Poughkeepsie Supermarket Corp. v. Cnty. of Dutchess
| Decision Date | 15 October 2015 |
| Docket Number | No. 14–CV–1702 (CS).,14–CV–1702 (CS). |
| Parties | POUGHKEEPSIE SUPERMARKET CORP. d/b/a/ Market Fresh, individually and on behalf of all others similarly situated, Plaintiff, v. COUNTY OF DUTCHESS, NEW YORK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert Nathan Isseks, Robert N. Isseks, Middletown, NY, Kevin Daniel Bloom, Bloom and Bloom, P.C., New Windsor, NY, for Plaintiff.
David Lewis Posner, McCabe & Mack LLP, Poughkeepsie, NY, for Defendant.
Before the Court is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC"). (Doc. 16.) For the reasons stated below, the Motion is GRANTED.
For purposes of this Motion, the Court accepts as true the facts (but not the conclusions) alleged by Plaintiff in the SAC.
Plaintiff Poughkeepsie Supermarket Corp. (d/b/a Market Fresh) has operated a retail food establishment ("the store") in the City of Poughkeepsie since 2011. (SAC ¶ 5.) In 1991, Defendant County of Dutchess enacted Local Law No. 9, which was thereafter amended by Local Law No. 3 of 1998 and Local Law No. 2 of 2011. (SAC ¶ 6.) Under "Legislative Intent," Local Law No. 9 states:
(Id. ¶ 6) (emphasis in original). In relevant part, Local Law No. 9 provides that a (Id. ¶ 6.) "Retail food establishment" is defined, in pertinent part, as "a store within a general retail merchandise store selling primarily food at retail for off-premises consumption, provided that such store had annual gross sales in the previous calendar year of at least two million dollars." (Id. ) Under Local Law No. 9, non-compliance is "punishable by the payment of a Civil Penalty in the sum of not more than one hundred dollars for each such violation, with a maximum fine of SEVEN THOUSAND FIVE HUNDRED dollars per inspection." (Id. ) (emphasis in original).
Since opening in 2011, the store has had gross annual sales in excess of two million dollars and therefore is subject to Local Law No. 9. (Id. ¶ 7.) The store has been inspected for compliance with Local Law No. 9 several times, and each time has been found in noncompliance. (Id. ¶¶ 8–11.)1
Plaintiff points to several mechanisms, aside from item price labels, that provide consumers with information regarding the cost of products in retail food establishments. (See id. ¶ 20.) First, Plaintiff alleges that in the years since Local Law No. 9 was enacted, Computer Assisted Checkout Systems ("CACOS") have become an "accurate and industry-accepted" mechanism for pricing consumer goods. (Id. ¶ 15.) Second, shelf tags, which are state-mandated, must list an item's unit price, retail price, and bar code. (Id. ¶ 19.) Finally, grocers can make price scanners available throughout their stores, although Plaintiff does not state whether it does so, and County inspectors can spot-check the accuracy of a store's CACOS. (Id. ¶ 20.)
As a result of Local Law No. 9, Plaintiff must change the label on every individual item if it wishes to change the price of a product. (Id. ¶ 18.) This creates a burden on Plaintiff's ability to hold promotional sales or otherwise change prices. (Id. ) For example, when Plaintiff wishes to hold a single-day sale, it must—if it wishes to comply with Local Law No. 9—change the label on every sale item, and then change the labels back the following day. (Id. ) Plaintiff estimates that compliance with Local Law No. 9 will cost approximately $45,000 annually. (Id. ) Plaintiff alleges that the item price requirement "substantially increase[s] the prices that must be charged to consumers in order to cover the costs incurred in complying with" Local Law No. 9, and "prevent[s] or restrain[s] promotional sales and thereby substantially prevent[s] item price reductions." (Id. ¶ 25.)
Plaintiff further alleges that the County's "asserted or purported interests" in Local Law No. 9 are pretextual, and that the County's real reasons for the law's continued enforcement are "(1) the raising of revenue for the County through the imposition of fines for noncompliance with the Local Law's price marking requirements and/or (2) the creation of jobs by coercing retail food establishments to hire additional employees to attempt to comply with" Local Law No. 9. (Id. ¶ 26.)
Plaintiff sues under 42 U.S.C. § 1983 for deprivations of rights, privileges, and immunities secured by the First Amendment of the U.S. Constitution, based on Defendant's item price labeling requirement. (Id. ¶ 3.) Plaintiff requests declaratory and injunctive relief and compensatory damages. (Id. ) Defendant has moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. (Doc. 20.)
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8"marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.
In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ Id. (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2) ).
When deciding a motion to dismiss, ordinarily the court's "review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) ; accord Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006). But the court can also consider documents where the complaint relies heavily on their terms and effect—that is, documents "integral" to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Such reliance "is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id.
Here, Defendant's counsel attaches several documents to his affidavit. (Doc. 21.) It is untenable to argue, and Defendant does not actually attempt to do so, that any of the following documents are "integral" to the SAC: a letter of notification regarding an April 2014 fine not mentioned in the SAC, (Ex. B); the store's promotional flyers, (Ex. C); and various responses to the potential repeal of Local Law No. 9, (Exs. D, E). With the exception of Exhibit A, which is Plaintiff's SAC, none of the attached documents may be considered at this stage in the case.
As an initial matter, it is not clear to the Court that this case involves speech at all. " Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 60, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (...
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