Little Arm Inc. v. Adams
| Decision Date | 03 September 2014 |
| Docket Number | No. 1:13–cv–00862–RLY–DML.,1:13–cv–00862–RLY–DML. |
| Citation | 13 F.Supp.3d 914 |
| Parties | LITTLE ARM INC. d/b/a B & B Distributions, Bohemian Groove LLC, MELX2 Enterprises Inc., and IDK Anything LLC, Plaintiffs, v. Prosecutors: ADAMS, Allen, Bartholomew, Benton, Blackford, Boone, Brown, Carroll, Cass, Clark, Clay, Clinton, Crawford, Daviess, Dearborn, Decatur, Dekalb, Delaware, Dubois, Elkhart, Fayette, Floyd, Fountain, Franklin, Fulton, Gibson, Grant, Greene, Hamilton, Hancock, Harrison, Hendricks, Henry, Howard, Huntington, Jackson, Jasper, Jay, Jefferson, Jennings, Johnson, Knox, Kosciusko, Lagrange, Lake, La Porte, Lawrence, Madison, Marion, Marshall, Martin, Miami, Monroe, Montgomery, Morgan, Newton, Noble, Ohio, Orange, Owen, Parke, Perry, Pike, Porter, Posey, Pulaski, Putnam, Randolph, Ripley, Rush, St. Joseph, Scott, Shelby, Spencer, Starke, Steuben, Sullivan, Switzerland, Tippecanoe, Tipton, Union, Vanderburgh, Vermillion, Vigo, Wabash, Warren, Warrick, Washington, Wayne, Wells, White, Whitley Counties, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Mark W. Rutherford, Stephen R. Donham, Thrasher Buschmann & Voelkel, P.C., Indianapolis, IN, for Plaintiffs.
David A. Arthur, Office of the Attorney General, Indianapolis, IN, for Defendants.
ENTRY ON PLAINTIFFS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY A PRELIMINARY INJUNCTION
Plaintiffs, Little Arm Inc. d/b/a B & B Distributions (“Little Arm”), Bohemian Groove LLC (“Bohemian”), MELX2 Enterprises Inc., and IDK Anything LLC, bring this action against all Prosecuting Attorneys in Indiana (“Defendants”), seeking injunctive and declaratory relief as to Indiana Code 35–48–4–10.5 (“Statute”). The Statute makes it illegal to possess, distribute, or manufacture any “synthetic drug lookalike substance,” as defined in Indiana Code § 35–31.5–2–321.5. Plaintiffs alleged, among other things, that the Statute violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution as well as Article I, Sections 12 and 23 of the Indiana Constitution.
On March 31, 2014, the court granted Defendants' motion for judgment on the pleadings on Plaintiffs' claims challenging the Statute under: (1) state law; (2) the federal Equal Protection Clause; and (3) the federal due process clause on an as-applied challenge. (Filing No. 110). The court also denied Defendants' motion as to Plaintiffs' federal due process claim challenging the Statute's facial validity. (Id. ). The court then denied as moot Plaintiffs' motion for summary judgment on all claims which had been dismissed, ordered further briefing as to Plaintiffs' remaining facial due process challenge, and took Plaintiffs' alternative motion for preliminary injunction under advisement. (Filing No. 111).
In accordance with the court's Order on Schedule for Further Briefing, Plaintiffs filed their Supplemental Brief in Support of Their Request for Summary Judgment or Alternatively a Preliminary Injunction on April 21, 2014. That motion is now fully briefed and is the subject of this Entry. The court, having reviewed the parties' supplemental briefing along with the applicable case law, now DENIES Plaintiffs' Supplemental Motion for Summary Judgment; sua sponte GRANTS Defendants summary judgment; and DENIES AS MOOT Plaintiffs' alternative motion for a preliminary injunction.
Plaintiffs are for-profit companies in Indiana that sell, among other things, aromatherapy
products throughout Indiana. (Affidavit of Barry Bay (“Bay Aff.”) ¶¶ 3, 5; Affidavit of Daniel J. Patterson (“Patterson Aff.”) ¶¶ 3, 4; Affidavit of Mark Levenda (“Levenda Aff.”) ¶¶ 3, 4). Defendants are prosecutors, who are elected officials, whose responsibilities include investigating and prosecuting criminal offenses (including those created by the Statute) within the various counties in the State of Indiana. Ind.Code § 33–39–1–5.
Plaintiffs challenge the constitutionality of Indiana Code § 35–48–4–10.5, which criminalizes the possession, distribution, and manufacture of synthetic drugs and synthetic drug lookalike substances (“Lookalike Substances”). The Statute became effective May 7, 2013. Plaintiffs contend that Defendants have improperly targeted their legal businesses through their enforcement of the Statute. (Bay Aff. ¶¶ 26–32; Patterson Aff. ¶¶ 21–28; Levenda Aff. ¶¶ 23–28).
The Indiana Code defines “synthetic drug” as a substance containing one or more of a multitude of specific chemical compounds, including an analog of the compound. Ind.Code § 35–31.5–2–321 (amended May 7, 2013). An “analog” is defined as a “new or novel chemical entity, independent of synthetic route or natural origin, having substantially the same: (1) carbon backbone structure; and (2) pharmacological mechanism of action; as a compound specifically defined as a synthetic drug....” Ind.Code § 35–31.5–2–16.5. Moreover, a compound may be determined to be a synthetic drug under an emergency provision. Ind.Code § 35–31.5–2–321(13). This entails the Indiana Board of Pharmacy adopting an emergency rule to declare that a substance is a synthetic drug. Ind.Code § 25–26–13–4.1.
The Indiana Code defines a Lookalike Substance as one (1) or more of the following:
Ind.Code § 35–31.5–2–321.5. The factors listed in the Statute which may be considered in determining whether a substance is a Lookalike Substance include:
Id. The definition excludes, however, the following: (1) food and food ingredients, (2) alcohol, (3) a legend drug (as defined in Indiana Code 16–18–2–199 ), (4) tobacco, or (5) a dietary supplement (as defined in Indiana Code 6–2.5–1–16 ). Id.
The Statute provides various civil and criminal penalties for involvement with a synthetic drug or Lookalike Substance. For example, penalties for possession of a synthetic drug or Lookalike Substance may range from a Class B infraction to a Class D felony. Ind.Code § 35–48–4–11.5. And the penalties for dealing these substances range from a Class A infraction to a Class C felony. Ind.Code § 35–48–4–10.5. Additionally, if a retail merchant has (1) violated this statute by selling or offering to sell these substances in the normal course of business, and (2) the violation resulted in a criminal conviction, then the court “shall recommend the suspension of the registered retail merchant certificate for the place of business for one (1) year.” Ind.Code § 35–48–4–10.5(f). If the violation resulted instead in an infraction, the court may suspend the retail merchant's certificate for six months. Id.
Plaintiffs claim that prior to the Statute's enactment, law enforcement targeted Plaintiffs' customers and vendors in an attempt to dissuade them from conducting business with Plaintiffs. . Moreover, law enforcement searched Plaintiffs' respective stores and seized aromatherapy
products. (Bay Aff. ¶ 26; Patterson Aff. ¶¶ 21–23; Levenda Aff. ¶¶ 23–26). Since the enactment of the Statute, Plaintiffs' businesses have been struggling financially and are being forced to shut down in Indiana. (Bay Aff. ¶¶ 54–55; Patterson Aff. ¶¶ 43–44; Levenda Aff. ¶¶ 42–43).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To that end, a genuine dispute as to a material fact exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. 2505.
The burden is upon the movant to identify those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which the movant believes demonstrates an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met his burden, the nonmoving party may not rest upon mere allegations or denials in its pleadings, but “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Parties may assert that “the materials cited do not establish the absence or presence of a genuine dispute,” and parties may also object to the admissibility in evidence of the material cited. Fed. R. Civ. P....
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