NJ Gym Can't Halt Civil Case Over Flouting Virus Shutdown

By Craig Clough
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Law360 (November 25, 2020, 6:58 PM EST) -- A New Jersey gym facing an enforcement order and hefty fine after defying Gov. Phil Murphy's COVID-19 shutdown orders can't get a civil lawsuit against it paused while the gym's owners battle criminal charges, a state judge has ruled.

Atilis Gym repeatedly flouted COVID-19 pandemic orders to shut down, and Superior Court Judge Robert T. Lougy hit the gym with a $134,000 judgment in August. In a Nov. 18 order publicly released on Wednesday, the judge denied the gym's request for a stay in the case while criminal matters are resolved in Bellmawr Municipal Court.

The judge did not explain the reasons for the denial in the brief order. The New Jersey Office of the Attorney General and counsel for the gym did not immediately respond to requests for comment.

In August, Judge Lougy granted Health Commissioner Judith Persichilli's bid for sanctions against Atilis Gym after its owners repeatedly flouted the governor's order for nonessential businesses to shutter or limit operations in response to the coronavirus pandemic.

The gym argues that the state needs to provide a scientific basis for forcing businesses to close, but the court said owners Ian Smith and Frank Trumbetti should have challenged the order by appealing it, not through defiance.

The gym's owners asked the judge in August to halt contempt proceedings until criminal charges over the gym's defiance of the mandates are resolved, arguing that they could incriminate themselves by litigating the matter now.

Smith and Frank are facing 14 criminal complaints out of Bellmawr Municipal Court, according to a certification from one of their attorneys, John McCann. Any statements that Smith and Trumbetti might make in response to the contempt matter in the civil case could work against them in municipal court, the August declaration said.

Smith and Trumbetti also lost their municipal business license in August for disobeying the shutdown orders and saw one of their previous attorneys withdraw from the case due to a disagreement over litigation strategy.

The battle began in federal court with Atilis' May lawsuit alleging that Murphy's March shutdown of nonessential businesses ran 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.

In June, the gym's claims moved to state court, where Murphy and health officials already had an action pending over the gym's refusal to close. Smith and Trumbetti kept the gym open, chronicling their defiance on Instagram and in the media, which resulted in a contempt order on July 24.

The pair responded that weekend by knocking the barricade off their gym, leading to their July 27 arrests on charges of contempt, obstruction and violation of the New Jersey Disaster Control Act. 

New Jersey is represented in the state lawsuit by Stephen Slocum of the New Jersey Office of the Attorney General.

The gym is represented in the state lawsuit by John McCann.

The state case is Persichilli v. Atilis Gym of Bellmawr, case number MER-C-48-20, in the Superior Court of New Jersey, Mercer Vicinage Chancery.

--Additional reporting by Jeannie O'Sullivan. Editing by Nicole Bleier.

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

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