243 P.3d 415
Mont.2010Background
- Kennedy d/b/a Canadian Connection was enjoined by the Board of Pharmacy for prescription drug activities in Montana.
- Rx Depot, Kennedy’s related business, was preliminarily enjoined in 2003 for similar act violations; federal injunction followed and dissolved state injunctions later.
- Kennedy continued the same business model after 2004 injunctions, arguing lack of Board authority and non-pharmacist status.
- The Board pursued injunctive relief; Kennedy was found in contempt in 2009 for violating the 2004 injunction.
- Cross-motions for summary judgment were filed in district court in 2009; the Board moved for summary judgment on a permanent injunction.
- The district court granted the Board’s summary judgment and denied Kennedy’s motion; Kennedy appeals to the Montana Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kennedy violated § 37-7-301 by practicing pharmacy | Kennedy engaged in activities constituting practice of pharmacy without a license. | Kennedy argues he was not practicing or was outside Board authority. | Yes; Kennedy was engaging in the practice of pharmacy. |
| Whether a permanent injunction was proper via summary judgment | Board showed ongoing, irreparable regulatory harm requiring injunction. | No need for injunction if issues of fact preclude summary judgment. | Permanent injunction proper on summary judgment. |
| Whether the district court correctly denied Kennedy's motion for summary judgment | Board’s evidence established Kennedy’s violation as a matter of law. | Kennedy sought reversal of contempt and dissolution of injunction, arguing lack of Board authority. | District court correctly denied Kennedy's motion. |
Key Cases Cited
- Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse inferences permissible in civil proceedings under Fifth Amendment privilege)
- LaSalle Bank Lake View v. Seguban, 54 F.3d 387 (7th Cir. 1995) (adverse inferences from silence recognized by circuit courts)
- All-States Leasing Co. v. Top Hat Lounge, 198 Mont. 1, 649 P.2d 1250 (1982) (use of admissions to support summary judgment)
- Wight v. Gonzalez, 249 Mont. 268, 815 P.2d 598 (1991) (admissions and discovery-related inferences in Montana cases)
- Virginia City v. Olsen, 310 Mont. 527, 52 P.3d 383 (2002) (summary judgment as vehicle for permanent injunctions in proper cases)
- Cole v. Flathead County, 236 Mont. 412, 771 P.2d 97 (1989) (premise that summary judgment may issue when grounds are clear)
- Goettel v. Estate of Ballard, 356 Mont. 527, 234 P.3d 99 (2010) (de novo review of legal conclusions; proper use of summary judgment for injunctions)