Ass'n Des Éleveurs De Canards Et D'Oies Du Que. v. Harris, Case No. 2:12–cv–5735–SVW–RZ.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: STEPHEN V. WILSON, District Judge.
• Citation: 79 F.Supp.3d 1136
• Parties: ASSOCIATION DES ÉLEVEURS DE CANARDS ET D'OIES DU QUÉBEC, a Canadian nonprofit corporation; HVFG LLC, a New York limited liability company; and Hot's Restaurant Group, Inc., a California corporation, Plaintiffs, v. Kamala D. HARRIS, in her official capacity as Attorney General of California; et al., Defendants.
• Decision Date: 07 January 2015
• Docket Number: Case No. 2:12–cv–5735–SVW–RZ.

79 F.Supp.3d 1136

ASSOCIATION DES ÉLEVEURS DE CANARDS ET D'OIES DU QUÉBEC, a Canadian nonprofit corporation; HVFG LLC, a New York limited liability company; and Hot's Restaurant Group, Inc., a California corporation, Plaintiffs
v.
Kamala D. HARRIS, in her official capacity as Attorney General of California; et al., Defendants.

Case No. 2:12–cv–5735–SVW–RZ.

United States District Court, C.D. California.

Signed Jan. 7, 2015.

79 F.Supp.3d 1138

Michael A. Tenenbaum, The Tenenbaum Law Firm, Santa Monica, CA, for Plaintiffs.

Constance Lynn Lelouis, Stephanie F. Zook, Office of the Attorney General, Sacramento, CA, Peter H. Chang, Office of the Attorney General, San Francisco, CA, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS [116] AND GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PREEMPTION CLAIM [117] AND PARTIAL JUDGMENT AS TO PREEMPTION CLAIM

STEPHEN V. WILSON, District Judge.

I. INTRODUCTION

This action for declaratory and injunctive relief touches upon a topic impacting gourmands' stomaches and animal-rights activists' hearts: foie gras. Plaintiffs Association des Éleveurs de Canards et D'Oies du Québec (the “Canadian Farmers”), HVFG LLC (“Hudson Valley”), and Hot's Restaurant Group, Inc. (“Hot's”)¹ argue that California's sales ban on liver from force-fed birds, Cal. Health & Safety Code § 25982, runs afoul of federal law and the Constitution. Plaintiffs assert, inter alia, that the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. §§ 451 –470, preempts § 25982. This issue boils down to one question: whether a sales ban on products containing a constituent that was produced in a particular manner is an “ingredient requirement” under the PPIA.

Presently before this Court are Defendant's motion to dismiss, (Dkt. 116), and Plaintiffs' motion for partial summary judgment as to their preemption claim, (Dkt. 118). For the reasons discussed below, this Court GRANTS Plaintiff's motion for partial summary judgment and DENIES Defendant's motion to dismiss.

II. FACTS AND PROCEDURAL HISTORY

The Canadian Farmers and Hudson Valley produce foie gras—a delicacy made from fattened duck liver. (Second Amended Complaint (“SAC”) ¶¶ 12–13.) Hot's operates a restaurant in California that formerly sold foie gras products. (SAC ¶ 14.) Plaintiffs' foie gras products are produced using gavage —a method of feeding a bird through a tube inserted in its esophagus. See (SAC ¶¶ 44, 80.)

California Health and Safety Code § 25982 was enacted as part of a statutory

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scheme aimed at the practice of force feeding birds. Section 25981, which is not at issue in this case, prohibits force feeding a bird for the purpose of enlarging its liver. Cal. Health & Safety Code § 25981. Section 25982 reinforces this ban by prohibiting the sale in California of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.”² Cal. Health & Safety Code § 25982. Section 25980(b) defines “force feeding” as “a process that causes the bird to consume more food than a typical bird of the same species would consume voluntarily.” Cal. Health & Safety Code § 25980. It states that “[f]orce feeding methods include, but are not limited to, delivering feed through a tube or other device inserted into the bird's esophagus.” (Id. )

Plaintiffs assert that § 25982 has caused them to lose millions of dollars worth of foie gras product sales in California. (SAC ¶¶ 86–88.) They further assert that the District Attorneys of Los Angeles, Santa Clara, and Monterey Counties threatened to prosecute Hudson Valley and at least two out-of-state distributors of Plaintiffs' foie gras products for violating § 25982 by selling foie gras products from outside California to California consumers. (SAC ¶ 89.)

Plaintiffs filed this lawsuit on July 2, 2012—the day after § 25982 became operative. (Dkt. 1.) On September 28, 2012, this Court denied Plaintiffs' motion for a preliminary injunction because Plaintiffs failed to show a likelihood of success on the merits of their vagueness or commerce clause challenges. (Dkt. 87: Order at 11–28.) The Court also rejected defendant Kamala Harris's (“Harris”) contentions that the Eleventh Amendment barred Plaintiffs' suit and that the case was not ripe.

On appeal, the Ninth Circuit affirmed this Court's determination that Harris is not entitled to Eleventh Amendment immunity. Association des Éleveurs de Canards et d'Oies du Québec v. Harris, 729 F.3d 937, 943 (9th Cir.2013). The Ninth Circuit stated in dicta that instead of asserting Eleventh Amendment immunity, “a state official who contends that he or she will not enforce the law may challenge plaintiff's Article III standing based on an ‘unripe controversy’ ”—an argument not then before that Court. Id. at 944. The Ninth Circuit also held that § 25982's scope was limited to liver products produced as a result of force feeding a bird for the purpose of enlarging its liver. Id. at 945–46. Finally, the Ninth Circuit affirmed this Court's holding that Plaintiffs failed to show a likelihood of success on the merits of their due process and commerce clause claims. Id. at 946–53.

On April 2, 2014, Plaintiffs filed their SAC. (Dkt. 112.) Plaintiffs' SAC asserts claims for: (1) declaratory relief regarding the application of § 25982 to imports of foie gras products where the commercial sale of such products takes place and title passes outside of the state of California; (2) declaratory relief that § 25982 is preempted by the PPIA; (3) declaratory relief that § 25982 violates the Commerce Clause because it is an extraterritorial regulation; and (4) declaratory relief that § 25982 violates the Commerce Clause because its substantial burden on interstate commerce exceeds its putative local benefits.³ (Dkt. 112.)

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III. DISCUSSION

A. JUSTICIABILITY

Defendant argues that the Court should dismiss Plaintiffs' case under Federal Rule of Civil Procedure 12(b)(1) because Plaintiffs lack Article III standing, because the case is not ripe, and because it fails to present a “case of actual controversy” as required by the Declaratory Judgment Act, 28 U.S.C. § 2201.⁴

1. Legal Standard Under Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction to hear the claims alleged. Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) motion may be asserted either as a facial challenge to the complaint or a factual challenge. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). In a facial challenge, the moving party asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. Id.; Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). When reviewing a facial challenge, the court is limited to the allegations in the complaint, the documents attached thereto, and judicially noticeable facts. Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3rd Cir.2000). The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Id.

Regardless of the type of motion asserted under Rule 12(b)(1), the plaintiff always bears the burden of showing that federal jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376–78, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Valdez v. United States, 837 F.Supp. 1065, 1067 (E.D.Cal.1993), aff'd 56 F.3d 1177 (9th Cir.1995). “In effect, the court presumes lack of jurisdiction until plaintiff proves otherwise.” Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial § 9:77.10 (Rutter Group 2011) (citing, inter alia, Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989) ) (emphasis in original). “The proponents of subject-matter jurisdiction bear the burden of establishing its existence by a preponderance of the evidence.” Remington Lodging & Hospitality, LLC v. Ahearn, 749 F.Supp.2d 951, 955–956 (D.Alaska 2010) (citing United States v. Alcan Elec. & Eng'g, Inc., 197 F.3d 1014, 1018 (9th Cir.1999) ).

2. Legal Standard Under Article III

a. Standing

“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In order to have standing to seek injunctive relief, the plaintiff must show “the reality of the threat of repeated injury,” id. at 107 n. 8, 103 S.Ct. 1660, and a “real or immediate threat ... that he will again be wronged,” id. at 111, 103 S.Ct. 1660. The plaintiff cannot rely on mere “conjecture” or “speculation” regarding a threat of injury. Id. at 108, 103 S.Ct. 1660.

To establish Article III standing:

First, the plaintiff must have suffered an injury in fact, the violation of a protected

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