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Professional Dog Breeders Advisory Council, Inc. v. Wolff

November 3, 2010

PROFESSIONAL DOG BREEDERS ADVISORY COUNCIL, INC.; PENNSYLVANIA DOG BREEDERS ASSOCIATION; CARL GILGORE; NATHAN MYER; DANIEL ESH; AND BETTY STOLTZFUS PLAINTIFFS,
v.
DENNIS WOLFF, SECRETARY OF PENNSYLVANIA DEPT. OF AGRICULTURE, IN HIS OFFICIAL CAPACITY; SUSAN WEST, DIRECTOR, BUREAU OF DOG LAW ENFORCEMENT, IN HER OFFICIAL CAPACITY; KRISTIN DONMOYER, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; AND, DREW DELENICK, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Introduction

The within matter involves allegations by two organizations (the Professional Dog Breeders Association of Pennsylvania (hereinafter, "PDBA") and the Professional Dog Breeders Advisory Council, Inc. (hereinafter "PDBAC")), as well as four individuals (Carl Gilgore, Nathan Myer, Daniel Esh, and Betty Stoltzfus),*fn1 that Defendants*fn2 committed various constitutional violations in their implementation of rules regarding dog kennels throughout the Commonwealth of Pennsylvania, as well as with regard to enforcement of same within Lancaster County, Pennsylvania. Defendants have filed a Motion to Dismiss the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Actions from Plaintiffs' First Amended Complaint. For the reasons set forth hereinbelow, said Motion will be granted in part and denied in part.

II. Factual Background

The Pennsylvania Department of Agriculture ("PDA") enforces 3 P.S. § 459-101 et seq. (hereinafter "Dog Law") throughout the Commonwealth, which is divided into seven enforcement regions. (Am. Compl. ¶ 19.) Those who wish to sell more than twenty-six (26) dogs in a calendar year are required to have a license from the PDA. (Am. Compl. ¶ 20.) Breeders who raise dogs for wholesale must also be licensed by the United States Department of Agriculture, which, unlike the PDA, maintains a Dealer Inspection Guide. (Am. Compl. ¶¶ 23, 24.) Plaintiffs allege that a lack of objective standards has led to discriminatory enforcement of kennel regulations by wrongfully subjecting kennel operators to the individual discretion of the BDLE inspectors. (Am. Compl. ¶¶ 24-26.)

Plaintiff Gilgore attempted to videotape a kennel inspection that took place on November 2, 2007 at Zimmerman's Kennels, where he volunteers. (Am. Compl. ¶¶ 27, 28.) He alleges that Defendant Donmoyer threatened him with arrest, after which time he felt compelled to stop the video recorder. (Am. Compl. ¶¶ 29-31.) Defendants do not challenge Plaintiff Gilgore's First Amendment claim, except to the extent that he seeks declaratory judgment regarding same.

Plaintiff Myer alleges that he attempted to videotape an inspection conducted by Defendant Donmoyer at his kennel on June 28, 2007 but was threatened with arrest and therefore ceased videotaping. (Am. Compl. ¶ 32.)*fn3

Plaintiff Esh claims that on December 20, 2007, Defendant Donmoyer inspected his kennel and found the amount of excreta to be unsatisfactory because said Defendant felt that it was not being removed daily and recorded it as such on the kennel inspection report. (Am. Compl. ¶¶ 40-44.) Plaintiff Esh alleges the Dog Law fails to state how clean a kennel must be to be satisfactory. (Am. Compl. ¶ 42.)

Plaintiff Betty Stoltzfus alleges that upon being targeted by animal rights activists, her husband, a dairy farmer, lost one of his milk customers and Plaintiff Stoltzfus was forced to remove all dogs from her kennel. (Am. Compl. ¶ 70.) Defendant Delenick and Warden Maureen Siddons of BDLE stopped by the farm and inquired about the people who were housing Plaintiff Stoltzfus' dogs. (Am. Compl. ¶ 71.) When she refused to answer their questions, Defendant Delenick instructed Warden Siddons to issue a citation for interfering with a BDLE investigation. (Am. Compl. ¶ 72.) Plaintiff Stoltzfus was also cited for transferring puppies less than eight weeks old; Plaintiffs allege that Warden Siddons believed this was contrary to the intent of the law but issued a citation under the direction of Defendant Delenick. (Am. Compl. ¶ 74.) Mrs. Stoltzfus alleges she decided to close her kennel rather than face harassment and threats from BDLE and animal rights activists. (Am. Compl. ¶ 73.)

Plaintiffs further allege that policymakers at PDA directed BDLE agents to issue citations to Lancaster County kennels, regardless of the condition of the kennel and that during follow-up inspections, Defendants did not check to see if past violations had been remedied but rather found new violations for purposes of harassment. (Am. Compl. ¶¶ 47, 50.) In that same vein, Plaintiff PDBA alleges that the lack of objective standards for kennel inspection directly affects its members and that during the years 2006 through 2008, BDLE issued four citations and forty-two warnings to non-profit kennels in Pennsylvania while issuing seventy-six citations and three hundred and twenty-nine warnings to breeding kennels in Lancaster County. (Am. Compl. ¶¶ 39, 81.)*fn4 Plaintiffs allege that no non-profit kennel in Lancaster County has ever received a citation and one non-profit kennel in Region VI*fn5 has received a citation as of September 2008. (Am. Compl. ¶ 82.) Plaintiffs' independent investigations of various other non-profit kennels show them to be below the standard applied to breeding kennels. (Am. Compl. ¶ 90)(emphasis added).

The BDLE reports citations to the General Assembly by county and the information is posted online. (Am. Compl. ¶¶ 83-84.) Based upon this information, Plaintiffs allege that Defendants targeted Lancaster County kennel owners and issued them ten times more citations than any other county. (Am. Compl. ¶ 85.) In counties with more than 40,000 dogs, Defendants issued seventy-six citations in Lancaster County and none in Allegheny, Bucks, and Montgomery Counties during January 1, 2006 to May 31, 2008. (Am. Compl. ¶ 87.) By operating a kennel in Lancaster County, Plaintiffs allege that a kennel owner is three times more likely to be inspected and over one hundred times more likely to receive a warning. (Am. Compl. ¶ 89.) As such, Plaintiffs claim there is no rational basis for such a disparity. (Am. Compl. ¶ 89.)

Based upon the foregoing, Plaintiffs assert various constitutional violations pertaining to free speech, Equal Protection and Due Process.

III. Discussion

a. Standard of Proof

"In deciding motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts generally consider only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of the complaint." Brown v. Daniels, 128 F. App'x 910, 913 (3d Cir. 2005)(quoting Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)).

To that end, Rule 12(d) of the Federal Rules of Civil Procedure provides:

If, on a motion under Rule 12(b)(6) or 12( c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Fed.R.Civ.P. 12(d).

A document forms the basis of a claim if it is integral to or is explicitly relied upon in the Complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The rationale in converting a motion to dismiss to one of summary judgment is to afford the plaintiff an opportunity to respond to the extraneous evidence submitted by the defendant and considered by the court. See Pension Ben. Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The primary problem of lack of notice to the plaintiff when the defendant attaches documents to their motion to dismiss dissipates when the plaintiff has actual notice of the attachments and the plaintiff has relied on the documents in forming the Complaint. See Burlington Coat Factory, 114 F.3d at 1426 (internal citations omitted).

With regard to the instant matter, the issue of notice to Plaintiffs is not present because Plaintiffs are responsible for attaching documents to their Response in Opposition to Defendants' Motion to Dismiss. Although Plaintiffs do not explicitly reference PDBAC's Articles of Incorporation, said Articles do form the basis of Plaintiffs' procedural claim that PDBAC has standing to sue on behalf of its members in federal court. (Am. Compl. ¶ 9; Pls.' Resp. to Defs.' Mot. to Dismiss 15-20.) Thus, the Articles of Incorporation fall within the basis of the claim exception to Fed. R. Civ. P. Rule 12(d). Moreover, the nine kennel inspection reports are available online and fall within the public record exception of Fed. R. Civ. P. 12(d), therefore they will be considered. With regard to the declaration of PDBAC President, Robert G. Yarnall, Jr. regarding the PDBAC's mission and means of accomplishing same, said document was not an exhibit attached to the Amended Complaint, is not a matter of public record, and does not form the basis of the Amended Complaint. Therefore, the document will be excluded from consideration in deciding Defendants' Motion to Dismiss and said Motion will not be converted to one for summary judgment.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)(internal quotation and citation omitted). As a result of the Supreme Court's decision in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. Specifically,

Applying the principles of Iqbal, the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), articulated a two-part analysis that district courts in this Circuit must conduct in evaluating whether allegations in a complaint survive a Motion to Dismiss. First, the factual and legal elements of a claim should be separated, meaning "a District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. Second, the Court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. In other words, a complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Id. (citing Phillips, 515 F.3d at 234-35). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'shown' - 'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950. This "plausibility" determination under step two of the analysis is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Perano v. Twp. of Tilden, 2010 U.S. Dist. LEXIS 36781, at **15-17 (E.D. Pa. Apr. 12, 2010).

For the reasons set forth hereinbelow, Plaintiffs' Amended Complaint is inadequate on several grounds.

b. Claims at Issue

I. Subject Matter Jurisdiction

For a United States District Court to hear a plaintiff's claims, the plaintiff must meet the "case or controversy" standing requirement under Article III, § 2 of the United States Constitution. A plaintiff must show that "it has suffered a cognizable injury that is causally related to the alleged conduct of the defendant and is redressable by judicial action." Pa. Psychiatric Soc'y v. Green Spring Health Serv. Inc., 280 F.3d 278, 283 (3d Cir. 2002), cert. denied, 537 U.S. 881(2002).

In bringing the instant Motion to Dismiss, Defendants raise a facial challenge to PDBAC and PDBA's standing.*fn6 In assessing a "facial" challenge, Plaintiffs are entitled to the presumption that their allegations are true. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). See also Thompson v. Borough of Munhall, 44 Fed. Appx. 582, 583 (3d Cir. 2002). As such, the standard of review for Defendants' 12(b)(1) and 12(b)(6) arguments, will be the same: "[the court shall] accept as true plaintiffs' material allegations, and construe the complaint in the light most favorable to them." Alston v. Countrywide Fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).

The Third Circuit Court of Appeals has recently reiterated the proper standard for assessing matters based upon the premise of associational standing:

An organization wishing to bring suit on behalf of its members must satisfy a specific combination of constitutional and prudential standing requirements. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 556-57, 116 S.Ct. 1529, 134 L.Ed. 2d 758 (1996) (explaining that the first two prongs of the associational standing test are constitutional, while the third prong is prudential). To establish that it has "associational standing" and can represent its members' interests in federal court, an organization must show that:

(a) its members would otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to the organization's purpose; and ( c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Lozano v. City of Hazleton, 2010 U.S. App. LEXIS 18835, at *28 (3d Cir. Pa. Sept. 9, 2010)(quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed. 2d 383 (1977)).

Importantly, "[t]he need for some individual participation [ ] does not necessarily bar associational standing under th[e] third criterion." Pa. Psychiatric Soc'y, 280 F.3d at 283. Moreover, individual participation is normally not necessary when an association does not seek monetary damages on behalf of its members. Id. at 284. Inasmuch as PDBAC and PDBA seek injunctive and declaratory relief for all their claims, standing cannot be denied on this basis.

With regard to the interests PDBAC and PDBA seek to protect, Defendants contend that said Plaintiffs are only pursuing claims on behalf of members who own kennels in Lancaster County, and no others. (Defs.' Mot. to Dismiss 6.) Relevant case law plainly states that an organization can achieve associational standing by alleging that its members "or any one of them" are suffering an injury. Pa. Psychiatric Soc'y, 280 F.3d at 283. Moreover, there appears to be no dispute that the issues presented by Plaintiffs are germane to each organization's purpose.

Lastly, Defendants challenge PDBAC and PDBA's standing on the basis that pursuing the claims of its members would require the participation of individual members; particularly with regard to their Equal Protection claim. (Defs.' Mot. to Dismiss 6.) Inasmuch as it has been held that claims should not be dismissed at the pleadings stage "before [an association is] given an opportunity to establish alleged violations without significant individual participation," denial of standing is not warranted on this basis alone. Id. at 285. However, although this Court would find that PDBAC and PDBA do have standing to bring the instant claims, the issue is ultimately rendered moot for the reasons set forth hereinbelow.*fn7

ii. Declaratory Judgment

The Declaratory Judgment Act gives the court the power to make a declaration regarding "'the rights and legal relations of any interested party seeking such declaration,' 28 U.S.C. 2201(a); it does not require the court exercise that power." Step-Saver Data Sys. Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990). "The discretionary power to determine the rights of parties before injury has actually happened cannot be exercised unless there is a legitimate dispute between the parties." Id. The basic question is "whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal ...


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