Robb v. Connecticut Board of Veterinary Medicine et al

Filing 47

RULING (see attached) granting 39 Defendants' Motion to Dismiss the Amended Complaint, and denying as moot the following motions: 4 Plaintiff's Motion for Preliminary Injunction, 21 Proposed Interveners' Emergen cy Motion to Intervene, and 43 Proposed Interveners' Proposed Joinder in Defendants' Motion to Dismiss the Amended Complaint. The Clerk of Court is directed to enter judgment for the Defendants, dismissing this action, and to close the file. Signed by Judge Charles S. Haight, Jr. on January 20, 2016. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

JOHN M. ROBB, DVM,
Plaintiff,

3:15-CV-00906 (CSH)

v.
CONNECTICUT BOARD OF
VETERINARY MEDICINE, B. KENNETH
BERNHARD, THERESA CIANCILO,
DVM, MARY ANNE O'NEILL, TIMOTHY
PLUNKETT, DVM, and ALFREDO
SANCHEZ-ZONDONO, DVM,

JANUARY 20, 2016

Defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS, PLAINTIFF'S MOTION
FOR PRELIMINARY INJUNCTION, AND PROPOSED INTERVENER'S MOTIONS
HAIGHT, Senior District Judge:
Plaintiff Dr. John M. Robb, D.V.M., a doctor of veterinary medicine licensed in the state of
Connecticut, brings this action for injunctive relief and damages under the Sherman Antitrust Act,
15 U.S.C. § 1, against Defendants, the Connecticut Board of Veterinary Medicine (the "Board")1 and
its five constituent members: B. Kenneth Bernhard, Dr. Theresa Cianciolo, D.V.M., Mary Anne
O'Neill, Dr. Timothy Plunkett, D.V.M., and Dr. Alfredo Sanchez-Zondono, D.V.M (together, the
"Individual Defendants," and with the Board, the "Defendants"). The gravamen of Plaintiff's

1

The Board "is a quasi-private, quasi-public agency established under the laws of
the State of Connecticut, charged with regulating the licensing and practice of veterinary
medicine in Connecticut." Am. Compl. [Doc. 30] ¶ 9. Pursuant to C.G.S. § 20-196(a), three of
the five Board members must be practicing veterinarians. Id. ¶ 60. Here, that role is served by
Defendants Ciancolo, Plunkett, and Sanchez-Londono (the "Veterinarian Defendants"). Id. ¶ 61.
1

complaint is that Defendants have conspired to restrain trade through an agreement to remove from
the Connecticut market for veterinary services any veterinarian who offers certain reduced dosages
of the rabies vaccine to animal-patients, and that the Board is currently effectuating this
anticompetitive scheme through an administrative proceeding against Plaintiff.
On June 12, 2015, Plaintiff filed his initial complaint, a motion for a temporary restraining
order ("TRO") and a motion for a preliminary injunction ("PI"), all aimed at forestalling Defendants'
administrative proceedings against him. Docs. 1-5. The Court denied Plaintiff's TRO motion on the
same day, [Doc. 11], but reserved decision on the PI motion, which is pending. Following a June
18, 2015 hearing with this Court on his PI motion, Plaintiff filed an Amended Complaint. Doc. 30.
Defendants thereafter filed a motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure, which is also pending. Docs. 39, 44, 46. Nonparties Charter Practices International, LLC and Medical Management International, Inc. ("Proposed
Interveners") have filed joint motions to intervene in the action, [Doc. 21], and for joinder in
Defendants' motion to dismiss, [Doc. 43]. This Ruling resolves all pending motions.
I.

Background
The following recitation is taken principally from Plaintiff's Amended Complaint ("AC"),

whose well-pleaded factual allegations the Court takes as true for purposes of this motion to dismiss.
In 2008, Dr. Robb acquired ownership of a Banfield Pet Hospital franchise ("Banfield") in
Stamford, Connecticut pursuant to an agreement with Charter Practices International ("CPI"), a
corporate franchisor. AC ¶ 8. As part of his practice at the hospital, Dr. Robb administered various
animal vaccinations, including that for rabies. In his first several months at the Banfield franchise,
he administered "the manufacturer's standard recommended dose" of 1 milliliter of the rabies vaccine
2

to canines, regardless of the dog's size. Id. ¶¶ 19, 22. However, soon thereafter, a significant number
of Dr. Robb's animal-patients experienced "vaccine-associated adverse events" or "VAAEs,"
particularly smaller breeds of dog. Id. ¶ 22. In light of this experience, and after review of a 2005
peer-reviewed study documenting a correlation between animal size and VAAEs,2 Dr. Robb
amended his hospital's vaccination policy such that it would administer only 0.5 milliliters to dogs
under ten pounds. Id. ¶ 24. Dr. Robb offered lower dosages because he "was scientifically and
morally unsatisfied with the unnecessary adverse reactions in companion animals from one-size-fitsall manufacturer's recommended dosages." Id. ¶ 3. Following the change in protocol, Dr. Robb's
hospital saw an immediate reduction in VAAEs and thereafter incrementally expanded its reduced
dosage policy to all breeds under fifty pounds. Id. ¶ 25.
According to the Amended Complaint, the resulting success in reducing VAAEs was stark.
In the period between 2010 and July 2015, other Banfield franchise hospitals experienced 300 cases
of anaphylaxis, "one of the most severe and fatal VAAEs that can occur," leading to six deaths, while
Dr. Robb's hospital had no such cases, all while not a single animal contracted any of the diseases
for which they were vaccinated. Id. ¶¶ 26-28. Given these circumstances, Dr. Robb vehemently
and with manifest conviction and sincerity alleges that he has an "ethical obligation" to provide
lower-dose vaccinations to smaller animals and that to do so has "been decisively found to be within
the standard of care." Id. ¶¶ 3-4. Further, he experienced a significant consumer demand for his
lower-dose vaccinations. Id. ¶ 3; see also Doc. 31, at 2 ("Patients flocked to his practice").
Not surprisingly, Dr. Robb's decision to offer lower than manufacturer-recommended doses

2

George M. Moore, Adverse Events Diagnosed Within Three Days of Vaccine
Administration in Dogs, 277 J. Am. Vet. Med. Ass'n 1102 (2005)
3

led to direct conflict with certain institutional interests. The Amended Complaint lists a number of
adverse reactions with which Dr. Robb has been contending.
First, the Mars Candy Company, CPI's corporate parent, allegedly in retaliation for Dr.
Robb's refusal to accept a "well-below-market" buy-out offer, used Dr. Robb's failure to provide the
manufacturer's recommended vaccine dosage as a pretextual justification to terminate without
justification his Banfield franchise agreement.3 AC ¶¶ 30-31.
Second, "the Connecticut Department of Public Health brought charges . . . against Dr. Robb
stemming directly from his rabies vaccination procedures." Id. ¶ 33. In an August 28, 2014 letter
sent to Dr. Robb by the Board, the Board ordered Dr. Robb to appear "for a hearing on the attached
Charges against [him]." Doc. 5-4, at 2-3. The "attached Charges" referenced by the Board's letter
consists of an August 1, 2014 "Statement of Charges" issued by the Connecticut Department of
Public Health ("DPH"). Id. at 4. The Statement of Charges states that "Pursuant to the General
Statutes of Connecticut, §§19a-10 and 19a-144, the Department of Public Health . . . brings the
following charges against John M. Robb." Id. The principal and relevant charge at-issue against Dr.
Robb is that he "instructed employees to administer half doses of rabies vaccines to animals under
the weight of fifty pounds." AC ¶ 39. The Statement of Charges recites that, despite Dr. Robb's
vehement protestations, the provision of lower than the manufacturer-recommended dosages of the
rabies vaccine "constitute[s] grounds for disciplinary action pursuant to the General Statutes of

3

This dispute is being litigated concurrently in this District in front of Judge
Chatigny. Charter Practices International v. Robb, No. 12-cv-01768 (RNC).
4

Section 19a-14 states that DPH has the power to "[c]onduct any necessary review,
inspection or investigation regarding qualifications of applicants for licenses or certificates,
possible violations of statutes or regulations, and disciplinary matters."
4

Connecticut, §20-202(2)."5 Doc. 5-4, at 4. DPH then "prays that: The Connecticut Board of
Veterinary Medicine, as authorized in §§19a-17 and 20-202, revoke or order other disciplinary action
against the veterinary license of John M. Robb as it deems appropriate and consistent with law." Id.
The Board ordered Dr. Robb to appear for a December 2, 2014 hearing on those charges. Id. at 1.
It is this administrative proceeding that is at the core of the instant litigation before this Court.
Dr. Robb argues that there is no basis for the administrative action against him because
Connecticut "state policy is ambiguous as to vaccination protocols generally and entirely silent on
dosage amount."6 AC ¶ 63. Rather, as discussed further below, Dr. Robb argues that the action is

5

C.G.S. §20-202(2) states that the Board may impose disciplinary action pursuant
to Section 19a-17 where, inter alia, there is "proof that [a licensed veterinarian] has been guilty
of . . . negligence towards animals[.] In determining whether the holder of such license has acted
with negligence, the board may consider standards of care and guidelines published by the
American Veterinary Medical Association including, but not limited to, guidelines for the use,
distribution and prescribing of prescription drugs."
6

Dr. Robb was not always of the view that state law is silent as to rabies dosages
amounts. This is evident from various sources. Dr. Robb stated the following at a January 7,
2015 hearing in front of the Defendant Board:
MR. BERNARD:

Now, [whether you administered half dosages
of rabies vaccine is] either true or not true. If
it's true, the reasons why you did it are not
really anything we care about.

DR. ROBB:

Oh really.

MR. BERNARD:

There's a state statute that says you are to
administer a full dose of rabies vaccine.

DR. ROBB:

That's wrong.

MR. BERNARD:

What's wrong?

DR. ROBB:

You should be interested.

MR. BERNARD:

No, no.

DR. ROBB:

The state statute is harming your pet because
5

brought solely as part of a conspiracy by Defendants to eliminate competitors from the Connecticut
veterinarian market that aim to compete with the Veterinarian Defendants by offering lower-dose
vaccines.
To support his claims that the rationale for the disciplinary action against him for violation
of state regulations is pretext, Dr. Robb alleges that at a hearing in front of the Defendant Board, the
"Board's own veterinarian expert witness, Dr. Jeffrey Loeven," testified clearly that Dr. Robb caused
no harm to his animal-patients, that he "'fully agree[s] with [Dr. Robb's] assertion that you can
modify the practice of medicine according to the Aesculapian authority,7 including the Hippocratic
oath,'" and that Dr. Robb's "'approach resulted in fewer reactions based on limited titers done and
lack of documented disease breaks.'" Id. ¶¶ 41, 43 (quoting March 27, 2015 testimony).8

it's outdated. You should be interested.
Doc. 20-2, at 120 (emphasis added). Additionally, in his Second Amended Answer in the
administrative proceeding, he argued that Conn. Agencies Regs. 22-359-1 is "an unconstitutional
delegation of powers," but also referred to it as a "regulatory requirement . . . to administer the
rabies vaccine in accordance with the private for-profit manufacture's label directions." Doc. 5-7,
at 2. Further, in his initial TRO and PI papers, he refers to this as an "outdated regulation." Doc. 51, at 10. He also admits Section 22-359-1 is a regulation that "arguably requires that a veterinarian
follow for-profit manufacturer label instructions when administering rabies vaccines." Id. at 13.
7

Dr. Robb explained in his memorandum of law in support of his TRO and PI that
the "Aesculapian Authority is the power of physicians to choose for their patient what they
believe is the best practice," a "power [that] is now available to Veterinarians because of
companion animal practice." Doc. 5-1, at 7 n.1 (citing Bernard E. Rollin, PhD, An Introduction
to Veterinary Medical Ethics, Theory and Cases, at 84 (2d ed. 2006)). The adjective
"Aesculapian" is derived from Aesculapius, the Greco-Roman god of medicine.
8

There are a several issues with Plaintiff's citations to Dr. Loeven's March 27, 2015
testimony. First, his name is Dr. Koen Loeven, not Dr. Jeffrey Loeven. Doc. 39-4, at 8. Second,
this witness was called by DPH, and thus is not the Defendant Board's witness. Id. ("The
Department calls Dr. Loeven to the stand"). Third, and most significantly, in a section omitted
from Plaintiff's excerpted submission from the transcript, Dr. Loeven testified that: "My function
was to review the case as to the standard of care under Connecticut statute and also veterinary
6

In consequence, Dr. Robb alleges that the Defendant Board has no basis "to pursue its
baseless action against [him]" because it "and its veterinarian members have no medical, health or
safety reason to pursue veterinarians like Dr. Robb that offer vaccination services with lower doses
for smaller animals." Id. ¶ 44. Rather, at the core of his antitrust complaint, Dr. Robb alleges that
the Board "pursues its" action "for the anticompetitive reason that offering such services threatens
the profits that veterinarians, including three board members, make from vaccinations." Id. To
effectuate their anticompetitive goals,
the Board, along with the Individual Defendants, entered into an
agreement to prevent competition on quality and price by excluding
from the relevant service market any doctor of veterinary medicine
who does not provide the manufacturer's recommended dose for
rabies vaccinations. The agreement and conspiracy includes the
Defendants' decision to pursue sanctions against Dr. Robb.
Id. ¶¶ 67-68. Dr. Robb also alleges that "[a]s part of Defendants' agreement and conspiracy,
Defendants have communicated to the relevant purchasing public that Dr. Robb is currently under
investigation for professional misconduct." Id. ¶ 72. Dr. Robb then alleges that "Defendants'
conduct has no procompetitive or business justification." Id. ¶ 73.
Dr. Robb does not allege any specific conduct actually engaged in by the Board's members
that would constitute an "agreement" or a "conspiracy." Rather, Dr. Robb relies on circumstantial
factors, specifically the Veterinarian Defendants' "direct pecuniary motivation" to preclude the
availability of size-appropriate vaccinations. Id. at 18. He alleges that "the three veterinarian
members of the Defendant Board use vaccination protocols that rely solely upon the manufacturer's

guidelines and I believe that the use of half volume rabies vaccination is against State statute
and also against the standard of care." Id. at 10 (emphasis added); see also id. at 13 (Plaintiff's
letter response to Dr. Loeven "did not change the main core of my review that the standard of
veterinary care was violated").
7

recommended dosage," and that therefore a market for vaccinations that deviate from that protocol
"represent[s] a direct financial threat to the veterinarian Individual Defendants." Id. ¶¶ 56-57.
It is through the above conduct that Dr. Robb alleges that he, and the Connecticut markets
for vaccination and veterinary services more generally, were harmed. Dr. Robb alleges repeatedly
that the Defendants' actions harm the Connecticut market for vaccination and veterinarian services,
of which Dr. Robb alleges vaccination services account for seventy percent. Id. ¶¶ 47, 55; see also
Doc. 31, at 1 (vaccinations are "the golden goose of veterinarian practices"). Specifically, he alleges
that his
competitors on the Connecticut Board of Veterinary Medicine—a
quasi-private, quasi-public entity dominated by doctors of veterinary
medicine in active, private practice—have restrained competition by
declaring these safe, effective, and heretofore legal vaccination
practices as a violation of their own vaguely drafted administrative
rules.
Id. ¶ 4. Dr. Robb alleges that the practical effect of this restraint on competition has been to
improperly obstruct a demonstrated demand for "size-appropriate vaccination dosages," id. ¶ 46, both
from veterinarians,9 and from consumers.10 Apart from harm caused by market disturbance, Dr.
Robb also alleges that he is harmed directly through the administrative proceeding because his

9

Dr. Robb alleges that there are "multiple doctors of veterinary medicine," such as
Dr. Marcus Suppa, D.V.M., who either "ceased providing size-appropriate vaccination dosages
or [] entertained the possibility of offering size-appropriate vaccination dosages and have decided
not to offer them as a direct result of the Defendants' anticompetitive actions." Id. ¶ 52.
10

Dr. Robb alleges that "owners of pets who are concerned about or who have
experienced VAAEs as a result of needless, one-size-fits-all vaccine dosages have flocked to his
practice." Id. ¶ 50. Dr. Robb also alleges that "[m]any individual pet owners on [sic]
Connecticut would, if they had the opportunity, purchase vaccination lower-dosage services for
their small pets." Id. ¶ 53. Dr. Robb then identifies one such patient who "demand[s] and
desire[s] half-dosages of vaccine for [her] smaller pets [and] will be unable to contract for them"
because of the Board's action. Id.
8

license, "professional reputation, goodwill, and livelihood [are] at stake," id. ¶ 75, and because "if
successful, [it] will also jeopardize [his] $6.5 million in counterclaims against Banfield in a related
federal case," id. ¶ 74.
Moreover, the Board, pursuant to its adjudicative function, has sufficient market power to
effectuate such an anticompetitive effect "because they have the power to exclude any competitor
from the practice of veterinary medicine in Connecticut." Id. ¶ 49; see also id. ¶ 64 (the Veterinarian
Defendants "have the power to take collective action against Dr. Robb and any other veterinarian that
seeks to offer better, different, or lower cost services relating to vaccinations").
In short, "[t]he anticompetitive actions of the Board, acting as a trade association, directly
restrain trade by protecting the veterinarian establishment from the competition that would come
from veterinarians, like Dr. Robb, who would adopt the reduced volume vaccine protocol." Id. ¶ 54.
In light of the above alleged conduct, Dr. Robb's Amended Complaint asserts a single claim
for violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, against all Defendants in their
individual and official capacities, for "Conspiracy to Restrain Trade – Group Boycott." Dr. Robb
seeks injunctive relief, treble compensatory damages under 15 U.S.C. § 15(a), and his costs and
expenses in bringing the instant action. AC, at 23.
II.

Defendants' Motion to Dismiss
Defendants argue that Plaintiff's claim should be dismissed in full for a significant number

of independent reasons, which they group together as follows. Doc. 39. First, this Court lacks
subject matter jurisdiction because: (i) Dr. Robb lacks Article III standing; (ii) Dr. Robb lacks the
more particularized "antitrust standing"; and (iii) Dr. Robb's claims are not ripe for review. Second,
the 11th Amendment bars claims (i) against the Board and (ii) for monetary damages against the
9

Board members in their official capacities. Third, the Individual Defendants are immune from suit
either pursuant to absolute or qualified immunity. Fourth, Dr. Robb failed to allege in substance an
antitrust claim. Fifth, this Court should not interfere with an ongoing state administrative proceeding
in light of the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971). And Sixth,
Dr. Robb has failed to exhaust his administrative remedies. The Court will address the substance
of Defendants' arguments, as necessary, below.
III.

Standard of Review
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This pleading standard creates a
"two-pronged approach," Iqbal, 556 U.S. at 679, based on "[t]wo working principles, " id. at 678.
First, although a complaint need not include detailed factual allegations, it must provide
"more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.
"A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause
of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further factual enhancement.'"Id. (quoting Twombly, 550 U.S.
at 557. "Although for the purposes of a motion to dismiss we must take all of the factual allegations
in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual
allegation.'" Id. (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations." Id. at 679.
Second, "[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556
10

U.S. at 679. This "facial plausibility" prong requires the plaintiff to plead facts "allow[ing] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
Importantly, the complaint must demonstrate "more than a sheer possibility that a defendant has
acted unlawfully." Id. "[W]here 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 'show[n]' – 'that the
pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). "Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
IV.

Analysis
The Supreme Court has "direct[ed] federal courts to resolve questions of Article III

jurisdiction before reaching the merits of a plaintiff's claim." Spargo v. N.Y. State Comm'n on
Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (citing Steel Co. v. Citizens for a Better Env., 523
U.S. 83, 94 (1998) ("declin[ing] to endorse . . . an approach [of 'hypothetical jurisdiction'] because
it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental
principles of separation of powers")).
The Court therefore begins with Defendants' jurisdictional arguments—that Plaintiff lacks
Article III standing and that his claims are not yet ripe.11 Only if Plaintiff prevails on those initial
11

Defendants argue that"antitrust standing" is a jurisdictional question. Doc. 39-1,
at 14 n.6 (citing Balaklaw v. Lovell, 14 F.3d 793, 800 (2d Cir. 1994)). First, Balaklaw does not
address the question of the jurisdictional nature of antitrust standing. Second, while the question
has been the subject of some debate, the Second Circuit has cited with approval the D.C. Circuit's
"holding that statutory standing under the antitrust laws is not a prerequisite to federal subject
matter jurisdiction." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003) (citing In re
Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 107-08 (D.C. Cir. 2002) ("Unlike
constitutional standing, this court's jurisdiction does not turn on antitrust standing.")); see also
Paulsen v. Remington Lodging & Hospitality, LLC, 773 F.3d 462, 468 (2d Cir. 2014) ("statutory
11

issues will the Court be in a position to consider the merits of Plaintiff's antitrust claim.
As to that separate issue, Defendants contend on their motion to dismiss that Plaintiff's
Amended Complaint fails as a matter of law to state an antitrust claim under the Sherman Act.
I discuss in order the related but separate issues of Plaintiff's standing to assert his claim and
the legal viability of that claim as pleaded.
A. Subject Matter Jurisdiction
Subject matter jurisdiction is a prerequisite for an adjudication in federal court. A federal
district court has no subject matter jurisdiction over claims for which a plaintiff lacks Article III
standing. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). The same is true as to
claims that are unripe. U.S. v. Quinones, 313 F.3d 49, 58 (2d Cir. 2002). The Court turns to these
issues now.
1. Article III Standing
Defendants argue that Plaintiff's complaint fails to meet the "'irreducible constitutional
minimum of standing.'" Doc. 39-1, at 12 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). As recently reiterated by the Supreme Court, "[t]he requirements of Article III standing are
familiar." U.S. v. Windsor, 133 S. Ct. 2675, 2685 (2013). "First, the plaintiff must have suffered
an 'injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) 'actual or imminent, not 'conjectural or hypothetical.' Second, there must be a causal
connection between the injury and the conduct complained of . . . [and] [t]hird, it must be 'likely' .
. . that the injury will be 'redressed by a favorable decision.'" Id. (quoting Lujan, 504 U.S. at 560-61)

standing is not jurisdictional unless Congress says so"). Therefore, the Court need not address
Defendants' antitrust standing argument as part of its Article III jurisdictional analysis.
12

(footnote and citations omitted)). "The party invoking federal jurisdiction bears the burden of
establishing these elements." Lujan, 504 U.S. at 561. I consider those elements in that order.
a. Injury-in-Fact
Dr. Robb has alleged injuries that are current, "concrete," "particularized," and "actual."
Principally, Dr. Robb alleges an "antitrust injury"—a

harm to the market for veterinary

services—which is "sufficient to satisfy the constitutional standing requirement of injury in fact."
Associated Gen. Contractors of Calif. v. Calif. State Council of Carpenters, 459 U.S. 519, 551 n.31
(1983). Specifically, Dr. Robb alleges that he—and other like-minded veterinarians—cannot
properly compete in the market because they "cannot provide size-appropriate vaccinations" given
the administrative proceedings that they face. AC ¶ 51. Because, "[f]or purposes of determining
standing, we 'must accept as true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party,'" Dr. Robb has sufficiently alleged an injury-in-fact.
Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (quoting Warth v. Seldin, 422 U.S.
490, 501 (1975)).
Defendants' arguments do not lead to a contrary result. First, Defendants confusingly argue
that Dr. Robb was not injured because his "allegation that the Board has prevented him from
competing on quality is unfounded" in light of the fact the Board did not "promulgate the statutes
or regulations that Plaintiff claims prohibit him from competing." Doc. 39-1, at 12-13. Whether or
not it was the Defendants' actions that harmed Plaintiff goes to the element of causation—it is
irrelevant in determining an injury-in-fact. Second, they argue that Dr. Robb has not suffered an
injury because the Board has yet to make any determination as to whether he in fact committed the
regulatory violations with which he was charged. Id. at 13. However, in so arguing, Defendants
13

ignore this action's antitrust context. As discussed above, Dr. Robb does not only allege injuries
stemming from a potential adverse determination in the administrative proceeding against him; he
alleges that the proceedings against him have dissuaded him and others from competing as to
dosages.12 Also, it is not the case that a plaintiff lacks standing ipso facto when his alleged injury
stems from the potential future effect of a yet-to-occur government action. See Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334, 2342-43 (2014) (discussing Supreme Court "cases [that] illustrate
the circumstances under which plaintiffs may bring a preenforcement challenge consistent with
Article III"). Plaintiff has alleged an injury-in-fact.
However, Plaintiff then argues that his allegation of antitrust injury is sufficient to confer
Article III standing in toto. Doc. 44, at 7 (citing Assoc. Gen., 459 U.S. at 551 n.31). Plaintiff is
mistaken. As made clear in Assoc. Gen.,"[h]arm to the antitrust plaintiff is sufficient to satisfy the
constitutional standing requirement of injury in fact." 459 U.S. at 551 n.31 (emphasis added). Dr.
Robb still must sufficiently allege the remaining two elements of Article III standing.

12

In this regard, this case is distinct from Clapper v. Amnesty Int'l USA, 133 S. Ct.
1138 (2013), in which the Court rejected plaintiff's standing theory that it was injured through the
adoption of certain costly measures it took in anticipation of the government's use of a regulatory
power in a way that might injure it. There, where the government had not even taken action with
respect to the regulation at issue, the Court denied this standing theory because "[a]llegations of a
subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm." Id. at 1152. Here, where Dr. Robb is already facing regulatory
sanctions (in the form of forcing him to refrain from providing lower dosages), he has caught a
"chill" from standing in the face of the adverse wind of the administrative proceeding, and that
chill is objective, not subjective, since Dr. Robb is required to defend himself against the
administrative charges. Dr. Robb clearly stands in the face of a "threat of specific future harm," a
circumstance sufficient at this stage of the case to constitute Article III "injury."
14

b. Causal Connection
To have Article III standing, a plaintiff must show "a causal connection between the injury
and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action
of the defendant, and not . . . th[e] result [of] the independent action of some third party not before
the court." Lujan, 504 U.S. at 560 (internal quotation omitted). However, "the 'fairly traceable'
standard is not equivalent to a requirement of tort causation. . . . [F]or purposes of satisfying Article
III's causation requirement, we are concerned with something less than the concept of proximate
cause." Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) (internal quotation and citation
omitted, emphasis in original). "Rather, 'at [the pleading] stage of the litigation,' the plaintiffs'
'burden . . . of alleging that their injury is 'fairly traceable' to' the challenged act 'is relatively
modest.'" Id. (quoting Bennett v. Spear, 520 U.S. 154, 171 (1997)).
As Defendants repeatedly note—and as demonstrated through sources with which this Court
may consider at this stage—Dr. Robb is undoubtedly incorrect when he posits that it is the Defendant
Board that has brought the administrative proceeding against him. As made clear by, inter alia, the
Statement of Charges attached to Dr. Robb's initial complaint, it is the Connecticut "Department of
Public Health [that] brings the [at-issue] charges against John M. Robb." Doc. 5-4, at 4 (emphasis
added). Defendants use this fact to opine, quite accurately, that the "actions that Plaintiff complains
against are actions traceable to the Legislature, the Commissioner of Agriculture, and the Department
of Public Health. All parties not before the Court." Doc. 39-1, at 13. Despite its truth, it proves too
much to argue that this fact alone leads to the conclusion that Dr. Robb does not have standing to
bring this action.
Although other parties may be the proximate causes of Dr. Robb's alleged injuries, the issue

15

here is whether Plaintiff's alleged injuries can meet the "relatively modest" test of being "fairly
traceable" to the Defendants' alleged conduct. The demonstrated factual inaccuracies in the
Amended Complaint aside, Dr. Robb makes the following allegation:
[T]he Board, along with the Individual Defendants, entered into an
agreement to prevent competition on quality and price by excluding
from the relevant service market any doctor of veterinary medicine
who does not provide the manufacturer's recommended dose for
rabies vaccinations.
AC ¶ 67. If that be true,13 the alleged injuries—i.e., veterinarians not being able to provide lowerdose vaccinations—is "fairly traceable" to the Board's conduct in light of the fact that the adjudicator
of any administrative proceeding challenging such vaccination procedures is likely, on Plaintiff's
theory of the case, to have predetermined its outcome for anticompetitive reasons. In other words,
Dr. Robb—and other like veterinarians—have been forced to "chill" their behavior, and thus they
and the veterinarian market have suffered an injury, at least in part because of the knowledge that
their potential or actual adjudicators have formed an agreement to remove them from the relevant
market. Although the proximate cause of that chill may be the DPH, which decides to pursue
sanctions in the first place, it cannot be said that a partial adjudicator of those charges is not also a
cause of said chill. Dr. Robb has met his "relatively modest" burden of alleging a causal connection
between the Board's conduct and the alleged injury.

13

The Court acknowledges (as made clear below) that for purposes of establishing
an antitrust claim, the "ultimate existence of an 'agreement' under antitrust law . . . is a legal
conclusion, not a factual allegation," and thereby should not be accepted as true for purposes of a
motion to dismiss. Mayor and City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 135
(2d Cir. 2013). However, for purposes of standing, the Court may accept as true that the
individual Defendants entered into an agreement without accepting the "ultimate existence of an
'agreement'" as that term is used with respect to the antitrust laws. See Denney v. Deutsche Bank
AG, 443 F.3d 253, 264 ("an injury-in-fact," for standing purposes, "differs from a 'legal interest';
an injury-in-fact need not be capable of sustaining a valid cause of action").
16

c. Redressability
Finally, to have standing, a plaintiff must show that his alleged injury "can likely be redressed
by a favorable decision." Mantena v. Johnson, – F.3d –, 2015 WL 9487867, at *8 (2d Cir. Dec. 30,
2015) (citing Lujan, 504 U.S. at 560-61). Defendants argue that Dr. Robb's injury is not redressable
by this Court because an injunction against the Board's disciplinary proceeding "would not change
the rabies statute or regulations [which] would still prohibit veterinarians from administering rabies
vaccines in the manner Plaintiff wishes." Doc. 39-1, at 13-14.
However, in line with the above analysis, Defendants' argument can quickly be dispatched.
Dr. Robb alleges a harm to the veterinarian market effectuated through an administrative
adjudication infected by an anticompetitive conspiracy. In short, Dr. Robb argues that the Board will
not fairly address a question of Connecticut law—whether veterinarians providing lower-dose
vaccinations violate the law—because it has agreed to exclude these veterinarians from the market
for reasons entirely unrelated to the purpose behind any regulatory vaccination requirement. To
redress that injury to the market, Dr. Robb seeks, in part, permanent injunctive relief barring the
Defendants from illegally conspiring to remove veterinarians from the market on the basis of an anticompetitive rationale, rather than impartially applying Connecticut law. See AC, at 23. Such relief
is likely to redress the illegally caused harm to the veterinarian market.
Plaintiff has standing to bring this action.
2. Ripeness
"The doctrine of constitutional ripeness 'prevents a federal court from entangling itself in
abstract disagreements over matters that are premature for review because the injury is merely
speculative and may never occur.'" In re Methyl Tertiary Butyl Ether (MTBE) Prods Liab. Litig.,

17

725 F.3d 65, 110 (2d Cir. 2013) (quoting Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 226 (2d
Cir. 2008)). As is therefore apparent, "[t]his aspect of the ripeness doctrine overlaps with the
standing doctrine, 'most notably in the shared requirement that the plaintiff's injury be imminent
rather than conjectural or hypothetical.'" Id. (quoting Ross, 524 F.3d at 226) ("In most cases, that a
plaintiff has Article III standing is enough to render its claim constitutionally ripe.").
Here, Defendants argue that Dr. Robb's claim is not ripe for review because the Board has
yet to issue a decision. Doc. 39-1, at 18. As Defendants acknowledge, this is the same argument it
made "[a]s with the standing issue." Id. The Court denied this argument as to standing, and it denies
Defendants' argument as to ripeness for the same reasons. Further, the Second Circuit has also held
that "[i]n the antitrust context in particular, a rule that has yet to be enacted or enforced may be ripe
for review if its mere proposal is likely to inhibit competition." Volvo N. Am. Corp. v. Men's Int'l
Prof. Tennis Council, 857 F.2d 55, 64 (2d Cir. 1988).
In the case at bar, Dr. Robb alleges that competition has already been inhibited by
Defendants' illegal agreement to remove certain competitors from the market in light of the
proceedings against him. His claim is thereby ripe for review, and, in light of the Article III standing
analysis supra, I conclude that this Court has subject matter jurisdiction over this action.
B. Antitrust Claim
Although Plaintiff has standing to assert his claim, that claim is nonetheless subject to
dismissal if it has no merit as a matter of law. Defendants contend that Plaintiff's claim against them
has no merit because, inter alia, it fails to plead an antitrust claim that is cognizable under the
Sherman Act.
Plaintiff brings a one-count complaint alleging a violation of 15 U.S.C. § 1, which states that:

18

Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal.
The threshold question of a Section 1 claim is "whether an arrangement is a contract, combination,
or conspiracy," a question"informed by the basic distinction in the Sherman Act between concerted
and independent action." American Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 186, 190
(2010) (internal quotation omitted). A state board comprised of a majority of private practitioners,
such as the Defendant Board, is capable of illegal concerted action for purposes of Section 1. See
North Carolina State Bd. of Dental Exam'rs v. F.T.C., 717 F.3d 359, 371-72 (4th Cir. 2013), aff'd
135 S. Ct. 1101 (2015) ("Any agreement between the Board members . . . deprives the market of an
independent center of decision making."). However, "concluding that the Board has the capacity to
conspire 'does not mean . . . that every action taken' by the Board 'satisfies the contract, combination,
or conspiracy requirement.'" Id. at 372 (quoting Oksanen v. Page Mem'l Hosp., 945 F.2d 696, 706
(4th Cir. 1991)) (upholding a Sherman Act violation where "[s]ubstantial evidence support[ed] th[e]
conclusion" of concerted action). In short, to survive dismissal, Dr. Robb must allege that the
members of the Defendant Board affirmatively came together to form an agreement to restrain trade.
However, to satisfy the pleading requirement at the Rule 12(b)(6) stage, an antitrust plaintiff
may not simply allege that "the parties agreed." This is because the "ultimate existence of an
'agreement' under antitrust law . . . is a legal conclusion, not a factual allegation." Mayor and City
Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). Accordingly, any
conclusory allegation of an "agreement" is not to be accepted as true; the plaintiff must allege facts
affirmatively demonstrating such an agreement. See Anderson News, L.L.C., 680 F.3d at 184
(plaintiff "must plead 'enough factual matter (taken as true) to suggest that an agreement was made,'

19

i.e., it must provide 'some factual context suggesting [that the parties reached an] agreement,' not
facts that would be 'merely consistent' with an agreement" (quoting Twombly, 550 U.S. at 556)).
In Twombly, the Supreme Court laid out clearly the allegations sufficient for an antitrust plaintiff to
overcome a motion to dismiss as to the element of conspiracy in a Section 1 claim:
[A]n allegation of parallel conduct and a bare assertion of conspiracy
will not suffice. Without more, parallel conduct does not suggest
conspiracy, and a conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show illegality.
Hence, when allegations of parallel conduct are set out in order to
make a § 1 claim, they must be placed in a context that raises a
suggestion of a preceding agreement, not merely parallel conduct that
could just as well be independent action.
550 U.S. at 556-57; see also id. at 567-68 (dismissing allegations of conspiracy where allegedly
conspiratorial actors had "an obvious alternative explanation" for their parallel conduct).
That is not to say that an antitrust complaint must always identify a "smoking gun" evincing
an agreement (such as a written contract). However, a complaint like this one, which omits a
"smoking gun," may survive dismissal only if an actual agreement "'may be inferred on the basis of
conscious parallelism, when such interdependent conduct is accompanied by circumstantial evidence
and plus factors.'" Mayor and City Council of Baltimore, 709 F.3d at 136 (quoting Todd v. Exxon
Corp., 275 F.3d 191, 198 (2d Cir. 2001)). A "plaintiff must show the existence of additional
circumstances, often referred to as 'plus' factors, which, when viewed in conjunction with the parallel
acts, can serve to allow a fact-finder to infer a conspiracy." Apex Oil Co. v. DiMauro, 822 F.2d 246,
253 (2d Cir. 1987). "'These 'plus factors' may include: a common motive to conspire, evidence that
shows that the parallel acts were against the apparent individual economic self-interest of the alleged
conspirators, and evidence of a high level of interfirm communications.'" Mayor and City Council
of Baltimore, 275 F.3d at 198 (quoting Twombly, 425 F.3d at 114).
20

In the case at bar, Dr. Robb makes only conclusory allegations as to an agreement among the
Individual Defendants, either tacit or express. The Amended Complaint does not describe any action
to that effect engaged in by any of the Individual Defendants. The pleading refers to the alleged
conspirators by name only once, and then only to identify the parties to the litigation. AC ¶¶ 10-14.
By failing to make a single allegation as to the conduct of the individuals that allegedly came to an
illegal agreement, nor as to the form, dates, place, structure, or detail of such an agreement, Dr. Robb
faces a significant hurdle, as a matter of law, to support his claim of an antitrust conspiracy. To
establish the factual underpinning of an actual "agreement," a party must allege facts that in some
way describe the process of that agreement's formation. For example, in Anderson News, the Second
Circuit overturned the lower court's ruling that plaintiff's claims were overly conclusory in light of
the fact that:
The [complaint] allege[d] actual agreement; it allege[d] not just that
all of the defendants ceased, in virtual lock-step, to deal with
Anderson, but allege[d] that on various dates within the preceding
two-week period defendants and News Group—through their
executives, 10 of whose names or positions are specified—had met
or communicated with their competitors and others and made
statements that may plausibly be interpreted as evincing their
agreement to attempt to eliminate Anderson and Source as
wholesalers in the single-copy magazine market and to divide that
market between News Group and Hudson.
680 F.3d at 186-89 (holding that in light of these allegations, the complaint "in the present case is
vastly different from the complaint at issue in Twombly"). The Second Circuit's decision in
Anderson News may be contrasted with its ruling in Mayor and City Council of Baltimore, which
rejected a conspiracy claim as impermissibly conclusory even though the complaint alleged "two
actual communications between competitors." 709 F.3d at 139 (emphasis omitted). Dr. Robb makes
not even a single such factual allegation as to the behavior of the individuals whom he accuses of
21

conspiring.
Without alleging any "gun" (let alone of the "smoking" variety), Dr. Robb must allege
sufficient "conscious parallelism," or "interdependent conduct," from which an agreement among
the Individual Defendants may be plausibly inferred. See Ross v. Citigroup, Inc., – F. App'x – , 2015
WL 7292176, at *1 (2d Cir. Nov. 19, 2015). As shown below, this he also entirely failed to do. In
other words, not only has Dr. Robb failed to allege any facts supporting an actual agreement (as
discussed above), he has also failed to allege properly any facts alleging concerted conduct from
which this Court could theoretically infer such an agreement. Dr. Robb has simply made no proper
and acceptable allegations that the Individual Defendants have done anything to implement or further
the conspiratorial agreement that he (conclusorily) alleges.
A review of the few actions of the Board that Dr. Robb has alleged demonstrates the
inadequacy of the pleading. First, he alleges that the "Board has continued to pursue its baseless
action against Dr. Robb." AC ¶ 44. However, it is indisputably true that the Board is not pursuing
the administrative action against Dr. Robb, but merely sits in adjudication of charges that the DPH
pursues, a fact Plaintiff largely admits in his pleading, id. ¶ 33, is made clear from the DPH's
Statement of Charges, [Doc. 5-4], at 4, and is clear as a matter of Connecticut law, see C.G.S. §§
19a-13(6), 19a-14(8), 19a-14(10)-(11), 20-196b, 20-204a.
Second, Dr. Robb purports to allege that the Board made a "decision not to dismiss the
complaint upon failure of the case as a result of their own expert's testimony." Doc. 31, at 20.
However, the Board did not deny Dr. Robb's motion to dismiss the complaint, it simply took "the
motion under advisement" given that it had not "finish[ed] hearing the case" when Dr. Robb moved

22

to dismiss the action at a June 15, 2015 hearing.14 Doc. 34-1 Ex. C, at 80. Such an action cannot
plausibly be used to infer that the Board members entered into an agreement to exclude Dr. Robb
from the market, and actually furthers the Board's contention that it was taking serious its role as an
impartial adjudicator. Moreover, and as discussed, the expert referred to by Dr. Robb was that of
the DPH, not of the Board, and, in fact, that expert testified that Dr. Robb's conduct "is against State
statute and also against the standard of care." Doc. 39-4, at 10 (emphasis added). It would be
strange indeed for the Board to grant a motion to dismiss a complaint alleging a violation of a state
statute on the basis of an expert testifying that the respondent in fact committed the violation with
which he was charged.
Third, in the introduction of his amended complaint, Dr. Robb alleges that the Board has
"declar[ed] . . . [his] legal vaccination practices as a violation of their own vaguely drafted
administrative rules." AC ¶ 4. However, it is quite clear that the Board has yet to make a decision
as to whether Dr. Robb has violated any rules. See, e.g., Doc. 31, at 21 (Dr. Robb referring to the
"Board's continued proceedings" against him).
Fourth, Dr. Robb alleges that, as part of its conspiracy, the Board has "communicated to the
relevant purchasing public that Dr. Robb is currently under investigation for professional
misconduct." AC ¶ 72. As an initial matter, Defendants vigorously dispute that the Board had any
role in publicizing the charges against Dr. Robb and proffers sworn testimony that it was the DPH

14

To the extent Dr. Robb refers to the Board's earlier May 4, 2015 denial of his
motion to dismiss, that decision likewise can in no way be used to infer an illegal conspiracy to
remove Dr. Robb from the market. In that decision, the Defendant Board properly rejected Dr.
Robb's clearly erroneous argument for dismissal based on an entirely unsupportable
interpretation of North Carolina State Board of Dental Examiners v. Federal Trade Commission,
135 S. Ct. 1101 (2015). See Doc. 5-9.
23

that did so simply as a matter of course, [Doc. 34-1 Ex. B] ¶¶ 6-10; further, the documents Dr. Robb
proffered allegedly evidencing such publication by the Board provide no ascertainable support for
Dr. Robb's allegation that it was the Board, rather than DPH, that published the charges, [Docs. 31-3,
31-4]. More important, however, is the fact that, without more, simply listing on a website the true
fact that Dr. Robb was under investigation for professional misconduct in no way evinces an illegal
conspiracy amongst the adjudicators to remove the target of that investigation from the relevant
market. See Mayor and City Council of Baltimore, 709 F.3d at 139 ("two vague references to
isolated [behavior] among only three defendants" are insufficient to support inference of antitrust
conspiracy). To hold otherwise would place under the umbrella of an antitrust conspiracy an
overwhelming amount of legitimate actions taken by regulatory boards comprised of industry
members.
Moreover, even were Dr. Robb to have alleged properly "interdependent conduct," Dr. Robb
makes only one allegation suggesting any of the circumstantial evidence or "plus factors" that would
thereby be required for his claim to survive dismissal. Dr. Robb alleges "[o]n information and belief
[that] the three veterinarian members of the Defendant Board use vaccination protocols that rely
solely upon the manufacturer's recommended dosage," and that thereby "[s]ize-appropriate
vaccination protocols like Dr. Robb's vaccination protocols thus represent a direct financial threat
to the veterinarian Individual Defendants."15 AC ¶¶ 56-57; see also Doc. 44, at 22 (describing such
as an "enormous incentive to restrain trade"). Although this may demonstrate a theoretical "common
motive to conspire" amongst the Veterinarian Defendants, it is insufficient to establish an antitrust

15

This motive cannot even apply to the two members of the Board who do not have
any demonstrated pecuniary motive to remove Dr. Robb from the market, Defendants Bernhard
and O'Neill. The claims against them are therefore not just without merit, but largely frivolous.
24

conspiracy when there exists an "obvious alternative explanation," Twombly, 550 U.S. at 567, for
any parallel conduct: compliance with their statutory duty to adjudicate claims brought by the
Connecticut DPH. Therefore, the evidence of the Veterinarian Defendants' common motive to
conspire does not come close to "exclud[ing] the possibility of independent action." Monsanto Co.
v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984); see also Mayor and City Council of Baltimore,
709 F.3d at 137 ("even if a plaintiff alleges . . . "plus factors" . . . these facts must still lead to an
inference of conspiracy"). Any regulatory board comprised of industry members with a statutory
duty to adjudicate regulatory violations will almost always have some common motive to conspire
(i.e., excluding at least one competitor from the market).

That motive simply cannot be

independently sufficient to infer an antitrust conspiracy.
In this regard, this case is far from North Carolina State Board of Dental Examiners, the
Supreme Court's affirmance of which was and is relied on extensively by Dr. Robb. As summarized
by the circuit court, that case was "about a state board run by private actors in the marketplace taking
action outside of the procedures mandated by state law to expel a competitor from the market." 717
F.3d at 375 (emphasis added) (addressing board members' discretionary decision to send cease-anddesist letters to competitors). Here, Dr. Robb has not properly alleged any conduct of the individual
Board members other then sitting in adjudication of an administrative proceeding brought by another
state agency, an action the Board members are required to take under state law. See C.G.S. § 20196b (the Board "shall (1) hear and decide matters concerning suspension or revocation of licensure,
(2) adjudicate complaints filed against practitioners licensed under this chapter and (3) impose
sanctions where appropriate" (emphasis added)). Again, to thereby hold that Dr. Robb's bare
allegations make out an antitrust conspiracy would effectively mean that nearly all actions of an

25

adjudicative body controlled by a majority of industrial participants would constitute an antitrust
conspiracy per se, an unsupportable argument that Plaintiff initially proffered, but wisely
abandoned.16
In sum, Dr. Robb has failed to plead a single factual allegation affirmatively evincing the
existence of an agreement amongst the Defendants, and can point to no proper allegations of
Defendants' conduct from which this Court can remotely infer such an agreement. Dr. Robb is
thereby forced to rely solely on his allegation that the Veterinarian Defendants had a common
incentive to foreclose veterinarians such as Dr. Robb from the market. Such naked identification
of a theoretical motive to conspire, without significantly more, is far from sufficient to establish the
plausible existence of an agreement amongst competitors. Dr. Robb has thereby failed to allege a
plausible claim that the Defendants have conspired with each other. His antitrust claim must be
dismissed.
With such a clear and adequate ground for dismissal based upon Defendants' substantive
antitrust defense, the Court need not address Defendants' other arguments (as to immunity,
abstention, or exhaustion), many of which implicate constitutional concerns. This is because judges
are clearly directed to avoid unnecessary adjudications as to questions of constitutional law. See
Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46 (1988) (collecting cases
discussing the "fundamental and longstanding principle of judicial restraint [that] requires courts
avoid reaching constitutional questions in advance of the necessity of deciding them"); see also

16

As Dr. Robb admitted in his reply brief in support of his preliminary injunction,
"the Board's argument that Dr. Robb has 'grossly misconstrued' the holding of North Carolina
State Board of Dental Examiners . . . is now moot because Dr. Robb's verified amended
complaint (Dkt. 30) does not allege that the Board is violating the federal antitrust laws by way
of its composition alone." Doc. 31, at 4.
26

Burton v. U.S., 196 U.S. 283, 295 (1905) ("It is not the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case"). Here, Dr. Robb's
antitrust claim is clearly deficient for the reasons discussed above, and any further ruling would be
unnecessary.
V.

Conclusion
The record in this case makes manifest the sincerity of spirit, even devotion, with which Dr.

Robb, an experienced and successful practitioner of veterinary medicine, asserts that it is
unnecessary, dangerous and contrary to sound practice to require that the full dosage of rabies
vaccine administered to a Great Dane also be administered to a Chihuahua. However, such a
requirement appears to be envisioned by the Connecticut Department of Public Health, and forms
the gravamen of its administrative charge against Dr. Robb. Presumably the Board will eventually
adjudicate that charge.
The Court is constrained to conclude that Dr. Robb's complaint must be dismissed because
it does not allege a viable antitrust claim under the Sherman Act. In the absence of a viable claim
under the Constitution or a federal statute, the limited jurisdiction of this United States District Court
does not extend to righting whatever wrongs, however real, Dr. Robb may have identified. The Rule
of Law that courts such as this one enforce is a secular law. The Constitution places spiritual
questions beyond the competence of courts. If Connecticut's rules with respect to rabies vaccine
dosages should be changed, the Legislature and Governor must be asked to change them.
For the reasons stated above, Defendants' Motion to Dismiss [Doc. 39] is GRANTED. The
following motions are DENIED AS MOOT: (i) Plaintiff's Motion for Preliminary Injunction [Doc.
4]; (ii) Proposed Interveners' Emergency Motion to Intervene [Doc. 21]; and (iii) Proposed

27

Interveners' Proposed Joinder in Defendants' Motion to Dismiss the Amended Complaint [Doc. 43].
The Clerk of Court is directed to enter judgment for the Defendants, dismissing this action, and to
close the file.
It is SO ORDERED.

Dated: New Haven, Connecticut
January 20, 2016
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

28