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Law360 (August 13, 2020, 6:18 PM EDT ) The owners of a New Jersey gym in a high-profile civil battle against COVID-19 shutdown orders asked a state court to halt contempt proceedings until criminal charges over the gym's defiance of the mandates are resolved, arguing Thursday that they could incriminate themselves by litigating the matter right now.
Atilis Gym's request to stay the court's July 24 contempt order comes the day before a scheduled hearing on the state's bid to hit the Bellmawr facility with a $15,000-a-day sanction for continuously reopening during the pandemic. Owners Ian Smith and Frank Trumbetti fear a response to the contempt order would jeopardize their defense of obstruction and other criminal charges stemming from their refusal to close.
All told, the duo is facing 14 criminal complaints out of Bellmawr Municipal Court, according to a certification from one of their attorneys, John McCann. Any statements Smith and Trumbetti might make in response to the contempt matter in the civil case could work against them in municipal court, the declaration said.
"Our clients could not properly defend this action due to self-incrimination concerns," the certification said.
The stay motion caps off a week in which Smith and Trumbetti lost their municipal business license for disobeying the shutdown orders and saw one of their previous attorneys withdraw from the case due to a disagreement over litigation strategy.
The battle began in federal court with Atilis' May lawsuit alleging that Gov. Phil Murphy's March shutdown of nonessential businesses ran afoul of federal civil rights laws as well as the due process and equal protection clauses of the Fifth and 14th Amendments to the U.S. Constitution.
Gyms have not been included among the businesses Murphy has designated as safe to reopen in the state's phased coronavirus recovery plan.
In June, the gym's claims moved to state court, where Murphy and health officials already had an action pending over the gym's refusal to close. Smith and Trumbetti remained open, chronicling their defiance on Instagram and in the media, which resulted in a contempt order on July 24.
The pair responded that weekend by knocking the barricade off their gym, leading to their July 27 arrest on charges of contempt, obstruction and violation of the New Jersey Disaster Control Act.
The state has since called upon the court to impose sanctions of $15,000 a day, a move the owners say was designed to deplete a GoFundMe account to support their legal costs.
A representative for the Office of the New Jersey Attorney General declined to comment on the stay motion.
New Jersey is represented in the state lawsuit by Stephen Slocum of the attorney general's office.
The gym is represented in the state lawsuit by James G. Mermigis of The Mermigis Law Group PC and John McCann.
The state case is Persichilli v. Atilis Gym of Bellmawr, case number MER-C-48-20, in the Superior Court of New Jersey, Mercer Vicinage Chancery.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
