JOHN GLEESON, United States District Judge:
Plaintiff New York Pet Welfare Association, Inc. ("NYPWA") brings this action against defendants City of New York ("City"), New York City Council ("City Council"), Corey Johnson, individually and in his capacity as a New York City Councilman, and Elizabeth S. Crowley, individually and in her capacity as a New York City Councilwoman. NYPWA alleges that defendants have adopted laws that violate the Supremacy Clause, the Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the U.S. Constitution, as well as New York law that governs
The challenged laws are the result of the City Council's desire to address several related problems arising out of the sale of dogs and cats in the City: pet store sales of animals bred and kept in inhumane conditions; deceptive trade practices in connection with such sales; and an overpopulation of unwanted dogs and cats. In essence, the laws require pet stores to obtain dogs and cats from Class A licensees of the United States Department of Agriculture ("USDA") who are in good standing, and they further require pet stores to spay or neuter the animals before selling them.
Defendants move to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff fails to allege a legally cognizable cause of action. For the reasons stated below, I agree, and the motion is granted.
NYPWA's second amended complaint alleges the following facts, which I assume to be true for purposes of this motion. See, e.g., Freidus v. Barclays Bank PLC, 734 F.3d 132, 135 (2d Cir.2013) ("On a motion to dismiss for failure to state a claim on which relief can be granted, we assume the truth of the facts alleged.").
Plaintiff NYPWA is a non-profit trade association of pet stores, dog and cat breeders and dealers, veterinarians, and pet owners, several of which maintain Class A and Class B licenses granted by the USDA. Second Amended Complaint ("SAC") ¶¶ 1, 16. NYPWA is incorporated in the state of New Jersey, and its members conduct business in various jurisdictions. SAC ¶ 16. NYPWA's stated mission is to ensure that pet owners have access to healthy, humanely treated, purebred puppies and kittens, as well as to educate the public, industry professionals, and policymakers about the pet industry. Id.
The City is a municipal entity created and authorized under the laws of the State of New York. SAC ¶ 23. The City Council is the legislative body for the City. Id. at 24. Defendant Corey Johnson is a City Councilman, the Chairman of the City Council's Committee for Health, and a co-sponsor of Local Laws 5 and 7, the laws in dispute. Id. at 25. Defendant Elizabeth S. Crowley is a City Councilwoman and is the primary sponsor of Local Laws 5 and 7. Id. at 26.
The Animal Welfare Act ("AWA" or the "Act"), see 7 U.S.C. §§ 2131-2159, regulates the sale of dogs and cats in interstate commerce. It requires that any breeder who controls five or more breeding females to hold a "Class A" license
The AWA was intended, in part, "to assure the humane treatment of animals during transportation in commerce" and "to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment." 7 U.S.C. § 2131(1)-(2). Among other provisions, the Act regulates "dealers" of animals. A "dealer" is defined, inter alia, as a "person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of ... any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet." Id. at § 2132(f). Under the AWA, a dealer must possess a valid license to (1) "sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal," or (2) "buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals." Id. at § 2134. Similarly, federal regulations provide, in relevant part, that any person operating as a dealer "must have a valid license," unless the person qualifies for one of eight exceptions. 9 C.F.R. § 2.1(a)(1), (3). The regulations further provide that "[a]ny person whose license has been suspended or revoked shall not buy, sell, transport, exhibit, or deliver for transportation, any animal during the period of suspension or revocation." Id. at § 2.10(c).
In January 2015, the City enacted Local Laws 5 and 7 of 2015,
Local Law 5, as amended, requires that all pet stores hold an operating permit issued by the New York City Department of Health and Mental Hygiene.
Local Law 7, as amended, requires pet stores to sterilize any dog or cat before releasing it to a purchaser, so long as the animal is at least eight weeks old and weighs at least two pounds. See NYC Ad.Code §§ 17-802, 17-804, 17-806, and 17-814. Local Law 7 also requires that pet stores obtain a completed license application from dog purchasers and any license fees required by law. Nonetheless, a "pet shop that allows an animal shelter or animal rescue group to use such pet shop's premises for the purpose of making animals available for adoption shall be exempt from the [sterilization requirement]... provided such pet shop does not have an ownership interest in any of the animals that are made available for adoption." § 17804(f); see also SAC ¶¶ 111, 266.
NYPWA commenced this action on June 1, 2015. ECF Dkt. No. 1. On that same date I held a hearing on NYPWA's application to enjoin the City from enforcing the Pet Shop Laws pending the outcome of the case. The defendants mooted that application by voluntarily agreeing not to enforce the challenged legislation until October 31, 2015. On June 9, 2015, NYPWA filed an amended complaint. ECF Dkt. No. 4. On July 2, 2015, NYPWA sought leave to file a second amended complaint, ECF Dkt. No. 9, and I granted the request on July 6, 2015. ECF Dkt. No. 10.
NYPWA's second amended complaint alleges that the Pet Shop Laws "ban out-of-state dog and cat breeders and dealers from access to the City pet market, in violation of the Supremacy Clause, Due
Oral argument on the defendants' motion to dismiss occurred on October 9, 2015. On October 30, 2015, I granted the motion in a docket entry that stated this opinion would follow. That order mooted plaintiff's application for a preliminary injunction prohibiting enforcement of the challenged laws.
On a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation marks omitted). To survive such a motion, a complaint must plead "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 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 662, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A plaintiff's complaint "must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed." EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir.2014) (quoting Iqbal, 556 U.S. at 680, 129 S.Ct. 1937) (internal quotation marks omitted).
NYPWA's first cause of action alleges that Local Law 5 is preempted by the AWA. SAC ¶ 209-19. NYPWA asserts that Congress established the AWA to exclusively regulate and license commercial dog and cat breeders, and that Local Law 5, which is codified at NYC Ad.Code § 17-1702, impermissibly excludes Class B USDA licensees and hobby breeders from accessing the City's pet market. At bottom, NYPWA asserts that Class B licensees have an "absolute right" to sell puppies and kittens to pet shops in the City, SAC ¶ 4, and that Local Law 5 impermissibly "vitiates" the AWA licensing scheme. Id. at ¶ 217.
The Supremacy Clause of the U.S. Constitution provides that federal law "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. In determining whether preemption exists, courts must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (internal quotation marks omitted). "This assumption provides assurance that the federal-state balance will not be disturbed unintentionally by Congress or unnecessarily by the courts." Jones v. Rath Packing
The Supreme Court has identified three circumstances that demonstrate congressional intent to preempt state law: (1) where Congress expressly states its intent to do so; (2) where Congress's scheme of federal regulation is sufficiently comprehensive to give rise to a reasonable inference that it leaves no room for the state to act; and (3) where state law actually conflicts with federal law. See California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987); Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 313 (2d Cir.2005). The AWA does not expressly contemplate congressional intent to preempt state law, and the regulatory scheme is not so comprehensive that I can reasonably infer that it leaves no room for states to act.
An actual conflict between state and federal law exists when "compliance with both federal and state regulations is a physical impossibility," Guerra, 479 U.S. at 281, 107 S.Ct. 683 (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)), or where state law is "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Guerra, 479 U.S. at 281, 107 S.Ct. 683 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). There is a "presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause." Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 718, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).
First, I reject NYPWA's contention that the AWA grants Class B licensees an absolute right to sell puppies and kittens in the City. See Zimmerman v. Wolff, 622 F.Supp.2d 240, 248 (E.D.Pa.2008) ("AWA does not create an absolute right to be able to buy, sell and transport dogs in every state by virtue of having a federal license to operate in interstate commerce."). AWA sets the floor, not the ceiling, for USDA license holders. In fact, as noted above, AWA explicitly contemplates additional local legislation relating to animal welfare. See 7 U.S.C. § 2143(a)(8) ("[AWA] shall not prohibit any State (or a political subdivision of such
Second, the relevant inquiry is whether compliance with both Local Law 5 and the AWA is a "physical impossibility." Guerra, 479 U.S. at 281, 107 S.Ct. 683. NYPWA argues that Local Law 5 "fatally conflicts" with the AWA because Class B licensees will be unable to rely on their licenses or exemptions therefrom to sell dogs and cats to City pet stores. This objection, however, does not give rise to a federal preemption claim. The AWA does not give an absolute right to Class B licensees to sell animals to pet stores in the City. Nor does Local Law 5 make it physically impossible for Class B licensees to comply with the AWA. By simply not selling their animals in the City, Class B licensees satisfy both local and federal law. Moreover, Class B licensees can reduce the number of female animals on their premises and obtain a Class A license to sell their animals to pet stores in the City. Therefore, I conclude that Local Law 5 does not actually conflict with the AWA.
Ultimately, "because the States are independent sovereigns in our federal system [and] we have long presumed that Congress does not cavalierly pre-empt state-law causes of action," Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), courts "have a duty to accept the reading that disfavors pre-emption." Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005). Moreover, courts have consistently rejected claims that the AWA preempts local legislation concerning animals, even where the legislation bans activity that is otherwise authorized by the AWA. See, e.g., DeHart, 39 F.3d at 722-23 (upholding ordinance that banned ownership of dangerous and wild animals); Kerr v. Kimmell, 740 F.Supp. 1525, 1529-30 (D.Kan.1990) (concluding that the AWA did not preempt state licensing scheme for sale and breeding of dogs); Am. Canine Found. v. Sun, 2007 WL 4208358, at *5 (N.D.Cal. Nov. 27, 2007) (finding that the AWA did not preempt local ordinance that required a mandatory spaying and neutering program); Mo. Pet Breeders, 2015 WL 2448332, at *5 (upholding ordinance allowing pet stores to sell only animals obtained from Class A licensees who possess no more than five female breeding animals, noting that "[a]n ordinance is not preempted merely because it will hurt local businesses economically").
Accordingly, I dismiss NYPWA's claim alleging that Local Law 5 is preempted by federal law.
NYPWA's second cause of action alleges that the mandatory sterilization provision in Local Law 7 and the sourcing restrictions in Local Law 5 are preempted by New York State law. SAC ¶¶ 221-69. Specifically, NYPWA contends that New York General Business Law 753-d "prohibits jurisdictions from adopting local ordinances which `essentially result in the banning of all sales of dogs or cats raised and maintained in a healthy and safe manner....'" SAC ¶ 221 (quoting N.Y. Gen. Bus. § 753-d).
In relevant part, N.Y. Gen. Bus. § 753-d provides:
The last clause of the statute prohibits local jurisdictions from enacting laws that result in the banning of all sales of dogs or cats raised and maintained in a humane manner. Local Law 5 does not ban the sale of all dogs and cats — pet stores are explicitly authorized to obtain animals from certain USDA Class A licensees.
NYPWA also alleges that the Pet Shop Laws are "implicitly" preempted by New York State regulations governing the practice of veterinary medicine, pet shop licensing, and animal cruelty laws.
As a threshold matter, defendants do not dispute that New York laws "require a veterinarian to make an independent assessment of the needs of each patient and provide for their care consistent with professional standards of care." Def.'s Reply Br. at 14. Local Law 7, however, does not require a veterinarian to perform sterilization surgery. It simply mandates that no "pet shop shall release to a consumer a dog or cat that has not been sterilized." NYC Ad.Code 17-804(b). A veterinarian may opt out of performing a surgery if she so chooses, or she may avoid working with pet shops altogether.
NYPWA alleges that the "sterilization mandate in Local Law 7 makes it impossible for Pet Shops (and veterinarians) who sterilize dogs and cats before sale to comply with [certain] State laws." SAC ¶ 228. That contention rests on the theory that the Pet Shop Laws "could render the Pet Shops liable for ... future negative health effects" and "will increase the cost of business for the Pet Shops." SAC ¶¶ 229-30.
NYPWA claims that the Pet Shop Laws deprive its members of equal protection of the laws under the New York and U.S. Constitutions. It first asserts that Local Law 5 does so by prohibiting pet stores from purchasing animals from Class B licensees or unlicensed breeders, while not prohibiting such purchases from shelters and rescues. SAC ¶ 262. NYPWA next claims that Local Law 7 violates equal protection principles by requiring pet stores to sterilize dogs and cats before they are sold, while permitting exemptions from that requirement for shelters and not requiring rescues to sterilize animals at all. SAC ¶ 263. In sum, NYPWA alleges that through the Pet Shop Laws, the City "favor[s] one source of puppies (Shelters and Retail Rescues) over others (Pet Shops)," SAC ¶ 9, in violation of state and federal equal protection laws. I consider these claims together, as state and federal equal protection claims are analyzed under the same framework. See Under 21 v. City of New York, 65 N.Y.2d 344, 360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1 (1985) (holding that New York's Equal Protection Clause "is no broader in coverage than the Federal Provision").
The Equal Protection Clause of the Fourteenth Amendment is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Latrieste Rest. v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir.1999). Here, NYPWA bases its equal protection claim primarily on a theory of "selective enforcement." SAC ¶ 261-70. "[T]o establish a violation of equal protection based on selective enforcement, the plaintiff must ordinarily show (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as ... intent to inhibit or punish the exercise of constitutional rights." Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 15-17 (2d Cir.1999) (quotations and citations omitted).
"A showing that the plaintiff was treated differently compared to others similarly situated" is a prerequisite to a selective treatment claim. Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir.2004). There is, however, disagreement within the Second Circuit regarding the precise standard for determining whether comparators are similarly situated for such a claim. Some courts have held that the plaintiff must "establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government
Under the more lenient pleading requirement, NYPWA must adequately allege that its proffered comparators are similarly situated in all material respects and that a prudent person would think them roughly equivalent.
I agree that NYPWA's alleged facts do not make its claim that pet stores are "similarly situated" to shelters or rescues plausible. While all three types of entities "transfer the ownership of cats and dogs to consumers for payment," SAC ¶ 116, such a high level of generality fails to serve as a meaningful comparator for an equal protection challenge. "[T]hat is like saying a homeless shelter is similarly situated
Even assuming, however, that NYPWA had pleaded facts sufficient to warrant a reasonable inference that pet stores are similarly situated to shelters and rescues and that pet stores are subject to selective adverse treatment, its equal protection claims would still fail. Such claims also require a showing that "the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure."
When a party challenges a government classification that does not involve a suspect class or burden fundamental rights, courts apply rational basis scrutiny. The classification will be constitutional so long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 219 (2d Cir.2012) (citing FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Challenged classifications are entitled to "a strong presumption of validity." Beach Commc'ns, 508 U.S. at 314-15, 113 S.Ct. 2096. The party attacking a classification's rationality bears the burden of negating "every conceivable basis which might support it." Armour v. City of Indianapolis, Ind., ___ U.S. ___, 132 S.Ct. 2073, 2080, 182 L.Ed.2d 998 (2012) (internal citation and quotation marks omitted); accord Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 136 (2d Cir.2013).
Thus, NYPWA's equal protection claims must be rejected "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (internal quotation marks omitted); accord Benjamin v. Jacobson, 172 F.3d 144, 165 (2d Cir.1999) (en banc). Here, the City seeks to reduce pet homelessness and euthanasia. By permitting pet stores to sell animals obtained only from Class A licensees, the Pet Shop Laws could arguably reduce dog homelessness and euthanasia.
Because there is a rational basis for the City to classify pet stores differently from shelters and rescues, and the factual allegations in the second amended complaint do not make a contrary conclusion plausible, I dismiss NYPWA's equal protection claims. See Chestnut Ridge Associates, LLC v. Vill. of Chestnut Ridge, 194 Fed. Appx. 76, 77 (2d Cir.2006) (holding that the "complaint fails to allege sufficient facts to support the second prong of the equal protection pleading requirement — that there was no rational basis for the difference in treatment alleged" (internal quotation marks omitted)); see also Rosa v. City Univ. of N.Y., 306 Fed.Appx. 655, 657 (2d Cir.2009) (affirming district court's 12(b)(6) dismissal of equal protection claim).
NYPWA alleges that the Pet Shop Laws violate the dormant Commerce Clause, arguing that the laws impermissibly regulate extraterritorially and favor local interests.
The Commerce Clause provides that "Congress shall have Power ... [t]o regulate Commerce with foreign Nations and among the several States...." U.S. Const. Art. I, § 8, cl. 3. In addition, under the so-called "dormant" Commerce Clause doctrine, courts have "long interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute." United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 337, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007); see Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 337-38, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) ("The modern law of what has come to be called the dormant Commerce Clause is driven by concern about `economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors'" (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988))).
A state or local regulation may violate the dormant Commerce Clause in three circumstances. First, a statute that clearly discriminates against interstate commerce in favor of intrastate commerce is "virtually invalid per se," Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 108 (2d Cir.2001), and can survive only if the discrimination is "demonstrably justified by a valid factor unrelated to economic protectionism," Wyoming v. Oklahoma, 502 U.S. 437, 455, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992). Second, if the statute does not explicitly discriminate against interstate
"A clearly discriminatory law may operate in three ways: (1) by discriminating against interstate commerce on its face; (2) by harboring a discriminatory purpose; or (3) by discriminating in its effect." Town of Southold v. Town of E. Hampton, 477 F.3d 38, 48 (2d Cir.2007) (internal citations omitted). Here, the Pet Shop Laws do not facially discriminate against interstate commerce. Additionally, NYPWA does not allege facts sufficient to support an inference that the Pet Store Laws harbor a purpose to discriminate specifically against out-of-state actors.
NYPWA further contends that the Pet Shop Laws discriminate against interstate commerce in "practical effect" by prohibiting pet stores from purchasing animals from out-of-state Class B licensees. See SAC ¶¶ 275-76. Notably absent from the complaint, however, is the fact that in-state Class B licensees are also prohibited from selling their animals to City pet stores. See NYC Ad.Code § 17-1702(a). Additionally, the Pet Shop Laws permit pet stores to acquire animals from out-of-state Class A licensees and out-of-state animal rescue organizations. Id.; see also id. at § 17-814(b). At best, NYPWA's allegations suggest that some out-of-state breeders might lose City sales if they fail to modify their professional practices to comply with the Pet Shop Laws. But "the fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce." Exxon Corp. v. Governor of Md., 437 U.S. 117, 126, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978); accord Perfect Puppy,
Under the Pike balancing test, a nondiscriminatory regulation that "regulates even-handedly to effectuate a legitimate local public interest," Pike, 397 U.S. at 142, 90 S.Ct. 844, is nevertheless unconstitutional if "the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits." United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 346, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007) (internal quotation marks omitted). Nonetheless, "a burden that seems incommensurate to the statute's gains survives Pike as long as it affects intrastate and interstate interests similarly — the similar effect on interstate and intrastate interests assuaging the concern that the statute is designed to favor local interests." Brown & Williamson Tobacco Corp. v. Pataki, 320 F.3d 200, 209 (2d Cir.2003). Here, the Pet Shop Laws prohibit pet stores from purchasing dogs or cats from Class B licensees regardless of whether those licensees are from New York or out-of-state. Thus, the laws affect intrastate and interstate interests similarly. Moreover, the City has a legitimate interest in promoting the humane treatment of dogs and cats within its borders. See Hughes v. Oklahoma, 441 U.S. 322, 337, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (protecting wild animals is a legitimate local interest); Cavel Int'l, Inc. v. Madigan, 500 F.3d 551, 557 (7th Cir.2007) ("States have a legitimate interest in prolonging the lives of animals that their population happens to like.").
The Pike balancing test does not invite courts to second-guess legislatures by estimating the probable costs and benefits of the statute, nor is it within the competency of courts to do so. An "excessive" burden in this setting is a burden on interstate commerce that is different from the burden imposed on intrastate commerce. Sorrell, 272 F.3d at 109; see id. ("[T]o run afoul of the Pike standard, the statute ... must impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate commerce"). Plaintiff's allegations do not support an inference that the Pet Shop Laws impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate commerce, much less a burden that is incommensurate to the local benefits of the challenged laws.
Finally, I reject NYPWA's allegation that the Pet Shop Laws have the practical effect of extraterritorial control of commerce occurring entirely outside the boundaries of New York. See, e.g., Healy, 491 U.S. at 332, 109 S.Ct. 2491 ("[A] regulation may disproportionately burden interstate commerce if it has the practical effect of requiring out-of-state commerce to be conducted at the regulating state's direction."); Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 582, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986) (noting that local laws may not "project its legislation into other States"). NYPWA's extraterritoriality argument fails because the Pet Shop Laws do not
Ultimately, even accepting all of the plaintiff's factual allegations as true, they fail to support an inference that the Pet Shop Laws are acts of economic protectionism. Rather, they are an attempt to curb the problems associated with the inhumane treatment of animals and local pet homelessness and euthanasia. NYPWA's allegations that the Pet Shop Laws violate the Dormant Commerce Clause therefore fail as a matter of law.
NYPWA alleges that the Pet Shop Laws violate procedural and substantive due process. See SAC ¶¶ 244-58. Specifically, it contends that its members' substantive due process rights were violated "by [the defendants] infringing upon [their] rights under their licenses irrationally, arbitrarily, and in utterly bad faith." Pl.'s Opp. Br. at 32. NYPWA also claims that that the defendants violated "procedural due process rights by terminating licensure rights without notice or a hearing." Pl.'s Opp. Br. at 38.
To sustain a substantive due process claim, a plaintiff must demonstrate that he was deprived of a fundamental constitutional right, see Local 342, Long Island Pub. Serv. Emp., UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir.1994), by government action that is arbitrary or "conscience-shocking," Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Substantive due process protections extend only to those interests that are "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Reno v. Flores, 507 U.S. 292, 303, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (internal quotation marks omitted). In sum, substantive due process "protects individuals against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised." Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (internal citations and quotation marks omitted).
The first step in substantive due process analysis is to determine whether the plaintiff has alleged the violation of a fundamental right. NYPWA's allegations fail to meet this threshold requirement. As stated earlier, the AWA does not grant USDA Class A and Class B license holders an absolute right to sell animals in the City. Moreover, the Pet Shop laws do not interfere with these federally-granted licenses; NYPWA members retain their licenses irrespective of the Pet Shop Laws. Therefore, the challenged laws do not interfere with any cognizable property interest. Accordingly, in the absence of factual allegations supporting the existence of a constitutionally-protected right, NYPWA's substantive due process claim necessarily fails.
The Fourteenth Amendment requires that "[n]o state shall ... deprive any person of ... property, without due process of law." Procedural due process claims are analyzed under a two-step inquiry: first, a court must determine "whether there exists a ... property interest of which a person has been deprived." Swarthout v. Cooke, 562 U.S. 216, 218, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011), and, if so, a court must "ask whether the procedures followed by the State were constitutionally sufficient." Id.; accord Oneida Indian Nation of New York v. Madison Cty., 665 F.3d 408 (2d Cir.2011).
Typically, procedural due process requires that "a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (internal quotation marks omitted). Certain due process protections are not required, however, when the government takes legislative action. See Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir. 1994) ("Official action that is legislative in nature is not subject to the notice and hearing requirements of the due process clause."); see also RR Vill. Ass'n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1204 (2d Cir.1987). The Supreme Court has not recognized a constitutional right to participate directly in legislative action because of the "massive intrusion into state and federal policymaking" that would result. Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 284-85, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). "Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard." Id. at 285, 104 S.Ct. 1058. "Instead, the public may influence the legislative process by effectuating its power over those elected officials through, inter alia, the electoral process." Kittay v. Giuliani, 112 F.Supp.2d 342, 353 (S.D.N.Y.2000), aff'd, 252 F.3d 645 (2d Cir. 2001).
NYPWA fails to plead facts sufficient to give rise to a claim that its members were deprived of a property interest.
Finally, NYPWA alleges that City Councilmembers Corey Johnson and Elizabeth Crowley violated 42 U.S.C. § 1985 by agreeing, "through concerted, overt action to deprive NYPWA's members of their rights for equal protection and equal privileges and immunities under law, causing injury or depriving NYPWA's members of their rights." Pl.'s Opp'n Br. at 40-41; see SAC ¶¶ 6, 186-208, 204-05, 284-93, Exs. 10, 12, 14, 27, 28.
To state a cause of action under § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). The issue of "whether the plaintiff has asserted a violation of a constitutional right at all" is a "purely legal question." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). If the complaint does not allege a cognizable federal claim, the defendants are entitled to have their motion to dismiss granted as a matter of law. See, e.g., id.; Mitchell v. Forsyth, 472 U.S. 511, 525-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The conspiracy must also be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Id. at 829, 103 S.Ct. 3352; accord Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999).
This claim fails for several reasons. First, as indicated elsewhere in this memorandum and order, the complaint does not allege a viable constitutional claim, much less a conspiracy to violate constitutional rights.
Second, though the second amended complaint alleges "participation" in a "conspiracy," those are conclusory allegations that are insufficient to state a claim.
Third, legislators enjoy absolute immunity for legislative acts, regardless of their motivation. See generally Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) ("Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it."); Tenney v. Brandhove, 341 U.S. 367, 371, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislator entitled to absolute immunity for allegedly singling out plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights" (internal quotation marks omitted); "[t]he claim of an unworthy purpose does not destroy the privilege"; it is "not consonant with our scheme of government for a court to inquire into the motives of legislators" acting in their legislative capacity).
Finally, this cause of action is based on plaintiff's members' disagreements with these legislators' views on the merits of the animal welfare and control issues that gave rise to the challenged laws. The individual defendants wrongly consider all for-profit commercial dog breeders to be "puppy mills," the second amended complaint alleges, and their real but undisclosed intention is to bring about the "demise" of puppies in the City. See SAC ¶¶ 127, 287, 292. It is no slight to the City Council to say that if an incorrect material statement by a legislator, or a pernicious ulterior motive for a proposed law, could support a claim under section 1985, there would likely be no end to such lawsuits. Plaintiff misapprehends the difference between an impermissible law — one that offends federally protected constitutional rights — and an ill-advised one, or one that is based on factual misconceptions or bad motives of the legislators who enacted it. Even accepting as true all of plaintiff's factual allegations here, the laws they challenge fit only in the latter categories, and thus plaintiff may not obtain any relief in this Court.
For the reasons stated above, the motion to dismiss the claims is granted and the motion for preliminary injunction is denied.
So ordered.
