1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

:

BUCK FOSTON’s NEW BRUNSWICK, :

LLC, LAWRENCE D. BLATTERFEIN, :

and FOSTON’S NEW BRUNSWICK :

REALTY, LLC, :

 : Civil Action No. 11-03731(FLW)(TJB) 

 Plaintiffs, :

 : OPINION

 v. :

: 

JAMES M. CAHILL, INDIVIDUALLY and:

as Mayor of the City of New Brunswick, :

New Jersey, ROBERT RECINE, :

Individually and as President of the New :

Brunswick City Council, KEVIN P. EGAN, :

Individually and as a member of the New :

Brunswick City Council, and CITY OF :

NEW BRUNSWICK, New Jersey, :

:

 Defendants. :

___________________________________ :

WOLFSON, United States District Judge:

Before the Court is a Motion for Summary Judgment by Defendants James M. Cahill

(“Mayor Cahill”), Robert Recine (“Councilman Recine”), Kevin P. Egan (“Councilman Egan”), 

and the City of New Brunswick, New Jersey (collectively, “Defendants”), to dismiss the Federal 

and New Jersey State constitutional claims of Plaintiffs, Buck Foston’s New Brunswick LLC 

(“Buck Foston’s LLC”), Lawrence D. Blatterfein, and Foston’s New Brunswick Realty LLC 

(“Foston’s Realty”) (collectively, “Plaintiffs”). Buck Foston’s LLC, a New Jersey limited 

liability company, was formed by Mr. Blatterfein to own and operate a restaurant and sports bar 

to be named “Buck Foston’s” in the City of New Brunswick. Plaintiffs claim that Defendants’ 
2

alleged delay in the review and then denial of Buck Foston’s LLC’s application for a liquor 

license transfer: (1) were in retaliation for Plaintiffs’ exercise of commercial speech protected by

the First Amendment in naming their proposed restaurant “Buck Foston’s”; (2) deprived

Plaintiffs of the equal protection of law under the Fourteenth Amendment by treating the

application differently than those of other similarly situated bars/restaurants; and (3) violated the 

corresponding provisions of the New Jersey State Constitution (Article I, Paragraph 6, and 

Article I, Paragraph 1, respectively).

Defendants have moved for summary judgment on all of Plaintiffs’ claims pursuant to 

Federal Rule of Civil Procedure 56, arguing that (1) Plaintiffs fail to state a cognizable claim for 

violation of First Amendment rights because they produce no evidence of a causal link between 

Plaintiffs’ protected conduct and the alleged retaliation by Defendants; (2) Plaintiffs fail to state 

a cognizable claim for violation of equal protection rights because they produce no evidence of 

similarly situated entities; and (3) the parallel state constitutional claims should be dismissed

because Plaintiffs’ federal claims are meritless. In addition, Defendants move to dismiss all 

claims brought by Foston’s Realty and Mr. Blatterfein, individually, for lack of standing. 

For the reasons that follow, this Court finds that (i) Mr. Blatterfein has standing; (ii) 

Foston’s Realty does not have standing, and thus, it will be dismissed as a plaintiff; (iii) all 

claims against Defendant Egan are dismissed; (iv) summary judgment is granted in favor of 

Defendants Cahill, Recine, and City of New Brunswick as to Plaintiffs’ federal and state equal 

protection claims as well as Plaintiffs’ federal and state First Amendment retaliation claims 

arising from the conduct of the New Brunswick Police Department in allegedly delaying the 

consideration of Plaintiffs’ liquor license transfer application; and (v) the Motion for Summary 
3

Judgment by Defendants Cahill, Recine, and City of New Brunswick is denied as to Plaintiffs’ 

First Amendment retaliation claim arising from the denial of Plaintiffs’ liquor license transfer 

application.

I. Factual Background

The following facts are undisputed, unless otherwise noted:

Sometime in the spring of 2009, Mr. Blatterfein identified the site of a former Bennigan’s 

restaurant at the intersection of Routes 1 and 18 in New Brunswick, New Jersey (the 

“Bennigan’s Property”) as a potential location for a new restaurant and sports bar to be named 

“Buck Foston’s.” [Statement of Material Facts, ¶ 7, hereinafter “Facts”]. In the fall of 2010, at a 

Rutgers football game, Mr. Blatterfein first discussed the idea of opening a bar/restaurant on the 

Bennigan’s Property with Councilman Recine, the President of the New Brunswick City 

Council. [Transcript of Recine, T9:6-11, hereinafter “Recine Dep.”]. During that conversation, 

Mr. Blatterfein indicated that as part of the “Buck Foston’s” project he desired to change the 

layout of the Bennigan’s Property to include fewer tables so as to accommodate a dance floor. 

Councilman Recine “expressed his displeasure” with the proposed change to the floor plan and 

indicated that he was not in favor of the Bennigan’s Property being used as a bar. [Transcript of 

Blatterfein, T44:1-18, hereinafter “Blatterfein Dep.”; Facts, ¶ 24]. 

Moving forward with his development plan, Mr. Blatterfein entered into a contract with 

JLS Corp, the current owners of the Bennigan’s Property, to purchase the site for $1,500,000. 

[Contract for Sale of Real Estate dated January 31, 2011, hereinafter “Real Estate Contract”]. 

Prior to the closing of the Real Estate Contract, Mr. Blatterfein and Buck Foston’s LLC, jointly, 
4

obtained a guaranteed Small Business Administration loan from Provident Bank in the amount of 

$2,634,800. [Provident Bank Loan Commitment dated January 13, 2011, hereinafter “Loan 

Commitment”]. The loan was to finance the purchase of the Bennigan’s Property, development 

costs, and the purchase of a liquor license. Most importantly for the present action, the Real 

Estate Contract with JLS was made contingent upon Plaintiffs obtaining the loan from Provident 

Bank within 45 days of the execution of the contract. [Real Estate Contract, ¶¶ 5, 6, 22(a)]. The 

loan from Provident Bank was, in turn, made contingent upon Plaintiffs obtaining a liquor 

license transfer approved by the City, as explained below. [Loan Commitment, 3; Letter from 

Schiller & Pittenger, P.C. to Clarkin dated March 29, 2011, at 4].

In order to operate a bar within the City of New Brunswick, Plaintiffs were required to 

obtain a liquor license. Only a finite number of licenses are authorized, and at the time Mr. 

Blatterfein was planning the “Buck Foston’s” project, all New Brunswick licenses had already 

been issued to other businesses. For the project to move forward, Mr. Blatterfein had to locate a 

liquor license owner willing to sell its license, and to file an application with the City to approve 

the transfer of the license’s ownership (“person-to-person transfer”) and of the place at which the 

license could be used (“place-to-place transfer”). Under the City of New Brunswick’s form of 

government, the City Council is responsible for deciding liquor license transfer applications by 

majority vote. [Recine Dep., T24:8-10]. Mr. Blatterfein located a willing liquor license seller, 

Sapporo, another New Brunswick area business, and contracted to purchase its license for 

$160,000, with $16,000 to be paid as a down payment. [Agreement to Sell Alcoholic Beverage 

License dated January 8, 2011].
5

On April 5, 2011, Buck Foston’s LLC filed an application with the City to transfer

ownership of the Sapporo liquor license to Buck Foston’s LLC and to transfer the license 

location to the Bennigan’s Property. [Blatterfein Dep., T39:14-16; Clarkin Letter dated April 5, 

2011, Re: Plenary Retail Distribution License]. Also during the first week of April, 2011, Mr. 

Blatterfein’s attorney, James Clarkin, discussed the “Buck Foston’s” project with Mayor Cahill, 

the Mayor of New Brunswick. During that conversation, Mayor Cahill expressed his approval of 

the project from the perspective of “zoning,” “landing,” and “economic development,” because 

the otherwise vacant Bennigan’s lot would be put to productive use. In the same conversation, 

however, the Mayor “expressed serious dissatisfaction” with the name “Buck Foston’s.” He 

indicated that he found the name offensive because of the play on letters. [Transcript of Clarkin, 

T16:2-8, hereinafter “Clarkin Dep.”].

On April 20, 2011, Mr. Blatterfein personally met with Mayor Cahill to discuss the Buck 

Foston’s project, at which time Mayor Cahill again voiced his displeasure, informing Mr. 

Blatterfein that he “didn’t like” the name “Buck Foston’s.” [Transcript of Cahill, T85:9-14, 

hereinafter “Cahill Dep.”]. The Mayor believed that the name was inappropriate for the venue, 

indicating that the play on letters was a “cheap stunt.” [Cahill Dep., T79:10-16; Blatterfein Dep.

T72:6-11, 16-17]. By Mr. Blatterfein’s estimation, of the thirty or forty minute long meeting with 

the Mayor “what seemed like [fifteen] minutes” was devoted to discussion of the Mayor’s 

disapproval of the name “Buck Foston’s.” [Blatterfein Dep., T72:6-11, 16-17]. Mr. Blatterfein 

left the meeting believing that Mayor Cahill opposed the project based solely upon its name. 

On May 25, 2011, Glenn Patterson, New Brunswick’s Director of Planning, Community 

and Economic Development, prepared a memorandum addressed to Mayor Cahill, identifying 
6

“[s]ome issues you should be aware of” concerning Buck Foston’s LLC’s liquor license transfer 

application (“the Application”). The Application, as filed on April 5, 2011, requested an increase 

in approved occupancy for the Bennigan’s Property from 185 to 393 persons [May 25, 2011, 

Bennigan’s/Buck Foston Memorandum at 2, hereinafter “May 25 Memorandum”]. This increase 

required a change of the internal layout of the former Bennigan’s building to replace seating 

areas around tables with open spaces for standing only. [Proposed Renovation to Existing 

Building by James P. Kissane, Architect]. Patterson indicated that the changed floor plan did not 

create a violation of zoning standards, and that he had asked Mr. Blatterfein’s attorney for an 

updated floor plan to assess whether there were any other changes that might result in a violation

of city ordinances. [May 25 Memorandum]. Two weeks later, Kenneth Krug, the City official 

responsible for ensuring that liquor license applicants’ facilities complied with the New Jersey 

Uniform Construction Code, reviewed the same floor plan discussed by Mr. Patterson in the May 

25 Memorandum. Mr. Krug approved the change in layout, provided that Buck Foston’s LLC 

agreed to accept a reduced maximum occupancy of 352 persons. Mr. Krug believed that this 

reduced level of occupancy was not only compliant with City ordinances, but safe for the public. 

[Transcript of Krug, T6:20-25, 12:14-22, 16:13-21, hereinafter “Krug Dep.”]. After Mr. Krug’s 

approval, Buck Foston’s LLC amended the Application to request an occupancy of 352 persons.

By June 9, 2011, Buck Foston’s LLC had secured all of the required recommendations 

necessary to submit its liquor license transfer application to the City Council, except for that of 

the New Brunswick Police Department. [Plaintiffs’ Exhibit W: Certification of Zoning 

Compliance and Recommendations of Application Status] (The Application received zoning 

approval on June 9, construction approval on May 24, fire approval on June 9, and legal approval 

on June 2). On June 15, 2011, Councilman Recine called Mayor Cahill to discuss the “Buck 
7

Foston’s” project. During the conversation, Councilman Recine requested to meet with the 

Mayor to discuss the matter further. [Recine Dep., T70:19-25, 71:1-2].

Following Councilman Recine’s request, Mayor Cahill, Councilman Recine, and Mr. 

Patterson met on June 16, 2011, to discuss the Buck Foston’s Project. [Cahill Dep., T113:1-10,

117:9-13]. It is undisputed that no similar meeting between Defendants Cahill and Recine has 

ever occurred in conjunction with a liquor license transfer application. [Cahill Dep., T117:16-

21]. In his deposition, Mr. Patterson stated that the purpose of June 16 meeting was to discuss 

concerns related to the “Buck Foston’s” Application. [Patterson Dep., 25:19-23]. Mayor Cahill 

and Councilman Recine agreed that the meeting’s only purpose was to discuss the “Buck 

Foston’s” Application, with the Mayor further clarifying after the fact that the Application was

indeed the only thing discussed at the meeting. [Recine Dep., T54:20-23; Cahill Dep., T117:9-

13].

Later that same day, Mr. Patterson prepared a second, 5-page memorandum addressed to 

Mayor Cahill and Councilman Recine. The memorandum discussed, inter alia, the legal 

standards governing restraint of commercial speech. [June 16, 2011, Buck Foston’s 

Memorandum, hereinafter “June 16 Memorandum”]. Specifically, of the relevant sections, 

roughly three pages are concerned with zoning and the liquor licensing process generally, and

one page addresses municipal ordinances restricting business signage and United States Supreme 

Court case law on government restriction of commercial speech. Id. In drafting the 

memorandum, Mr. Patterson emphasized certain sentences in each of the sections by underlining 

them and placing them in bold. In the section discussing commercial speech, Mr. Patterson 

emphasized that “[a]ny governmental restraint must advance a substantial public interest 
8

and must not be more extensive than necessary to serve that interest,” and “unless speech 

regulations target false, misleading or coercive advertising, or require disclosure of 

information that will help avoid misleading advertising, strict First Amendment scrutiny 

should apply.” Id. (emphasis in original). In his deposition, Mr. Patterson testified that he 

included the discussion of signage and commercial speech because “the issue of signage and the 

name [“Buck Foston’s”] had come up” during the June 16 meeting. [Transcript of Patterson, 

T65:24-25, 66:1-22, hereinafter “Patterson Dep.”]. It is undisputed that no similar memoranda 

have ever been produced in conjunction with a liquor license transfer application in New 

Brunswick. [Patterson Dep., T53:25, 54:1-25, 55:1-9].

In the months following the submission of Plaintiffs’ Application, Mayor Cahill spoke 

with Director Patterson on approximately ten occasions about Buck Foston’s, including one or 

two in which, the name “Buck Foston’s,” as distinguished from other concerns about the “Buck 

Foston’s” project, was discussed. [Patterson Dep., T24:4-11, 24:15-25, 25:1-4].

By late June, 2011, the Police Department had not yet concluded its background check of 

Mr. Blatterfein, and Buck Foston’s LLC’s Application had not yet received the Department’s 

recommendation. Both were necessary before the Application could be considered by the City 

Council. Mr. Blatterfein found the delay in the background check particularly troubling, because 

he was already a liquor license holder in the City of New Brunswick, having previously passed 

the Police’s background check, and had received reapproval for his other New Brunswick 

Property, “KnightClub,” on June 14, 2011. [Amended Complaint, ¶ 3; Plaintiffs’ Exhibit U, 

Clarkin Declaration, ¶ 9]. On June 29, 2011, Plaintiff, filed the present lawsuit, including only 

claims against Mayor Cahill and City of New Brunswick for the delay of Mr. Blatterfein’s 
9

background check and the Police Department’s recommendation concerning Buck Foston’s 

LLC’s Application. In their initial pleadings, Plaintiffs did not allege any conduct by the City 

Council, because the Council had not yet acted, and the Application was not yet complete for its

review. It was not until July 14, 2011, that Buck Foston’s LLC submitted its Tax Certificate to 

the New Brunswick Police Department, rendering its Application otherwise complete. [DeBonis 

Letter dated August 2, 2011]. 

Although absent from the record, it is undisputed that Defendant City of New Brunswick

indicated that Plaintiffs’ Application would be put on the agenda for the August 17 City Council 

meeting on August 12, 2011. [Defendants’ Response Brief, 10; accord Amended Complaint, ¶

56]. Police Chief Anthony Caputo, on behalf of the New Brunswick Police Department, in a 

letter dated August 16, 2011, recommended approval of the Application’s requested person-toperson transfer, but denial of the place-to-place transfer, citing as his reasons (1) the proposed 

increase in occupancy over that of the Bennigan’s restaurant that previously operated at the 

Property, and (2) the configuration of the interior layout. [Recine Dep., T15:20-16:10; Police 

Department’s Recommendation of Applicant Status dated August 16, 2011].

1

In other words, the 

Police Department approved transferring the liquor license from its current owners to Buck 

Foston’s LLC, but recommended against allowing the license to be used at the Bennigan’s 

Property. Although it is disputed whether Plaintiffs were unable to publish the required public 

notices for their application to be heard at the August 17 meeting, or simply failed to do so, in 

either case, no notice was timely filed, and the City Council did not hear Plaintiffs’ Application 

 

1 While Chief Caputo approved and signed the final recommendation, the investigative work and 

the initial formulation of the recommendation were conducted by Detective DeBonis. 

Accordingly, it was Det. DeBonis who determined that there were occupancy and layout 

concerns and cautioned against granting the Application; Det. DeBonis also delivered the 

Department’s recommendation to the Council during the September 7 meeting. 
10

in August. Instead, the public hearing for the Application was rescheduled for the next City 

Council meeting in September.

Plaintiffs’ Application was finally considered by the New Brunswick City Council on 

September 7, 2011. Three members of the Council were present and considered the Application.

Detective DeBonis testified that the higher occupancy load for the Bennigan’s Property proposed 

by Buck Foston’s LLC would increase traffic in the area of the Property and cause a public 

safety issue. [Council Meeting Hearing Transcript, September 7, 2011, at T27-29, hereinafter 

“Council Meeting Tr.” (“We[, the Police Department,] believe that the 352 occupants . . . will 

adversely affect the quality of life in the area and traffic safety.”)]. Detective DeBonis’s findings 

were based, at least in part, on an accident and traffic study he had conducted on the area around 

the Bennigan’s Property in preparation for the Council Meeting. Id. At the same meeting, 

Plaintiffs submitted for the Council’s consideration, the letter of approval of Kenneth Krug, a 

licensed fire protection and electrical subcode official for the City, in charge of reviewing 

proposed development projects for compliance with the New Jersey Uniform Construction Code.

Krug’s approval indicated that the Buck Foston’s project complied with the city’s fire and 

electrical safety ordinances. [Krug Dep., T6:20-25, 11:7-13]. Plaintiffs also submitted a “Letter 

of No Interest” from the New Jersey Department of Transportation, stating of the Bennigan’s 

Property that “a significant increase in traffic will not be created by the redevelopment of the 

high-turnover restaurant.” [Richard C. Dube, Letter Re: NJDOT Letter of No Interest dated 

September 1, 2011]. Plaintiffs also submitted a letter by two professional traffic engineers from 
11

the Atlantic Traffic Center supporting the Department’s conclusion. [John R. Harter, Atlantic 

Traffic Letter, Letter to Clarkin dated September 7, 2011].2

At the close of the meeting, Councilmen Recine and Egan voted to grant Buck Foston’s 

LLC’s person-to-person transfer of the Sapporo liquor license to Mr. Blatterfein and his business 

partner, but voted to deny the place-to-place transfer. Both councilmen cited their concerns about 

proposed changes to the internal layout of the building and the increased traffic in the area

resulting from the higher occupancy as their reasons for denying the place-to-place transfer.

[Recine Dep., T43:2-4, 46:1-9; Transcript of Egan, T9:4-12, 7:10-23, hereinafter “Egan Dep.”].

3

The only other councilperson in attendance voted to approve both the person-to-person and the 

place-to-place transfers. [Council Meeting Hearing Tr., T57:18]. Thus, Plaintiffs’ Application 

was denied by a 2-1 vote.

Plaintiffs allege that Mayor Cahill “intentionally interfered with the application and 

background check process based on his dislike of the name “Buck Foston’s.” [Amended 

Complaint, ¶ 39]. They further allege that in the period during which the background check 

process was delayed, Mayor Cahill and Councilman Recine “desperately tried to identify any 

excuse to deny Plaintiffs’ liquor license.” [Amended Complaint, ¶ 40]. Plaintiffs further allege 

that Councilmen Recine and Egan “at the request of and/or in coordination with Mayor Cahill 

 

2 While he had read over Mr. Krug’s approval, Councilman Recine did not read either the letter 

of the NJDOT or that of Plaintiffs’ retained engineering firm before voting on the Application. 

[Recine Dep., T86:20-23, 89:4-8]. There is no evidence in the Record whether either of the other 

council members present read or did not read the letters. It is undisputed, however, that Recine 

was aware of all three letters. Mr. Clarkin spoke at the Council Meeting laying out all of the 

support for Plaintiffs’ Application. [Transcript of September 7 City Council Meeting, T14:24-

26:9].

3

It is undisputed that Councilman Recine never before publicly voiced concerns about traffic in 

the area. [Recine Dep., T24:4].
12

and/or the City” had predetermined and agreed to vote in favor of the person-to-person transfer, 

but to vote against the place-to-place transfer, and to cite traffic and occupancy concerns as their 

reasons for so voting. Thus, Plaintiffs contend that these defendants conspired to create a

pretextual explanation to conceal their true motive for denying the Application, which was to 

preclude a restaurant with the “offensive” name “Buck Foston’s” from opening in the City of

New Brunswick. [Id.].

II. Procedural History

On June 29, 2011, while Plaintiff Buck Foston’s LLC’s liquor license transfer application 

was still pending, Plaintiffs filed their original Complaint against Defendants Cahill and City of 

New Brunswick, alleging unconstitutional delay in the processing of Plaintiffs’ Application. On 

August 2, 2011, Plaintiffs filed a motion for a temporary restraining order and/or preliminary 

injunction against the City of New Brunswick to compel the completion of the background check 

procedure. Before the disposition of the motion, the New Brunswick Police Department 

completed its background check and the New Brunswick City Council voted to deny Plaintiff 

Buck Foston’s LLC’s liquor license transfer application. On October 4, 2011, this Court entered 

an Order dismissing as moot Plaintiffs’ request for a preliminary injunction and restraining order

and opened fact discovery. On December 13, 2011, Plaintiffs filed an Amended Complaint 

against all Defendants, alleging denial of equal protection under the law and retaliation for the 

exercise of First Amendment rights arising from the denial of Plaintiffs’ Application. Defendants 

filed an Answer to the Amended Complaint on January 23, 2012. Discovery on all issues 
13

concluded on January 11, 2013. Subsequently, Defendants filed the present Motion for Summary 

Judgment on all claims.

III. Local Rule 56.1

As a preliminary matter, Plaintiffs argue that Defendants’ Motion for Summary Judgment 

should be denied based on the absence of a separate Rule 56.1 statement. New Jersey Local Civil 

Rule 56.1(a), as amended in 2008, requires that on a motion for summary judgment, both the 

moving and non-moving parties furnish a separate statement identifying what each side deems to 

be the material facts. These statements assist the Court in determining whether a genuine dispute 

exists. As noted in the Rule’s commentary, “the requirement of a separate document represents a 

change from the practice under the former version of the rule [and] . . . is viewed by the Court as 

a vital procedural step, since it constitutes and is relied upon as a critical admission of the 

parties.” The commentary specifies that the assertions in each statement must be set out in 

separately numbered paragraphs, and each fact alleged must be supported by a specific citation 

to an affidavit. N.J. Loc. Civ. Rule 56.1 cmt.

The consequences of a movant's noncompliance with Rule 56.1(a) can be severe—“[a] 

motion for summary judgment unaccompanied by a statement of material facts not in dispute 

shall be dismissed.” L. Civ. R. 56.1(a). See also Kee v. Camden County, 2007 U.S. Dist. LEXIS 

23637 (D.N.J. 2007) (Simandle, Jr.); Langan Eng'g & Envtl. Servs. v. Greenwich Ins. Co., 2008 

U.S. Dist. LEXIS 99341 (D.N.J. 2008) (Greenaway, J.). A court may, however, excuse the 

failure to submit a Rule 56.1 statement where there is no evidence of bad faith. See, e.g., Shirden 
14

v. Cordero, 509 F. Supp. 2d 461, 463–64 n .1 (D.N.J. 2007) (Martini, J.) (stating “lack of 

compliance with the Local Civil Rules has made it difficult and time-consuming for the Court to

determine whether a genuine issue of material fact exists. Nonetheless, the Court, having found 

no evidence of bad faith, will decide Defendants' motion on its merits”). 

Here, while Defendants’ statement of material facts is contained within Defendants’ brief 

in support of the Motion for Summary Judgment and is labeled “Statement of Facts,” it otherwise

substantially complies with the requirements of Rule 56.1. The Statement of Facts is presented in 

numbered paragraphs and includes appropriate citations to the record. There is no indication that 

Defendants’ failure to separately submit a document titled “Statement of Material Facts,”

stemmed from an impermissible purpose or otherwise was done in bad faith. The substantially

compliant nature of Defendants’ Motion supports this conclusion. Thus, while Defendants’ 

submission does not strictly comply with every requirement of Rule 56.1, it is nevertheless

within the discretion of this Court to consider Defendants’ Motion. I find that such a result is in 

the interests of justice.

IV. Standard of Review

A. Jurisdictional Challenge Standard – Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) permits a party to bring a motion to dismiss for 

want of standing. See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). At the 

summary judgment stage of a proceeding, the plaintiff “bears the burden of establishing the 

elements of standing, and each element must be supported in the same way as any other matter 
15

on which plaintiff bears the burden of proof.” FOCUS v. Allegheny County Court of Common 

Pleas, 75 F.3d 834, 838 (3d Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

561 (1992)). Plaintiffs must therefore demonstrate jurisdiction in accordance with the summary 

judgment standard enunciated below.

B. Summary Judgment Standard

“Summary judgment is proper if there is no genuine issue of material fact and if, viewing 

the facts in the light most favorable to the non-moving party, the moving party is entitled to 

judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d 

Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 

56(c). For a fact to be material, it must have the ability to “affect the outcome of the suit under 

governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). For an issue to 

be genuine, there must be “a sufficient evidentiary basis on which a reasonable jury could find 

for the non-moving party.” Id.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute is not genuine if it merely involves “some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue 

of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the 

non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a 

genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 

(D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered 

by the moving party. Anderson, 477 U.S. at 256–57. “A non-moving party may not ‘rest upon 
16

mere allegations, general denials or . . . vague statements. . . .’” Trap Rock Indus., Inc. v. Local 

825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. 

Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Moreover, the non-moving party must present 

“more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. 

County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Indeed, the plain language of Rule 56(c) 

mandates the entry of summary judgment, after adequate time for discovery and upon motion, 

against a party who fails to make a showing sufficient to establish the existence of an element 

essential to that party's case, and on which that party will bear the burden of proof at trial. 

Celotex, 477 U.S. at 322.

V. Jurisdiction

Pursuant to Article III of the Constitution, federal courts “enforce the case-or-controversy 

requirement through the several justiciability doctrines that cluster about Article III.” Allen v. 

Wright, 468 U.S. 737, 750, (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–79 

(D.C. Cir. 1982) (Bork, J., concurring)). The justiciability doctrines include “standing, ripeness, 

mootness, the political-question doctrine, and the prohibition on advisory opinions.” See Toll 

Brothers, Inc. v. Township of Readington, 555 F.3d 131, 137 (3d Cir. 2009) (quoting 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). To satisfy the requirements of the 

justiciability doctrine of standing, a plaintiff must demonstrate that (1) he or she has suffered an

“injury in fact,” (2) the injury is “fairly traceable” to the actions of the defendant, and (3) the 

injury will likely be redressed by a favorable decision. Svc. Employ v. Municipality of Mt. 

Lebanon, 446 F.3d 419, 422 (3d Cir. 2006). 
17

Generally, courts must separately address a plaintiff's standing as to each claim asserted 

in the complaint. See Municipality of Mt. Lebanon, 446 F.3d at 422. Where, however, claims 

challenge the same conduct and allege the same injuries, a claim-by-claim discussion is 

unnecessary. Toll Brothers, 555 F.3d at 139 n. 5. Plaintiffs' First Amendment and Equal 

Protection claims challenge the same conduct (the allegedly unconstitutional delay and denial of 

the liquor license transfer application) and, therefore, will be discussed together. Plaintiffs’ state 

law constitutional claims, brought before the Court under its supplemental jurisdiction pursuant 

to 42 U.S.C. § 1367, also challenge the same conduct and allege the same injuries. They will be 

considered if standing is found for Plaintiffs’ federal claims. The Court will now proceed to 

address the standing of each Plaintiff in turn.

Defendants do not contest that Buck Foston’s LLC has standing to bring the instant 

claims based upon the denial of its liquor license transfer application. Instead, Defendants 

challenge Mr. Blatterfein’s standing to bring suit in his individual capacity and Foston’s Realty’s 

standing, contending that, as the liquor license transfer applicant, only Buck Foston’s LLC may 

bring suit as a result of the Application’s denial.

A. Lawrence D. Blatterfein

1. Injury

The Third Circuit has held that the injury-in-fact requirement is often determinative of 

whether a plaintiff has standing to sue. Toll Brothers, 555 F.3d at 139. Injury, in the standing 

context, must be sufficiently “distinct and palpable” to distinguish the plaintiff from “the 

generalized and undifferentiated interest every citizen has in good government.” Id. (citations 
18

omitted). In a recent case addressing this important requirement, the Circuit Court reaffirmed 

that the “contours of [the injury-in fact requirement], while not precisely defined, are very 

generous.” Nat’l Collegiate Athletic Ass’n v. Governor of New Jersey, 13-1713, 2013 WL 

5184139 (3d Cir. Sep. 17, 2013) (citing Bowman v. Wilson, 672 F.2d 1145, 1151 (3d Cir. 1982)). 

“Indeed, all that Article III requires is an identifiable trifle of injury, . . . which may exist if the 

plaintiff ‘has . . . a personal stake in the outcome of [the] litigation.’ Id. (quoting The Pitt News v. 

Fisher, 215 F.3d 354, 360 (3d Cir. 2000)). In this case, Mr. Blatterfein has introduced evidence

showing that he has the requisite personal stake in the outcome. He was the signatory on the real 

estate purchase and financing contracts contingent on the outcome of Buck Foston’s LLC’s 

Application, and he expended significant funds preparing the Bennigan’s Property for 

development into “Buck Foston’s.” Moreover, the Supreme Court has explicitly held that a

developer, having entered into a contract to purchase a parcel of land made contingent upon the 

disposition of an application then pending before a municipal government, has standing to bring 

suit to recover damages arising from the cancelation of the land purchase contract after the 

application’s denial. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-62 

(1977). The Third Circuit subsequently acknowledged and relied upon the Supreme Court’s 

reasoning in Arlington Heights. See Toll Brothers, 555 F.3d at 139–40. Bearing in mind the low 

threshold for injury reaffirmed by the Court in Nat’l Collegiate Athletic Ass’n, I find the

Supreme Court’s reasoning in Arlington Heights, as relied upon by the Third Circuit in Toll 

Brothers, controlling in this case.

The developer in Arlington Heights entered into two contracts with the owner of a 

property. The first was a 99–year lease of the property, which went into effect immediately. The 

second was a land purchase contract, which would only close if the developer convinced the 
19

local zoning board to re-zone the property to permit construction of an apartment building. The 

zoning board refused to re-zone the property, the developer’s contract to purchase the land was 

therefore canceled, and the developer brought suit challenging the board's decision on equal 

protection grounds. The Supreme Court, in addressing the developer's standing, ruled that the 

developer sufficiently alleged injury-in-fact:

[I]t is inaccurate to say that [the developer] suffers no economic injury from a refusal to 

rezone, despite the contingency provisions in its contract. [The developer] has expended 

thousands of dollars on the plans for Lincoln Green and on the studies submitted to the 

Village in support of the petition for rezoning. Unless rezoning is granted, many of these 

plans and studies will be worthless even if [the developer] finds another site at an equally 

attractive price.

Arlington Heights, 429 U.S. at 262. Because the developer had a “detailed, specific plan,” and 

exhibited a substantial expenditure of financial resources, the Court was “not required to engage 

in undue speculation as a predicate for finding that the plaintiff ha[d] the requisite personal stake 

in the controversy.” Id. at 261. See discussion in Coastal Outdoor Adver. Grp., LLC v. Twp. of 

Union, N.J., 676 F. Supp. 2d 337, 346-47 (D.N.J. 2009) aff'd sub nom. Coastal Outdoor Adver. 

Grp., L.L.C. v. Twp. of Union, N.J., 402 F. App'x 690 (3d Cir. 2010).

While it is true that Mr. Blatterfein, in his personal capacity, was not the liquor license 

transfer applicant, Plaintiffs have shown that Mr. Blatterfein’s development of the Bennigan’s 

Property proceeded under a “detailed, specific plan” and that he spent significant funds on the 

project prior to the Application, amply demonstrating his requisite personal stake in the 

controversy. Mr. Blatterfein personally signed a “Contract for Sale of Real Estate” to purchase 

the proposed site of the Buck Foston’s restaurant on Route 18 for $1,500,000, [Real Estate 

Contract]; was a co-borrower, along with Buck Foston’s LLC, on a $2,634,800 loan from 

Provident Bank to finance the project, [Loan Commitment]; and (3) was the sole buyer/owner of 
20

the $160,000 Sapporo liquor license which was the subject of the transfer application. 

[Agreement to Sell Alcoholic Beverage License]. Mr. Blatterfein’s contract to purchase the 

Bennigan’s Property was contingent upon his successfully obtaining financing for the “Buck 

Foston’s” project, and his agreement to secure financing was conditioned upon the approval of 

Buck Foston’s LLC’s liquor license transfer application, [Loan Commitment, 3; Letter from 

Schiller & Pittenger, P.C. to Clarkin dated March 29, 2011].4 On May 17, 2011, Mr. Blatterfein 

paid an additional $30,000 to extend the closing date of the land purchase contract to June 30, 

2011. [Plaintiffs’ Exhibit T: Bennigan’s Contract Amendment]. Mr. Blatterfein ultimately 

delivered two more $30,000 checks to the seller of the Bennigan’s Property as the application 

process stalled. [Plaintiffs’ Exhibit S: Bennigan’s Contract Amendment]. It is also undisputed

that Mr. Blatterfein expended funds (i) to have engineering studies done on the Bennigan’s 

property in preparation for the renovation of the parking lot, (ii) to commission architects to draw 

up new floor plans for submission to the City, and (iii) to have Phase 1 and Phase 2 

environmental testing conducted on the property in preparation for the renovation. [Clarkin 

Letter, April 5, 2011 Re: Plenary Retail Distribution License]. Accordingly, Mr. Blatterfein’s 

injuries arising from money he spent in connection with contingent land contracts and property

specific land studies are sufficiently similar to those of the developer in Arlington Heights to 

warrant a similar finding of injury-in-fact.5

 

4 Mr. Blatterfein’s contract to purchase the Sapporo liquor license was not contingent upon the 

award of the liquor license transfer. After the Application’s denial, however, the license had lost 

most of its value to Mr. Blatterfein, because his only other bar in New Brunswick already had a 

liquor license. Mr. Blatterfein voluntarily canceled the contract after the denial. [Letter from 

James F. Clarkin III to Lawrence B. Sachs dated September 12, 2011].

5

The New Jersey case of Senna v. City of Wildwood, 23 N.J. Tax 275 (App. Div. 2006), cited in 

Defendants’ Motion challenging Mr. Blatterfein’s standing is inapplicable to this case. That case 
21

2. Traceability 

The second element of Article III standing is causation. “If the injury-in-fact prong 

focuses on whether the plaintiff suffered harm, then the traceability prong focuses on who 

inflicted that harm.” Toll Brothers, 555 F.3d at 142 (emphasis in original). The key question is 

whether “the defendant's challenged actions, and not the actions of some third party, caused the 

plaintiff's injury.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 

Moreover, “[the] causal connection need not be as close as the proximate causation needed to 

succeed on the merits of a tort claim.” Id. (citing Pub. Interest Research Group of N.J., Inc. v. 

Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir.1990)). 

Here, similar to the purchase option in Arlington Heights, Mr. Blatterfein’s acquisition of 

the Bennigan’s Property was made contingent upon securing favorable action by the governing 

body of a municipality. [Real Estate Contract; Boenning Letter dated September 9, 2011].

Because the New Brunswick City Council denied Buck Foston’s LLC’s liquor license transfer

application, Plaintiff’s contingent contracts never closed, and the environmental impact studies, 

engineering plans, and architectural layouts that Mr. Blatterfein had commissioned were 

rendered useless. Thus, Mr. Blatterfein’s injury is reasonably traceable to the action of 

Defendants.

 

dealt with the requirement of proper legal representation by counsel of an LLC, where the lone 

shareholder attempted to proceed pro se on the LLC’s behalf. Id. It has no bearing on the parties’ 

standing in this case.
22

3. Redressability

Redressability is closely related to traceability, “as two sides of a causation coin.” Toll 

Brothers, 555 F.3d at 142 (quoting Dynalantic Corp. v. Dep't of Def., 115 F.3d 1012, 1017 (D.C.

Cir. 1997)). Whether a “favorable decision [will] alleviate the harm” is the essence of the 

redressability inquiry. Id. (citing Lujan, 504 U.S. at 560–61). As long as a plaintiff establishes a 

“substantial likelihood that the requested relief will remedy the alleged injury in fact,” the 

plaintiff's claim may proceed. Id. (citations omitted).

Mr. Blatterfein, personally, seeks compensatory damages resulting from the delay and 

denial of the liquor license transfer application. The Supreme Court has long held compensatory 

damages to be an appropriate remedy in civil rights actions:

[W]hatever the constitutional basis for § 1983 liability, such damages must always be 

designed to compensate injuries caused by the [constitutional] deprivation.

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 309-10 (1986) (citations omitted) 

(emphasis in original). Accordingly, a favorable decision in this case will redress Mr. 

Blatterfein’s injuries. Thus, Mr. Blatterfein has standing to bring the present suit.

B. Foston’s Realty

Defendants also challenge Foston’s Realty’s standing to bring suit on the same grounds 

raised against Mr. Blatterfein. Foston’s Realty is described in Plaintiffs’ Amended Complaint as 

having been created for the purpose of holding the Bennigan’s Property after its purchase by Mr. 

Blatterfein. [Blatterfein Dep., T39:1-5]. Because Mr. Blatterfein paid personally for the Sapporo 

license, the Bennigan’s Property contract extensions, and the preparatory studies on the Property, 
23

the only injury alleged by Foston’s Realty is the loss of the opportunity to own the Bennigan’s 

Property. [Plaintiffs’ Opposition Brief, 5]. The record shows that Mr. Blatterfein planned to 

transfer the property to Foston’s Realty after the closing of his personal land purchase contract, 

but reveals no contract or other instrument obligating Mr. Blatterfein to effect the transfer, or

otherwise giving Foston’s Realty a property interest in the transaction.

Stated differently, Foston’s Realty expended no funds in preparation for the Buck 

Foston’s project and possessed neither a financial stake nor a legally enforceable future interest 

in the Property. Accordingly, the Court finds the injury suffered by Foston’s Realty is unlike that 

of the contingent contract signatory in Arlington Heights, or Mr. Blatterfein. Foston’s Realty’s

loss of a potential, future transfer of real property, unaccompanied by other evidence of 

investment in or ownership of the Buck Foston’s project is not a sufficiently “distinct and 

palpable” injury-in-fact for Article III standing purposes. Because the Court finds that Foston’s 

Realty has suffered no injury-in-fact, no further standing analysis is required and Plaintiff 

Foston’s Realty is dismissed from this action.

VI. First Amendment Retaliation Claim

Before discussing Plaintiffs’ retaliation claim at length, I pause to clarify the nature of the 

claim being made. Plaintiffs assert two instances of alleged retaliation by Defendants as a result 

of Plaintiffs’ exercise of First Amendment rights. First, Plaintiffs contend that Mayor Cahill 

either directed or conspired with the New Brunswick Police Department to delay Buck Foston’s 

LLC’s Application by failing to timely conduct a required background check and by withholding 
24

a required departmental recommendation. Second, Plaintiffs contend that Mayor Cahill either 

directed or conspired with Councilmen Recine and Egan to deny the Application when it was 

called up for a vote. Neither Plaintiffs nor Defendants apply the legal standard for § 1983 

conspiracy in their briefing of this matter. See Startzell v. City of Philadelphia, 2007 WL 172400 

(E.D. Pa. Jan. 18, 2007) at *17, aff’d sub nom. Startzell v. City of Philadelphia, Pa., 533 F.3d 

183 (3d Cir. 2008) (“To state a claim for conspiracy in violation of § 1983, a plaintiff must allege 

(1) the existence of a conspiracy involving state action; and (2) a [deprivation] of civil rights in 

furtherance of the conspiracy by a party to the conspiracy.”).6 Nevertheless, this Court finds that, 

when viewed together, the many allegations of retaliation included in the Amended Complaint

state a claim for conspiracy under § 1983 for both the delay and denial of the Application. See, 

e.g., Amended Complaint, ¶ 67 (“Defendants . . . had previously agreed” to employ a pretextual 

explanation for their votes); Amended Complaint, ¶ 78 (Defendants’ hatched an “intentional and 

illegal scheme” to prevent Plaintiffs from using the name “Buck Foston’s”).

Having so found, the difficulty then arises that, in their filings on this Motion, neither 

Plaintiffs nor Defendants structure their arguments and factual support at the summary judgment 

stage according to the § 1983 conspiracy framework. Instead, both concentrate on the three-part 

 

6

To establish (1) the existence of a conspiracy “a plaintiff must show a combination of two or 

more persons to do a criminal act, or to do a lawful act by unlawful means, or for an unlawful 

purpose by making specific factual allegations of combination, agreement, or understanding 

among all or between any of the defendants to plot, plan, or conspire to carry out the alleged 

chain of events.” Startzell, 2007 WL 172400 at *17 (citations omitted). Central to this showing 

are “specific factual allegations that there was a mutual understanding among the conspirators to 

take actions directed toward an unconstitutional end.” Id. Because circumstantial evidence may 

be used to prove a conspiracy, “whether there is a conspiracy is typically a jury question if there 

is a possibility to infer from the circumstances that the alleged conspirators had a meeting of the 

minds and thus reached an understanding to achieve the conspiracy’s [objectives].” Id. (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970) (“To constitute a conspiracy, there must 

be a ‘meeting of the minds.’”)).
25

standard for civil rights retaliation claims. To establish the elements of a retaliation claim

predicated on the First Amendment under 42 U.S.C. § 1983, Plaintiffs must show “(1) that they 

engaged in a protected activity, (2) that defendants’ retaliatory action was sufficient to deter a 

person of ordinary firmness from exercising his or her rights, and (3) that there was a causal 

connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. 

v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The third element, “causation,” is most 

frequently disputed, and is indeed the only one of the three elements disputed in the case now 

before the Court.7 As explained, infra, the evidence introduced by Plaintiffs to show causation 

under the three-part retaliation test is the same evidence supporting Plaintiffs’ retaliation claim 

under a conspiracy theory of liability. By the very nature of the evidence introduced by 

Plaintiffs, if the record will not support a finding of causation, it also will not support the 

existence of a conspiracy.

A. Retaliation By Delay of the Background Check and Recommendation

In the Amended Complaint, Plaintiffs attempt to establish Mayor Cahill’s liability for the 

allegedly intentional delays of the New Brunswick Police Department simply by showing that as 

the City’s chief executive, supervision of the police was included among the Mayor’s official 

duties. The Supreme Court long ago rejected this theory of liability in civil rights cases. “‘A 

public officer or agent is not responsible for the misfeasances or position wrongs, or for the 

nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons 

 

7

Plaintiffs do not dispute that Plaintiffs can satisfy the first two factors that (1) Mr. Blatterfein’s 

naming of his prospective restaurant “Buck Foston’s” was a protected exercise of commercial 

speech under the First Amendment and (2) that the City Council’s denial of Buck Foston’s 

LLC’s liquor license transfer application, if retaliatory conduct, would constitute retaliation 

sufficient to deter a person of ordinary firmness from exercising his First Amendment rights. 

[Defendants’ Motion for Summary Judgment, 9].
26

properly employed by or under him, in the discharge of his official duties.’” Ashcroft v. Iqbal, 

556 U.S. 662, 676 (2009) (quoting Robertson v. Sichel, 127 U.S. 507, 515-516 (1888)). Because 

vicarious liability is inapplicable to § 1983 suits, to state a First Amendment retaliation claim 

against Mayor Cahill on the basis of Police Department conduct, a plaintiff “must plead that each 

Government-official defendant, through the official's own individual actions, has violated the 

Constitution.” Id. The Third Circuit has long subscribed to this standard, as made clear in Rode v. 

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement in the alleged 

wrongs.... [P]ersonal involvement can be shown through allegations of personal direction 

or of actual knowledge and acquiescence. Allegations of participation or actual 

knowledge and acquiescence, however, must be made with appropriate particularity.

Here, while Plaintiffs’ Amended Complaint repeatedly alleges direction and influence by 

Defendant Cahill, this court is constrained to note that this is not a motion to dismiss, where 

factual allegations are taken as true; but rather, this is a motion for summary judgment, and 

Plaintiffs have offered no evidence to raise a genuine issue of material fact that Mayor Cahill 

influenced the Police Department to delay the Buck Foston’s Application. While Plaintiffs have 

introduced evidence establishing Mayor Cahill’s role as the chief executive of New Brunswick, 

his friendship with the Director of the Police Department, and his approval, as Mayor, of the 

hiring of individual police officers, this showing falls short. [Cahill Dep., T69:15-25, 70:1-7, 

68:17-25, 69:1-3]. Plaintiffs have not proffered any evidence, whether by records of electronic 

communication, writings, or in-person meetings between Mayor Cahill and Detective DeBonis, 

or any other member of the New Brunswick Police Department, concerning “Buck Foston’s.” 

Moreover, they have not shown communication of any kind about “Buck Foston’s” between the 

Mayor and Police Department. This Court notes that direct evidence is generally not forthcoming 
27

in cases of alleged collusion among government officials in meetings closed to the public, but 

Plaintiffs here have not introduced any circumstantial evidence giving rise to an inference of 

improper influence over the Police Department by Mayor Cahill. The Plaintiffs have not 

proffered, for example, entries from Mayor Cahill’s office calendar showing meetings scheduled 

between the Mayor and Detective DeBonis, agendas from regularly scheduled meetings with the 

Police Department where liquor licenses were slated to be discussed, any email exchanges, or 

even phone records for the relevant time period.

These same gaps in the record illustrate that Plaintiffs have also failed to show a 

conspiracy between the Mayor and the Police Department. Not only are there no “specific factual 

allegations that there was a mutual understanding among the conspirators to take actions directed 

toward an unconstitutional end,” there are no specific factual allegations of communication of 

any kind between two. Startzell, 2007 WL 172400 at *17. The Court also notes that the absence 

of any evidence in the record concerning any conspiracy involving the Mayor, City Council, and

Police Department, remains after the close of discovery. It is not for lack of opportunity to 

investigate, therefore, that Plaintiffs fail in making their required showing of either influence or 

agreement. 

In discussing summary judgment in First Amendment retaliation cases, the Third Circuit 

has explained:

Although we have often noted that the first prong of the First Amendment retaliation test 

presents questions of law for the court while the second and third prongs present 

questions of fact for the jury, e.g., Curinga v. City of Clairton, 357 F.3d 305, 310 (3d 

Cir.2004) (citing Baldassare, 250 F.3d at 195), only genuine questions of fact should be 

determined by the jury. For example, in Ambrose v. Township of Robinson, Pa., 303 F.3d 

488, 496 (3d Cir.2002), we held that judgment as a matter of law under Rule 50(b) should 

have been granted to the defendant where the plaintiff failed to present sufficient 
28

evidence that his protected activity was a substantial factor in his suspension. The same 

principle applies in the summary judgment context under Rule 56. E.g., Watters v. City of 

Philadelphia, 55 F.3d 886, 892 (3d Cir.1995) (noting District Court concluded that 

plaintiff made sufficient showing that speech was substantial factor motivating 

termination to submit question to jury).

Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir. 2005). While Plaintiffs’ evidence may be

sufficient to show that it was within Mayor Cahill’s job description to supervise the New 

Brunswick Police Department, nonetheless Plaintiffs have failed to show that, in the weeks and 

months during which Buck Foston’s LLC’s Application was being considered, the Mayor 

“personally directed” or possessed “actual knowledge” of and acquiesced in the delay of 

Plaintiffs’ background check or the Department’s recommendation. In short, Plaintiffs have 

failed to show the required causal connection between Mayor Cahill’s disapproval of the name 

“Buck Foston’s” and the allegedly retaliatory delay of Buck Foston’s LLC’s Application. At the 

same time, the absence of direct or circumstantial evidence showing communications about the 

Buck Foston’s project between the Mayor and Police Department make a finding of the “meeting 

of the minds” required for a conspiracy impossible. Accordingly, observing the Third Circuit’s 

decision in Hill along with the substantial discovery already conducted in this case, this Court 

grants summary judgment in favor of Defendant Cahill on Plaintiffs’ First Amendment

Retaliation claim against him on the basis of the conduct of the Police Department. The Court 

does not need to address Plaintiffs’ claim arising from the alleged delay of the Application as to 

Defendants Recine and Egan, because Plaintiffs have not alleged, and the record contains no 

evidence to support, any connection between Councilmen Recine and Egan and the New 
29

Brunswick Police Department. Because there is no underlying liability for any of the City 

officials, there is also no municipal liability on this basis for the City of New Brunswick.8

B. Retaliation By Denial of the Application

While the absence of evidence supporting Plaintiffs’ delay claim, supra, made analysis 

according to the Third Circuit’s three-part test for causation in retaliation cases unnecessary, 

Plaintiffs have introduced substantial evidence in support of their denial of the liquor license 

application claim, requiring closer review. To establish causation, the Third Circuit has 

explained that a “plaintiff usually must prove either (1) an unusually suggestive temporal 

proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of 

antagonism coupled with timing to establish a causal link.” DeFlaminis, 480 F.3d at 267. The 

Circuit has also provided a catch-all standard that “in the absence of . . . proof [under either 

foregoing theory] the plaintiff must show that from the ‘evidence gleaned from the record as a 

 

8

Plaintiffs have not named Det. DeBonis or any other officer of the New Brunswick Police 

Department as defendants in this action. Nevertheless, at least once in the Amended Complaint, 

Plaintiffs argue that the Police Department may have acted to delay the Application because of 

its own bias against the name “Buck Foston’s,” independent of Mayor Cahill. As explained, 

infra, however, the Supreme Court has long held that there is no vicarious municipal liability in § 

1983 cases. Instead, “[a] plaintiff seeking to impose liability on a municipality under § 1983 

[must] identify a municipal policy or custom that caused the plaintiff's injury.” Kriss v. Fayette 

Cnty., 504 F. App’x. 182, 187 (3d Cir. 2012) (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v. 

Brown, 520 U.S. 397, 403 (1997)). 

Plaintiffs have not introduced any evidence suggesting that the actions of Det. DeBonis 

or any other police officer involved in the liquor license transfer review process were motivated 

to delay Plaintiffs’ Application by a municipal policy against “offensive” names or that there was 

a pattern or practice within the police department of delaying the applications of businesses with 

disfavored names such that the practice could be imputed to the municipality as its official 

policy. Without some showing by Plaintiffs permitting a trier of fact to infer that the Police 

Department’s conduct stemmed from an explicit or implied municipal policy or custom, there is 

no municipal liability for the City of New Brunswick. 
30

whole’ the trier of fact should infer causation.” Id. (citing Farrel v. Planters Lifesavers Co., 206 

F.3d 271, 281 (3d Cir. 2000)).

Regarding the first theory, while there is no hard and fast standard for “unusually 

suggestive temporal proximity,” the Third Circuit has found “that such an inference could be 

drawn where two days passed between the protected activity and the alleged retaliation, see Jalil 

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), but not where 19 months had elapsed, see

Krouse, 126 F.3d [494,] . . . 503 [(3d Cir. 1997)].” Estate of Smith v. Marasco, 318 F.3d 497, 

512-13 (3d Cir. 2003). To establish causation under the second, “antagonism” theory, a plaintiff 

needs “to show ‘actual antagonistic conduct or animus’ in ‘the intervening period’ between the 

protected activity and the retaliation.” Id. (quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 

302 (3d Cir. 2007). 

The third, catchall standard of causation, as most often applied by courts in this Circuit, 

requires a plaintiff to show that “the protected speech was a substantial or motivating factor in 

the alleged acts of retaliation.” Shehee v. City of Wilmington, 67 F. App’x 692, 694 (3d Cir. 

2003). The Third Circuit has further explained that “a plaintiff need not show that the decision 

was motivated solely by anti-speech animus, or even that the illegal animus was the dominant or 

primary motivation for the retaliation. This is less than a showing that a plaintiff’s protected 

conduct was the ‘but for’ cause of the challenged actions.” Id. (quoting Suppan v. Dadonna, 203 

F.3d 228, 236 (3d Cir. 2000). As will be explained, infra, Plaintiffs’ claims must proceed under 

this third theory of causation.

Given that the actions of the New Brunswick Police Department are not properly 

attributable to Mayor Cahill, as explained, supra, Plaintiffs’ only remaining claim of retaliatory 
31

conduct by the elected officials of New Brunswick is the denial of Plaintiffs’ Application by the 

City Council. First, the timing of the Application’s denial is not unusually suggestive of 

causation. The City Council’s vote on Plaintiff’s application was required to occur within 60 

days of the filing of Plaintiffs’ tax certificate, so either a favorable or adverse decision would 

have occurred within the same period. N.J.A.C. 13:2.7-7(d). A denial within the 60 day period 

and roughly five months after the alleged act of protected speech is not “unusually suggestive” of 

a retaliatory motive. DeFlaminis, 480 F.3d at 268 (the timing of a school district’s ruling on 

plaintiff’s request could not support an inference of “unusual suggestive” timing because the 

district ruled on the request within the period in which it was legally required to do so). 

Plaintiffs similarly fail to show a pattern of antagonism by Defendants Cahill and Recine 

during the period between the filing of Plaintiffs’ Application and the adverse vote. Plaintiffs 

have not shown any interactions between Plaintiffs and either Mayor Cahill or Councilman 

Recine after the April meeting between Mr. Blatterfein and Mayor Cahill.9“Pattern of 

antagonism” causation requires repeated interactions of plaintiff and defendant. See Marra, 497 

F.3d 286 (pattern of antagonism evidenced by series of escalating incidents between defendant 

and plaintiff including vandalization of plaintiff’s computer and exclusion from work meetings); 

Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997) (pattern of antagonism evidenced by 

gradual deterioration of relationship between plaintiff and defendant through series of discrete 

interactions culminating in alleged act of retaliation).

 

9 Based upon the Mayor’s comments regarding the Buck Foston’s name, the April meeting can 

be viewed as antagonistic, but that meeting, standing alone, does not reflect a pattern of 

antagonism. 
32

Turning to the catch-all theory, reviewing the record as a whole, the Court finds that 

Plaintiffs have raised a triable issue of material fact as to whether Councilman Recine, against 

whom there is no direct evidence of unconstitutional animus, was nonetheless influenced by or 

conspired with Mayor Cahill, against whom there is such evidence. While, it is undisputed that 

Plaintiffs have no personal knowledge of any improper influence by Mayor Cahill over the City 

Council vote, nor have Plaintiffs identified any witnesses purporting to possess such knowledge,

[Blatterfein Dep., T106:7-10], the Court notes that in cases alleging unconstitutional influence 

and conspiratorial behavior by elected officials, an inference of improper influence must often, 

and may here, rest solely upon evidence of Defendants’ conduct, the timing of such conduct, and 

indications of some retaliatory motive by one of the actors. See Montone v. City of Jersey City, 

709 F.3d 181, 202 (3d Cir. 2013) (quoting Stephens v. Kerrigan, 122 F.3d 171, 181 (3d Cir. 

1997)) (“[A] plaintiff in a First Amendment retaliation action may prevail [against defendant’s 

motion for] summary judgment ‘by discrediting [the defendant’s] proffered reason [for the 

employment action], either circumstantially or directly, or by adducing evidence, whether 

circumstantial or direct, that discrimination was more likely than not a motivating or substantial 

cause of the adverse action.’”). Because Plaintiffs’ evidence of causation consists almost 

exclusively of circumstantial evidence of an unlawful agreement between, and cover-up by 

Defendants, evidence sufficient to show causation under DeFlaminis will also be sufficient to 

show conspiracy under Startzell.

As a preliminary matter, Defendants, in both their Motion and Response to the Statement 

of Facts, place great emphasis on the contention that Mr. Blatterfein could have obtained a liquor

license transfer for the Bennigan’s Property at a lower occupancy with the name “Buck 
33

Foston’s,” which they argue negates the premise that the denial of the Application was based on 

the name in violation of the First Amendment. Specifically, Defendants argue:

Plaintiff was offered the opportunity to use the name “Buck Foston” [sic] at the 

[Bennigan’s Property], but with the occupancy limits imposed upon the prior tenant of 

the site instead of the doubled occupancy Plaintiff sought, and Plaintiff turned it down.

[Defendants’ Brief, 15 (emphasis in original)]. Defendants’ lone piece of evidence in support of 

this claim is a single statement in the deposition transcript of Mr. Blatterfein.10 Significantly, 

Defendants have not provided any evidence of where the alleged offer was made to Mr. 

Blatterfein, when it was made, or by whom. The absence of any evidence –by way of deposition 

testimony from Defendants, declarations, or documents– confirming that such an offer was 

indeed made by any of the City officials is particularly striking and revealing. Plaintiffs, on the 

other hand, have introduced evidence to challenge Defendants’ position, offering the deposition 

testimony of Mr. Blatterfein’s lawyer, James Clarkin. It is undisputed that Mr. Clarkin handled 

the liquor license transfer application for Mr. Blatterfein, including negotiations with the City, 

and Mr. Clarkin strenuously denies ever having received such an offer. [Clarkin Dep., 26:11-16]. 

Defendants have not even provided the complete portions of the transcript surrounding Mr. 

Blatterfein’s statement, making it even more difficult for the Court to discern his full meaning.

 

10 In his deposition, Mr. Blatterfein was asked by defense counsel: “So it’s fair to say that 

although you were offered to keep the same occupancy and internal configuration, and you 

would have a liquor licensed [sic] granted to you to be able to operate under the name Buck 

Foston [sic], you decided to decline that; is that correct?” [Blatterfein Dep., T125:15-20]. 

Plaintiffs’ counsel immediately objected to the question because counsel was “unclear” where 

the factual basis of defense counsel’s question was in the record. [Id. at 126:3-5]. Nevertheless, 

Mr. Blatterfein responded: “I could have accepted what they gave me.” [Id. at 126:7]. After 

which defense counsel asked: “And you decided not to, correct?” Mr. Blatterfein answered: 

“Under the advice of counsel, under advice of architect, under advice of traffic engineering, and 

under the advice of five of the City officials who were charged with giving me that occupant 

load, well, four of them, I said I’m not willing to take it under these circumstances, absolutely.” 

[Id. at 126 :9-17].
34

Ultimately, this Court finds that the record on this issue is unclear at best, and certainly 

not adequate to find that Defendants have shown no issue of material fact. There is a paucity of 

evidence to establish that an offer was made to Plaintiffs to receive a license for the Bennigan’s 

Property at a reduced occupancy using the name “Buck Foston’s.” Furthermore, even if the 

record showed that the offer was made, there would remain a disputed issue of material fact as to 

whether Defendants were aware that the “Buck Foston’s” project was not financially viable at 

the substantially reduced occupancy of the original Bennigan’s Property. By at least as early as 

June 29, 2011, Defendants had been served with Plaintiffs’ Original Complaint, detailing the 

financial and contractual structure of the “Buck Foston’s” project, particularly that the purchase 

price and financing agreement contemplated a sports bar serving up to 352 patrons, not 185. 

Thus, Defendants could have predicted that an offer by the City for a significantly reduced 

occupancy would have to be rejected by Plaintiffs as an illusory offer because it would be 

financially unsustainable, and such an “offer” could not therefore, as Defendants argue, negate 

any discriminatory motive to suppress the name “Buck Foston’s."

Putting aside the alleged delays by the Police Department of Plaintiffs’ background check 

or recommendation, the Plaintiffs rely on the following factual account to support their claims

against Mayor Cahill and Councilman Recine. In April of 2011, Mr. Blatterfein’s lawyer spoke 

with Mayor Cahill and Mr. Blatterfein himself met with the Mayor to discuss the “Buck 

Foston’s” project. Mayor Cahill expressed his approval of the project from the perspective of 

economic development of the Bennigan’s Property, but was strongly opposed to the project 

being named “Buck Foston’s.” In the months that followed, Mayor Cahill and Mr. Patterson 

discussed the Buck Foston’s project on approximately ten occasions, during the course of one or 

two of which, the name “Buck Foston’s” was discussed. At the request of Councilman Recine, 
35

on June 16, 2011, Mayor Cahill, Councilman Recine, and Mr. Patterson met to discuss the Buck 

Foston’s project. This meeting, called for the sole purpose of discussing a liquor license transfer 

application, was, according to the recollections of those present, the first of its kind in New 

Brunswick. Directly after the meeting, also on June 16, Mr. Patterson wrote a five-page 

memorandum, including a one page discussion of municipal ordinances governing signage and 

the Supreme Court case law governing regulations of commercial speech. Mr. Patterson included 

these in the memorandum because the issue of the “Buck Foston’s” name had come up at the 

meeting. 

Months later, when Buck Foston’s LLC’s Application finally came before the City 

Council, Councilman Recine voted to deny the place-to-place transfer that was necessary for 

“Buck Foston’s” to operate as a sports bar. He claimed that concerns with alterations to the 

internal layout of the building and increases in traffic resulting from the increased occupancy 

motivated his decision. While this decision was consistent with the recommendation of New 

Brunswick Police Det. DeBonis, delivered in testimony before the Council, Councilman

Recine’s findings ran directly counter to all the other evidence submitted to the Council, 

including: (i) the recommendations of other City officials tasked with the responsibility to make 

findings based upon the layout and safety, (ii) the determination of the New Jersey Department 

of Transportation, which found no concerns regarding the anticipated increase in traffic, and (iii) 

the expert opinion of a professional transportation engineering firm. Detective DeBonis was not 

a traffic expert and he based his conclusions on his “common sense” evaluation of the 

relationship between occupancy and traffic. [Transcript of DeBonis, T35:8-20, hereinafter 

“DeBonis Dep.”]. He also made it clear in his deposition, that if “Buck Foston’s” had not sought 

to sell alcoholic beverages, the Police Department’s recommendation on the project would not 
36

have been required at all. [DeBonis Dep., T102:18-25, 103:1-5]. Indeed, the Police Department’s

usual non-involvement in reviewing occupancy changes is consistent with the guidance provided 

by the Alcoholic Beverage Control Handbook for Municipal Issuing Authorities. The Handbook 

does not mention occupancy or traffic concerns, and advises municipalities to investigate the 

criminal history and financial condition of applicants. Councilman Recine was almost certainly 

aware that traffic concerns generally lay outside the scope of license transfer proceedings, 

because he was advised as much in the June 16 Memorandum from Director Patterson, addressed 

to him and prepared immediately after a meeting at which he was present. [June 16 

Memorandum, 2].11 Based upon these undisputed facts, Plaintiffs contend that Defendant Cahill 

caused the City Council to deny Plaintiffs’ Application either by directing the City Council to 

deny the application as his “agents,” or by conspiring with Councilman Recine to have him vote 

to deny the application. [Amended Complaint, ¶ 73].

To determine whether a constitutionally permissible explanation is merely a pretext to 

conceal an unconstitutional motive, the Third Circuit has applied case law from the employment 

context to the “retaliatory refusal to grant a permit.” Phillips v. Borough of Keyport, 107 F.3d 

164, 181 (3d Cir. 1997). “Pretext may be shown by exposing such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the [official’s] proffered legitimate reasons 

for its action that a reasonable factfinder could rationally find them unworthy of credence.” 

 

11 The Court is mindful of the extensive New Jersey state case law cited by Defendants in 

support of the proposition that the New Brunswick City Council is entitled to broad discretion in 

the granting of liquor license transfers. Therefore, the Court highlights the absence of traffic 

concerns from the Alcoholic Beverage Control Handbook, and Defendants’ own observation of 

this absence in the June 16 Memorandum, not to suggest that the City Council lacked the power 

to deny a transfer on the basis of a variety of concerns, but only to note that to do so in light of 

the other surrounding circumstances contributes to the inference of discriminatory motive 

requiring jury determination.
37

Marra, 497 F.3d at 306 (change in original) (quotations omitted). “In appropriate circumstances, 

the trier of fact can reasonably infer from the falsity of the explanation that the [official] is 

dissembling to cover up a discriminatory purpose. Such an inference is consistent with the 

general principle of evidence law that the factfinder is entitled to consider a party's dishonesty 

about a material fact as affirmative evidence of guilt.” Id. Moreover, such inferences may 

properly be drawn on this motion from the undisputed facts and are sufficient to raise a material 

issue of fact as to causation in Plaintiffs’ First Amendment retaliation claim.

12

The timing of the June 16 meeting and the follow-up memorandum, including the 

discussion of the First Amendment concerns with the proposed name, when coupled with

Councilman Recine’s vote, which was against the weight of the credible evidence presented to 

the Council, are suggestive of an improper motive. This suggestion of improper motive is further 

bolstered by the additional facts that the incidence of such meetings and memoranda concerning 

liquor license transfers are unprecedented in New Brunswick, and the lone recommendation 

against the Application came from a Police Department addressing traffic issues outside of its

purview.

13 Defendants attempted to show that no issue of material fact existed concerning 

 

12 The Court does not here decide the question of pretext in Plaintiffs’ favor. Defendants have 

introduced significant evidence to rebut Plaintiffs’ allegation. Councilman Recine had told Mr. 

Blatterfein months before the Application was filed that he was against changing the layout of 

the Bennigan’s Property and indicated at the September 7 Council Meeting that his opposition to 

the project in part stemmed from his experience of traffic conditions near the Bennigan’s 

Property because he lived on the same street. [Council Meeting Tr., T26:10-25, 27:1-4]. At the 

summary judgment stage, this Court, accordingly, only decides that in light of the evidence 

introduced by Plaintiffs and Defendants, a genuine issue of material fact exists to be decided by 

the jury.

13 Indeed, although administrative remedies were not exhausted, see note 16 infra, I question, 

given the strong evidence that the Buck Foston’s project would have no effect on area traffic,

whether the Council’s vote could have been sustained if an appeal to the Alcoholic Beverage 

Control had been pursued.
38

causation by introducing Councilman Recine’s allegedly non-discriminatory explanation for his 

Council vote: concern over traffic and layout. But for this explanation to survive Plaintiffs’ 

challenge, the trier of fact must believe that Councilman Recine either did not consult or gave no 

credence to the recommendations of the City’s own traffic and safety officials, the New Jersey 

Department of Transportation, and a private traffic engineering firm, and chose instead to follow 

his own intuition and the recommendation of a police detective, who was not an expert in traffic 

engineering and not normally consulted about occupancy changes. No reasonable trier of fact 

must so conclude. It is for the jury to determine whether, in light of the facts and circumstances, 

Councilman Recine’s determinations were pretextual.

14

Moreover, whichever account the trier of fact choses to believe, as the sole witnesses to 

many of the central events in both Defendants’ and Plaintiffs’ accounts, the credibility of Mayor 

Cahill, Councilman Recine, and Director Patterson will likely decide the disposition of this

claim. Such credibility determinations must be left for the jury. Burton v. Teleflex Inc., 707 F.3d 

417, 428-29 (3d Cir. 2013); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(internal citations omitted) (“Credibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether 

 

14 Indeed, the facts of this case are fundamentally different from those in which the courts of this 

Circuit have granted summary judgment. In those cases plaintiffs have usually failed to show 

that defendants were even aware of plaintiffs’ protected speech. Ambrose v. Twp. of Robinson, 

303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for protected conduct to be a 

substantial motivating factor in a decision, the decision makers must be aware of the protected 

conduct”); See Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008) (upholding District 

Court’s denial of summary judgment where District Court found evidence supporting 

defendant’s awareness of plaintiff’s protected conduct, frustration with that conduct, and 

involvement in conspiracy to retaliate against that conduct); Marra, 497 F.3d 286 (upholding 

District Court’s denial of defendant’s motion for judgment where plaintiff introduced evidence 

of awareness, causation, and pretext, requiring jury determinations of credibility).
39

he is ruling on a motion for summary judgment, or for a directed verdict.”); Marino v. Industrial 

Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (“In considering a motion for summary judgment 

a District Court may not make credibility determinations. . .”).

In reaching this decision, the Court is mindful of the Third Circuit’s admonition in 

DeFlaminis:

A court must be diligent in enforcing these causation requirements because otherwise a 

public actor cognizant of the possibility that litigation might be filed against him, 

particularly in his individual capacity, could be chilled from taking action that he deemed 

appropriate and, in fact, was appropriate. Consequently, a putative plaintiff by engaging 

in protected activity might be able to insulate himself from actions adverse to him that a 

public actor should take. The point we make is not theoretical as we do not doubt that 

public actors are well aware that persons disappointed with official decisions and actions 

frequently bring litigation against the actors responsible for the decisions or actions in 

their individual capacities, and the actors surely would want to avoid such unpleasant 

events. . . . Courts by their decisions should not encourage such activity and, by enforcing 

the requirement that a plaintiff show causation in a retaliation case, can avoid doing so as 

they will protect the public actor from unjustified litigation for his appropriate conduct. In 

this regard we recognize that often public actors such as those in this case must make a 

large number of decisions in charged atmospheres thereby inviting litigation against 

themselves in which plaintiffs ask the courts to second guess the actors' decisions.

DeFlaminis, 480 F.3d at 267-68. While it is not the place of the Court to second guess the 

decisions of elected officials, at the summary judgment stage, the Court is also not permitted to

make credibility determinations or weigh the evidence before it to resolve factual disputes.

Here, there is no dispute that Defendants were aware of Mr. Blatterfein’s protected 

speech, and, as discussed supra, determinations of credibility reserved to the jury will play a 

central role in deciding the dispositive issue of causation based on the June 16 meeting, 

memorandum, September 7 vote, and surrounding circumstances. Viewing the evidence that can 

be gleaned from the record as a whole, there is a genuine issue of material fact as to the influence 

of Mayor Cahill over Councilman Recine, or the existence of an agreement between them, that is
40

sufficient to survive Defendants’ Motion for Summary Judgment. Accordingly, the Court denies 

Defendants’ Motion for Summary Judgment on Plaintiffs’ First Amendment Retaliation Claim as 

asserted against Defendants Cahill and Recine. 

C. Councilman Egan

On the other hand, the retaliation claim against Councilman Egan is devoid of any 

evidence in the record. In their Amended Complaint, Plaintiffs contend that “Defendants Recine 

and Egan (at the request and/or in coordination with Mayor Cahill and/or the City) had 

previously agreed” to vote in favor of the person-to-person transfer and against the place-toplace transfer and to offer a pretextual reason for doing so. [Amended Complaint, ¶ 67]. Unlike

the evidence proffered alleging retaliatory conduct by Mayor Cahill and Councilman Recine, 

there is no evidence that Councilman Egan ever spoke to Mayor Cahill, [Egan Dep., T17:5-15], 

or Councilman Recine, [Id. at T17:16-19], about the Buck Foston’s project prior to the City 

Council vote. Councilman Egan was not present at the June meeting between Councilman 

Recine and Mayor Cahill at which Buck Foston’s was discussed [Recine Dep., T70:23-24], and 

he did not review either of the memoranda about Buck Foston’s produced by Director Patterson.

[Egan Dep., T17:24-18:2]. In his deposition, the councilman denied involvement in, or even 

communication about, any of the meetings, telephone calls, or written exchanges surrounding the 

“Buck Foston’s” project. Plaintiffs have not offered any evidence to rebut this account. Bare 

assertions alone are insufficient to survive a motion for summary judgment. Accordingly, the 

retaliation claim against defendant Egan is dismissed.
41

D. City of New Brunswick

The Supreme Court has long held that there is no vicarious municipal liability in § 1983 

cases. Rather, “[a] plaintiff seeking to impose liability on a municipality under § 1983 [must] 

identify a municipal policy or custom that caused the plaintiff's injury.” Kriss v. Fayette Cnty., 

504 F. App’x. 182, 187 (3d Cir. 2012) (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown,

520 U.S. 397, 403 (1997)).

15 “‘[A]n unconstitutional policy c[an] be inferred from a single 

decision taken by the highest officials responsible for setting policy in that area of the 

government's business.’” Brennan v. Norton, 350 F.3d 399, 428 (3d Cir. 2003) (quoting City of 

St. Louis v. Praprotnik, 485 U.S. at 123). The Third Circuit has observed the Supreme Court’s 

pronouncement of this theory of liability in Pembaur v. City of Cincinnati:

[I]t is plain that municipal liability may be imposed for a single decision by municipal 

policymakers under appropriate circumstances. No one has ever doubted, for instance, 

that a municipality may be liable under § 1983 for a single decision by its properly 

constituted legislative body - whether or not that body had taken similar action in the past 

or intended to do so in the future - because even a single decision by such a body 

unquestionably constitutes an act of official government policy.

475 U.S. 469, 480 (1986) (citations omitted) (reproduced in Brennan v. Norton, 350 F.3d 399, 

428 (3d Cir. 2003)). The first step in this Court’s analysis is, accordingly, to determine whether

Plaintiffs have identified a suitable final municipal policymaker.

 

15 Plaintiffs’ Amended Complaint references Subdivision O of Section 17.06.030 of the New 

Brunswick Code of Ordinances and the “City’s general policy or practice of prohibiting signs or 

advertising of an indecent or obscene nature,” but does not offer any evidence to show that the 

denial of Plaintiffs’ Application was done in accordance with the ordinance, or that there were 

other incidents in which allegedly obscene advertising was suppressed, constituting a general 

city policy. [Amended Complaint, ¶ 72].
42

Plaintiffs have asserted that Mayor Cahill is the relevant policymaker where liquor 

license transfers are concerned. [Amended Complaint, ¶ 71]. It is, however, indisputable that the 

City Council, not the Mayor, has final decision making authority over such applications. N.J.S.A.

33:1-40 (vests discretion in the issuing, regulating, revoking, and transferring in the “governing 

board” of each of New Jersey’s municipalities). Mayor Cahill is not a voting member of the City 

Council and cannot independently review the Council’s decision to grant or deny a license. Nor 

are there any other higher officials within the municipality capable of reviewing the City 

Council’s decisions on license applications.

16 For municipal liability purposes, therefore, the 

relevant policymaker is the New Brunswick City Council. 

The Third Circuit found similarly in the case of Walsifer v. Borough of Belmar, 262 F. 

App'x 421 (3d Cir. 2008). In that case, plaintiff sought to establish municipal liability for the 

Borough Council’s decision to promote another police officer instead of plaintiff. Plaintiff 

Walsifer introduced evidence that Police Chief Hill disapproved of Walsifer’s Republican Party 

political affiliation, and recommended that someone other than Walsifer be promoted in 

retaliation for his expressions of political belief. The court found that the Borough Council was 

the final authority to establish municipal policy with regard to promotions in the police 

department, and, accordingly, in the absence of any official discriminatory policy, the Borough 

 

16 For municipal liability purposes the relevant inquiry is identifying the final decision maker 

within the municipality. It is undisputed that Plaintiffs failed to exhaust administrative remedies 

after the denial of their Application; an appeal to the State Division of Alcoholic Beverage 

Control was available and went unpursued. N.J.A.C. 13:2.7-7(d); [Blatterfein Dep., T87:11-14]. 

This is, however, unsurprising because Plaintiffs’ contract to purchase the Bennigan’s Property 

was contingent upon Buck Foston’s LLC obtaining the liquor license transfer. Immediately after 

the Application was denied, Plaintiffs’ land purchase contract, the closing date of which had 

been extended more than once, was canceled, leaving Plaintiffs unable to open a bar/restaurant at 

the Bennigan’s Property. Even a successful appeal to the Alcoholic Beverage Control would 

have been fruitless, because Plaintiff would not own the property to which the license would 

have been transferred. 
43

itself could only be held liable for the actions of the Council. Id. at 424. Similarly, here, having 

determined that the City Council is the relevant policymaker for municipal liability purposes, the 

Court must next ascertain whether Councilman Recine’s vote to deny the Application is 

attributable to the City Council as a whole.

To approve or deny a liquor license transfer in New Brunswick, a majority of the City 

Council is required. “[O]nly those municipal officials who have ‘final policymaking authority’ 

may by their actions subject the government to § 1983 liability.” LaVerdure v. County of 

Montgomery, 324 F.3d 123, 125 (3d Cir. 2003). The Third Circuit has interpreted this standard to 

mean that, in the case of a multi-member body, the majority, rather than any individual member 

is the final policymaker for municipal liability purposes. Id. In a recent unreported decision, the 

Third Circuit refined its holding in LaVerdure, explaining that the single vote of a councilman 

motivated by retaliatory animus did not give rise to a cause of action under the First Amendment 

when the final vote was five councilmen adverse to plaintiff and one in favor. Because changing 

the biased vote would not have altered the vote’s outcome, the court determined that the one

biased vote alone was not the cause of plaintiff’s injury. Adopting the reasoning of the Second 

Circuit in an earlier case, the Third Circuit opined:

[I]f a majority of defendants prove that their individual votes against the plaintiff would 

have been the same irrespective of the plaintiff’s protected conduct, then the defendants 

as a group cannot be held liable, and no individual defendant, even one whose proof falls 

short, can be so held because causation is absent. . . . [E]ven if some defendants based 

their decision solely on impermissible grounds, a finding that a majority of defendants 

acted adversely to plaintiff on legitimate grounds is sufficient for all to escape liability.

Watson v. Borough of Susquehanna, 2013 WL 3803893 (3d. Cir. Jul. 9, 2013) at *2 (emphasis 

added). “[T]he impartiality of the other Council members’ votes nullified Defendant[’s] 

unlawfully motivated vote. Acting alone, he could not have violated Plaintiff’s First Amendment 
44

rights.” Id. (emphasis added). This reasoning is consistent with the court’s holding in LaVerdure, 

where the three member municipal board had voted unanimously against plaintiff, so the tainting 

of any one vote by retaliatory animus would not undermine the legitimacy of the surviving, 

untainted two-vote majority.

Here, the situation is different than in LaVerdure, because, while I have found that there 

is no evidence of discriminatory animus motivating the negative vote of Councilman Egan, the 

remaining member of the Council voted in favor of Plaintiffs. Therefore, Councilman Recine’s

vote, one of the two in the majority adverse to Plaintiffs, determined the vote’s outcome. Stated 

differently, taking the votes of the unbiased council members as fixed, Councilman Recine, 

acting alone, could have brought about the denial of the Application, violating Plaintiffs’ First 

Amendment rights. The logic of LaVerdure and Watson governs this case. A policymaker can 

bind a municipality by his decision where that policymaker’s direct action caused the municipal 

action adverse to plaintiff. Compare LaVerdure, 324 F.3d at 125 (where the policymaker is the 

lone biased vote in a unanimous majority, there is no municipal liability, because the single vote 

did not cause the municipal action).

Since Councilman Recine was a member of a two-vote majority adverse to Plaintiffs, his 

vote was capable of setting municipal policy under the single act theory because, acting alone, he 

could commit the municipality to an official action. Accordingly, because Plaintiffs have 

introduced genuine issues of material fact as to their First Amendment Retaliation claim against 

Councilman Recine and Mayor Cahill, the City of New Brunswick cannot be dismissed from the 

action until the jury has decided the issue of Councilman Recine’s retaliatory animus. Stated 

differently, as the deciding vote in the majority, Councilman Recine’s motivation is properly 
45

imputed to the City Council, which, under Brennan v. Norton, is the final policymaker for First 

Amendment purposes. Defendants’ Motion on Plaintiffs’ retaliation claim against the City of 

New Brunswick is, therefore, denied.

VII. Fourteenth Amendment Equal Protection Claim

Defendants’ Motion for Summary Judgment on Plaintiffs’ equal protection claim is 

granted as to all defendants because (A) the delay and denial claims are duplicative of Plaintiffs’ 

First Amendment retaliation cause of action against Councilman Egan, (B) the delay claim lacks 

an adequate basis in the record to establish liability for all other Defendants, and (C) Plaintiffs

have failed to produce evidence of similarly situated entities in their denial of the application

claim against all other Defendants.

A. Claim Against Egan

As a preliminary matter, to state a valid claim under the Equal Protection Clause a 

plaintiff must do more than merely rephrase his or her First Amendment retaliation claim. Oras 

v. City of Jersey City, 328 F. App’x. 772, 775 (3d Cir. 2009) (citing Thomas v. Independence 

Twp., 463 F.3d 285, 298 n. 6 (3d Cir. 2006) (“[A] pure or generic retaliation claim . . . simply 

does not implicate the Equal Protection Clause.”)(internal quotations omitted)). As to 

Councilman Egan, where, as here, Plaintiffs’ “First Amendment and Equal Protection claims are 

functionally identical . . .[,] it would be redundant to treat them separately.” Hill v. City of 

Scranton, 411 F.3d 118, 125-26 (3d Cir. 2005). The Third Circuit has explained the logic of this 

measure at length:
46

As a leading treatise explains, “[i]t is generally unnecessary to analyze laws which 

burden the exercise of First Amendment rights by a class of persons under the equal 

protection guarantee, because the substantive guarantees of the Amendment serve as the 

strongest protection against the limitation of these rights.” Ronald Rotunda & John 

Nowak, 3 Treatise on Constitutional Law: Substance and Procedure § 18.40, at 796 (3d 

ed.1999). If a law passes muster under the First Amendment it is also likely to be upheld 

under the Equal Protection clause. Id. Likewise, if a law violates First Amendment rights 

there is no need to resort to the Equal Protection clause to redress the constitutional 

violation. Id.; see also Sherbert v. Verner, 374 U.S. 398, 410 (1963) (no need to examine 

equal protection claim based on denial of unemployment benefits to individuals whose 

religious principles prohibit Saturday work where Court held same practice 

unconstitutional under free exercise clause). 

Hill v. City of Scranton, 411 F.3d 118, 125-26 (3d Cir. 2005). The analysis in Hill applies 

equally to official conduct, because “[d]iscriminatory enforcement of a facially valid law is also 

unconstitutional under the equal protection clause.” Id.; See Yick Wo v. Hopkins, 118 U.S. 356, 

373–74 (1886); Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993) (applying Yick Wo

to a claim of discriminatory enforcement of a residency ordinance). Accordingly, the disposition 

of Plaintiffs’ Equal Protection claim against Councilman Egan will mirror that of Plaintiffs’

retaliation claim. As no evidence has been introduced to support either claim against Councilman 

Egan, judgment is entered for Councilman Egan on Plaintiffs’ Equal Protection claim as well.

B. Delay Claim against Cahill, Recine, and City of New Brunswick

1. Mayor Cahill and Councilman Recine

Plaintiffs’ equal protection claim against Mayor Cahill and Councilman Recine arising 

from the alleged delay of the Application fails for the same reasons stated in the discussion of the 

First Amendment, supra. Because there is no evidence, either direct or circumstantial, tending to 

show that Mayor Cahill either directed or acquiesced in the Police Department’s alleged delay of 

Plaintiffs’ background check and application review, Mayor Cahill has no individual liability on 
47

this basis. As to Councilman Recine, Plaintiffs have not alleged any involvement with the Police 

Department, and certainly have not introduced any evidence showing such involvement. He too, 

therefore, incurs no liability for the alleged delay.

2. City of New Brunswick

Unlike the dearth of evidence concerning any connection between the named individual 

defendants and the Police Department, Plaintiffs have offered evidence of delaying actions by 

officers of the Police Department, itself a subdivision of the City of New Brunswick.17 Both the 

Alcoholic Beverage Control Manual and the June 16 Memorandum drafted by Director Patterson 

suggest that occupancy and traffic concerns are not within the scope of the Police Department’s 

background check and recommendation process. [June 16 Memorandum]. Nevertheless, Det. 

DeBonis conducted a traffic safety study on the area surrounding the Bennigan’s Property.

[Council Meeting Tr., T27:14-25, 28:4-15]. Plaintiffs have also shown that on at least two

occasions, the Police Department rendered its recommendation on a license transfer prior to the 

receipt of an applicant’s tax certificate, and on several occasions, the Department conducted a 

background check and processed a recommendation in fewer than 100 days. [Plaintiffs’ Exhibit 

NN: Police Department’s Recommendation of Application Status dated October 4, 2006; 

Plaintiffs’ Exhibt OO: Tax Clearance Certificate dated January 24, 2007; Plaintiffs’ Exhibit SS: 

Police Department’s Recommendation of Application Status dated December 17, 2004; 

Plaintiffs’ Exhibit TT: Tax Clearance Certificated dated April 13, 2005]. Nevertheless, the 

 

17 The United States Supreme Court determined that municipal corporations are “persons” 

subject to liability under the Civil Rights Act in Monell v. Dep’t of Soc. Servs. of City of New 

York, 436 U.S. 658, 685 (1978). Municipal police departments, by contrast, have no separate 

identity from the municipalities of which they are subdivisions and are not “persons” subject to §

1983. Martin v. Red Lion Police Dep’t, 146 F. App’x 558, 562 n. 3 (3d Cir. 2005).
48

Department insisted on receiving Buck Foston’s LLC’s tax certificate before giving its 

recommendation to the Council, and took 155 days to render its final, and adverse, 

recommendation on the project.18

Plaintiffs’ evidence at least raises the specter of an equal protection claim, under a theory 

of selective enforcement, against Det. DeBonis, Police Chief Caputo, and perhaps other unnamed 

officers involved in the handling of the Buck Foston’s Application. Prof’l Dog Breeders 

Advisory Council, Inc. v. Wolff, 752 F. Supp. 2d 575, 595 (E.D. Pa. 2010) (internal citations 

omitted) (“To establish selective enforcement, it must be shown that: “(1) the plaintiff, compared 

with others similarly situated, was selectively treated; and (2) the selective treatment was 

motivated by an intent to discriminate on the basis of impermissible considerations, such as . . . 

to punish or inhibit the exercise of constitutional rights.”). Even presuming, without deciding, 

that Plaintiffs have shown that they were treated differently than similarly situated entities in the 

processing of their Application by officers of the Police Department,19 the problem remains for 

Plaintiffs that neither Det. DeBonis, Chief Caputo, nor any other officers are named defendants 

in this action. As explained above, there is no vicarious liability for municipalities under § 1983.

See Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997). Accordingly, even 

a potential showing of discriminatory treatment by police officers is insufficient to show 

discriminatory treatment by the City of New Brunswick. To implicate the Police Department, 

 

18 Defendants argue that Plaintiff has cherry-picked the fastest Police Department reviews of 

liquor license transfer applications in City history, but offer no specific counterexamples to 

support this contention. 

19 The Court does not reach the issue whether Plaintiff has identified similarly situated parties for 

the purpose of the processing of Plaintiffs’ background check and recommendation by the Police 

Department, because the City is not otherwise liable for the actions of any individual police 

officers. See discussion, infra.
49

and by extension the City, Plaintiffs must show that either a policy or custom of the City 

motivated the conduct of the individual officers. For example, this could have been done by 

showing a pattern of delay by the Police Department in processing applications with arguably 

“offensive” names, or that Chief Caputo or Mayor Cahill, as a final policymaker for the 

Department directed or acquiesced in the delay because of the name “Buck Foston’s.” See 

Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir. 2007).20 After full discovery, Plaintiffs 

have not produced the evidence necessary to show a discriminatory policy or custom, and the 

City of New Brunswick cannot, accordingly, be held liable under § 1983 for the actions of Det. 

DeBonis or its other police officers.

C. Absence of Similarly Situated Entities for Denial Claim

Whereas the alleged delay of Plaintiffs’ Application was brought about by subordinate 

officers of the municipality, which, due to the absence of vicarious liability in § 1983 cases, 

could not expose Mayor Cahill, Councilman Recine, or the City to liability on the facts in the 

record, the denial of the Application was allegedly brought about by the direct action of a 

conspiracy among the municipality’s final policymakers. For the denial claim, therefore, there is 

no issue of vicarious liability. Nevertheless, Plaintiffs’ equal protection claim against Mayor 

 

20 “[T]here are two ways that a plaintiff can establish municipal liability under § 1983: policy or 

custom. Under Monell, a plaintiff shows that a policy existed ‘when a ‘decisionmaker 

possess[ing] final authority to establish municipal policy with respect to the action’ issues an 

official proclamation, policy, or edict.’ Bielevicz, 915 F.2d at 850 (quoting Andrews v. City of 

Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) . . . . A plaintiff may establish a custom, on the 

other hand, ‘by showing that a given course of conduct, although not specifically endorsed or 

authorized by law, is so well-settled and permanent as virtually to constitute law.’ Id. (citing 

Andrews, 895 F.2d at 1480). In other words, custom may be established by proving knowledge 

of, and acquiescence to, a practice. Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.1989).” 

Watson, 478 F.3d at 155-56.
50

Cahill, Councilman Recine, and the City of New Brunswick arising from the denial of the 

Application fails because the record contains insufficient evidence of similarly situated entities. 

The Court of Appeals for the Third Circuit has stated that a court’s “first step in 

evaluating a claim that a law or government action violates the Equal Protection Clause is to 

determine the appropriate standard of review.” Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 

1993) (citation omitted). Defendants correctly cite the standard for a “class of one” Equal 

Protection challenge when a plaintiff alleges that he or she has been singled out for unfair 

treatment that is “irrational and wholly arbitrary.” The Third Circuit has held that “to state a 

claim under [the class of one] theory, a plaintiff must allege that (1) the defendant treated him 

differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was 

no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239

(3d Cir. 2006) (interpreting Village of Willowbrook v. Olech, 528 U.S. 562 (2000)). 

This standard, however, only applies in cases in which plaintiff alleges conduct not 

motivated by plaintiff’s exercise of a protected constitutional right. Eichenlaub v. Township of 

Indiana, 385 F.3d 274, 286 (3d Cir. 2004). According to Plaintiffs, the denial of Buck Foston’s 

LLC’s liquor license transfer was motivated by, and designed to burden, Plaintiffs’ First 

Amendment right to name their restaurant “Buck Foston’s.” [Amended Complaint, 23 n. 5].

Because the First Amendment protects such commercial speech, the City Council’s denial is 

subject to a higher level of scrutiny. Regardless of the level of scrutiny that this Court employs,

however, Plaintiffs’ claim fails because the Record contains insufficient evidence of similarly 

situated entities, which is the next step in the equal protection analysis under any standard. For 

example, “the first inquiry a court must make in an equal protection challenge to a zoning 
51

ordinance is to examine whether the complaining party is similarly situated to other uses that are 

either permitted as of right, or by special permit, in a certain zone. If, and only if, the entities are 

similarly situated, then the city must justify its different treatment of the two, perhaps by citing to 

the different impact that such entities may have on the asserted goal of the zoning plan.”

Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 137 (3d Cir. 2002). The facts in the 

present case are sufficiently similar to those of Congregation Kol Ami, to extend the logic 

applied in the zoning context to the licensing context.

“Persons are similarly situated under the Equal Protection Clause when they are alike in 

all relevant aspects.” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir. 

2008) (internal quotations omitted). Plaintiffs assert that for Fourteenth Amendment purposes, 

the relevant category of similarly situated liquor license applicants are those who also exercised 

their First Amendment right to speech in choosing to name their restaurants. According to 

Plaintiffs then, all businesses applying for liquor licenses in the City of New Brunswick are 

similarly situated to “Buck Foston’s LLC,” because, by the very nature of a license application,

every applicant must have a name. This Court disagrees.

Plaintiffs have not established that those entities, whose owners also exercised their 

constitutional right to name them, are “alike in all relevant aspects” under the Startzell standard.

The Third Circuit consistently requires some additional showing beyond a plaintiff’s assertion 

that other entities are of the same general category as plaintiff (e.g. employees, property owners) 

and engaged in the one similar incidence of conduct giving rise to plaintiff’s cause of action (e.g. 

applying for a permit, canceling a lease). See Abrams v. Port Auth. Trans-Hudson Corp., 445 

Fed. Appx. 537 (3d Cir. 2011) (plaintiff failed to show other employees subject to employment 
52

actions were “alike in all relevant respects” where no evidence was introduced that those 

employees also shared plaintiff’s physical condition/disability); Rucci v. Cranberry Tp., Pa., 130 

Fed. Appx. 572 (3d Cir. 2005) (plaintiff failed to show other property owners subject to street 

access regulation were similarly situated where other landowners were not shown to have also

subdivided their properties in the same manner as plaintiff); Adams Parking Garage, Inc. v. City 

of Scranton, 33 Fed. Appx. 28 (3d Cir. 2002) (plaintiff failed to show another leaseholder subject 

to termination was similarly situated where the other leaseholder’s lease contained a termination 

clause absent from plaintiff’s). I need not rely on this general trend in precedents alone, because, 

as explained below, the Third Circuit has provided more specific guidance as to what kinds of 

additional characteristics must be shown by equal protection plaintiffs.

The Third Circuit rule of law most directly barring Plaintiffs’ equal protection claim from 

going forward is that enunciated in the case most heavily relied upon by Plaintiffs in support of 

their claim, Congregation Kol Ami. There, the Third Circuit reversed and remanded the District 

Court’s grant of summary judgment for plaintiff on an equal protection claim, because the 

District Court had not adequately determined that plaintiff was “similarly situated” to the other 

entities named in the complaint. In reaching its decision, the Circuit Court instructed that 

District Courts must not only inquire as to “whether the two entities have the same impact” on 

the surrounding community, but whether the other entities are similar in “scale,” “purpose,” and 

“intensity” of land use. Congregation Kol Ami, 309 F.3d at 139; Id. at 142. 

As in the case now before the Court, increases in traffic from plaintiff’s proposed 

development project were a major point of contention between the parties in Congregation Kol 

Ami. The Third Circuit found it appropriate and necessary for the District Court to consider the 
53

number of people visiting the plaintiff’s proposed property by car as well as the timing and 

frequency of their comings and goings. Id. at 139, 142. While Plaintiffs here have produced 

substantial evidence of the “Buck Foston’s” project’s hypothetical impact on the area 

surrounding the Bennigan’s Property and of Plaintiffs’ expansion plans, they have failed to 

provide any like information about the allegedly “similarly situated” other applicants. Instead 

they have rested their equal protection claim solely on a showing of differing treatment (e.g.

length of application processing prior to the City Council’s vote, status of tax certificates), giving 

short shrift to the antecedent question of similarly situated entities. [Plaintiffs’ Opposition Brief, 

19-23].

Because the Third Circuit had not yet explicitly stated the “alike in all relevant respects” 

standard at the time of Kol Ami, this Court also finds instructive the discussion of more recent 

Fourteenth Amendment equal protection law post-Startzell. For Example, in Warren v. Fisher, 

the District Court found that a Plaintiff had failed to identify similarly situated parties when it 

alleged no facts suggesting “operations . . . similar in kind or scope or impact on the Township,” 

nor any facts that the other allegedly similarly businesses “sought to expand operations in a 

similar way to Plaintiffs.” 2013 WL 1164492 (D.N.J. Mar. 19, 2013) at *9. The court in Warren

found support for denial of plaintiff’s claim in the Third Circuit case of Perano v. Township of 

Tilden, 423 Fed. Appx. 234 (3d Cir. 2011). In that case, the Third Circuit affirmed the dismissal 

of the equal protection claim of a developer seeking to expand his mobile home park who failed 

to allege specific facts showing the other “similarly situated residential and commercial 

developers” to be alike in all relevant aspects. Id. at 238. The decision in Perano, although at the 

stage of a motion to dismiss rather than summary judgment, is consistent with the factors 

enunciated in Congregation Kol Ami. Without evidence as to impact, purpose, scope, and 
54

intensity of use no finder of fact can determine if a plaintiff and other entities named in a 

plaintiff’s complaint are similarly situated.

Plaintiffs’ proofs regarding similarly situated entities fare no better than the plaintiffs in 

Warren and Perano. The record shows that Plaintiffs here sought to expand the bar and 

restaurant business on the Bennigan’s Property. While in operation, Bennigan’s had one bar and 

a maximum occupancy of 185 [DeBonis Dep., T34:22-25]. Plaintiffs sought to change the layout 

of the building to create three bars and increase the occupancy to 352 persons. [Proposed 

Renovation to Existing Building by James P. Kissane, Architect]. This expansion was cited by

Defendants as the reason for denial of a liquor license. [Recine Dep., T43:2-4, 46:1-9; Egan

Dep., T9:4-12, 7:10-23]. 21 In identifying similarly situated parties, it is insufficient for Plaintiffs 

to introduce, wholesale, examples of named businesses that also applied for licenses.

22 The 

relevant category of businesses “alike in all relevant respects” must include applicants who

presented expansion plans including increased occupancy, alteration to internal layout, or other 

change affecting the impact, purpose, scope, and/or intensity of the project. See Congregation 

Kol Ami, supra. Plaintiffs do not do so and, accordingly, fail to show the existence of similarly 

situated parties. Their equal protection claim is dismissed.

 

21 Plaintiffs argue that Defendants’ alternative reasons for denial are mere pretext to cover up 

their unconstitutional motive to suppress speech. The court does not reach this argument in the 

equal protection context because, prior to the analysis of Defendants’ motive, the claim fails 

based upon the absence from the record of similarly situated applicants. 

22 Plaintiffs contributed information to the record showing how long it took for the other 

businesses’ applications to be considered relative to their date of filing and the date at which they 

submitted their tax certificate. [See Plaintiffs’ Supplemental Exhibits AA-HH]. This showing is 

insufficient and not relevant to the denial claim.
55

VIII. New Jersey State Constitutional Claims

A. First Amendment Retaliation

The Supreme Court of New Jersey has held that the analysis of Article I, paragraph 6 

claims is functionally identical to federal First Amendment analysis.

23 As such, the disposition of 

Plaintiffs’ state law retaliation claim mirrors that of Plaintiffs’ federal law claim. Defendants’ 

Motion is granted with respect to Councilman Egan, but denied as to all other defendants

consistent with the First Amendment analysis, supra.

B. Equal Protection

“Although, the phrase equal protection does not appear in the New Jersey Constitution, it 

has long been recognized that Article I, paragraph 1, of the State Constitution, ‘like the 

fourteenth amendment, seeks to protect against injustice and against the unequal treatment of 

those who should be treated alike. ” State v. O’Hagen, 189 N.J. 140, 164 (2007) (internal 

citations and quotations omitted). Article I, Paragraph 1 provides:

 

23 “Article I, Paragraph 6 of the New Jersey Constitution provides: ‘Every person may freely 

speak, write and publish his sentiments on all subjects, being responsible for the abuse of that 

right. No law shall be passed to restrain or abridge the liberty of speech or of the press.’ N.J. 

Const. art. I, ¶ 6. Because we ordinarily interpret our State Constitution's free speech clause to be 

no more restrictive than the federal free speech clause, Shelton College v. State Bd. of Educ., 48 

N.J. 501, 518, 226 A.2d 612 (1967), ‘[w]e rely on federal constitutional principles in interpreting 

the free speech clause of the New Jersey Constitution.’ Karins v. City of Atlantic City, 152 N.J.

532, 547, 706 A.2d 706 (1998); see Bell v. Township of Stafford, 110 N.J. 384, 393, 541 A.2d 692 

1988) (stating that constitutional approach taken by United States Supreme Court when 

examining commercial speech conforms to our own).” Hamilton Amusement Ctr. v. Verniero, 

156 N.J. 254, 264-65 (1998).
56

All persons are by nature free and independent, and have certain natural and unalienable 

rights, among which are those of enjoying and defending life and liberty, of acquiring, 

possessing, and protecting property, and of pursuing and obtaining safety and happiness.

[N.J. Const. art. I, ¶ 1]. The New Jersey Supreme Court has interpreted this provision to require a 

three-part test to evaluate challenged statutes and state actions. New Jersey courts decide such 

challenges by weighing three factors: (1) the nature of the right asserted; (2) the extent to which 

the statute intrudes upon that right; and (3) the public need for the intrusion. Sojourner A., supra,

177 N.J. at 333, 828 A.2d 306. While the New Jersey test is not identical to that under the 

Federal Constitution, “[t]o a large extent, the considerations guiding our equal protection 

analysis under the New Jersey Constitution are implicit in the three tier approach applied by the 

Supreme Court under the Federal Constitution,” Barone v. Dept. of Human Servs., 107 N.J. 355, 

526 (N.J. 1987), and the “tests weigh the same factors and often produce the same result.” 

O’Hagen, 189 N.J. at 165; accord Brown v. City of Newark, 113 N.J. 565, 552 (N.J. 1989).

Applying the New Jersey factors, the Court finds nothing in the nature of Plaintiffs’ claim 

of protected commercial speech, the extent of the intrusion upon that right by Defendants’ 

alleged unconstitutionally motivated denial of Plaintiffs’ Application, or the interests of the 

public in liquor license transfers to suggest that the analysis under the federal constitution, supra, 

should not also hold true in dismissing Plaintiffs’ state constitutional equal protection claim. 

Plaintiffs’ state constitutional claim, therefore, is also dismissed.
57

Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment is granted in part 

and denied in part. Judgment is entered for Defendant Egan, dismissing all claims against him.

Judgment is entered for Defendants Cahill, Recine, and City of New Brunswick on Plaintiffs’ 

federal and state equal protection claims as well as Plaintiffs’ federal and state First Amendment 

retaliation claims arising from the conduct of the New Brunswick Police Department in delaying 

the consideration of Plaintiffs’ Application. Defendants’ Motion for Summary Judgment is 

denied on Plaintiffs’ federal First Amendment and state Article I, paragraph 6, retaliation claims

against Defendants Cahill, Recine, and City of New Brunswick arising from the denial of 

Plaintiffs’ Application.

Dated: _____9/27/2013____ /s/ Freda L. Wolfson . 

 The Honorable Freda L. Wolfson

 United States District Judge