Prof'l Dog Breeders Advisory Council Inc. v. Wolff

752 F.Supp.2d 575

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.

Civil Action No. 08–4233.

United States District Court, E.D. Pennsylvania.

Nov. 3, 2010.

Leonard G. Brown, III, Clymer & Musser PC, Lancaster, PA, for Plaintiffs.Randall J. Henzes, Office of Attorney General, Philadelphia, PA, for Defendants.

MEMORANDUM

JONES, District Judge.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),¹ that Defendants ² 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.) ³

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.) ⁴ Plaintiffs allege that no non-profit kennel in Lancaster County has ever received a citation and one non-profit kennel in Region VI ⁵ 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 Fed.Appx. 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, 114 S.Ct. 687, 126 L.Ed.2d 655 (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,...