Just Puppies, Inc. v. Frosh

Citation565 F.Supp.3d 665
Decision Date17 September 2021
Docket NumberCivil Action No. ELH-21-1281,Related Case No. ELH-19-2439
Parties JUST PUPPIES, INC., et al., Plaintiffs, v. Brian E. FROSH, Defendant.
CourtU.S. District Court — District of Maryland

Heather Kirkwood Yeung, Jonathan P. Kagan, Meagan Cooper Borgerson, Kagan Stern Marinello & Beard, LLC, Annapolis, MD, for Plaintiffs.

Ryan Robert Dietrich, Office of the Attorney General of Maryland, Baltimore, MD, for Defendant.


Ellen Lipton Hollander, United States District Judge

This case involves a constitutional challenge to a Maryland law that bans the sale of dogs and cats by retail pet stores and brokers. The statute, which went into effect on July 1, 2021, is titled "Retail Pet Stores and the Task Force to Study Canine Breeding Facilities and Sourcing Standards" (the "Act" or "2021 Act"). See Md. Code (2015 Repl. Vol, 2021 Supp.), § 19-701 et seq. , of the Business Regulation Article ("Bus. Reg." or "B.R.").

In response to the Act, which amends an earlier version of the law, three Maryland pet stores, a Missouri dog breeder, and a Missouri dog broker filed a 69-page "Complaint For Declaratory And Injunctive Relief" against Brian Frosh, the Maryland Attorney General (hereinafter, the "State"). Plaintiffs seek, inter alia , an injunction prohibiting enforcement of the Act and a declaration that the Act is unconstitutional under the Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the Constitution, as well as Maryland law. ECF 1 ("Complaint"). The Complaint is supported by seven exhibits. ECF 1-1 to ECF 1-7.

The plaintiffs 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"); Tara Baker d/b/a Valley View Kennel, a licensed dog breeder in Missouri ("Valley View"); and Sobrad, LLC d/b/a Pinnacle Pet ("Pinnacle Pet"), a Missouri-based broker of dogs. I shall sometimes refer to Just Puppies and Charm City Puppies collectively as the "Pet Stores" or the "Pet Store Plaintiffs."

Most of the current plaintiffs were parties to a prior challenge to the constitutionality of an earlier version of the Act, passed by the Maryland General Assembly in 2018. Titled "No More Puppy-Mill Pups Act," that version of the law went into effect on January 1, 2020 (the "2020 Act"), and spawned related litigation in 2019 and 2020 ("2019-20 Litigation"). See Just Puppies, Inc. v. Frosh , ELH-19-2439 ("Just Puppies I "). Because this case concerns the 2021 version of the law, I shall refer to this case as "Just Puppies II " or the "2021 Litigation."

The Complaint contains eight counts. Count I is titled "Federal Preemption" and asserts that the 2021 Act is preempted by the Animal Welfare Act of 1966, 7 U.S.C. § 2131 et seq. ("AWA"). See ECF 1, ¶¶ 101-14. Counts II, III, and IV arise under the Commerce Clause, and generally allege that the Act violates the implied limits on state power imposed by the Commerce Clause. ECF 1, ¶¶ 115-53; see U.S. Const. art. I, § 8, cl. 3. In particular, Count II is titled "Violation of Commerce Clause – The 2021 Pet Store Ban is Discriminatory in its Purpose And Effect Against Out-Of-State Breeders And Brokers." Count III is titled "Violation Of Commerce Clause – The 2021 Pet Store Ban is Discriminatory in its Purpose And Effect Against In-State Retail Pet Stores." Count IV is titled "Violation Of The Commerce Clause – Undue Burden On Interstate Commerce (Pike Balancing) Against Retail Pet Stores, Out-Of-State Breeders And Brokers." In Count V, plaintiffs allege that the Act violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Id. ¶¶ 154-69; see U.S. Const. amend. XIV. Count VI is titled "Violation Of Due Process Clause (Void For Vagueness)." Id. ¶¶ 171-85. In Count VII, titled "Violation Of Maryland Declaration Of Rights Anti-Monopoly Clause," plaintiffs claim that the Act gives Maryland breeders and unregulated animal shelters a monopoly to sell pets to Maryland consumers, in violation of the anti-monopoly clause in Article 41 of the Maryland Declaration of Rights. Id. ¶¶ 186-92. And, in Count VIII, plaintiffs seek a declaratory judgment, pursuant to the "Federal Declaratory Judgment Act," 28 U.S.C. § 2201, to the effect that the Act violates federal law. Id. ¶¶ 194-96.

Plaintiffs have also moved for a preliminary injunction, seeking to stay the enforcement of the 2021 Act pending resolution of this case. ECF 5. The motion is supported by a memorandum (ECF 5-1) (collectively, "Preliminary Injunction Motion" or "P.I. Motion") and several exhibits.1 Plaintiffs contend that the 2021 Act "expanded the ban on the sales of dogs" and "was prematurely enacted without the benefit of the results of the task force study." ECF 5-1 at 4. Further, plaintiffs complain that the Pet Store Plaintiffs "will be forced out of business since they will be unable to sell dogs to Maryland consumers." Id. at 5.

The State has filed a combined opposition to the P.I. Motion and a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). ECF 9. Defendant's motion is supported by a memorandum (ECF 9-1) (collectively, "Motion to Dismiss" or "Motion") and several exhibits. It contends that the Complaint is "simply an attempt at a do-over of [plaintiffs’] unsuccessful 2019 litigation, under the auspices of a challenge to a new legislation ... that did little more than close a perceived loophole" in the 2020 Act. ECF 9-1 at 6.2 Thus, according to defendant, "the same result in the 2019 litigation should abide here." Id.

Plaintiffs have filed a combined opposition to the Motion to Dismiss and reply in support of the P.I. Motion. ECF 14. Defendant has replied. ECF 17.

The Humane Society of the United States ("HSUS" or "Humane Society") moved for leave to file an amicus curiae brief in support of the State. ECF 10. I granted that motion. ECF 12. The brief is docketed at ECF 13. The Humane Society maintains, inter alia , that the litigation involves "issues of vital importance to Maryland citizens," in order to combat "inhuman treatment of animals" by "unscrupulous commercial breeding facilities," referenced as "puppy mills." Id. at 2.

On August 9, 10, and 11, 2021, the Court held an evidentiary hearing and heard argument as to the motions. ECF 21; ECF 23; ECF 24. Numerous exhibits were introduced by plaintiffs ("Pl.’s Ex."). By stipulation, the parties also agreed to incorporate the evidence and argument presented during the 2019-20 Litigation. See ECF 22. To that end, the court transcripts from the hearings held on January 29 and January 30 of 2020 were introduced in this case as Joint Exhibits ("J.E.") 1A, 1B, and 1C.

For the reasons that follow, I shall deny the P.I. Motion and grant the Motion to Dismiss.

I. Procedural Background3

In 2019, in Just Puppies I , four pet stores, a dog breeder, and a dog broker filed suit against Frosh; 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. Just Puppies I , ECF 1. The plaintiffs in that suit were Just Puppies; Charm City Puppies; Today's Pet, Inc., d/b/a Today's Pet ("Today's Pet"); Jodie Hancock, d/b/a 2 Mile Kennel, a dog breeder located in Missouri; and Pinnacle Pet. Tara Baker has replaced Hancock in this suit. Today's Pet, one of the retail pet stores involved as a plaintiff in Just Puppies I , is not involved in the 2021 Litigation.

In the 2019-20 Litigation, as in this suit, the plaintiffs claimed that the prohibition on the sale of dogs by retail pet stores is preempted by the AWA, and violates the dormant Commerce Clause, the Equal Protection Clause, and the Anti-Monopoly Clause of the Maryland Declaration of Rights. Id. The State moved to dismiss. See Just Puppies I , ECF 5.

As noted, the Court held an evidentiary hearing in late January 2020, with respect to the 2019-20 Litigation. See J.E. 1A, 1B, and 1C. Thereafter, by Memorandum Opinion and Order of February 7, 2020, I granted the motion to dismiss and denied the preliminary injunction motion. Just Puppies I , ECF 49, ECF 50; see ECF 52.4 Thereafter, plaintiffs moved for leave to file an amended complaint. Just Puppies I , ECF 53. By Memorandum Opinion and Order of May 6, 2020, I concluded that plaintiffs’ claims, even if amended, were plagued by incurable deficiencies, and I denied the motion. Id., ECF 60; ECF 61.

Plaintiffs subsequently appealed to the Court of Appeals for the Fourth Circuit.

Id. , ECF 62. Shortly before oral argument was to be held in May 2021, the Maryland General Assembly amended the 2020 Act. Therefore, on April 29, 2021, at the request of the State, and without opposition from plaintiffs, the Fourth Circuit vacated my rulings as to the 2020 Act and remanded the case to this Court to consider the claims in light of the 2021 Act. Id. , ECF 67; ECF 68. Thereafter, I stayed the 2019-20 Litigation, because it concerned the 2020 Act, pending resolution of the new suit, which concerns the 2021 Act. See Just Puppies I , ECF 77.

II. Factual Background5

As noted, the hearings in regard to the 2019-20 Litigation culminated in two opinions. ECF 52; ECF 61. At the hearing in August 2021, as to the 2021 Litigation, I specifically asked plaintiffscounsel if, from his perspective, the Court made any factual errors in its rulings in Just Puppies I . Plaintiffscounsel had no quarrel with the Court's factual summary. Nor did he have any serious challenge to the Court's recitation of the applicable law. Rather, plaintiffs’ quarrel is with the Court's conclusions, i.e. , the application of the law to the facts. Therefore, I incorporate here the summary of the facts as set forth in ECF 52 and ECF 61. However, I shall restate many of the facts for context, and I shall amplify...

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