Just Puppies, Inc. v. Frosh
| Decision Date | 06 May 2020 |
| Docket Number | Civil Action No. ELH-19-2439 |
| Parties | JUST PUPPIES, INC., et al., Plaintiffs, v. Brian E. FROSH, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Jonathan P. Kagan, Meagan Cooper Borgerson, Stephen B. Stern, Kagan Stern Marinello & Beard, LLC, Annapolis, MD, for Plaintiffs.
Jennifer L. Katz, Ryan Robert Dietrich, Office of the Attorney General of Maryland, Baltimore, MD, for Defendants.
This case involves a constitutional challenge to Maryland's "No More Puppy-Mill Pups Act" (the "Act" or "Puppy-Mill Act"), codified at Md. Code , § 19-703 of the Business Regulation Article ("Bus. Reg."). The Act, which went into effect on January 1, 2020, bans retail pet stores located in Maryland from "offer[ing] for sale or otherwise transfer[ing] or dispos[ing] of cats or dogs." Suit was filed on August 23, 2019, by four pet stores, a dog breeder, and a dog broker. ECF 1 (the "Complaint").
The plaintiff pet stores are Just Puppies, Inc., d/b/a Just Puppies Towson; Just Puppies of Maryland, Inc., d/b/a Just Puppies Rockville (collectively, "Just Puppies"); Charm City Puppies, LLC, d/b/a Charm City Puppies & Boutique ("Charm City Puppies"); and Today's Pet, Inc., d/b/a Today's Pet. Plaintiff Jodie Hancock, d/b/a 2 Mile Kennel, is a dog breeder located in Missouri. Plaintiff Sobrad, LLC, d/b/a Pinnacle Pet, is a Missouri-based broker of dogs. They sued defendants Brian E. Frosh, in his capacity as the Attorney General of Maryland; the Consumer Protection Division of the Office of the Maryland Attorney General ("CPD"); and two committees of the Maryland General Assembly: the Maryland State Senate Finance Committee and the Maryland House Economic Matters Committee.
Plaintiffs sought, inter alia , an injunction prohibiting enforcement of the Act as well as a declaration that the Act is invalid. ECF 1. In response, defendants moved to dismiss based on sovereign immunity and for failure to state a claim. I granted the defendants’ motion in a Memorandum Opinion (ECF 49) and Order (ECF 50) of February 7, 2020. See also ECF 52.1
On March 6, 2020, plaintiffs moved for leave to file an amended complaint against Mr. Frosh. ECF 53.2 The motion, filed under rules 15(a), 59(e), and 60(b) of the Federal Rules of Civil Procedure, is supported by a memorandum (ECF 53-1) (collectively, the "Motion" or "Motion to Amend") and sixteen exhibits. ECF 53-2 to ECF 53-4; ECF 54-1 to ECF 54-12. A redlined version of the proposed amended complaint is docketed at ECF 53-4 (the "Proposed Amended Complaint"). The State opposes the Motion (ECF 58) and plaintiffs have replied. ECF 59.
No hearing is necessary to resolve the Motion to Amend. See Local Rule 105.6.
For the reasons that follow, I shall deny the Motion.
As detailed in the Court's prior Memorandum Opinion (ECF 52 at 6-14), Maryland has regulated the sale of dogs and cats by retail pet stores since 2012. Beginning in 2012, retail pet stores in Maryland were required to maintain written records of the breeders and brokers they utilized; they were required "conspicuously" to post each puppy's breed, age, date of birth, and medical history; and they had to provide purchasers with a health certificate from a licensed veterinarian certifying that the animal was healthy. See Bus. Reg. § 19-703 ; see ECF 52 at 6-7. Stores that violated these reporting requirements were subject to penalties under Maryland's Consumer Protection Act, Md. Code , § 13-301 et seq. of the Commercial Law Article. See Bus. Reg. § 19-706 .
In 2016, the Maryland General Assembly imposed additional requirements on retail pet stores. See 2016 Md. Laws., Ch. 572; ECF 52 at 7. The new law limited retail pet stores to the sale of dogs and cats obtained from (1) an animal welfare organization; (2) an animal control unit; (3) the original breeder of the dog or cat if the breeder was licensed by the United States Department of Agriculture ("USDA"); or (4) a dealer who obtained the dog or cat from a USDA licensed breeder. Bus. Reg. § 19-702.1(a) . Further, Maryland prohibited pet stores from doing business with dealers who had received certain citations from the USDA for violations of the Animal Welfare Act of 1966 ("AWA"), 7 U.S.C. § 2131 et seq. See Bus. Reg. § 19-702.1(b) .
Despite these requirements, animal welfare organizations continued to lobby for further action. On February 9, 2018, Benjamin Kramer, a member of the Maryland House of Delegates, introduced House Bill 1662, the "No More Puppy-Mill Pups Act of 2018." See Legislation : HB1662 , Maryland General Assembly, archived at https://perma.cc/8RYA-D37X (Hereafter, "H.B. 1662 Legislative Record"). On March 12, 2018, The House Economic Matters Committee solicited testimony concerning the Act. Animal rights activists advocated in favor of the bill, while pet store owners and a lobbyist from the Pet Industry Joint Advisory Council spoke out against it. See ECF 54-2 at 1-28; ECF 52 at 8-11. H.B. 1662 was referred to the Senate Finance Committee on March 19, 2018, which held a public hearing on March 29, 2018. See ECF 54-2 at 68-80; ECF 52 at 12.
Ultimately, the Maryland Generally Assembly passed the Act. Governor Larry Hogan signed H.B. 1662 into law on April 25, 2018. 2018 Md. Laws., Ch. 237; see ECF 52 at 12-13. The Puppy-Mill Act amended Bus. Reg. § 19-701, titled "Definitions." And, it repealed Bus. Reg. § 19-702.1, titled "Requirements for retail pet stores." The Act also substantially amended Bus. Reg. §§ 19-703, 19-704, 19-705, 19-706, and 19-707.
"Section 1" of the Puppy-Mill Act provides, in relevant part:
2018 Md. Laws., Ch. 237, § 1; Md. Code , Bus. Reg. § 19-703.
The Puppy-Mill Act also contains two uncodified provisions. See 2018 Md. Laws., Ch. 237, §§ 2-3. They provide, id. :
The Act defines "offer for sale" in Bus. Reg. § 19-701(f), as follows: " ‘Offer for sale’ includes to sell, offer to transfer, offer for adoption, advertise for the sale, barter, auction, give away, or otherwise dispose of a domestic animal." The Act, however, does not define the terms "showcase" or "local breeders."
As with the prior State laws, under Bus. Reg. § 19-704(a)(1), a violation of the Puppy-Mill Act constitutes an unfair or deceptive trade practice within the meaning of Title 13 of the Commercial Law Article of the Maryland Code. Stores in violation of the Act are subject to fines and civil penalties. Bus. Reg. § 19-704(a)(2).
Plaintiffs Just Puppies, Charm City Puppies, and Today's Pets are pet stores with locations in Maryland. ECF 52 at 13-14. The pet stores maintain that they source pets only from reputable, USDA licensed breeders and brokers. Id. at 14. And, they allege that they studiously complied with Maryland law as it existed prior to the Puppy-Mill Act. Id. According to the pet stores, a significant portion of their gross sales derived from the sale of cats and dogs. Id. at 13. As a result, each store asserts that it will be forced to shutter if the Puppy-Mill Act goes into effect. Id.
Ms. Hancock, a breeder of purebred and designer dogs, is located in Missouri. She has supplied dogs to Just Puppies for over fifteen years. Id. at 14. She is licensed by both the USDA and the State of Missouri, and she alleges that she has never been cited by either. Id. Ms. Hancock does not maintain a website, nor does she sell directly to the public. Id.
Pinnacle Pet, also located in Missouri, purchases purebred and designer dogs and resells them to pet stores, including Charm City Puppies. Id. at 15. Like Ms. Hancock, Pinnacle Pet alleges that it has never been found in violation of federal or state regulations. Id. Although Pinnacle Pet maintains a website, it sells only to retail pet stores. Id. Pinnacle Pet claims that Maryland pet stores constitute a significant portion of its sales in its Maryland-Pennsylvania sales region and that the loss of this business would force it to terminate several employees. Id.
The State moved to dismiss the Complaint on September 17, 2019. ECF 5 (the "Motion to Dismiss"). About five weeks later, on October 23, 2019, plaintiffs filed a motion for preliminary injunction, seeking to stay the enforcement of the then impending Puppy-Mill Act. ECF 20 (the "P.I. Motion").
In late January 2020, the Court held an evidentiary hearing on the P.I. Motion. Over the course of two days, plaintiffs introduced 42 exhibits, including, inter alia , the Act's legislative history, financial records of the pet store plaintiffs, licenses and inspection reports for Ms. Hancock and Pinnacle Pet, consumer complaints filed with the CPD, and several news articles. ECF 43 (Plaintiffs’ Exhibit List). In addition, the Court received testimony from...
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