Mo. Pet Breeders Ass'n v. Cnty. of Cook

119 F.Supp.3d 865

Missouri Pet Breeders Association, Starfish Ventures, Inc. d/b/a Petland of Hoffman Estates, Dan Star, and Janet Star; Happiness Is Pets of Arlington Heights, Inc., Ronald Berning; J & J Management, Inc. d/b/a Petland of Chicago Ridge, and James Maciejewski, Plaintiffs,

v.County of Cook, Toni Preckwinkle, and Donna Alexander, Defendants.

No. 14 C 6930

United States District Court, N.D. Illinois, Eastern Division.

Signed August 7, 2015

David J. Fish, Sarmistha Banerjee, The Fish Law Firm, P.C., Naperville, IL, Monica Fazekas, Leahy Eisenberg and Fraenkel, Ltd., Chicago, IL, for Plaintiffs.

Jayman A. Avery, III, Kent Stephen Ray, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiffs, the Missouri Pet Breeders Association (MPBA) and three Cook County pet shops and their owners, have sued Cook County, the President of the Cook County Board of Commissioners, and the Director of Cook County Animal & Rabies, alleging that a Cook County ordinance violates the United States and Illinois Constitutions. Defendants have moved to dismiss the second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court grants defendants' motion to dismiss for the reasons stated below.

Background

For purposes of the motion to dismiss, the Court accepts as true the facts alleged in plaintiffs' complaint. See Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir.2014). The Court set forth a detailed description of the allegations in its May 21, 2015 decision granting the defendants' motion to dismiss the first amended complaint. See Mo. Pet Breeders Ass'n v. Cty. of Cook, No. 14 C 6930, 106 F.Supp.3d 908, 912–14, 2015 WL 2448332, at *1–2 (N.D.Ill.2015). The Court will provide a general overview and will highlight relevant amendments in its discussion of the individual claims.

The Cook County Board of Commissioners passed the Cook County Companion Animal and Consumer Protection Ordinance (Ordinance No. 14–2408) in April 2014. The ordinance regulates the sales of dogs, cats, and rabbits by pet stores located in Cook County, Illinois. Under the ordinance, a "pet shop operator" may only sell animals obtained from a breeder that (among other requirements) holds a USDA class "A" license and "owns or possesses no more than five (5) female dogs, cats, or rabbits capable of reproduction in any twelve (12) month period." Cook County, Ill., Rev. Ordinances ch. 10, art. I, § 10–13(a)(3) (2014).¹ The ordinance exempts local not-for-profit and government-run entities. Id. §§ 10–13(a)(1), 10–13(b). Accordingly, those entities can sell pets directly to consumers and pet stores without regulation.

Plaintiffs in this case are the Missouri Pet Breeders Association (MPBA), a professional organization that advocates for the interests of its member pet breeders, and three Cook County pet shops and their owners. The pet stores claim that they will go out of business if the ordinance takes effect, because there are not enough breeders that meet the ordinance's requirements to supply Cook County pet stores with the desired number of specialty pets. Plaintiffs also claim that the ordinance will impact out-of-state breeders, including the Missouri breeders who MPBA represents. Even though breeders are not directly regulated, the ordinance would effectively ban local pet shops from selling pets imported from many out-of-state breeders. Plaintiffs also contend that breeders outside of Illinois will lose business in the following way: the ordinance does not regulate breeders' direct sales to consumers, so breeders without licenses can sell to Cook County residents without restriction. Thus, Cook County residents who want specialty breeds and cannot find them at Cook County pet stores (because their supply will be essentially wiped out) will instead purchase dogs directly from breeders. According to plaintiffs, Cook County consumers will be more likely to buy from in-state breeders, as few will be willing to travel to another state to purchase an animal. Thus, out-of-state breeders will lose business to Illinois breeders.

In their second amended complaint, plaintiffs claim that the ordinance is invalid under the U.S. Constitution because it violates the Commerce Clause (counts 1, 2, 4, 5), the Foreign Commerce Clause (count 3), the Equal Protection Clause (count 6), and the Contract Clause (count 9). (Only the pet shop plaintiffs allege violations of the Contract Clause and the Foreign Commerce Clause.) Plaintiffs also contend that the ordinance is impermissibly vague (count 8), is preempted by federal law (count 10), and is preempted by Illinois law and violates Article VII of the Illinois Constitution (count 7). They ask the Court to enter an order invalidating the ordinance and enjoining the County from enforcing it.

Discussion

When considering a motion to dismiss under Rule 12(b)(6), the Court accepts a plaintiff's allegations as true and draws reasonable inferences in its favor. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir.2010). In order to state a viable claim, a plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible on its face if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Plaintiffs' Equal Protection Clause and Contract Clause claims, which the Court dismissed in its order dated May 21, 2015, have not changed. Accordingly, the Court reaffirms its dismissal of those claims. See Mo. Pet Breeders Ass'n, 106 F.Supp.3d at 918-20, 923–25, 2015 WL 2448332, at *6–7, *10–11.

A. Foreign Commerce Clause

The Court previously held that the pet store plaintiffs did not have standing to raise a Foreign Commerce Clause claim, "because none of them have alleged that they actually purchase animals from foreign breeders." Id. at 915–16, at *4. Plaintiffs amended their complaint to allege that "Happiness [Is Pets] has in fact purchased dogs from Europe in the past." Second Am. Compl. ¶ 114. Although the pet stores do not buy foreign pets now, they say that if the ordinance becomes effective, they will not be able to obtain the number of specialty dogs they need from American breeders because not enough American breeders meet the ordinance's requirements. Thus, they will have to try to "purchase animals from reputable breeders outside the United States, such as from Canada or Europe." Id. But the pet stores will be prevented from doing so because foreign pet breeders cannot obtain the required USDA licenses. Id. ¶ 115.

The pet stores do not have standing to raise this claim. To satisfy the injury-in-fact requirement in a pre-enforcement action, the plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute." Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 590–91 (7th Cir.2012). The pet stores do not actually intend to purchase pets from foreign breeders. Rather, they will attempt to do so only in the event that they cannot obtain enough pets from American breeders due to the ordinance. Plaintiffs have failed to allege that they are in immediate danger of sustaining direct injury or that foreign interests will be affected if the ordinance becomes effective, as is necessary to show standing. See Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).

This is perhaps better understood as a ripeness issue. Although the parties have not briefed the issue, "the question of ripeness may be considered on a court's own motion." Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). "As compared to standing, ripeness assumes that an asserted injury is sufficient to support standing, but asks whether the injury is too contingent or remote to support present adjudication." 13B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3532.1 (3d ed. 1998). The Foreign Commerce Clause claim is not ripe for review, as it involves "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation marks omitted). For a claim to be ripe, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough." Id. at 581, 105 S.Ct. 3325. But the alleged injury is not "certainly impending" in this case. The pet stores' claim that they will be forced to try to buy foreign animals is speculative at best. They have not alleged facts that make plausible their contention that they will not be able to meet the demand for specialty pets within the United States. Nor have plaintiffs identified what foreign interests might be threatened under the Ordinance. They say nothing about the market for foreign-sourced animals in the United States. From what is alleged in the complaint, it appears that pet stores only rarely obtain animals from abroad. The impact on foreign commerce, if any, is thus speculative and indirect.

In sum, because the possibility of injury to foreign interests is too remote and indirect, the pet stores' Foreign Commerce Clause claim is not ripe.

B. Vagueness

Plaintiffs allege that multiple provisions in the ordinance are unconstitutionally vague. Apart from the provision the Court discusses below, plaintiffs' vagueness arguments remain unchanged from their previous complaint. The Court has already rejected those arguments and will not address them again. See Mo. Pet Breeders Ass'n, 106 F.Supp.3d at 924–27, 2015 WL 2448332, at *11–12.

Pl...