plaintiffs for a temporary restraining order in their lawsuit challenging the ongoing shutdown of cinemas in the Garden State while churches and other similar venues have been permitted to reopen to the public.

The plaintiffs' related motion for a preliminary injunction will be heard in the coming weeks, according to the judge's order to show cause for a preliminary injunction. The suit was filed on July 6 against New Jersey Gov. Phil Murphy and state Health Commissioner Judith Persichilli.

"Plaintiffs' moving papers demonstrate they had ample opportunities to file a request for a temporary restraining order after the governor's initial executive order, subsequent modifications thereto, and the filing of this complaint," Judge Martinotti said in the order.

The judge also called it "noteworthy" that, "as plaintiffs file this application, states that initially ordered the re-opening of indoor movie theaters have once again ordered their closure in response to rising COVID-19 infection numbers."

By Aug. 4, Murphy and Persichilli must show why an order shouldn't be entered to stop them from requiring the closure of movie theaters or from treating them differently than "religious or political indoor gatherings" when it comes to conditions for opening to the public, the judge said.

The theater owners and trade groups lost their bid to obtain such relief on a temporary basis and will have to wait until their motion for a preliminary injunction is decided.

The plaintiffs also include the National Association of Theatre Owners, the National Association of Theatre Owners of New Jersey, Cinemark USA Inc., Regal Cinemas Inc., BJK Entertainment Inc., Bow Tie Cinemas LLC and Community Theaters LLC.

In seeking a temporary restraining order and preliminary injunction, the plaintiffs said Tuesday that economic losses for theaters in the state will worsen if screens remain dark during what are typically busy summer months for movie-going.

Due to the state officials' disparate treatment of movie theaters and of entities that have been cleared to reopen, "many movie theatres in New Jersey are on the brink of economic ruin, with plaintiffs' rights to equal protection and freedom of speech violated in the process," according to the plaintiffs' brief.

As cases of the novel coronavirus were rising in the state, Murphy issued an executive order on March 16 that in part directed movie theaters and other businesses to close to the public.

Movie theaters have not reopened since, causing substantial financial losses to the owners and leading them to lay off, furlough or reduce the hours of staff members, the complaint said.

In recent months, however, movie theaters in the state have remained closed while places of worship, libraries, shopping malls and other facilities have been allowed to reopen to the public. Murphy and Persichilli have not provided "a legally satisfactory reason for this discriminatory treatment," the theater owners and trade groups said Tuesday in their brief.

The officials have based that discriminatory treatment on "their naked preference for certain types of speech and blind indifference to the rights and interests of plaintiffs and their patrons," the brief states. The theater owners and trade groups also claimed they have proposed detailed safety protocols for reopening theaters in the state, but that Murphy and Persichilli have failed to address them "in any meaningful way."

The state attorney general's office and counsel for the plaintiffs declined to comment Tuesday.

The cinemas are represented by Geoffrey S. Brounell, Robert Corn-Revere, Janet Grumer, Martin L. Fineman and John D. Freed of Davis Wright Tremaine LLP.

Murphy and Persichilli are represented by Daniel M. Vannella of New Jersey's Office of the Attorney General.

The case is National Association of Theatre Owners et al. v. Murphy et al., case number 3:20-cv-08298, in the U.S. District Court for the District of New Jersey.

--Editing by Adam LoBelia.

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

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