Lenscrafters, Inc. v. Sundquist
| Decision Date | 08 February 2002 |
| Docket Number | No. 3:98-0150.,No. 3:00-0096.,3:98-0150.,3:00-0096. |
| Citation | 184 F.Supp.2d 753 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | LENSCRAFTERS, INCORPORATED, Plaintiff, v. Don SUNDQUIST, in his Official capacity as Governor of the State of Tennessee, et al., Defendants. U.S. Vision, Cole Vision Corporation, and National Association of Optometrists and Opticians, v. Don Sundquist, in his Official capacity as Governor of the State of Tennessee, et al., Defendants. |
Barbara Jean Moss, Stephen J. Zralek, Wyatt, Tarrant & Combs, Nashville, TN, Stacey Leigh Jarrell, Julie A. Maloney, Thorp, Reed & Armstrong, Pittsburgh, PA, Michell Wyrick, Pamela J. Ledford, Wyatt, Tarrant & Combs, Louisville, KY, Barry Friedman, New York, NY, for U.S. Vision, Cole Vision Corp., National Ass'n of Optometrists and Opticians, plaintiffs in Case No. 3:00-0096.
Barbara Jean Moss, Wyatt, Tarrant & Combs, Nashville, TN, Stacey Leigh Jarrell, Julie A. Maloney, Thorp, Reed & Armstrong, Pittsburgh, PA, Michell Wyrick, Pamela J. Ledford, Wyatt, Tarrant & Combs, Louisville, KY, Barry Friedman, New York, NY, for LensCrafters, Inc., plaintiffs in Case No. 3:98-0150.
Eugene N. Bulso, Jr., Jeffrey S. Bivins, Boult, Cummings, Conners & Berry, Nashville, TN, Perry Allan Craft, Jennifer L. Rawls, Nicholas G. Aemisegger, Jr., Office of Atty. Gen. and Reporter, Nashville, TN, for Don Sundquist, Kenneth W. Nix, Steve Malone, Dennis Matthews, Jerry Richt, Terry Hendrickson, defendants in Case No. 3:00-0096.
Eugene N. Bulso, Jr., Barbara Hawley Smith, Boult, Cummings, Conners & Berry, Nashville, TN, Perry Allan Craft, Jennifer L. Rawls, Office of Atty. Gen. and Reporter, Nashville, TN, Michell Hohnke Joss, Harris, Shelton, Dunlap, Cobb & Ryder, PLLC, Memphis, TN, for Don Sundquist, defendant in Case No. 3:98-0150.
Michell Hohnke Joss, Harris, Shelton, Dunlap, Cobb & Ryder, PLLC, Memphis, TN, for E. Gwin Anderson, Pattie Douglas, defendants in Case No. 3:98-0150.
Michell Hohnke Joss, Harris, Shelton, Dunlap, Cobb & Ryder, PLLC, Memphis, TN, Eugene N. Bulso, Jr., Jeffrey S. Bivins, Barbara Hawley Smith, Boult, Cummings, Conners & Berry, Nashville, TN, for Tommy J. Ducklo, defendant in Case No. 3:98-0150.
Perry Allan Craft, Jennifer L. Rawls, Office of Atty. Gen. and Reporter, Nashville, TN, Michell Hohnke Joss, Harris, Shelton, Dunlap, Cobb & Ryder, PLLC, Memphis, TN, for Steve Malone, Dennis Mathews, Kenneth W. Nix, defendants in Case No. 3:98-0150.
Pending before the court is the defendants' Motion to Dismiss all claims against defendant Governor Don Sundquist (LensCrafters Docket No. 98),1 to which the plaintiffs have responded (LensCrafters Docket No. 100), the defendants have replied (LensCrafters Docket No. 104), and the plaintiffs have filed a sur-reply (LensCrafters Docket No. 113)2. For the reasons discussed herein, the defendants' motion will be granted.
Plaintiff LensCrafters, Inc. ("LensCrafters") filed the lead case on February 19, 1998, challenging the constitutionality of Tenn.Code Ann. § 63-8-113(c)(6) under the Fourteenth Amendment's Due Process and Equal Protection clauses and under the dormant Commerce Clause of Article I of the United States Constitution. (LensCrafters Docket No. 1) The defendants moved to dismiss this case on the grounds that it did not present an actual case or controversy in light of a decision of the Davidson County Chancery Court to reverse an order of the Tennessee Board of Optometry suspending the license to practice optometry of Dr. Jeffrey Rothman for violation of Tenn.Code Ann. § 63-8-113(c)(6). (LensCrafters Docket Nos. 18 & 19) At the time of his suspension, Dr. Rothman leased space and performed eye examinations in a LensCrafters location. The defendants' motion was denied on the grounds that LensCrafters presented a challenge to the constitutionality of the statute on its face and LensCrafters both suffered economic injury from the enforcement of the statute and faced the threat of further injunctions under the statute. (LensCrafters Docket No. 24)
On February 8, 1999, the defendants filed their Answer to the Complaint. (LensCrafters Docket No. 31) As affirmative defenses to the claims, the defendants alleged that the plaintiff lacked standing and that the Complaint failed to state a claim upon which relief may be granted. Id. at 8. On the same date, the defendants moved for summary judgment, arguing that the dispute could be resolved either on nonconstitutional grounds by finding that LensCrafters did not fall within the definition of a "retail store or other commercial establishment" regulated by the statute or by holding that the statute is constitutional on its face. (LensCrafters Docket Nos. 29 & 30) In response to the defendants' motion, the plaintiff argued that the proper approach was to certify to the Tennessee Supreme Court the question of whether LensCrafters was a "retail store or other commercial establishment." (LensCrafters Docket No. 34 at 4-8)
After oral argument on the defendants' motion (LensCrafters Docket No. 48), the court found that it was appropriate to certify the question of the reach of Tenn.Code Ann. § 63-8-113(c)(6) to the Tennessee Supreme Court. The court denied the defendants' motion for summary judgment as premature (LensCrafters Docket No. 50) and entered an order on August 4, 1999 certifying the following question of law to the Tennessee Supreme Court: "Whether an entity engaged primarily in the business of selling and dispensing ophthalmic lenses and frames is a `retail store or other commercial establishment' within the meaning of Tenn.Code Ann. § 63-8-113(c)(6)" (LensCrafters Docket No. 51).
On February 2, 2000, plaintiffs U.S. Vision and Cole Vision Corporation ("Cole Vision") filed a second suit against the members of the Tennessee Board of Optometry and the Governor of the State of Tennessee challenging the constitutionality of Tenn.Code Ann. § 63-8-113(c)(6). (U.S. Vision Docket No. 1) On February 4, 2000, the Tennessee Supreme Court accepted certification of the question of law posed in the LensCrafters case. (LensCrafters Docket No. 55) Thereafter, the defendants moved to dismiss the U.S. Vision case on the ground that the plaintiffs lacked standing to bring the suit or, in the alternative, to stay proceedings in that case pending disposition of the question certified to the Tennessee Supreme Court in the LensCrafters case. (U.S. Vision Docket No. 17) The court granted the motion for a stay of the proceedings and held the motion to dismiss in abeyance. (U.S. Vision Docket No. 30)
On December 13, 2000, the Tennessee Supreme Court issued an opinion answering the court's certified question in the affirmative. (LensCrafters Docket No. 56) The court then held a joint case management conference for both cases and, pursuant to the parties' agreement, ordered that the two cases would be consolidated for discovery and pre-trial purposes and noted that the cases may be consolidated formally at a later date. (LensCrafters Docket No. 67; U.S. Vision Docket No. 35) The court set both cases for trial on January 6, 2003. (LensCrafters Docket No. 66; U.S. Vision Docket No. 36) At the conference, the defendants stated their intent to file an additional motion to dismiss, and the court orally instructed them that they must seek leave of the court prior to filing any additional dispositive motions. (LensCrafters Docket No. 64; U.S. Vision Docket No. 33)
On February 20, 2001, the defendants filed their Answer in the U.S. Vision cases, asserting as an affirmative defense that the Complaint fails to state a claim upon which relief may be granted. (U.S. Vision Docket No. 39) On May 18, 2001, the U.S. Vision plaintiffs moved to amend their Complaint to join as a party plaintiff the National Association of Optometrists and Opticians ("NAOO"). (U.S. Vision Docket No. 42) The court granted the motion, and the Amended Complaint was filed on August 14, 2001. (U.S. Vision Docket No. 46) The defendants filed an Answer to the Amended Complaint on August 31, 2001, asserting the following affirmative defenses:
(1) Plaintiffs lack standing;
(2) The Amended Complaint fails to state a claim upon which relief may be granted;
(3) The Tennessee Supreme Court's ruling in LensCrafters, Inc. v. Don Sundquist, et al., 33 S.W.3d 772 (2000), declares the statute at issue, Tenn.Code Ann. § 63-8-113(c)(6) constitutional, and that decision controls this action;
(4) The United States Constitution and the 11th Amendment bar suit against the State of Tennessee and this particular action; and
(5) The lawfully enacted statute was passed pursuant to the Tennessee legislature acting within its discretion.
On December 19, 2001, the defendant Don Sundquist filed the instant motion to dismiss all claims in both cases.
The defendant Don Sundquist has moved for the dismissal of all claims against him in his official capacity as Governor of the State of Tennessee pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that he is immune from suit under the Eleventh Amendment to the United States Constitution. The plaintiffs respond that the motion should be denied because (1) it violates the court's instruction at the February 5, 2001 case management conference to first seek leave to file an additional dispositive motion; (2) it is untimely under Fed.R.Civ.P. 12(b); (3) Governor Sundquist is not entitled to immunity from these claims under the Eleventh Amendment; and (4) even if Governor Sundquist would otherwise be immune, he was waived any right to assert this defense.
The plaintiffs are correct that, at the February 5, 2001 case management conference, the court instructed the defendants not to file any additional dispositive motions without prior leave of the court. However, the court inadvertently neglected to issue a written...
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