MICHAEL AMATO, JOY MONSANTO, and 50‘s LOUNGE, LLC v. MAYOR
No. 3:20cv464 (MPS)
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
April 15, 2021
Michael P. Shea, U.S.D.J.
RULING ON GOVERNOR LAMONT‘S MOTION TO DISMISS
Thе COVID-19 virus has caused a global pandemic of unprecedented scale. In Connecticut, more than 7,800 people have died from the virus. https://portal.ct.gov/coronavirus (last accessed March 29, 2021). On March 10, 2020, Governor Lamont declared a public health emergency and civil preparedness emergency under
9); right to pursue a living under the Privileges or Immunities and Due Process Clauses of the
I. PROCEDURAL HISTORY
In April 2020, the Plaintiffs filed a motion for a temporary restraining order and preliminary injunction seeking to stay the enforcement of Governor Lamont‘s executive orders. ECF No. 11. On May 19, 2020, I denied the motion. ECF No. 32. The Plaintiffs thereafter filed a Second Amended Complaint, ECF No. 41, and in September 2020, filed the operative Third Amended Complaint. ECF No. 62. Governor Lamont incorporates in his presently pending motion to dismiss, ECF No. 60, the arguments set forth in his prior submissions, ECF Nos. 22, 48, 54, and the Plaintiffs in their opposition do the same. ECF Nos. 52, 63.
II. FACTUAL ALLEGATIONS
The Third Amended Complaint sets forth the following factual allegations, which the Court accepts as true for purposes of this ruling.
Joy Monsanto and Michael Amato own and operate a restaurant in the “Westville” neighborhood of New Haven called the 50‘s Lounge, LLC. ECF No. 62 at ¶¶ 9-10. As the coronavirus began to take hold in Connecticut, they decided to close the restaurant on March 15, 2020. Id. at ¶ 13.
Beginning March 12, 2020, Governor Lamont issued a series of executive orders:2
Executive Order 7, issued on March 12, 2020, prohibited “gatherings of 250 people or more for social and recreational events.”3 Id. at ¶ 19. Executive Order 7D, issued on March 16, 2020, went further, prohibiting gatherings of 50 or more people. It also placed limits on restaurant, bar, and private club operations, requiring that “any restaurant or eating establishment and any location licensed for on-premise consumption of alcoholic liquor . . . shall only serve food or non-alcoholic beverages for off-premises consumption.” Executive Order 7D at 2. ECF No. 62 at ¶ 20. Executive Order 7G, issued March 19, 2020, modified Executive Order 7D to allow restaurants and bars to sell alcohol for off-premises consumption provided it was sold in a sealed container and accompanied by an order of food. Id. at ¶ 21.
Executive Order 7N, issued March 26, 2020, stated that “social and recreational gatherings . . . of six (6) or more people . . . are prohibitеd throughout the State of Connecticut.” Executive Order 7N at 4. The order “d[id] not apply to government operations, private workplaces, retail establishments, or other activities that are
The Plaintiffs’ voluntary closure of their restaurant on March 15, 2020 was a temporary measure to allow them to evaluate whether they could safely operate their business. ECF No. 62 at ¶ 23. They decided that they would “fully reopen their business approximately a week” after they closed it. Id. at ¶ 24. After further consideration, however, the Plaintiffs “realized that they could not reopen their business without violating Defendant Lamont‘s executive orders and risking substantial penalties including arrest, incarceration, fines, and the revoсation of their business licenses.” Id. at ¶ 25. The Plaintiffs “have lost, and are losing, an unsustainable amount of approximately $5,000 per week due to Defendant Lamont‘s prohibitory bar on their reopening.” Id. at ¶ 26. Defendant Lamont‘s orders have made it financially impossible for the Plaintiffs to continue to operate their business profitably. Id. at ¶ 27. The financial loss that Defendant Lamont‘s orders have imposed on the Plaintiffs has crippled their ability to remain in business, jeopardizing their ability to pay their employees and continue to exist as a business. Id. at ¶ 28.
III. LEGAL STANDARD
A. Rule 12(b)(1)
A motion to dismiss under
B. Rule 12(b)(6)
In deciding a motion to dismiss under
whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court accepts as true all of the complaint‘s factual allegations when evaluating a motion to dismiss, id., and “must draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass‘n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). However, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss. Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014).
IV. DISCUSSION
A. Rule 12(b)(1) Motion
1. Plaintiffs’ Claims for Prospective Relief
Governor Lamont argues that the Plaintiffs’ claims for declaratory and injunctive
Additional developments ensued after the Governor‘s motion was briefed. On March 19, 2021, the Department of Economic and Community Development (“DECD“) issued updated rules applicable to “all businesses/organizations” that “[c]apacity limits are now up to 100%, subject to
social distancing requirements.”5 https://рortal.ct.gov/DECD/Content/Coronavirus-Business-Recovery/Sector-Rules-for-Reopen. Further, for restaurants, “6 ft. spacing or non-porous barrier continue to be required between tables, with an 8-person maximum table capacity” and “[a]ll restaurants and indoor recreation continue to be subject to an 11:00 pm closing time.” Id.
Under the “case or controversy” requirement of
But a defendant‘s “voluntary cessation of challenged conduct does not ordinarily render a case moot.” Knox v. Serv. Emp. Int‘l Union, Local 1000, 567 U.S. 298, 307 (2012). A voluntary change of conduct renders a case moot if the defendant demonstrates both that “(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603 (2d Cir. 2016). A defendant claiming mootness on the basis of voluntary cessation “bears the formidable burden of showing that it is absolutely clear thе allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citation omitted).
Governor Lamont concedes that he cannot say with certainty that it will never be necessary to re-impose restrictions in the future. ECF No. 48-1 at 9. Because it cannot “be said with assurance that there is no reasonable expectation that the alleged violation will recur,” Am. Freedom Def. Initiative v. MTA, 815 F.3d 105, 109 (2d Cir. 2016) (internal quotation marks omitted), Governor Lamont cannot meet his burden at the first step of the voluntary cessation analysis. See Dark Storm Indus. LLC v. Cuomo, 471 F. Supp. 3d 482, 494-95 (N.D.N.Y. 2020) (Plaintiffs’
2. Official Capacity Damages Claims
Governor Lamont next argues that the Court should dismiss the damages claims against him in his official capacity because they are barred by the
at 6.
“It is well settled that the Eleventh Amendment bars suits for money damages against state officials acting in their official capacities.” Sherman v. Cook, No. 3:20CV1485(SRU), 2021 WL 311283, at *3 (D. Conn. Jan. 29, 2021). See Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).7 The Plaintiffs’ claims for money damages against Governor Lamont in his official capacity are dismissed.
3. Standing
Governor Lamont challenges the Plaintiffs’ standing. To have standing to sue in federal court, a plaintiff must show (1) injury-in-fact, which is a “concrete and particularized” harm to a “legally protected interest“; (2) causation in the form of a “fairly traceable” connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief. W.R. Huff Asset Management Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) (emphasis omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Particularized injuries “must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, ___U.S.___, 136 S. Ct. 1547, 1548 (2016) (citation omitted). “A ‘concrete’ injury must be ‘de facto‘; that is, it must actually exist.” Id. At the pleadings stage, plaintiffs “must ‘clearly . . . allege facts’ demonstrating each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Governor Lamont argues, and Plaintiffs do not dispute, that the 50‘s Lounge LLC lacks standing to assert the constitutional claims asserted in counts 8,
premised on the financial injuries described in the complaint, including the takings claims set forth in counts 11 and 12. Only the 50‘s Lounge, LLC has standing to recover for those injuries. ECF No. 48-1 at 10. See Liberty Sackets Harbor LLC v. Vill. of Sackets Harbor, 776 F. App‘x 1, 3 (2d Cir. 2019) (“[A]bsent a direct individual injury, a company‘s member lacks standing to sue for an injury to the company“); O‘Reilly v. Valletta, 139 Conn. App. 208, 214 (2012) (“a member or manager [of an LLC] . . . may not sue in an individual capacity to recover for an injury based on a wrong to the limited liability company.“); Rivera-Maurice v. Lamont, No. X06UWY206056982, 2020 WL 8455542, at *5 (Conn. Super. Ct. Dec. 7, 2020) (plaintiffs lack standing to assert claims arising from harms allegedly suffered by their corporate entities). Therefore, I dismiss counts 8, 9 and 10 (rights to assemble, associate, and pursue a living) as to 50‘s Lounge, LLC and the Takings claim and any other claims based on financial injuries as to the individual Plaintiffs.
Governor Lamont also argues that even the individual Plaintiffs lack standing to pursue their First Amendment claims because they have failed to allege facts suggesting that they have suffered an injury-in-fact. ECF No. 48-1 at 12.
“Two types of injuries may confer Article III standing for First Amendment challenges.” Libertarian Party of Connecticut v. Merrill, No. 3:15CV1851(JCH), 2016 WL 10405920, at *4 (D. Conn. Jan. 26, 2016). “The first occurs when ‘the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [the] statute, and there exists a credible threat of prosecution.‘” Id. (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979)). “The second occurs when a plaintiff is ‘chilled from exercising her right to free expression or foregoes expression in order to avoid enforcement consequences.‘” Id. (quoting Blum v. Holder, 744 F.3d 790, 796 (1st Cir. 2014)) (internal quotation marks and citation omitted).
The Plaintiffs allege neither of these injuries. Rather, they state legal conclusions that “Defendant Ned Lamont‘s orders limiting the number of people who may attend a gathering are unconstitutional restrictions on the Plaintiffs’ liberty and right to assemble under the
In short, Plaintiffs lack standing as to all their claims against Governor Lamont except for the LLC‘s takings claims and the individual Plaintiffs’ сlaim in count 10 that the Governor violated their right to pursue a living; as to the latter, although the parties do not address the issue, the allegations that Plaintiffs can no longer operate the 50‘s Lounge as they did previously are sufficient to confer standing for such a claim.
B. 12(b)(6) Motion
Even if the Plaintiffs had adequately pleaded standing as to their First Amendment claims, those claims would still have to be dismissed because they do not meet the standard of plausibility. The takings and right-to-pursue-a-living claims likewise do not state plausible claims.
1. First Amendment Claims
In counts 8 and 9, Plaintiffs Michael Amato and Joy Monsanto allege that the orders violate their right to assemble and “right to freely associate with their customers and their friends” in violation of the
“To state a First Amendment claim, a plaintiff must allege facts admitting a plausible inference that the defendant‘s actions restricted, or were retaliation against, speech or conduct protected by the First Amendment.” Salmon v. Blesser, 802 F.3d 249, 255 (2d Cir. 2015) (citing Virginia v. Black, 538 U.S. 343, 358 (2003)). “[T]he First Amendment protects conduct only if it has an expressive purpose[.]” Salmon, 802 F.3d at 256 (citing cases). Expressive association “protects the right of individuals to associate for
“When, on the other hand, an individual engages in conduct that does not manifest an intent to convey a particularized message, the First Amendment does not come into play.” United States v. Thompson, 896 F.3d 155, 164 (2d Cir. 2018) (internal quotation marks and citation omitted). “The Constitution does not recognize a generalized right of social association.” Sanitation & Recycling Indus., Inc., 107 F.3d at 996. In City of Dallas v. Stanglin, 490 U.S. 19 (1989), the Supreme Court held that “patrons of the same business establishment,” a dance hall, were not members of an organized association, and “[m]ost [were] strangers to one another,” because “the dance hall admits all who are willing to pay the admission fee.” Id. at 24 – 25; see also id. at 24 (“These [social dance] opportunities might be described as ‘associational’ in common parlance,
but they simply do nоt involve the sort of expressive association that the First Amendment has been held to protect.“) The Court observed that “[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one‘s friends at a shopping mall‘—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” Id. at 25 (holding that the Constitution does not recognize “a generalized right of ‘social association’ that includes chance encounters in dance halls.‘“).
Here, there are no allegations that the Plaintiffs were engaged in conduct protected by the
of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). The complaint contains no suggestion that the Plaintiffs assembled or associated with friends and/or customers at the restaurant (or elsewhere) for these purposes or that they sought to do so. Because the complaint is bereft of any allegations that the Plaintiffs were “engage[d] in some form of expression,” Boy Scouts of America, 530 U.S. at 648, the Plaintiffs fail to state a claim under the
In any event, even if the Plaintiffs had engaged in protected activity, their claim would fail because the challenged executive orders do not violate the
First Amendment protections are not absolute. E.g., McDonald v. City of Chicago, Ill., 561 U.S. 742, 802 (2010) (Scalia, J., concurring) (“No fundamental right—not even the
The challenged orders satisfy the intermediate scrutiny standard. First, the State of Connecticut has a significant government interest in preserving and protecting the public health of its citizens. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming the spread of COVID–19 is unquestionably a compelling interest.“) Second, the Executive Orders are narrowly tailored to achieve the compelling government interests of slowing the spread of COVID-19 and prеventing the overwhelming of the healthcare system. Governor Lamont issued the Executive Orders in specific reliance on the expertise of governmental public health agencies. See, e.g., Executive Order 7N (Mar. 26, 2020) (noting that the “Centers for Disease Control and Prevention and the Connecticut Department of Public Health recommend implementation of community mitigation strategies to increase containment of the virus and to slow down the transmission of the virus, including cancellation of gatherings of ten people or more and social distancing in smaller gatherings“). As to breadth, the Governor did not ban assemblies. Rather, the orders restricted - temporarily - the number of people who could assemble. The final requirement for time-place-manner restrictions requires that thеy leave open ample alternative channels for communication. On this point,
[a]lthough an alternative channel for communication must be available, it is clear that [t]he First Amendment does not guarantee [plaintiffs] access to every or even the best channels or locations for their expression. The requirement that ample alternative channels exist does not imply that alternative channels must be perfect substitutes for those channels denied to plaintiffs by the regulation at hand …. All that is required is that an alternative channel be ample—i.e., an ‘adequate’ channel for communication.
Marcavage v. City of New York, 689 F.3d 98, 107 (2d Cir. 2012) (internal quotation marks, alteration, and citations omitted). The challenged orders satisfy this requirement. Plaintiffs could engage in communication online, by telephоne, or in person in groups no larger than those allowed under Executive Order 7N. The orders left open alternative channels of communication. The
Plaintiffs have failed to plausibly allege
2. Count 10 – Right to Pursue a Living
In Count 10, Plaintiffs allege that Governor Lamont‘s “order limiting the activities of businesses and deciding which businesses can remain open based on their purposes is an unconstitutional restriction that poses a substantial and undue burden on the Plaintiffs’ liberty and right to pursue an honest living” in violation of the Due Process Clause.12 ECF No. 62 at ¶ 76.
“[T]he liberty component of the
The challenged executive orders did not deprive the Plaintiffs of their right to earn a living through their restaurant or occupational choice: they were permitted to offer both food and beverages for off-premises consumption. Further, the challenged orders were temporary and as discussed above, have been replaced by new orders that permit the Plaintiffs to operate their business, with social distancing restrictions and mandatory closing hours. See Columbus Ale House, Inc. v. Cuomo, No. 20-CV-4291, 2020 WL 6118822, at *5 (E.D.N.Y. Oct. 16, 2020)
(dismissing claim that COVID-19 restrictions violated plaintiff‘s right to conduct business or engage in a chosen profession because regulation at issue - a midnight-close rule - “does not prohibit plaintiff‘s operations, it just restricts them. . . . Plaintiff claims that the rule prevents it from generating enough business to stay in business. But even if that is the ultimate effect of the rule, it is not enough to constitute a violation of plaintiff‘s due process rights.“); Crossley v. California, 479 F.Supp.3d 901, 915 (S.D. Cal. Aug. 17, 2020) (dismissing due process claim where regulation affecting plaintiffs’ occupation did not amount to a complete prohibition of their work); Paradise Concepts, Inc. v. Wolf, 482 F. Supp. 3d 365, 371 (E.D. Pa. 2020) (dismissing due process claim where the COVID-related “business closure orders imposed temporary restraints on businesses. They did not deprive any individuals of their right to pursue a particular line of work. Moreover, even if there were a deprivation of one‘s right to work, any deрrivation was temporary, and the case law strongly suggests that Substantive Due Process only extends to situations in which there is some degree of permanence to the loss of liberty or property.“) (internal citation omitted)). Count 10 is dismissed.
3. Counts 11 and 12 – Taking Claims
The Plaintiff LLC brings taking claims in counts 11 and 12, alleging that Governor Lamont‘s orders “regulate[] the use of private property to such a degree that it
“The Takings Clause of the
without just compensation.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (internal citation omitted). “There are two general categories of takings: physical takings and regulatory takings.” Auracle Homes, LLC v. Lamont, 478 F. Supp. 3d 199, 220 (D. Conn. 2020). The Plaintiffs clarify in their opposition that they are claiming that the challenged orders amount to a regulatory taking. ECF No. 52 at 29 - 30.
“Regulatory takings are based on the principle that while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Ganci v. New York City Transit Auth., 420 F. Supp. 2d 190, 195 (S.D.N.Y. 2005) (internal quotation marks and citations omitted). “There are two types of regulatory takings: categorical and non-categorical.” Martin v. Town of Simsbury, No. 3:16CV933(KAD), 2020 WL 7230895, at *8 (D. Conn. Dec. 7, 2020). “A categorical taking occurs in ‘the extraordinary circumstance when no productive or economically beneficial use of land is permitted.‘” Sherman v. Town of Chester, 752 F.3d 554, 564 (2d Cir. 2014) (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg‘l Planning Agency, 535 U.S. 302, 330 (2002)). “Anything less than a complete elimination of value, or a total loss, is a non-categorical taking, which is analyzed under the framework created in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).” Id. (internal quotation marks omitted).
The complaint fails to state a categoricаl takings claim because the LLC was not precluded from all economically beneficial use of the restaurant. Although indoor dining was prohibited, the executive orders expressly permitted the restaurant to continue to operate through the take-out of food and beverages.
The complaint also fails to state a non-categorical takings claim. Non-categorical takings involve “an intensive ad hoc inquiry into the circumstances of each particular case. ” Buffalo Teachers Fed‘n v. Tobe, 464 F.3d 362, 375 (2d Cir. 2006). Three factors are weighed: “(1) the
economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986). See Sherman, 752 F.3d at 566 (balancing Penn Central factors in reviewing district court‘s order granting motion to dismiss). The Second Circuit has described the burden of establishing this type of regulatory taking as a “heavy” one. Buffalo Tchrs. Fed‘n, 464 F.3d at 375.
As to the first factor, the Plaintiff LLC argues that the Court should infer that the orders “have placed a tremendously detrimental economic impact” on it. ECF No. 52 at 30. The allegations of economic impact arise from the cessation of the restaurant‘s operations, a decision initially made by Plaintiffs themselves, as
deny the LLC all economic use of its property. See Buffalo Tchrs. Fed‘n, 464 F.3d at 375 (finding that temporary and partial nature of wage freeze weighed against a taking).
As to the second factor, “[t]he purpose of the investment-backed expectation requirement is to limit recovery to owners who could demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime.” Allen v. Cuomo, 100 F.3d 253, 262 (2d Cir. 1996). Here, the LLC asserts only that the orders were “emergency orders,” appearing to suggest that the orders could not have been expected, ECF No. 52 at 30, and fails to address the fact that restaurants are highly regulated by the state. See
Third, and perhaps most importantly, the character of the government action weighs against finding a taking. A taking “may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978) (internal citation omitted). The orders at issue here were a temporary exercise of the State‘s police power to protect the health and safety of the community, which weighs strongly against finding that they constituted a taking. See id. Other courts have similarly concluded. See, e.g., Daugherty Speedway, Inc. v. Freeland, No. 4:20-CV-36-PPS, 2021 WL 633106, at *5 (N.D. Ind. Feb. 17, 2021) (noting that “‘[u]nsurprisingly, courts across the country agree that the final Penn Central factor, the character of the disputed government action during the COVID-19 pandemic, weighs heavily in Defendants’ favor,” and dismissing claim that executive order closing racetrаck was a taking where “the enforcement of
the executive orders benefitted the general public, who would be at greater risk of contracting COVID-19 if congregating together in close proximity“)(citing cases); TJM 64, Inc. v. Shelby Cty. Mayor, No. 220CV02498, 2021 WL 863202, at *5 (W.D. Tenn. Mar. 8, 2021) (dismissing restaurants’ claim that closure order due to COVID-19 was a regulatory taking, reasoning “it is
4. Connecticut Constitution Claims
The parties urge the Court to decline to exercise supplemental jurisdiction over the Plaintiffs’ state constitutional claims because they present novel and complex issues of Connecticut law. ECF No. 48-1 at 39; ECF No 52 at 35. The parties agree that these claims - which include damages claims for violations of certain state constitutional provisions - include issues of first impression. Thus, the Court concludes that it is inappropriate to exercise supplemental jurisdiction over Plaintiffs’ claims brought under the
IV. CONCLUSION
For the foregoing reasons, the defendant‘s motion to dismiss (ECF No. 60) is GRANTED. Because the Court declines to exercise jurisdiction over the Plaintiffs’ claims brought under the
IT IS SO ORDERED.
Dated: April 15, 2021 Hartford, Connecticut
/s/
Michael P. Shea, U.S.D.J.