RICK SAVAGE, individuаlly and on behalf of TWO BROTHERS, LLC d/b/a SUNDAY RIVER BREWING COMPANY, MIKE MERCER, JAMES FAHEY, and LINDSEY CROSBY v. JANET T. MILLS, in her official capacity as the Governor of the State of Maine
1:20-cv-00165-LEW
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
August 7,
Lance E. Walker, United States District Judge
ORDER ON DEFENDANT‘S MOTION TO DISMISS
On June 23, 2020, Defendant Janet T. Mills filed a Motion to Dismiss Plaintiffs’ Second Amended Complaint on the grounds that Plaintiffs lack
BACKGROUND
A motion to dismiss challenges the adequacy of the complaint‘s allegations. Accordingly, I recite the allegations here, along with additional facts pertinent to the motion.1
Governor Mills began to exercise executive power on March 15, 2020, when she proclaimed a State of Civil Emergency to Proteсt Public Health in response to the COVID-19 outbreak. Second Amended Complaint (hereinafter “Compl.“) ¶ 22. Subsequently, the Governor issued a series
On March 18, 2020, the Governor issued Executive Order 14 FY 19/20, which required all restaurants and bars statewide to close except for carry out and delivery service, and prohibited gatherings of more than ten people. Compl. ¶ 23. The next week the Governor issued Executive Order 19 FY 19/20, which required all “non-essential” businesses to cease “public facing” activities. Compl. ¶ 24. At all times, non-essential businesses that were not public facing could continue tо operate, provided that the workplace could accommodate appropriate social distancing or had 10 or fewer employees. Id. On March 31, 2020, the Governor issued Executive Order 28 FY 19/20, which required people to stay at home except when performing “essential activities” and to “stay 6 feet apart when outside the home.” Compl. ¶ 25. On April 3, 2020, the Governor issued Executive Order 34 FY 19/20, which required that “any person, resident or non-resident, traveling into Maine must immediately self-quarantine for 14 days.” Compl. ¶ 26.
On April 29, 2020, the Governor issued Executive Order 49 FY 19/20, which extended Orders 14, 19, 28 and 34 through May 31, 2020. Compl. ¶ 27. Executive Order 49 also directed the Commissioner of the Maine Department of Economic and Community Development (DECD) to implement a Restarting Plan, which would “identify businesses and activities where current restrictions may be adjusted to safely allow for more economic and personal activity.” Motion to Dismiss, Ex. 6. Under the Restarting Plan, barber shops and hair salons (among other businesses) could open as of May 1, 2020, and restaurants (among other businesses) could open as of June 1, 2020, “provided that they comply with detailed checklists.” Compl. ¶¶ 28-29. Additional types of businesses could open on July 1, 2020. Compl. ¶ 30.
Plaintiffs filed suit on May 8, 2020, alleging that the Governor‘s executive orders negatively affected their respective businesses. By that time, the complete closure of so-called non-essential, public-facing businesses was ended.2
On May 29, 2020, the Governor issued Executive Order 55 FY 19/20. The order, effective May 31, 2020, modified Executive Order 14 by increasing the size of permissible gatherings to 50 people. Motion to Dismiss, Ex. 7. The order further stated:
The distinction between essential and non-essential businesses set forth in Executive Order 19 shall continue to be phased out consistent with the implementation of the Restarting Plan. Any essential or non-essential business not authorized by Executive Order 19 or the Restarting Plan to be open shall continue to comply with pertinent provisions of Executive Order 19 until so authorized. Any business authorized now to be open shall comply with the pertinent COVID-19 Prevention Checklist or other State of Maine Guidance.
Id. The order also allowed people to leave home to access all reopened businesses. Id.
On June 9, 2020, the Governor issued Executive Order 57 FY 19/20. Motion to Dismiss, Ex. 8. The order repealed and replaced Executive Order 34, which had required those entering Maine to self-quarantine for 14 days. Pursuant to Executive Order 57, people entering Maine now must either (1) “[r]eceive a recent negative test for COVID-19 in accordance with standards established by Maine CDC and set forth in the Keep Maine Healthy Plan”
Plaintiffs are Maine residents. The named plaintiffs are: (1) Rick Savage, individually and on behalf of Two Brothers, LLC d/b/a Sunday River Brewing Company; (2) Mike Mercer; (3) James Fahey; and (4) Lindsey Crosby. The Plaintiffs also purport to bring this lawsuit as a class action on behalf of “over 20 identified Maine businessowners, businesses, customers, and employees adversely impacted by the Governor‘s executive orders, the partial shutdown of the State, and the mass quarantine of its citizens.” Compl. ¶ 40.
In addition to the foregoing facts, Plaintiffs base their civil action on the following “general allegations“:
33. Although the coronavirus is highly сontagious, it does not invariably result in COVID-19. For those who do develop COVID-19, the mortality rate is low. As of May 4, 2020, the State reported on its official coronavirus webpage 1226 suspected or confirmed cases of COVID-19, which is roughly 0.09% of the State population. Even for the known fractional percent of those who have developed COVID-19, the State reports a 95% survival rate. As a result, only 0.005% of the State‘s population has succumbed to the virus.
34. In all likelihood, the survival rate in Maine is far higher. Recent antibody testing conducted in New York State and a study in Los Angeles suggest that millions more have been infected with the coronavirus than previously known, and that the supermajority of those previously infected were either asymptomatic or experienced mild reactions to it. In New York, this new information has dropped the mortality rate to 0.5%—i.e., a survival rate of 99.5%. In Los Angeles, it dropped the mortality rate to 0.1-0.3%—i.e., a survival rate of 99.7-99.9%. There is no reason to believe that Maine is exempt from this good news. As more Maine residents are tested, increases in positive tests will yield a higher survival rate.
35. The number of deaths caused by COVID-19, while unquestionably tragic, is not “unprecedented,” as routinely claimed. What is unprecedented is Governor Mills’ response to it.
36. In the late 1960s, the Hong Kong Flu swept across the globe killing more than 1 million people. The CDC estimatеd that 100,000 people died in the U.S. Maine, like other States, was affected. Governor Kenneth Curtis did not place residents under house arrest or shutdown the economy.
37. Governor Mills repeatedly states that decisions must be made on data. Yet, despite the positive State-specific data, the Governor has tightened restrictions through further executive orders.
38. An economic depression is predictable following the shutdown of civil society caused by the Executive Orders. Businesses around Maine are permanently closing because they cannot pay employees and vendors. More will be forced to permanently close the longer that the Exeсutive Orders and any similarly drafted successor orders are in place.
39. Plaintiffs want to reopen their businesses, but Governor Mills forbids them from doing so under pain of criminal punishment and civil fines. Plaintiffs should not be forced to choose between risking criminal prosecution and economic sanctions on the one hand, or
exercising their constitutional rights on the other.
DISCUSSION
Through the Motion to Dismiss, the Governor contends Plaintiffs lack
A. STANDING
“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of
Defendant‘s Motion primarily argues that Plaintiffs fail to plead an injury in fact, the “[f]irst and foremost of standing‘s three elements.” Spokeo, 578 U.S. at 338. To adequately plead such an injury, the Plaintiffs must show they suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural оr hypothetical.” Id. They must also show that the injury is “fairly traceable to the challenged action.” Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc., 958 F.3d 38, 47 (1st Cir. 2020). The “traceability” or causation element “requires the plaintiff to show a sufficiently direct causal connection between the challenged action and the identified harm.” Id. The First Circuit holds Plaintiffs to this task. For example, the Circuit remanded with instructions to dismiss a recent case whose complaint “sets forth only a diffuse description of the asserted injuries and that omits any facts that explain how those injuries could be identified as resulting from [the allegedly harmful action].” Perez-Kudzma v. United States, 940 F.3d 142, 146 (1st Cir. 2019). In the context of this case, therefore, alleging
Taking the allegations in Plaintiffs’ Complaint as true, I find they have done enough to have standing under
The Executive Orders prevent the Named Plaintiffs and Class members from operating their business and thereby prevent the Named Plaintiffs and Class members, individually, from generating revenue. By preventing the Named Plaintiffs and Class members’ from operating their respective businesses, the Executive Orders have damaged and harmed the Plaintiffs’ businesses and significantly impaired their use.
Compl. ¶¶ 134-35. That Plaintiffs fail to link their harm to a specific Executive Order, rather than the Defendant‘s regulations as a whole is not fatal to
B. FAILURE TO STATE A CLAIM
Defendant alternatively moves to dismiss Plaintiffs’ case for failure to state a claim upon which relief can be granted.
Before diving into Plaintiffs’ eleven counts, a brief note about the legal standard I will apply to those claims arising under the U.S. Constitution. The Defendant, in part, seeks shelter behind the
Interested readers should also understand that Plaintiffs’ claims, with one exception, permit only injunctive relief. Absent an affirmative waiver on the part of the State, the
1. Counts II, VI, XI
Plaintiffs do not object to the dismissal of Counts II, VI, and XI, their claims under the Privileges and Immunities Clause of
2. Dormant Commerce Clause
In Count I, Plaintiffs assert a violation of the dormant Commerce Clause. The Commerce Clause, found in
Plaintiffs allege that the Executive Orders, and “in particular” the quarantine requirement, “impermissibly restrict plaintiffs and their customers from exercising the right to engage in interstate commerce.” Compl. ¶ 52. For a state regulation to violate the Commerce Clause, I must find that it either facially discriminates against out-of-state interests, see, e.g., Family Winemakers of California v. Jenkins, 592 F.3d 1, 10 (1st Cir. 2010), or indirectly hinders interstate commercе where the “burden on interstate commerce clearly exceeds the local benefits.” Pharm. Care Mgmt. Ass‘n v. Rowe, 429 F.3d 294, 312 (1st Cir. 2005) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
Concerning interstate commerce, Plaintiffs focus on the Governor‘s 14-day quarantine requirement as refined by Executive Order 57 (allowing out-of-state travelers to come to Maine within days of a negative COVID-19 test), alleging that “those restrictions impermissibly restrict Plaintiffs and their customers from exercising the right to engage in interstate commerce.” Compl. ¶ 52; Opposition at 14. Although Plaintiffs approach this issue as a cohesive unit, in fact their claims are distinct and require individualized assessment. When Plaintiffs are considered individually, it is apparent that none has a viable claim for injunctive rеlief under the dormant Commerce Clause.
Rick Savage is an individual who evidently has a membership interest in Two Brothers, LLC, which LLC does business as Sunday River Brewing Company. Rick Savage is not the proper plaintiff to advance a claim concerning a regulation that stifles the LLC‘s ability to procure interstate business. See footnote 2, supra.
“Mike Mercer is a security consultant whose business has been severely affected by the Defendant‘s... actions.” Compl. ¶ 12. Mike Mercer‘s threadbare allegations do not afford any meaningful data points suggesting his claim implicates the concerns of the dormant Commerce Clause.
“James Fahey is a wedding disc jockey whose business has been destroyed by the Defendant‘s... restrictions.” Id. ¶ 11. Although I can accept as a reasonable inference that the volume of wedding ceremonies is reduced by a regulation that burdens interstate travel and gatherings of more than 50 persons, there can be little doubt that what is transpiring across the Nation and around the globe has dramatically reduced the demand for large scale nuptials. Plaintiff has not alleged circumstances from which a fact finder might infer, on a non-speculative basis, that the Governor‘s regulations (as opposed to the national reaction to the
“Lindsey Crosby is the owner of Harper Method Hair, LLC in South Portland. [Her] hair salon... is being forced to operate at half capacity under the Defendant‘s... restrictions.” Id. ¶ 13. Crosby‘s claim is even more attenuated than Fahey‘s. She challenges the particulars of how many persons she can serve per day, due to social distancing regulations. What this has to do with the dormant Commerce Clause is anybody‘s guess.
Plaintiffs’ allegations describe only generalized harm to their businesses, and their failure to substantiate how the Defendant‘s Orders, as applied to them, disfavor out-of-state businesses or hinder interstate commerce generally, is fatal to their dormant Commerce Clause claim. Cf. Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 261 n.8 (2d Cir. 2013) (“[C]onclusory allegations... are an insufficient basis upon which to sustain a claim of discriminatiоn against interstate commerce.“). Consequently, I find Plaintiffs fail to state a dormant Commerce Clause claim, and I will grant Defendant‘s Motion as to Count I.
3. Right to Travel
In Count III, Plaintiffs assert a violation of the right to travel, claiming a violation of their rights and their customers’ rights. Plaintiffs have failed to provide the needed factual allegations to sustain a right to travel claim under the Privileges and Immunities Clause of the
4. Procedural Due Process
Count IV asserts a claim for violation of procedural due process. Plaintiffs fail to state a claim that their rights to procedural due process have been violated. Plaintiffs allege: “Governor Mills has not provided any procedural due process before issuing the Executive Orders. Nor do the Executive Orders provide any mechanism for post deprivation review.” Compl. ¶ 78. They believe they “are suffering substantial losses of liberty and property,” specifically, “[b]ecause Governor Mills failed to provide any pre- or post-deprivation review of the orders and rules shuttering their businesses.” Id. ¶ 82.
As I observed in an earlier decision considering the constitutionality of Governor Mills’ COVID-related Executive Orders, it ought to be apparent to Plaintiffs that “police power is routinely exercised in this Country without first conducting public or private hearings, and without offending the Constitution.” Bayley‘s Campground, 463 F. Supp. 3d at 34. So too here.
While due process “normally requires notice and opportunity for ‘some kind of hearing’ prior to a final deprivation of liberty or property ... [t]his generalization is a very loose one.” Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (internal citations omitted). The Supreme Court has explained that “summary administrative action may be justified in emergency situаtions,” Hodel v. Va. Surface Mining & Reclamation Ass‘n, Inc., 452 U.S. 264, 299-300 (1981), “and the reason is not hard to grasp.” S. Commons Condo. Ass‘n v. Charlie Arment Trucking, Inc., 775 F.3d 82, 86 (1st Cir. 2014). “By their nature, emergency situations require an immediate response. And, in consequence of the necessity of quick action by the State, constitutional due process does not require the usual up-front procedural protections in dealing with emergencies.” Id. (internal citation and quotation marks omitted). As an initial matter, therefore, I find Plaintiffs are not entitled to any sort of pre-deprivation process when it comes to a generalized police policy imposed during this type of public health emergency.
Furthermore, to state such a due process claim, Plaintiffs must allege the defendant deprived them of a liberty or property interеst without adequate process. See, e.g., Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011); Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006). Plaintiffs allege their purported interest only in a conclusory fashion. They contend the Governor deprived them of a liberty and property because the Executive Orders allegedly cause the “shuttering [of] their businesses.” Compl. ¶ 82. But, as discussed above, their businesses are presently allowed to operate, and, even if they were not, that alone would not constitute deprivation entitled to Due Process protections. See Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999) (“business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense.“).4 Plaintiffs have failеd to state a procedural due process claim that would entitle them to injunctive relief lifting existing restrictions on the operation of their businesses. I, therefore, grant Defendant‘s Motion to dismiss the procedural due process claim in Count IV.5
5. Substantive Due Process
In Count V, Plaintiffs assert a substantive due process claim. Compl. ¶¶ 85-95. Ordinarily, there are two theories under which a plaintiff may bring a substantive due process claim. Either a plaintiff must demonstrate the deprivation of a “fundamental” interest protected by the
The Supreme Court has long recognized that a state can avoid this close constitutional scrutiny of alleged violations
(noting that “the ‘liberties’ protected by substantive due process do not include economic liberties“). Therefore, because the Complaint fails to make the case that the Orders are outside the realm of protecting public health, or that they are a plain, palpable infringement a cognizable
6. Takings Clause
Plaintiffs’ final federal claim is found in Count X, where Plaintiffs contend Defendant violated the
To state a taking claim, it is not enough to allege that government conduct frustrated a business enterprise, as Plaintiffs have alleged here. Coll. Sav. Bank, 527 U.S. at 675. Takings jurisprudence is directed at government conduсt that denies beneficial use of property, meaning things like legal interests in real or personal property, not the liberty interest to engage in business activity. Id. “[F]ederal property interests under the
Given this requirement, problems immediately arise for Plaintiffs. I begin with Mike Mercer and James Fahey. They do not allege that they conduct their businesses from real property shuttered by executive order. Nor do they allege any fact to suggest why a fact finder would conclude that personal property associated with their businesses was effectively taken from them. Presumably, they were unable to sell products and services for a time, but Plaintiffs have not cited any authority stating that the inability to sell goods and services is a taking of their property. They have failed to state a takings claim.
Rick Savage does not appear to be in any better position. What the Complaint states is that he has an ownership interest in the Sunday River Brewing Company, while alsо stating that the Sunday River business is a d/b/a of non-party Two Brothers, LLC, an entity with its own legal existence. Maybe Savage owns or leases the premises and the business equipment. Maybe he does not. As with so much else about the Complaint, it is deficient in this regard. Because one would have to speculate whether Rick Savage even has a property interest in his own right, he too fails to state a claim.
That leaves Lindsey Crosby. Crosby “is the owner of Harper Method Hair, LLC in South Portland” and “owns a hair salon.” Compl. ¶ 13. In other words, the Complaint tells us that Crosby owns a business, but also that she operates the business in her status as owner of an interest in an
Because Plaintiffs have failed to plead sufficient facts to state a claim under the Takings Clause, I grant Defendant‘s Motion to Dismiss Count X.
7. Unconceded State Law Claims
With the exception of the claim contained in Count XI, which Plaintiffs concede, Plaintiffs’ state law claims (Counts VII, VIII, and IX) are dismissed without prejudice. In the absence of a viable federal claim that is part of the same case or controversy, or diversity of citizenship between the parties, a state court should resolve the merits of the unconceded state law claims.
CONCLUSION
With the exception of the takings claim that fails for independent reasons indicated abоve, this is a case about injunctive relief, which I must evaluate in terms of current rather than bygone restrictions. In this context, Plaintiffs’ conclusory legal assertions that the sum total of all commercial harm they have suffered violates the Constitution misses the mark. The Governor‘s restrictions are burdensome, I recognize, and one does not have to look far to find a great number of our fellow Mainers who still are reeling from the effects of the temporary closures. Indeed, the toll has been dear and we may continue to pay it for some time. But it‘s August now, and the shuttering is past.
Many people, Plaintiffs among them, call into question the wisdom of any restrictions on commercial activity, whiсh is a right almost universally accepted. But these Plaintiffs have not alleged facts demonstrating a present violation of their constitutional rights that warrants injunctive relief; not while the Nation is scrambling to adapt to an unprecedented pandemic that is believed to have killed more than 150,000 Americans in four months and caused debilitating illness for many survivors.
Public health professionals and politicians have had to analyze data regarding this novel virus while executing public health policies, nearly simultaneously and continuously, for more than four months with no clear end in sight. This collective crisis ought to have imposed a sense of collective humility given the long shadow cast by аll that we do not know about the disease. We might hope that Socratic wisdom is making a comeback.
Defendant‘s Motion to Dismiss is GRANTED. Counts I, II, III, IV, V, VI, X, and XI are DISMISSED WITH PREJUDICE. Counts VII, VIII, and IX are DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
Dated this 7th day of August, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE