United Pet Supply, Inc. v. City of Chattanooga

• Decision Date: 05 February 2013
• Docket Number: Nos. 1:11–CV–157,1:11–CV–193.,s. 1:11–CV–157
• Citation: 921 F.Supp.2d 835
• Parties: UNITED PET SUPPLY, INC., Plaintiff, v. CITY OF CHATTANOOGA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

921 F.Supp.2d 835

UNITED PET SUPPLY, INC., Plaintiff,

v.CITY OF CHATTANOOGA, et al., Defendants.

Nos. 1:11–CV–157, 1:11–CV–193.

United States District Court, E.D. Tennessee.

Feb. 5, 2013.

Benjamin T. Reese, Mark A. Pippenger, Leitner Williams Dooley Napolitan, PLLC, Chattanooga, TN, for Plaintiff.

Crystal R. Freiberg, Cleveland, TN, Keith J. Reisman, Valerie L. Malueg, Melinda J. Foster, Office of Chattanooga City Attorney, Chattanooga, TN, David E. Harrison, Mark Litchford, Grant, Konvalinka & Harrison, PC, Chattanooga, TN, for Defendants.

MEMORANDUM

CURTIS L. COLLIER, District Judge.

Before the Court is Defendants Animal Care Trust's, Karen Walsh's, Marvin Nicholson, Jr.'s, and Paula Hurn's (“Defendants”) motion for judgment on the pleadings (Court File No. 37).¹ Plaintiff United Pet Supply, Inc. (“Plaintiff”) responded to the motion (Court Files No. 40), and Defendants replied (Court Files No. 46). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for judgment on the pleadings (Court File No. 37). Specifically, the Court denies Defendants' motion with respect Fourth Amendment and abuse of process claims. The Court grants in part and denies in part Defendant's motion as to Plaintiff's procedural due process claim. The Court grants in part and denies in part Defendants' motion with respect to Plaintiff's conversion claim. The Court also grants Defendants' motion with respect to Plaintiff's claims under the Tennessee Constitution, tortious interference with a business relationship claim, and tortious interference with a contract claim. Those claims on which the Court has granted Defendant's motion are DISMISSED WITH PREJUDICE.

I. FACTS

The following facts are alleged in the complaint, which the Court accepts as true for the purposes of a motion for judgment on the pleadings. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir.2007). Plaintiff operated a pet store in Hamilton Place Mall in Chattanooga, Tennessee (Court File No. 1, ¶ 7). Plaintiff was licensed to operate a pet store by the state. Defendant Animal Care Trust, also called McKamey Animal Care and Adoption Center (“McKamey”), is a Tennessee corporation with which the City of Chattanooga (“City”) contracts for animal control services. As a result of changes to the Chattanooga City Code (“City Code”) in 2010, the City delegated enforcement of provisions of the City Code pertaining to animals to McKamey, including the issuance of permits for businesses engaged in dealing in the sale of pets or animals. Defendants Walsh, Hurn, and Nicholson are all employees of McKamey, serving as ExecutiveDirector, Director of Operations, and Animal Service Officer, respectively.

In March and April 2010, pursuant to McKamey's authority under the City Code, Defendants Walsh and Nicholson began appearing at the pet store operated by Plaintiff. Over a two month period, Defendants arrived during business hours seven times. On four of the seven site visits, Defendants spoke to Plaintiff's landlord to discuss issues with Plaintiff's business. On May 11, McKamey issued a permit to Plaintiff, signed by Defendant Walsh, stating Plaintiff was approved as a pet dealer in Chattanooga. However, on June 15, 2010, Defendants Walsh, Nicholson, State Inspector Joe Carroll Burns, and several members of the Chattanooga Police Department arrived at Plaintiff's pet shop around 8:10 a.m., before business hours, and confiscated animals, business records, certain other property, and Plaintiff's city permit. Defendant Hurn would arrive around 10:00 a.m. This event was apparently precipitated by statements made to Defendant Walsh by a former employee of the pet shop one week earlier.

When Defendants and others arrived on June 15, they gained access by “asserting their official authority to ‘inspect’ the Pet Shop's premises” (Court File No. 1, ¶ 44). When they arrived they saw soiled kennels, unreplenished water receptacles, and other signs of neglect. However, every morning Plaintiff's employees undertook a three-hour cleaning procedure, which normally began at 7:00 a.m. and ended at 10:00 a.m.. Due to the hour Defendants arrived at the pet shop, much of the cleaning had not yet occurred. Defendants instructed Plaintiff's employees not to interfere with their investigation, and after Defendant Hurn arrived she began videotaping the conditions of the premises. State Inspector Burns issued a written warning to Plaintiffs to repair one of the compressors in its air conditioning system. Around 11:00 a.m., Defendants confiscated Plaintiff's animals, including thirty-two puppies, six rabbits, one ferret, one guinea pig, and forty-two hamsters or mice. Defendants then confiscated business records and Plaintiff's physical copy of its city permit. Defendant Walsh informed Plaintiffs they could not sell pets until their hearing on June 24, 2010. While this process was ongoing, Plaintiff sought temporary injunctive relief in Hamilton County Circuit Court (Court File No. 37–1). Plaintiff's motion was apparently denied by the Circuit Court, but the grounds on which it was denied are unknown to the Court. Moreover, while the complaint states the property confiscation began at 11:00 a.m., the petition for injunction was filed at 1:20 p.m.

McKamey issued forty-three citations alleging ninety violations of the City Code. The facts supporting the violations were alleged as follows.

1. Air conditioning not working 3 weeks or more

2. No report to operations manager of mall

3. Isolation room at 85+ at 7 AM east

4. Hamsters and gerbils given dirty water in open bowls capable of drowning them

5. Cages cleaned with “Fabuloso”, Mr. Clean or Lysol

6. Water bottles leaking until empty

7. Empty water bottles in isolation

8. Hamster was attacked “several days ago” no vet treatment provided

9. No water in any hamster cages in ISO [“isolation room”]

10. Cages broken undisinfectable

11. Cage bottoms/grates broken can trap feet

12. Dog died 4 days after health check, no record as to vet check.

13. Food for human consumption stored with vax

14. Cleaning containers not labeled

15. Training manager no knowledge of procedures.

(Court File No. 1, ¶ 65). The day following the raid, McKamey's website linked to an online petition to close the pet shop in Chattanooga. The petition called for a boycott of the Hamilton Place Mall until Plaintiff's pet shop was closed.

When McKamey took possession of the pet shop's puppies, they were all considered “bright, alert, and responsive” by McKamey, except for one German Shepherd puppy that was being treated by the pet shop's veterinarian. McKamey did not seek immediate care for the German Shepherd puppy. McKamey began seeking homes for the puppies. In September, the German Shepherd puppy died.

On June 24, 2010, nine days after Plaintiff's property was confiscated, the Chattanooga City Court held a hearing regarding the charges against Plaintiff. McKamey sought permanent custody of the animals confiscated during the raid. On June 30, the City Court ruled some of the conditions listed by Defendant Walsh could be remedied, McKamey would inspect the pet shop before allowing Plaintiffs to return the animals to the premises, and Plaintiffs were to receive all animals not diagnosed with disease or illness. McKamey, however, refused to return the animals. The Mayor of Chattanooga also sent a letter to the City Court, explaining he did not want McKamey to go uncompensated for its expenses, McKamey should be able to maintain custody of the animals until they are repaid, and he did not trust Plaintiff. McKamey then inspected the store again and failed it for new violations of the City Code.

After a brief continuance, the City Court heard further evidence regarding the inspection of the pet shop. The City Court then declined to withdraw Plaintiff's permit, and deferred to the state with respect to its state license. Plaintiff's state license was subsequently renewed. The City sought repayment from Plaintiffs for some of its expenses incurred while caring for Plaintiff's confiscated animals. The City Court maintained McKamey must return the permit without a reapplication process, because McKamey did not have the authority to revoke the permit without a hearing, and that it would issue a ruling on the City's expenses. The Mayor later disseminated an open letter to the City Court critical of its ruling. The City Court then declared a mistrial due to the Mayor's actions.

After a different judge was assigned to the case in City Court, briefing was sought on the issue of whether the revocation of Plaintiff's permit was unlawful. The City Court later dismissed the case on double jeopardy grounds and stated the City Court was without authority to make an order regarding Plaintiff's permit. After multiple demands for its license and animals, the City returned the permit to Plaintiff and Plaintiff reopened its shop. Subsequently, McKamey returned Plaintiff's animals, apparently in compliance with a court order. Plaintiff's dogs were no longer puppies and were adopted to families without charge.

Plaintiff sought redress in this court and in Hamilton County Circuit Court. Once the latter case was removed, the cases were consolidated. After the instant motion was filed, the City amended the relevant portion of the City Code, essentially removing the permit provisions delegating the task to McKamey altogether and establishing an “Animal Control Board” to determine whether the City should require permits and, if so, what type of permits to require. Chattanooga City Ordinance 12653 (Oct. 2, 2012). References to the City Code refer to the Code as it existed when the alleged violations occurred.

II. STANDARD OF REVIEW

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is considered using the same standard of review as a Rule 12(b)(6) motion. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.2010). A Rule 12(b)(6) motion should be granted...