PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 15

- 1538

_____________
P.R.B.A. CORP., t/a Bare Exposure,

Appellant

v.

HMS HOST TOLL ROADS, I NC.;
THE SOUTH JERSEY TRANSPORTATION

AUTHORITY; THE NEW JERSEY TURNPIKE AUTHORITY;

JOHN DOES #1

- 15

_______ ______
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 1

- 12

- cv

- 0 7914 District Judge: The Hono rable Renee M. Bumb

_ _ ____________
Argued October 6, 2015

Before: FUENTES, SMITH, and NYGAARD

,2 Circuit Judges

(Opinion Filed: December 10 , 2015 )

F. Michael Daily, Jr. [ARGUED]
216 Haddon Avenue
Suite 106 Westmont, NJ 08108 Counsel f or Appellant

Catherine A. Bledsoe [ARGUED]
Gordon Feinblatt
233 East Redwood Street Baltimore, MD 21202

Counsel for Appell ee s

________________

OPINI ON

________________

SMITH, Circuit Judge.

This case requires us to determine whether a private company that operates service plazas on New Jersey highways acted “under color of any statute, ordinance, regulation, custom, or usage, of any State

, ” 423 U.S.C

. § 1983, when it removed brochures belonging to a “gentleman’s club” from the common areas of its service plazas. We hold that it did not. T he absence of any
direct involvement by the state authorities either in the
decision to remo ve the brochures or i n the general, day

to

- day operations of the service plazas compels this
conclusion. Accordingly, we will affirm the District Court’s grant of summary judgment.

I.

P.R.B.A. Corporation (t/a “Bare Exposure”) is a New Jersey corporation that operates a “gen tleman’s club” in Atlantic City, New Jersey, billing itself as “Atlantic City’s Only All Nude Entertainment.” HMS Host Toll Roads, also a private corporation, leases service plazas located along the Garden State Parkway and the Atlantic City Expressway fr om the South Jersey Transportation Authority and the New Jersey Turnpike Authority (together referred to as the “Authorities”). Host operates restaurants, gift shops, and convenience stores in the service plazas i t leases from the Authorities.
The lease s also state that Host must pay the Authorities the higher of either a percentage of its gross sales or a fixed rental payment each month

. The parties agree, however, that the Authorities are not involved in any of Host’s day

- to

- day operation s or overall m anagement of the service plazas

. Under the lease s , t he Authorities ’ only direct responsibility is to perform long

- term4 maintenance to parking areas, exteriors of the buildings, and building lobbies

.
In 2003, Host entered into a cont ract with CTM
Media Gro up, Inc . which permitted CTM to install and
service CTM

- owned brochure display racks in the
lobbies of the service plazas

. CTM pays Host the greater of a minimum monthly paym ent or 40% of the gross

revenue generated by the brochure racks

. The contract
al so provides that Host “must approve all brochures or publications of an y kind” prior to placement in the racks

. The Authorities were not a party to this contract.

In 2012, Kevin Diamond, a Host employee,
discovered a Bare Exposure brochure in one of the CTM display racks located in a Host se rvice plaza. Diamond sent a copy of the brochure to Greg Dion, Host’s General Manager of New Jersey Motorway Operations. Dion
contacted CTM and instructed it s representative to remove all Bare Exposure brochur es from Host’s service plazas. The parties agree that Mr. Dion’s decision to have the brochures removed was his and his alone; he did not consult with or receive any direction from the
Authorities. Nor did he review or consider any provisions of the New Jersey Administrative Co de prior to making his decision. Instead, he believed that he was exercising Host’s right under the CTM Agreement to approve all brochures placed in the racks.5 There is also no evidence that the Authorities ever
directed Host employees to take any actions regarding the placement of brochures in the plazas

. Further, t he
leases between Host and the Authorities are silent with respect to the placement of brochures and other marketing materials in the lobbies of the service plazas.
That said

, Bare Exposure contends that the Authorities placed several government signs and photographs in service plaza lobbies. These include photos of the current Governor of New Jersey, a photo of the late Senator Farley in the common area of one plaza , and a

g overnment information booth in the common area of
another . It is undisputed, however, that no representative
of the Authorities ever instructed Host to remove a brochure or advertisement from the lobby of a service plaza along the Garden State Parkway or Atlantic City Expressway.

II.

After learning of the brochures’ removal, Bare Exposure filed suit under 42 U.S.C. § 1983 alleging that
Host’s actions violated Bare Exposure’s First and
Fourteenth Amendment rights. This case comes to us on

a timely appeal f

rom the District Court’s February 6,

2015

, order granting Host’s motion for summary judgment. This Court has jurisdiction under 28 U.S.C. § 1291 to review the District Court’s ruling on Bare Exposure’s § 1983 claim. Lassiter v. City of Phila. , 716
F.3d 5 3, 55 n.1 (3d Cir. 2013).6 It is well established that we employ a plenary standard in reviewing orders entered on motions for summary judgment, applying the same standard as the
district court. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995)

. In considering an order entered on a motion for summary judgment, “we view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Id

.

III.

While Bare Exposure’s appellate brief attempt ed to
present two arguments as to why it believed this Court should find state action, at oral argument counsel
clarified that Bare Exposure was actually limit ing its appeal to a single argument . Specifically, counsel argued only that Host is a state act o r under the entwinement

test. 1 We confine our analysis accordingly

. 2

1 Indeed , had Bare Exposure not conceded this point, the
Court would have similarly limited the scope of review because Bare Exposure explicitly confined itself to this argument when opposing Host’s motion for summary judgment in the District Court. Pl.’s Br. in Opp. to S.J. at

1. See Shell Petroleum, Inc. v. United States, 1 82 F.3d 212, 218 (3d Cir. 1999) (“[A litigant] must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits.”); Liberles v. Cook Cnty ., 709 F.2d 1122, 1126 (7th Cir.7 We next turn to the merits of Bare Exposure’s state action argument . The touchstone for our analysis of all
state action claims is Brentwood v. Tennessee Secondary
School Athletic As sociation

, 531 U.S. 288 (2001) . I n Brentwood

, the Supreme Court held that “state action

may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that

1983) (“It is a wel l

- settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.”).

2 We also note that Bare Exposure’s initial attempt to rely

on the Supreme Court’s decision in Burton v. Wilmington Parking Authority , 365 U.S. 715 (1961), which has been credited with creating the symbiotic relationship test

, is
of no merit even if thi s argument were not waived. As
this Court clarified in Crissman v. Dover Downs Entm’t

Inc.

, “while Burton remains good law, it was crafted for the unique set of facts presented, and we will not expand
its reach b eyond facts that replicate [it]. ” 289 F.3d 231

, 242

- 44, (3d Cir. 2002) (en banc) . This case does not present such facts. Bare Exposure does not claim that Host’s removal of the brochures was necessary for the
continued financial v iability of either the Authorities or Host

— one finding (among many others) necessary to replicate the factual scenario present in Burton

.8 of the State itself.” I

d. at 295 ; s ee also Rendell

- Baker v.
Kohn , 457 U.S. 830, 838 (1982) (“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising u nder
the Fourteenth Amendment: i s the alleged infringement of federal rights fairly attributable to the State?”) (emphasis added)

.

The Brentwood Court also gave additional

structure to several tests that lower courts had previously been using to determine whether a private part y satisfied
the “close nexus” requirement necessary to be considered

a state actor . One of these tests is called the

“ entwinement test, ” which asks whether “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public inst itutions and public officials in its composition and workings, and [thus] there is no substantial reason to claim unfairness in applying
constitutional standards to it.” Brentwood , 531 U.S. at
298

.
The Supreme Court also applied this test in
Brentwood when it held that a non

- profit athletic
association which regulated interscholastic sports among Tennessee public and private high schools was a state

actor. In so doing , the Court focused on the top

- to

bottom intermingling of association leaders and publ ic school officials: “[t] here would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly9 perform all but the purely ministerial acts by which the
Association exists and functio ns in practical terms .” Id

. at 300 . Indeed, “[o] nly the 16% minority of private school memberships prevents this entwinement of the Association and the public school system from being total and their identities totally indistinguishable. ” Id

. This case thus shows that the entwinement test focuses on the overlap or merger of public and private entities as
a result of their shared leadership or other attributes that make it hard to separate their public functions from their private ones

.

Two additional ca ses help further flesh o ut the contours of this test. First, i n Gannett Satellite Information Network, Inc. v. Berger

, this Court
concluded that the concessionaires that leased property in the Newark Airport and decided not to distribute certain

newspaper s were simply “private entities pursuing private ends” because there was no “explicit governmental involvement” in the decisions of the concessionaires and thus their conduct “may not fairly be attributed to the Port Authority.” 894 F.2d 61, 67 (3d
Cir. 1 990). The Gannett Court also went on to note that, “[a] bsent any explicit governmental involvement in the
distribution decisions of these private newsstands, the actions taken by the concessionaires in this case may not fairly be attributed to the Port Au thority. ” Id . at 67 (emphasis added)

. Gannett thus makes clear that our analysis should also focus on evidence of explicit10 involvement of the governmental authority in the specific

action the plaintiffs challenge . In Gannett , it was the
decision not to sell certain newspapers. Here, it was th e removal of Bare Exposure’s brochures

.

Second

, in Marie v. American Red Cross

, t he Sixth
Circuit further elaborated o n the high bar necessary for a finding of impermissible entwinement. 771 F.3d 344 (6th Cir. 201 4). In this case, even the close working relationship between several state agencies and the Red

Cross was not sufficient to constitute entwinement. The
Sixth Circuit reiterated that “ mere cooperation simply does not rise to the level of merger required for a finding
of state action

. ” Id. at 364. I nstead

, there must be

“ pervasive entwinement of public institutions and public
officials in [the private entity’s] composition and workings [such that] there is no substantial reason to claim unfairness in app lying constitutional standards to
it. ” Id

. (emphasis added).

All these cases show that we must carefully analyze the entire record to determine whether the
Authorities were so pervasively entwined in the structure and management of Host that Host should fairly be treated as a government entity under the Constitution

.

T he record in this case do es not suggest any pervasive entwinement. There was no personnel overlap
between the Authorities and Host

, and no specific
involvement of the Authorities in Host’s decision to11 remove the brochures. Bare Exposure’s strongest argument is the presence of a provision in the service plaza leases that requires Host , in certain situations, to pay a varying percentage of its gross sales income to the
Authorities instead of a fixed amount . There is no indication, however, that this profit sharing led to any
actual involvement of either entity in the management or
control of the other

. Thus, without more, this financial
remuneration for the leasehold fails to provide any
in dication of the “pervasive entwinement” required under
Brentwood

.

We also hold that the presence of governme nt signs and images of state officials in the service plaza s

— without more

— do es not constitute entwinement. Even assuming that the Authorities requ ired Host to place these signs and images in the common area s , this fact still does not suggest actual entwinement , let alone “ pervasive
entwinement ” as required by Brentwood . Without any showing of the involvement of the Authorities in the operations of Host, this can at best be viewed as an additional requirement placed on Host as a condition of
its continued leasing of the service plazas. This type of detailed control or regulation , however, is not a form of
entwinement. See Crissman v. Dover Downs En tm’t Inc.

, 289 F.3d 231, 243 (3d Cir. 2002) (en banc) ( “[T]he Court has repeatedly opined that regulation

— even detailed regulation, as we have here

— does not equate to state
action. ”).12 The same can be said of Bare Exposure’s allegation that the Authoriti es’ signs and photographs

create the perception that the service plazas are run by
the state

. Even assuming this to be true, the mere perception of governmental control is insufficient for finding state action under the entwinement test

. See S. F

. Arts & Athletics, Inc. v. U . S. Olympic Comm. , 483 U.S.
522

, 546 n.27 (1987) ( noting that, “absent the additional element of governmental control, ” the mere representation of the United States in the Olympics by
the USOC is not sufficient for a finding of state action ).

IV.

For the reasons above, we conclude that the District Court appropriately granted summary judgment
in favor of Host

. A ccordingly , we will AFFIRM.