MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Joseph Weigel sued the State of Maryland and Armistead Homes Corporation ("Armistead") for declaratory and injunctive relief. ECF No. 1. On September 12, 2012, Weigel moved for a temporary restraining order ("TRO") and preliminary injunction. ECF Nos. 2, 3. On October 15, 2012, Weigel and others1 (collectively, the "Plaintiffs") filed an amended, class action complaint. ECF No. 20. On October 25, 2012, the Plaintiffs filed a second motion for a TRO and preliminary injunction. ECF No. 22. On November 7 and 8, 2012, the Defendants moved to dismiss. ECF Nos. 25, 28. No hearing is necessary. See Local Rule 105.6 (D.Md.2011). For the following reasons, the State Defendants' motion to dismiss will be granted; all other pending motions will be denied as moot.

I. Background2

A. Armistead

Armistead is a nonprofit, nonstock cooperative housing corporation that owns, in fee simple, about 1500 residential properties in Baltimore, Maryland. ECF No. 16-1 ¶ 3; ECF No. 20 ¶ 34. Membership in Armistead is open to persons who enter into a leasehold agreement3 for one of the properties. ECF No. 20 ¶ 34. Each lease is for a 99-year term, with two options to renew. See ECF No. 16-2 at 2 (Part I). Upon entering the agreement, members pay a membership fee and a downpayment on the "[d]welling [p]rice" of their homes. See id. (Part II). Members also submit monthly payments to Armistead, which include part of the outstanding balance of the dwelling price plus interest, repayment of home-related loans, and operating charges set by Armistead's board of directors. See id. (Part III). "There is no doubt that a membership in [Armistead], together with the related leasehold interest in a dwelling unit, constitutes a property interest." 85 Md. Op. Att'y Gen. 265, 267 (2000).

In exchange for membership, members are

ECF No. 16-6 at 2.

Under the Dwelling Leasehold, a member "defaults" when he "default[s] in the performance of any of the covenants, or agreements or conditions on the part of the Member to be preformed [sic] under this Dwelling Leasehold." ECF No. 16-2 at 3 (Part IV(5)). The Dwelling Leasehold incorporates, by reference, the Conditions of Dwelling Leaseholds (the "Conditions"). ECF No. 16-2 at 2 (Part I).4 Accordingly, failure to comply with the Conditions is a default. The Conditions provide:

ECF No. 16-3 at 2 (¶ 5(c)).

Upon a member's default, Armistead must provide him with notice of the default5 and an opportunity to "cure."6 ECF No. 16-2 at 3 (Part V). Failure to cure authorizes Armistead to file suit for breach of lease and eviction. See generally Md.Code Ann., Real Prop. § 8-402.1; 85 Md. Op. Att'y Gen. at 267-70.7

B. The Plaintiffs

The Plaintiffs and the proposed class are members and leaseholders of Armistead and, accordingly, "assumed and agreed to become bound by all the covenants of [D]welling [L]easeholds, pertaining to the respective premises." ECF No. 20 111136, 49; ECF No. 22-1 at 3. Each owns one or more licensed dogs "believed to be" pit bulls or pit bull mixes. ECF No. 20 ¶¶ 20-22, 39-40. Under Maryland law, licensed dogs are "personal property." Md.Code Ann., Art. 24 § 11-506.

C. Tracey v. Solesky

1. The April 26, 2012 Decision

Tracey v. Solesky ("Tracey") arose from a pit bull attack on a young boy named Dominic Solesky.8 Having sustained "life threatening injuries" during the attack, Solesky underwent multiple surgeries and spent a year in rehabilitation. Tracey, 50 A.3d at 1078. On March 24, 2008, Solesky's parents sued the dog's owners and the landlord of the property from which the dog had escaped, in the Circuit Court for Baltimore County. Solesky v. Tracey, 198 Md.App. 292, 17 A.3d 718, 720 (2011). The plaintiffs asserted negligence and strict liability claims against all defendants, and additional assault and battery claims against the dog's owners. Id. at 723 & n. 3. The claims against the owners were discharged in bankruptcy. Id. at 720.

At the close of the plaintiffs' case, the court granted the defendant landlord's motion for judgment. Tracey, 50 A.3d at 1078. The court held that that there was insufficient evidence of negligence9 to present the case to the jury. Id. The Maryland Court of Special Appeals reversed, holding that the evidence created a jury issue about the extent of the landlord's prior knowledge of the dog's dangerousness. Id.

On April 26, 2012, the Court of Appeals of Maryland affirmed and directed the Court of Special Appeals to remand for a retrial. Tracey, 50 A.3d at 1089-90. The court recognized that the trial judge had correctly applied the then-prevailing standard of negligence to the landlord's conduct. Id. at 1078. However, the court decided to "modify[ ]" that standard, "as it relates to attacks by pit bull and crossbred pit bull dogs against humans." Id. at 1079. Under the court's new rule,

Id. at 1089.

This modification was warranted, the court reasoned, because of pit bulls'"aggressive and vicious nature" and "capability to inflict serious and sometimes fatal injuries," Tracey, 50 A.3d at 1080. The court relied upon "strong dicta" in Matthews v. Amberwood Associates Ltd. Partnership, Inc.10; a 2000 report on dog attacks in the Journal of the American Veterinary Medical Association11; a 2011 article in the Annals of Surgery12; Mortality and Morbidity weekly, reports by the Centers for Disease Control13; and caselaw from other jurisdictions. See id. at 1083-89. The court also emphasized that at least 10 other states have "some form of state-strict liability statute in which the finding of dangerousness of the particular attacking dog is not necessary to establish [liability]." Id. at 1089.

Judge Greene14 wrote a lengthy dissent. He contended, inter alia, that Tracey's new rule was "grounded ultimately upon perceptions of a majority of this Court about a particular breed of dog, rather than upon adjudicated facts showing that the responsible party possessed the requisite knowledge of the animal's inclination to do harm." Tracey, 50 A.3d at 1090 (Greene, J., dissenting). Those perceptions transformed "a clear factual question into a legal one in an effort to create liability." Id. Judge Greene argued that the transformation was particularly problematic given the disputed accuracy of dog bite statistics and the lack of expert testimony on pit bulls' allegedly inherent dangerousness. Id. at 1090-91. In light of this conflicting evidence, he concluded that "[t]he issues raised involving breedspecific regulation are not appropriate for judicial resolution; rather, those issues are best resolved by the Maryland General Assembly."15

2. The August 21, 2012 Reconsideration

On May 25, 2012, the defendant landlord moved for reconsideration, arguing that "the imposition of a `new duty' on landlords was fundamentally unfair and unconstitutional as applied."16 On August 21, 2012, the court granted the motion in part and denied it in part. Tracey, 50 A.3d at 1098. The court denied the motion "[a]s to the Court's holding with respect to pit bulls," explaining that "there is [no]thing unconstitutional or unfair about holding Ms. Tracey liable for the gruesome damage done to Dominic Solesky by a pit bull that she knowingly ... allowed her tenant to keep on her property." Id. at 1096-97. The court emphasized that its April 26, 2012 decision was "not as dramatic and pervasive as the [landlord's] motion claim[ed]" because it neither "prohibit[ed] the ownership or breeding of pit bulls" nor "require[d] that persons who own such dogs get rid of them." Id. at 1097.17 Instead, the decision "simply requires that those who possess [pit bulls] or permit [pit bulls] to be on their property take reasonable steps to assure that they do not run loose or otherwise are in a position to injure other people." Id.

However, the court granted the motion in part to delete any reference to crossbred pit bulls, "so that the Court's holding would apply only to pit bulls that are not cross-breds." Tracey, 50 A.3d at 1097. The court gave two reasons for this amendment. First, there was "never any assertion, suggestion, or finding in this case that the dog was a cross-bred." Id. Second, "it is not at all clear what `crossbred' really means." Id.

3. Tracey's Aftermath

Before the April 26, 2012 Tracey decision, Armistead's "Handbook for Member-Residents" permitted members' ownership of "no more than two animals." ECF No. 20 ¶ 41. The Handbook did not prohibit pit bulls. Id. At a June 7, 2012 meeting, Armistead's board of directors considered a motion that no pit bull or cross-bred pit bull be permitted on Armistead's premises, and that any leaseholder who "caused" or "allows" any such dog to be brought onto the premises "shall have committed a material breach of the Dwelling Leasehold and the Conditions of Dwelling Leasehold." ECF No. 16-1 ¶ 4. The motion passed unanimously. Id. By August 10, 2012 letter, Armistead President Sharon Vick notified members of the new rule:

ECF No. 16-4 at 2 (emphasis in original).18 Armistead did not define "pit bull." See id. As of September 26, 2012, Vick swore that Armistead had not given notice of default to—or sued to evict—any member based solely on his pit bull ownership. ECF No. 16-1 ¶¶ 5-6.

The Plaintiffs assert that they and the proposed class "subsist on an extremely low income and cannot afford to pay the rents charged elsewhere" and "will be forced to sleep in parks, under bridges, or in their cars, or to set up tents or trailers in the woods" if evicted. ECF No. 20 ¶¶ 1, 37.19 Further, the Executive Director20 of the Baltimore Animal Rescue and Care Shelter, Inc. ("BARCS") swears that 500 dogs may be "implicated by" Armistead's decision to ban pit bulls,21 and indicates:

ECF No. 20-1 118. The Plaintiffs stress that, if BARCS closes, the public "will not be able to bring in sickly animals that are infected with contagious diseases, posing a serious public health risk to both people and animals." ECF No. 22-1 at 2. They conclude that immediate action is necessary to prevent these "looming catastrophic consequences." Id. at 3.

D. Procedural History

On September 12, 2012, Weigel sued the State of Maryland and Armistead for declaratory and injunctive relief. ECF No. 1.22 Also on September 12, Weigel moved for a TRO and preliminary injunction. ECF Nos. 2, 3. The parties could not reach a standstill agreement. See ECF Nos. 7, 9, 10, 11. On September 27, 2012, the State opposed Weigel's first motion for a TRO. ECF No. 14.23 On September 28, 2012, Armistead opposed Weigel's first motion for a TRO. ECF No. 16.24 On October 15, 2012, the Plaintiffs filed an amended, class action complaint for declaratory and injunctive relief. ECF No. 20.25 On October 25, 2012, the Plaintiffs filed a second motion for a TRO and preliminary injunction. ECF No. 22. The Plaintiffs filed a supplement to the motion on October 28, 2012. ECF No. 24. On November 7, 2012, the State Defendants moved to dismiss. ECF No. 25. On November 8, 2012, the Defendants opposed the Plaintiffs' second motion for a TRO and preliminary injunction. ECF Nos. 27, 29. Also on November 8, Armistead moved to dismiss. ECF No. 28. On December 17, 2012, the Plaintiffs opposed the motions to dismiss and replied in support of their motions for a TRO and preliminary injunction. ECF No. 34. On January 2, 2013, the Defendants replied in support of their respective motions to dismiss. ECF Nos. 35, 36.

II. Analysis

A. Legal Standards

1. Subject Matter Jurisdiction

Under Fed.R.Civ.P. 12(b)(1), the Court must dismiss an action if it discovers it lacks subject matter jurisdiction. The plaintiff has the burden of proving the Court has jurisdiction, and the Court must make all reasonable inferences in the plaintiff's favor. Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003), aff'd, 85 Fed.Appx. 960 (4th Cir.2004). The Court may "look beyond the pleadings" to decide whether it has subject matter jurisdiction, but it must presume that the factual allegations in the complaint are true. Id.

2. Failure to State a Claim

Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).

The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir.2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003). These facts must be sufficient 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).

This requires that the plaintiff do more than "plead[ ] facts that are `merely consistent with a defendant's liability'"; the facts pled must "allow[ ] 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) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679, 129 S.Ct. 1937 (internal quotation marks omitted). "Whe[n] 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." Id. (internal quotation marks and alteration omitted).

"The determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court."26 "[P]leading is [not] a game of skill in which one misstep by counsel may be decisive to the outcome ... the purpose of pleading is to facilitate a proper decision on the merits." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (internal quotation marks omitted). When a plaintiff fails to state a claim, he "should generally be given a chance to amend the complaint .. before the action is dismissed with prejudice."27 But, dismissal with prejudice is proper if there is no set of facts the plaintiff could present to support his claim. See, e.g., Cozzarelli v. Inspire Pharm., Inc., 549 F.3d 618, 630 (4th Cir.2008).

B. The Motions to Dismiss

The State Defendants move to dismiss on the grounds that the Plaintiffs' Due Process claims (Counts I-IV, VII, VIII) are barred by the Eleventh Amendment; Chief Judge Bell and the judges of the Court of Appeals have absolute immunity from the Plaintiffs' claims for injunctive relief; the Plaintiffs have failed to allege any claim against the State officials; the Plaintiffs lack standing to bring their voidfor-vagueness claims (Counts I, II, VII); the Plaintiffs' Takings claims (Counts V, VI, IX) are not ripe for review; and the amended complaint, as a whole, fails to state a claim on which relief can be granted. ECF No. 25.28 Armistead separately argues that, as a non-government actor, it is incapable of violating the Plaintiffs' constitutional rights. ECF No. 28. Armistead further argues that no taking has occurred. Id.

The Plaintiffs contend that the State Defendants are "proper parties" under Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010); the Takings claims are constitutionally cognizable; the Ex parte Young29 exception to Eleventh Amendment immunity applies to their Due Process claims; the Takings claims are ripe for review; and the complaint adequately alleges each claim. ECF No. 34.30

"Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). As with subject matter jurisdiction generally, Khoury, 268 F.Supp.2d at 606, the burden of proof "lies squarely on" the Plaintiffs to show that they have standing to invoke federal jurisdiction, and their claims are ripe for review.31

1. Standing and Ripeness

a. Standing

There are two parts of standing: Article III standing, which ensures that a suit presents a "case" or "controversy" as required by the Constitution, and "prudential standing," which encompasses "judicially self-imposed limits on the exercise of federal jurisdiction." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).32 To satisfy the "irreducible constitutional minimum of standing," Weigel, Profili, and Gangi must demonstrate that they suffered an actual or threatened concrete injury that is fairly traceable to the challenged conduct and likely to be redressed by a favorable decision. McBurney v. Cuccinelli, 616 F.3d 393, 402 (4th Cir.2010); see Warth v. Seldin, 422 U.S. 490, 502-03, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (evaluating class action standing by reference to the representative plaintiffs).

i. Injury in Fact

To satisfy Article Ill's "injuryin-fact" requirement, the Plaintiffs must show an "invasion of a legally protected interest," that is (1) concrete and particularized, and (2) "actual or imminent." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). When a plaintiff seeks prospective relief, he must show a continuing injury; standing for retrospective relief can be based on past injuries alone33 A plaintiff "may have standing even if [he] ha[s] never been prosecuted or actively threatened with prosecution," Dias, 567 F.3d at 1178 n. 8, so long as the challenged regulation poses a "sufficiently direct threat of personal detriment" to him, Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).34 Consistent with this requirement, "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).35

Here, the Plaintiffs are all members of Armistead and licensed owners of dogs whom they "believe[ ] to be" pit bulls or pit bull mixes. ECF No. 20 ¶¶ 20-22, 36, 49. Licensed dogs are "personal property" under Maryland law. Md.Code Ann., Art. 24 § 11-506. And, "[t]here is no doubt that a membership in [Armistead], together with the related leasehold interest in a dwelling unit, constitutes a property interest." 85 Md. Op. Att'y Gen. 265, 267 (2000). Before the Tracey decision, Armistead's "Handbook for Member-Residents" permitted members to own "no more than two animals." ECF No. 20 ¶ 41. Because of the decision in Tracey, Armistead's board of directors passed a motion that no pit bull or cross-bred pit bull be permitted on Armistead's premises. ECF No. 16-1 114. The Board may take legal action, including termination, against leaseholders who fail to comply with the ban. ECF No. 16-4 at 2. By August 10, 2012 letter, Armistead President Sharon Vick notified members of the new rule. Id. Armistead avers it will "follow its procedures and give at least 20 days' notice to any leaseholder before initiating action against any leaseholder for any issue relevant to this case." ECF No. 29 at 2. Thus, at any moment and with fewer than three weeks' notice, Armistead—in reliance on Tracey—may require the Plaintiffs to relinquish their dogs or their membership in the corporation.

Accepting all properly pled factual allegations in the complaint as true, and construing all facts in the light most favorable to the Plaintiffs, the Court finds that the Plaintiffs have articulated sufficiently particularized and concrete harm to sustain a finding of injury in fact. Cf. Doe v. Va. Dep't of State Police, 713 F.3d at 752-53; Dias v. City & Cnty. of Denver, No. 07-CV-00722-WDM-MJW, 2010 WL 3873004, at *8 (D.Colo. Sept. 29, 2010) (owners of pit bulls have a "personal stake and interest" in challenging regulations specific to the breed).36

ii. Causation

Traceability is established if it is "likely that the injury was caused by the conduct complained of and not by the independent action of some third party not before the court." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir.2000) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Here, the causation requirement is met because the Plaintiffs have sued all relevant State Defendants conceivably involved in "passing" and "enforcing" Tracey, as well as the private party (Armistead) who has allegedly "implemented" the decision, to the Plaintiffs' detriment.

iii. Redressability

An injury is redressable if it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). But, "no explicit guarantee of redress to a plaintiff is required to demonstrate a plaintiffs standing." Equity in Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 100 (4th Cir.2011). Here, the Plaintiffs request various forms of declaratory and injunctive relief, including a judgment that Tracey is "unconstitutional, void, and unenforceable," and a preliminary and permanent injunction restraining Armistead from evicting tenants "based on" the decision. ECF No. 20 at 31. There is some—contested—authority that a federal district court may declare unconstitutional a state court decision that effects a Fifth Amendment taking. Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection, 560 U.S. 702, 130 S.Ct. 2592, 2601, 177 L.Ed.2d 184 (2010) (plurality opinion). A decision that Tracey is unconstitutional would likely redress the Plaintiffs' injury (loss of their pitbulls or membership), as Armistead expressly relied on the decision in choosing to ban the animals. ECF No. 16-4 at 2.

Thus, the Court finds, at this stage in the proceedings, that the Plaintiffs have adequately shown standing to assert their claims.

b. Ripeness

"Although the phrasing makes the questions of who may sue and when they sue seem distinct, in practice there is an obvious overlap between the doctrines of standing and ripeness." Erwin Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003). A claim should be dismissed as unripe if the plaintiff has not yet suffered injury and any future impact "remains wholly speculative." Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir. 1996).37 In determining ripeness, courts "balance the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration." Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006). A case is fit for judicial decision when "the issues are purely legal" and "the action in controversy is final and not dependent on future uncertainties." Id. The "hardship" consideration in a ripeness analysis is "measured by the immediacy of the threat and the burden imposed on the petitioner who would be compelled to act under threat of enforcement of the challenged law." Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208-09 (4th Cir.1992).

Regulatory takings claims are generally subject to additional ripeness requirements. Specifically, the plaintiff must demonstrate that: (1) the government entity charged with implementing the regulations in question has issued a "final decision regarding the application of the regulations to the property at issue," and (2) the plaintiff has sought and been denied just compensation through available and adequate state procedures. Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Three caveats to this general rule are relevant here. First, Williamson does not apply when a plaintiff challenges the facial validity of a regulation.38 Second, plaintiffs need not exhaust state administrative remedies when the claim arises under 42 U.S.C. § 1983. Williamson, 473 U.S. at 192-93, 105 S.Ct. 3108. Finally, several courts have recognized a "futility" exception to Williamson's exhaustion requirement. E.g., Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 851 (9th Cir.2001) (en banc) (finding futility exception when state supreme court was defendant in federal suit and denied possibility of state relief in its brief).39

Tracey's future effect on the Plaintiffs is more than speculative: Armistead has adopted a rule, instigated by Tracey's new strict liability standard, that no pit bull be permitted on Armistead's premises. ECF No. 16-1 ¶ 4. Armistead's Board may, at any time, choose to terminate a leaseholder who fails to comply with the allegedly unconstitutional ban. ECF No. 16-4 at 2. The case is fit for judicial decision because the issues presented are purely legal: whether Tracey, on its face and as applied, violates the Fourteenth Amendment's Due Process Clause, the Fifth Amendment's Takings Clause, as incorporated against the states, and parallel Maryland law. See generally ECF No. 20. Finally, compliance with Armistead's policy imposes the heavy burden of requiring a pit bull owner to either vacate his or her home or abandon a family pet. ECF No. 16-4 at 2. Nor does Williamson preclude relief on the Plaintiffs' Takings claims: the Plaintiffs have raised facial challenges, and one of the three Takings counts (Count VI) arises under § 1983. ECF No. 20 ¶¶ 116, 129, 160.40

The Supreme Court has held that Williamson's ripeness prongs are "prudential hurdles," Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 734, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997), not jurisdictional requirements, Stop the Beach, 130 S.Ct. at 2610 (majority opinion). The above-stated reasons persuade this Court that adjudication on the merits is appropriate. The Court will therefore consider the Defendants' nonjurisdictional bases for relief: immunity, and failure to state a claim.

2. Immunity

The State Defendants argue that the Plaintiffs' Due Process claims against them (Counts I-IV, VII, VIII) are barred by Eleventh Amendment immunity, and Chief Judge Bell has absolute judicial immunity from the Plaintiffs' claims for injunctive relief. ECF No. 25.

a. Eleventh Amendment

The Eleventh Amendment provides that, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.41 "[T]he essence of the immunity is that the State cannot be sued in federal court at all, even where the claim has merit, and the importance of immunity as an attribute of the States' sovereignty is such that a court should address that issue promptly once the State asserts its immunity." Constantine, 411 F.3d at 482 n. 4.

The Amendment has been construed to "bar[ ] suit in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity." Coleman v. Md.Ct.App., 626 F.3d 187, 191 (4th Cir.2010) (emphasis added) (citing Alden v. Maine, 527 U.S. 706, 755-57, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)). To determine whether a party is an "arm of the state," courts consider four, "nonexclusive" factors:

In addition to suing the State of Maryland, the Plaintiffs have sued the Maryland Court of Appeals and several state officials. ECF No. 20. There can be no doubt that, having been "vested" with the "Judicial power" of the State of Maryland, the Court of Appeals is an "arm" of that state. See Md. Const. Art 4, §§ 1, 14, 18; Md.Code Ann., Cts. & Jud. Proc. § 1-301; Fishback v. Maryland, No. JFM-12-927, 2012 WL 1145034, at *2 (D.Md. Apr. 4, 2012) (dismissing, on Eleventh Amendment grounds, the plaintiff's complaint against the Circuit Court for Baltimore City and the Maryland Court of Special Appeals).43 So, too, are Governor O'Malley, Attorney General Gansler, and Chief Judge Bell, who have been sued in their official capacities. ECF No. 20 ¶¶ 24, 25, 27, 84, 112, 151, 165; see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Accordingly, Counts I-IV, VII, and VIII are barred unless an exception to immunity applies.

There are several exceptions to the Eleventh Amendment bar. Equity In Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 107 n. 13 (4th Cir.2011). Relevant here, the U.S. Supreme Court has held that the Amendment does not prevent private individuals from bringing suit against State officials for prospective or declaratory relief for ongoing violations of federal law.44 The Ex parte Young exception is directed at "officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings ... to enforce against parties affected [by] an unconstitutional act." Id. at 155-56 (emphasis added). Thus, for the exception to apply, there must be a "special relation" between the officer being sued and the challenged statute. Id. at 157. This requirement of "proximity to and responsibility for the challenged state action" is not met when an official merely possesses "[g]eneral authority to enforce the laws of the state."45

The Plaintiffs contend that, "[a]s chief executive of the State of Maryland," O'Malley "has a duty to take care that the laws are faithfully executed pursuant to federal and State of Maryland law." ECF No. 20 ¶ 24. The Plaintiffs further allege that Gansler "is charged by law with enforcement of the State of Maryland's laws and the defense of the constitutionality of the laws of the State of Maryland." Id. 1125. Finally, the Plaintiffs assert that Chief Judge Bell is "the constitutional administrative head of the Maryland judicial system and is charged with upholding the Constitution of the United States and the Constitution of the State of Maryland, acting on the authority granted to him by the State of Maryland." Id. ¶ 27. The Plaintiffs conclude that, because the State officials have "a duty to enforce state policy and procedures ... under color of state law," they also have a "special relation" to Tracey, warranting application of the Ex parte Young exception. ECF No. 34 at 14-15. The State Defendants object that "none of these officials is responsible for the actual implementation and enforcement of the laws that pertain to the relief sought by plaintiffs." ECF No. 26 at 14.

"General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001) (internal quotation marks omitted). Here, although O'Malley and Gansler are generally under a duty to enforce and protect Maryland law, neither is charged with the duty to "enforce" Tracey. See id. Similarly, Chief Judge Bell can neither commence nor threaten to commence proceedings under the decision. Cf. Shalaby v. Freedman, No. C 03-03358 CRB, 2003 WL 22416492, at *4 (N.D.Cal. Oct. 21, 2003) ("It is thus unsurprising that [the plaintiff] has not cited a single case, and the Court has not located any, in which a plaintiff challenging a civil statute enforced by private litigants was able to avoid the Eleventh Amendment bar by suing the judges of a state."), aff'd, 138 Fed.Appx. 897 (9th Cir.2005).

Thus, Counts I through IV, VII, and VIII are barred by Eleventh Amendment immunity.

b. Absolute Judicial Immunity

"It is well-established that judges enjoy judicial immunity from suits arising out of the performance of their judicial functions." Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir.2004) (citing Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Mann v. Conlin, 22 F.3d 100, 103 (6th Cir.1994)).46 By contrast, a judge is not entitled to judicial immunity for performing "nonjudicial actions" or acting, although in a judicial capacity, "in the complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). "[W]hether an act by a judge is a `judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

Here, Chief Judge Bell acted in a quintessentially judicial capacity when he participated in the Tracey decision. Further, he did not exceed his judicial authority; Chief Judge Bell and his colleagues are specifically tasked with developing Maryland's common law. See Ireland v. State, 310 Md. 328, 529 A.2d 365, 366 (1987) ("Because of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in the light of modern circumstances or increased knowledge.").

The claims against Judge Bell are barred by absolute judicial immunity.

3. Failure to State a Claim

To survive a motion to dismiss, a complaint must allege facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Here, the Plaintiffs sued "to prevent the Defendants from enforcement of [Tracey] ... and from unilaterally taking their constitutionally protected property interests in their leasehold agreements and membership in Armistead ... and/or their constitutionally protected interests in their dogs." ECF No. 22-1 at 1. The amended complaint appears to assert three substantive bases for relief: (1) Fourteenth Amendment procedural due process (Counts I, II); (2) Fourteenth Amendment substantive due process (Counts III, IV); and (3) Fifth Amendment judicial taking47 (Counts V, VI). ECF No. 20 ¶¶ 61-141.48

a. Unconstitutional Vagueness (Counts I, II)49

"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." FCC v. Fox Television Stations, Inc., ___ U.S. ___, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012). The "void-forvagueness" doctrine, which stems from the right to procedural due process,50 "addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." Id. However,

Under Tracey, "upon a plaintiffs sufficient proof" that a dog involved in an attack is a "pit bull," and that the owner or landlord knows or should know that the dog is a "pit bull," the owner or landlord is strictly liable for the damages caused to a plaintiff who is attacked by the dog. Tracey, 50 A.3d at 1089. The Plaintiffs emphasize that Tracey does not identify which physical or behavioral traits characterize a "pit bull," or explain what information would constitute "knowledge" that a dog is a pit bull. ECF No. 20 ¶¶ 65-68, 77-79. They argue that Tracey's failure to articulate such a standard "deprives the Plaintiffs and those similarly situated of procedural due process." Id. ¶¶ 69, 81.

The Plaintiffs have not identified—and the Court has not found—any controlling authority that applies the void-for-vagueness doctrine to judicial decisions. See generally ECF Nos. 20, 22; cf. Swagler v. Neighoff, 398 Fed.Appx. 872, 879 (4th Cir. 2010) ("[T]he void-for-vagueness doctrine focuses on legislation—not `policies and actions.'" (emphasis added)). Even assuming the doctrine's relevance, the U.S. Supreme Court has held that it applies to civil actions only when "the exaction" of obedience to a rule or standard is "so vague or indefinite as really to be no rule or standard." Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (internal quotation marks omitted). Tracey does not "exact" obedience to any rule. It merely cautions that, if a person chooses to own or keep a pit bull, he will be strictly liable should the dog injure another person. See Tracey, 50 A.3d at 1089. Contrary to the Plaintiffs' suggestion, the distinction is not mere semantics.53 More importantly, there is minimal authority that Tracey's failure to define "pit bull" renders the decision "so vague or indefinite as really to be no rule or standard at all." Boutilier, 387 U.S. at 123, 87 S.Ct. 1563. Indeed, courts have widely rejected vagueness challenges to pit bull-specific legislation.54

Thus, the amended complaint does not plead a plausible void-for-vagueness claim.

b. Substantive Due Process (Counts III, IV)

The Fourteenth Amendment's Due Process Clause "guarantees more than fair process."55 It also covers a substantive sphere, "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). "This substantive component guards against arbitrary legislation by requiring a relationship between a statute and the government interest it seeks to advance." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1181 (10th Cir.2009). If a law burdens a fundamental right, the infringement must be narrowly tailored to serve a compelling government interest. Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). If a law burdens a lesser right, the infringement need only be rationally related to legitimate government interests. Id. at 728, 117 S.Ct. 2258.56

The Plaintiffs assert, without citation to any authority, that the right to own and keep dogs is fundamental. ECF No. 20 ¶¶ 88, 102. They argue that Tracey's imposition of strict liability for pit bull attacks is not "narrowly tailored to serve a compelling government interest"—and in fact is arbitrary and irrational—because there is authority that pit bulls can be affectionate animals; the Plaintiffs' dogs are affectionate in fact; and Tracey "does nothing to protect against situations that could cause an unexpected attack." Id. ¶¶ 89, 94, 103, 108. Alternatively, the Plaintiffs assert that "there is no rational relation between the imposition of strict liability on owners of `pit bulls.'" Id. ¶¶ 97, 111; see id. ¶¶ 90, 104 (stating that Tracey's imposition of strict liability is "not a reasonable means of advancing any legitimate governmental interest").57

The right to own and keep dogs is not fundamental. Nicchia v. New York, 254 U.S. 228, 230, 41 S.Ct. 103, 65 L.Ed. 235 (1920) (property in dogs is "of an imperfect or qualified nature and [dogs] may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right").58 Therefore, to the extent that any standard of review applies to substantive due process challenges to judicial decisions, it would be the rational basis standard. Glucksberg, 521 U.S. at 728, 117 S.Ct. 2258. This standard is highly deferential. See New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) ("[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.").59

The Plaintiffs allege that Tracey "and its designations of a `pit bull' as applied to owners and landlords being strictly liable for a dog attack" are "not a reasonable means of advancing any legitimate governmental interest." ECF No. 20 ¶¶ 90, 104; see also id. ¶¶ 92, 106. The Plaintiffs do not appear to dispute that the protection of health and public safety is a legitimate state interest. Instead, they insist that Tracey did not create specific rules or regulations that would "foster" such protection. Id. ¶¶ 93, 107. Their argument is wrong.

Strict liability "maximizes deterrence and eases enforcement difficulties." Dep't of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 134, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002). Here, the imposition of strict liability on pit bull owners encourages those persons to take extra precautions in keeping and caring for their dogs. Such precautions were necessary, the Tracey court reasoned, in light of evidence establishing the breed's unusual dangerousness.60 This Court cannot conclude that the decision was arbitrary or irrational.61

Thus, the amended complaint does not plead a plausible substantive due process claim.

c. Judicial Taking (Counts V, VI)

Under the Fifth Amendment, "private property [shall not] be taken for public use, without just compensation." U.S. Const. amend. V.62 As the constitutional language implies, a sovereign may never take private property for private use, regardless of the compensation provided. Kelo v. City of New London, Conn., 545 U.S. 469, 477, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005).

The Plaintiffs allege that Tracey, "on its face and as applied," effects a "judicial taking." ECF No. 20 ¶¶ 116, 129. Although the precise grounds for their argument are unclear, the Plaintiffs appear to allege that Tracey has appropriated the Plaintiffs' property interests in Armistead and their dogs and given those interests to Armistead and BARCS, respectively. See id. ¶¶ 118-20, 131-33; ECF No. 34 at 20 (claiming that the "effect" of Tracey "is that `pit bulls' are being taken from [Armistead's] [r]esidents").63 Because "[t]he public does not benefit from the taking," the Plaintiffs conclude that Tracey has taken their private property for private use. See ECF No. 20 ¶¶ 121, 134; ECF No. 34 at 13.64

There is some authority that a judicial decision can effect a Fifth Amendment taking. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010), a four-Justice plurality opined that "[i]t would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." Id. at 2601. Stop the Beach provoked widespread controversy and criticism.65 The Court need not determine whether a judicial takings claim is constitutionally cognizable here, because the Plaintiffs have failed to show a clear likelihood of success on their claim that a "taking" has occurred in the first place.

There are two categories of unconstitutional "takings" under federal law. The "paradigmatic" taking, requiring just compensation, occurs when the government directly appropriates or physically invades private property. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). However, mere government regulation of private property may, in some instances, be sufficiently "onerous" to also support a Fifth Amendment takings claim. Id. The analysis in such a takings case "necessarily begins" with determining whether the government's action "actually interfered" with a property interest. See Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 330 (4th Cir.2005).

The Plaintiffs appear to allege that Armistead has acted in concert with the Maryland Court of Appeals to "take" their property. See ECF No. 22-1 at 10 ("There should be no dispute that Armistead... is taking the Residents' property pursuant to [Tracey].").66 This argument is wrong. As discussed above, Tracey expressly denied that its new rule of liability required any person to relinquish his property. 50 A.3d at 1097.67 Armistead's response to the decision by banning pit bulls is not a governmental taking; Armistead acted independently, and—as the Plaintiffs apparently concede—in full compliance with the corporation's operative leasehold documents. See ECF No. 16-3 at 2 (15(c)); ECF No. 22-1 at 5. Tracey may have instigated Armistead's action, but it did not impel it.68

Even the owner of real property "necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers." Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). And, "in the case of personal property ... [the owner] ought to be aware of the possibility that new regulation might even render his property economically worthless." Id. at 1027-28, 112 S.Ct. 2886. Such is the "burden borne to secure the advantage of living and doing business in a civilized community." Andrus v. Allard, 444 U.S. 51, 67, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (interal quotation marks omitted). This is all the more true in the case of a "heavily regulated and highly contentious activity." Holliday Amusement, 493 F.3d at 411. The point is of particular relevance here, because the right to own and keep dogs is not fundamental, and—as the Court of Appeals recognized—pit bulls are widely perceived as singularly dangerous. See Nicchia, 254 U.S. at 230, 41 S.Ct. 103; Tracey, 50 A.3d at 1080.69

Accepting the Plaintiffs' well-pled allegations as true, Brockington, 637 F.3d at 505, there has been no actual, government interference with the Plaintiffs' property. Sunrise Corp., 420 F.3d at 330. No government actor has physically taken possession of any part of the Plaintiffs' property, or denied all economically viable use thereof.70 And, even if the Tracey decision caused or constituted government interference with the Plaintiffs' dogs, such interference is within Maryland's police power, exercises of which are presumptively valid. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) ("The various exercises by the States of their police power stand ... on an equal footing. All are entitled to the same presumption of validity when challenged under the Due Process Clause of the Fourteenth Amendment.").

The amended complaint does not plead a plausible Takings claim.71

d. State Law Claims (Counts VII-IX)

i. Due Process (Counts VII, VIII)

The Plaintiffs' state due process claims arise under Article 24 of the Maryland Declaration of Rights, which provides that "no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." Md. Const. Decl. of Rights, art. 24. "It has been clearly established that Article 24 protects the same rights as the Fourteenth Amendment...." Barnes v. Montgomery Cnty., Md., 798 F.Supp.2d 688, 700 (D.Md.2011). "Therefore, the analysis under Article 24 is, for all intents and purposes, duplicative of the analysis under the Fourteenth Amendment." Rosa v. Bd. of Educ. of Charles Cnty., Md., No. 8:11-cv-02873-AW, 2012 WL 3715331, at *6 (D.Md. Aug. 27, 2012) (citing Okwa v. Harper, 360 Md. 161, 757 A.2d 118, 140-41 (2000); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102, 108 (1992)).

As discussed above, the Plaintiffs have failed to state plausible federal due process claims. See supra Part II.B.3(a)-(b). The Plaintiffs have failed to state Maryland due process claims for the same reasons.

ii. Judicial Taking (Count IX)

The Plaintiffs' state judicial taking claim arises under Article III, § 40 of the Maryland Constitution, which provides that, "[t]he General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation." Md. Const. art. III, § 40 (emphasis added). "[T]he Fifth and Fourteenth Amendments to the [U.S.] Constitution and Article III, § 40, of the Maryland Constitution have the same meaning and effect, and it is well established that the decisions of the Supreme Court are practically direct authorities for both provisions." Neifert v. Dep't of Env't, 395 Md. 486, 910 A.2d 1100, 1118 n. 33 (2006) (internal quotation marks and citations omitted).

As discussed above, the Plaintiffs have not plausibly alleged a federal taking. See supra Part II.B.3(c). Unlike the Fifth Amendment to the U.S. Constitution, Maryland's eminent domain provision is expressly limited to acts by the General Assembly. Md. Const. art. III, § 40; see Stop the Beach, 130 S.Ct. at 2601 (plurality opinion) (emphasizing that the Fifth Amendment's Takings Clause "is not addressed to the action of a specific branch or branches"). Thus, even if the Plaintiffs had pled a judicial taking under Maryland law, the plain text of Maryland Constitution Article III, § 40 would preclude this Court's recognition of that cause of action.

III. Conclusion

For the reasons stated above, the State Defendants' motion to dismiss will be granted; all other pending motions will be denied as moot.

ORDER

For the reasons discussed in the accompanying Memorandum Opinion, it is, this 19th day of June, 2013, ORDERED that:

1. The State Defendants' motion to dismiss (ECF No. 25) BE, and HERBY IS, GRANTED;

2. All other pending motions (ECF Nos. 2, 3, 22, 28) BE, and HEREBY ARE, DENIED as moot;

3. The case is DISMISSED;

4. The Clerk of the Court shall CLOSE this case; and

5. The Clerk of the Court shall send copies of this Memorandum Opinion and Order to counsel for the parties.