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Inc. v. Kings Men

United States District Court, E.D. Pennsylvania

March 6, 2014

THE KINGS MEN et al, Defendants.


PETRESE B. TUCKER, District Judge.

Presently before the Court is Plaintiff's Motion for Leave to File an Answer to Defendants' Counterclaim (Dk. at 75) and Defendants' Response in Opposition thereto (Dk. at 78). Additionally, the Court considers cross-motions for summary judgment: Plaintiff's Motion for Summary Judgment on Defendants' Counterclaim (Dk. at 53), Defendants' Motion for Summary Judgment (Dk. at 52), and all relevant responses. Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Plaintiff's Motion for Leave to File an Answer and both motions for summary judgment will be denied.


Because the Court writes primarily for the parties, the Court discusses only those facts necessary to its decision. Routes 202 and 309 Novelties and Gifts, Inc. ("Plaintiff" or "Adult World"), a Pennsylvania limited liability company, brings this suit against Defendants The Kings Men ("TKM"), a Pennsylvania non-profit corporation; Mark Houck, the President of TKM; Damian Wargo, Director of Operations of TKM; David Dinuzzo, Sr., Director of Programming of TKM; Desarae McConnell, an alleged participant in an August 3, 2011 protest; Robert Lechter, an alleged participant in an August 3, 2011 protest; Charles John Harvey, an alleged participant in an August 3, 2011 protest; Philip Greco, an alleged participant in an August 3, 2011 protest; John A. McGann, III, an alleged participant in an August 3, 2011 protest; and John Does 1-100, alleged participants in an September 14, 2011 protest (collectively, "Defendants") (Compl. ¶¶ 1-11.)

Plaintiff operates an adult based business under the trade name "Adult World." TKM is a Catholic fraternal organization that advertises its goals as developing men to be "leaders, protectors, and providers." TKM also posts on its website that it engages in "noble battles, " including, but not limited to, the eradication of pornography. To this end, TKM promotes its "No More Porn Tour, " which provides dates of scheduled protests on and around the property of adult entertainment businesses. TKM believes that sexually explicit material is a contributing factor to the moral decline of the family, and is the root cause of adultery, fornication, rape, incest, the contraceptive mentality, divorce, and abortion. (Compl. ¶¶ 17-28.) TKM is controlled by directors and officers Houck, Wargo, and DiNuzzo. The organization advertises that it has organized hundreds of protests across the United States, costing the adult entertainment industry thousands per protest, and causing the closings of several adult businesses. (Compl. ¶¶ 29-38.)

On August 3, 2011, on or about 4:00 p.m., Defendants appeared on and around the side of the real property of Adult World to protest. At this point, Plaintiff's manager instructed Defendants that they were not welcome on the business property; however, Defendants refused to leave and continued their attempts to interfere with Plaintiff's business. Plaintiff called the Montgomery Township Police, who in response forced the protestors to retreat to the mulched area in front of Plaintiff's business, as there existed an easement. Defendants obeyed the police officer's orders, and moved their protest to the mulched area on Upper State Road. Defendants passed out literature to passing motorists, allegedly causing a slowdown of traffic and abrupt stops by motorists to avoid collisions. Defendants also buried medals in the ground in what appeared to be a religious ceremony, all without permission from Plaintiff. Additionally, during the protest, a leader of TKM spoke with the news media, stating that illegal acts were being taken on the premises of Adult World. TKM advertised that its next protest at Adult World would take place on September 7, 2011. (Compl. ¶¶ 53-72.)

On September 14, 2011, on or about 4:00 p.m., Defendants protested at Adult World again. Defendants used placards, which allegedly obstructed the safe ingress and egress of Plaintiff's employees, customers and business invitees. Upon Plaintiff's call to the Montgomery Township Police, Defendants were instructed to cease obstructing the paths of ingress and egress to Plaintiff's property. After the police departed, Defendants proceeded to place their placards into traffic on Upper State Road, impeding the free flow of traffic, and causing vehicles to swerve to avoid collisions. Once again, Plaintiffs contacted the Montgomery Township Police, who instructed Defendants to halt their actions. (Compl. ¶¶ 74-81.)

Plaintiff now asserts the following claims and requests for relief: (1) trespass; (2) public nuisance; (3) private nuisance; (4) violation/suppression of free speech; (5) violation of the Sherman Act; (6) violation of Racketeer Influenced and Corrupt Organization Act/Hobbs Act; (7) equitable relief; and (8) punitive damages. Plaintiff seeks the following relief: (1) a permanent injunction prohibiting Defendants from soliciting, organizing, conducting, and participating in protest activity at the Plaintiff's business location; (2) declaration that Defendants' conduct is illegal; (3) compensatory damages; (4) punitive damages; (5) triple damages as allowed under the trespass statute; (6) reasonable counsel fees; and (7) all other relief deemed appropriate by the Court.

Defendants have filed a counterclaim against Plaintiff, pursuant to 42 U.S.C. § 1985, for alleged violations of their rights to freedom of speech and freedom of assembly. Defendants seek: (1) a declaratory judgment in their favor; (2) a permanent injunction enjoining Plaintiff from filing lawsuits against Defendants; (3) costs of litigation; and (4) such other relief as this Court deems necessary and proper.


A. Plaintiff's Motion for Leave to File an Answer to Defendants' Counterclaim is Denied

Before resolving any issues raised by the parties' cross motions for summary judgment, the Court first addresses Plaintiff's outstanding motion requesting leave of court to file an answer to Defendants' Counterclaim. (Dk. at 75.) For the reasons stated herein the Court will deny Plaintiff's motion.

On September 4, 2012, Defendants filed their answer to Plaintiff's Complaint and asserted a counterclaim against Plaintiff. (Dk. at 34.) On October 15, 2012, Plaintiff moved to dismiss the counterclaim pursuant to Fed.R.Civ.P. 12(b)(6). (Dk. at 38.) This Court denied Plaintiff's motion to dismiss the counterclaim on November 20, 2012. (Dk. at 45.) Consistent with Fed.R.Civ.P. 12(a)(4)(A), Plaintiff had 14 days, or until December 4, 2012, to file an answer to Defendants' counterclaim. Plaintiff never attempted to answer Defendants' counterclaim until, at the earliest, June 26, 2013, almost eight months after the answer was due. (Dk. at 56.)[2] On August 2, 2013, Plaintiff filed a motion seeking leave of court to file its answer to Defendants' counterclaim. (Dk. at 75.) Defendants opposed Plaintiff's request. (Dk. at 78.)

The issue before this Court is whether to grant Plaintiff leave to file its answer to Defendants' counterclaim despite being beyond the December 4, 2012 deadline set by Fed.R.Civ.P. 12(a)(4)(A). Extensions of time are governed by Fed.R.Civ.P. 6(b). Under Rule 6(b), the court must utilize its discretion to determine whether good cause exists to extend a deadline. Drippe v. Tobelinski , 604 F.3d 778, 782 (3d Cir. 2010). Where a party has failed to act within the period of time set by the rules, that party must file a formal motion asking the court for an extension of time. Fed.R.Civ.P. 6(b)(1)(B); Drippe , 604 F.3d at 785. For motions filed under Rule 6(b)(1)(B), good cause exists if the delay was caused by excusable neglect. Id.

In determining if a party's neglect is "excusable, " a court considers "all relevant circumstances surrounding the party's" failure to timely file its pleading. Pioneer Inv. Servs. Co. v. Brunswick Assocs. , 507 U.S. 380, 395 (1993). The inquiry is, at its core, guided by equitable principles. Id . Notwithstanding this overarching goal, both the Supreme Court and the Third Circuit have enumerated four factors[3] that are informative to this inquiry: (1) the danger of material prejudice in allowing the late filing; (2) length of the delay; (3) the reason for the delay; and (4) whether the party requesting an extension of time has acted in good faith. Id .; In re O'Brien Envtl. Energy, Inc. , 188 F.3d 116, 126-130 (3d Cir.1999). Addressing each of these factors in turn, the Court ultimately finds that under all circumstances Plaintiff has failed to demonstrate excusable neglect.

1. The Danger of Material Prejudice

As to the first Pioneer factor, the Court finds no evidence to support a finding of prejudice if Plaintiff is permitted to file its untimely motion. "Prejudice is not an imagined or hypothetical harm; a finding of prejudice should be a conclusion based on facts in evidence." In re O'Brien Envtl. Energy, Inc. , 188 F.3d at 127. To demonstrate prejudice, a party "must assert loss of available evidence, increased potential for fraud or collusion, or substantial reliance upon the judgment." Id . (quoting Feliciano v. Reliant Tooling Co. , 691 F.2d 653, 657 (3d Cir.1982)) (internal punctuation omitted). The loss of an advantageous litigation position is not the type of prejudice considered relevant to a court's inquiry. Id . (citing Pratt v. Philbrook , 109 F.3d 18, 22 (1st Cir.1997)).

Here, Defendants cite their "significant" reliance on Plaintiff's failure to answer the counterclaim as evidence of prejudice. (Defs.' Opp'n to Pl.'s Mot. for Leave to File Answer 3.) Specifically, Defendants claim they would be prejudiced because they "conducted discovery without any knowledge of what Plaintiff would claim in their answer, and Defendants relied on Plaintiff's failure to answer in their summary judgment pleadings." (Id.) Though this is undoubtedly a true statement, it omits pertinent facts relevant to a finding of prejudice, most notably Defendants' acquiescence to this course of action.

After Plaintiff failed to file an answer to Defendants' counterclaim, Defendants remained silent on the matter. Defendants never requested that the Clerk of Court enter a default against Plaintiff under Fed.R.Civ.P. 55(a). Defendants also failed to alert the Court to Plaintiff's failure to answer in its opposition to Plaintiff's request to extend discovery in this matter. (Dk. at 47.) For months, Defendants remained entirely mute on the subject of Plaintiff's failure to ...

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