Lupin Pharmaceuticals, Inc. et al v. Richards
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 7/2/2015. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LUPIN PHARMACEUTICALS, INC., et al., *
Plaintiffs,
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v.
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CRAIG RICHARDS,
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Defendant.
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Civil Action No. RDB-15-1281
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MEMORANDUM OPINION
In this case, Plaintiffs Lupin Pharmaceuticals, Inc.1 (“Lupin Pharmaceuticals”) and
Lupin, Ltd. (“Lupin India”) (collectively, “the Lupin Plaintiffs”) seek to enjoin Defendant
Craig Richards, the Attorney General of Alaska, (“the Attorney General”) from issuing a
civil investigative demand (“CID”) to the Lupin Plaintiffs and from applying Alaskan
antitrust law to the Lupin Plaintiffs. The Attorney General has moved to dismiss this action,
arguing that this Court should abstain from exercising its jurisdiction under the abstention
doctrine established in Younger v. Harris, 401 U.S. 37 (1971). The parties’ submissions have
been reviewed, and this Court held a hearing on June 26, 2015 on the Motion. See Local
Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendants Craig Richards’ Motion
to Dismiss (ECF No. 23) is GRANTED, and this case is DISMISSED.
BACKGROUND
1
Lupin Pharmaceuticals, Inc is a Virginia corporation with its headquarters and principal place of
business located in Baltimore, Maryland. Pls.’ Comp. ¶ 10. Lupin Pharmaceuticals distributes
prescription medications to American customers and is a wholly owned subsidiary of co-Plaintiff
Lupin, Ltd. (“Lupin India”). Id.
1
This Court accepts as true the facts alleged in plaintiff’s complaint. See Aziz v. Alcolac,
Inc., 658 F.3d 388, 390 (4th Cir. 2011). This dispute arose out of issues pertaining to two
drugs, Loestrin FE 24 and Effexor XR. These drugs are manufactured and sold by WarnerChilcott and Wyeth, respectively, and those companies hold patents on the drugs. See
Compl., ¶ 16. The Lupin Plaintiffs allege that neither Lupin Pharmaceuticals, Inc. nor
Lupin, Ltd.2 (“Lupin India”) had rights to sell the drugs or approval to sell generic versions.
Id. The Lupin Plaintiffs had filed applications with the Food & Drug Administration
(“FDA”) in 2006 and 2009 to sell generic versions of the respective drugs, but the brand
manufacturers sued the Lupin Plaintiffs for declaratory judgments stating that the sale of
such generics would violate their patents.3 Id. at ¶ 17. The Lupin Plaintiffs settled the patent
claims in 2009 and 2010 respectively. Id. at ¶¶ 17-18.
2
Lupin India is incorporated in India and has its headquarters and principal place of business in
Mumbai, India. Pls.’ Compl. ¶ 11. Lupin India develops and manufactures branded and generic
drugs in India.
3
Specifically, the Lupin Plaintiffs alleged:
Neither LPI nor Lupin India has ever sold Loestrin or
Effexor nor have they ever obtained approval from the Food and
Drug Administration (“FDA”) to sell generic versions of those
products. On September 30, 2006, Plaintiffs filed with the FDA an
Abbreviated New Drug Application (“ANDA”) seeking FDA
approval of a generic version of Effexor. On March 13, 2007,
Wyeth, the branded manufacturer of Effexor, sued SPI for a
declaratory judgment that LPI’s generic version of Effexnor would
infringe Wyeth’s patent. Wyeth and LPI settled the litigation on May
11, 2009.
. . . On July 30, 2009, LPI filed an ANDA seeking FDA
approval of a generic version of Loestrin. On September 9, 2009,
Warner-Chilcott, the branded manufacturer of Loestrin, sued LPI for
a declaratory judgment that LPI’s generic version of Loestrin would
infringe Warner Chilcott’s patent. Warner-Chilcott and LPI settled
the litigation on October 10, 2010.
Pls.’ Compl. ¶¶ 17-18.
2
On February 3, 2015, pursuant to Alaska Stats. §§45.50.5924 and 45.50.495, Attorney
General Richards issued separate civil investigative demands (CIDs) to Lupin
4
Section 45.50.592 states in full:
(a) If the attorney general determines that a person is in possession, custody,
or control of documentary evidence, wherever situated, that the attorney
general believes to be relevant to an investigation authorized in AS 45.50.590,
the attorney general may execute in writing and cause to be served on that
person an investigative demand requiring the person to produce the
documentary material, and permit inspection and copying.
(b) Each demand must
(1) state the specific statute the alleged violation of which is under
investigation, and the general subject matter of the investigation;
(2) describe, with reasonable specificity so as fairly to indicate the
material demanded, the documentary material to be produced;
(3) prescribe a return date within which the documentary material is
to be produced; and
(4) identify the state employees or representatives to whom the
documentary material is to be made available for inspection and
copying.
(c) A demand may not
(1) require the production of documentary material that would be
privileged from disclosure if demanded by a subpoena duces tecum
issued by a court of the state; or
(2) contain a requirement that would be unreasonable or improper if
contained in a subpoena duces tecum issued by a court of the state;
however, this does not limit the power of the attorney general to
require production of documents located outside the state that
pertain to matters affecting the state.
(d) The demand may be served by the attorney general or the designee of the
attorney general by
(1) delivering a copy of it to the person to be served or, if the person
is not a natural person, to an officer of the person to be served;
(2) delivering a copy of it to a place of business in the state of the
person to be served; or
(3) mailing by registered or certified mail a copy of it addressed to the
person to be served at a place of business in the state or, if the person
has no place of business in the state, to the principal office or place
of business of the person.
(e) Documentary material produced pursuant to a demand, or copies of it,
unless otherwise ordered by a superior court for good cause shown, may not
be produced for inspection or copying by, nor may its contents be disclosed
to, anyone other than an authorized employee of the state without the
consent of the person who produced the material. However, under those
3
Pharmaceuticals, Inc., and Lupin, Ltd., demanding production of three categories of
documents related to the two drugs. Id. at ¶ 21. The CIDs state that “[t]he Attorney
General seeks to determine whether the pharmaceutical manufacturers subject to [the CID]
reasonable terms and conditions the attorney general prescribes, copies of
the documentary material shall be available for inspection and copying by the
person who produced the material or an authorized representative of that
person. The attorney general, or a designee, may use copies of the
documentary material as the attorney general or designee considers necessary
in the enforcement of AS 45.50.562-45.50.598, including presentation before
a court; however, material that contains trade secrets may not be presented
except with the approval of the court in which the action is pending after
adequate notice to the person furnishing the material.
(f) At any time before the return date specified in the demand, or within 20
days after the demand has been served, whichever period is shorter, a
petition to extend the return date for, or to modify or set aside a demand
issued under (a) of this section, stating good cause, may be filed in the
superior court for the judicial district where the parties reside. A petition by a
person on whom a demand is served, stating good cause, to require the
attorney general or another person to act in accordance with the
requirements of (e) of this section, and all other petitions in connection with
a demand, may be filed in the superior court for the judicial district in which
the person on whom the demand is served resides.
(g) A person on whom a demand is served under this section shall comply
with the terms of the demand unless otherwise provided by an order of court
issued in response to a petition filed under (f) of this section. A person who,
with intent to avoid, prevent, or obstruct compliance, in whole or in part,
with an investigative demand under this section, removes from any place,
conceals, withholds, or destroys, mutilates, alters, or by any other means
falsifies, documentary material in the possession, custody, or control of a
person that is the subject of a demand duly served on any person, or who
otherwise wilfully disobeys any such demand, is guilty of a misdemeanor, and
is punishable upon conviction by a fine of not more than $5,000, or by
imprisonment for a term of not more than one year, or by both. Failure of
the state to serve the demand properly under (d) of this section is a defense
to prosecution under this subsection, but invalidity of the demand under (b)
or (c) of this section is not a defense, and that invalidity may be tested only in
an action under (f) of this section to modify or set aside the demand.
(h) Nothing in this section impairs the authority of the attorney general or a
designee to lay before a grand jury of this state evidence concerning a
violation of AS 45.50.562 - 45.50.596, to invoke the power of a court to
compel the production of evidence before a grand jury, or to file a civil
complaint or criminal information alleging a violation of AS 45.50.562 45.50.596.
4
violated Alaska state law by entering into a settlement agreement that terminated ongoing
patent litigation regarding the brand name drug listed herein, and thereby delaying generic
entry into the marketplace,” in potential violation of Alaska antitrust and consumer
protection statutes. See Mem. Supp. Mot. Dismiss 1-2, ECF No. 23-1. The CIDs originally
required production of responsive documents within sixty days.
Id. at 2. The Lupin
Plaintiffs allege that the scope of the CIDs included filings with the Federal Trade
Commission (“FTC”) and Department of Justice (“DOJ”), documents produced in the
patent litigations, documents discussing the validity of the patents, and agreements between
Lupin and the branded manufacturers. Pls.’ Compl. ¶ 21.
Alaska law provides that the subject of a CID may within 20 days of service file a
petition in Alaska Superior Court stating good cause why the CID should be modified or set
aside. Alaska Stat. §45.50.592(f). The Lupin Plaintiffs declined to file any petition requesting
modification of the CID. It is undisputed, however, that the Lupin Plaintiffs requested to
extend the time for compliance with the CIDs; the Attorney General granted those requests.
Thus, the deadline to produce documents responsive to the CIDs was May 4, 2015. Pls.’
Compl. ¶23.
Instead of complying with or objecting to the CIDs, the Lupin Plaintiffs filed the
present action on the May 4 deadline, and filed the Motion for Preliminary Injunction (ECF
No. 4) on the following day. The Complaint requests that this Court immediately issue a
permanent injunction restraining Defendant from issuing civil investigative demands (CIDs)
to Plaintiffs in connection with the Attorney General’s investigation of Plaintiffs’ compliance
with Alaskan Antitrust laws, and from applying those state laws to Plaintiffs. Plaintiffs also
5
request a declaratory judgment that Defendant’s issuance of CIDs to Plaintiffs in connection
with the Attorney General’s investigation of Plaintiffs’ compliance with Alaskan antitrust
laws regarding the drugs was unconstitutional. The Plaintiffs also seek attorneys’ fees and
damages.
On May 22, 2015, the Attorney General filed a motion for extension of time to
respond, noting that the assistant attorney general assigned to the case (Clyde Sniffen, Jr.)
was on vacation when this case was filed and that an extension was needed to allow time for
Sniffen to “return from vacation on May 27, 2015 to review the pleadings in this case, confer
with Attorney General Richards, and prepare a response to the motion for preliminary
injunction.” The motion was opposed by the Plaintiffs but was granted by this Court.
On June 1, 2015, the Attorney General filed a petition in Alaska Superior Court for
an order to show cause why the Lupin Plaintiffs should not be held in contempt for failure
to respond to the CIDs pursuant to Alaska Stat. § 45.50.592(g).5 On June 1, 2015, the
Attorney General also filed the subject Motion to Dismiss (ECF No. 23) and a Motion to
Stay the Motion for Preliminary Injunction (ECF No. 24) in this Court.
This Court held a teleconference on June 3, 2015. As a result of that call, the Motion
to Stay the Motion for Preliminary Injunction was granted, and this Court established a
briefing schedule for the motion to dismiss. This Court held a hearing on the Motion to
Dismiss on June 26, 2015.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
5
The Court refers to this case as “the Alaska Proceeding.”
6
lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With
respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter
jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.”
Davis, 367 F. Supp. 2d at 799.
Where the challenge is factual, “the district court is entitled to decide disputed issues
of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may
look beyond the pleadings and ‘the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
(citation omitted). The court “may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also
Sharafeldin v. Md. Dep’t of Pub. Safety & Corr. Servs., 94 F. Supp. 2d 680, 684-85 (D. Md. 2000).
A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards,
190 F.3d 648, 654 (4th Cir. 1999).
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ANALYSIS
The main issue before this Court is whether this Court should abstain from exercising
its jurisdiction over this case under the doctrine of Younger v. Harris, 401 U.S. 37 (1971).6 Of
course, federal courts have a “virtually unflagging” obligation to hear and decide those cases
for which they have jurisdiction. Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 591
(2013) (citing Colorado River Water Conservation Dist. V. United States, 424 U.S. 800 (1976)).
Certain “exceptional circumstances,” however, “justify a federal court’s refusal to decide a
case in deference to the States.” Id. (quoting New Orleans Pub. Serv., Inc. v. Council of City of
New Orleans, 491 U.S. 350 (1989)). The first case involving such an “exceptional
circumstance” was Younger, where the United States Supreme Court held that considerations
of federalism and comity required federal courts to abstain from exercising their equity
jurisdiction to enjoin ongoing state criminal prosecutions. Subsequently, the Supreme Court
found that such considerations also justified abstention where there were “state civil
proceedings that [were] akin to criminal prosecutions” or state proceedings “that implicate[d]
a State’s interest in enforcing the orders and judgments of its courts.” Sprint Communications,
Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013). The Supreme Court’s most recent opinion
addressing Younger abstention—Sprint Communications, Inc. v. Jacobs—does not purport to
diverge from the Court’s previous Younger jurisprudence; however, the Court noted that its
6
This Court recognizes that the Defendant Attorney General raised several other issues in its
motion to dismiss, including arguments pertaining to failure to state a claim under Rule 12(b)(6)
under the Dormant Commerce Clause of the United States Constitution, see U.S. Const. art. 1, § 8,
cl.3, ripeness doctrine, absolute prosecutorial immunity, and qualified immunity. These issues were
fully briefed, although the majority of the parties’ papers focused on the abstention issue, and
argument at the June 26, 2015 hearing was limited to the abstention issue as well. Because this
Court finds that Younger abstention is proper, this Court does not reach these other issues raised by
the parties.
8
decision was intended “to guide other federal courts” and to “clarify and affirm that Younger
extends to the three exceptional circumstances identified in [New Orleans Pub. Serv., Inc. v.
Council of City of New Orleans, 491 U.S. 350 (1989)], but no further.” Sprint, 134 S. Ct. at 59394 (internal quotation marks omitted).
The Attorney General asserts that the Alaska Proceeding warrants Younger abstention
because it is both a civil enforcement proceeding akin to a criminal prosecution (i.e., the
second Younger category) and a state proceeding that implicates the State’s interest in
enforcing the orders and judgments of its courts (i.e., the third Younger category). The Lupin
Plaintiffs characterize the Alaska Proceeding as a discovery dispute that does not qualify
under either the second or third Younger categories. Because this Court finds that this case
clearly qualifies for the third category of Younger abstention, this Court need not reach the
issue of whether this case also satisfies Younger’s second category.
A) The Alaska Proceeding Implicates the State’s Interest in Enforcing the Orders
and Judgments of its Courts
In Juidice v. Vail, 430 U.S. 327 (1977), the Supreme Court found that abstention under
Younger was appropriate in a federal class action suit brought by individuals who had been
found in contempt by state court judges for disobeying subpoenas. The Court recognized
that the same principles of federalism and comity that were emphasized in Younger also
applied to cases involving a State’s contempt process because “federal-court interference
with the State’s contempt process is an offense to the State’s interest . . . likely to be every bit
as great as it would be were [it] a criminal proceeding.” Juidice, 430 U.S. at 335-36 (internal
quotation marks omitted).
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The Lupin Plaintiffs attempt to distinguish this case from Juidice on the basis of the
type of subpoena at issue. In Juidice, the Supreme Court was faced with contempt
proceedings arising out of an individual’s failure to respond to a subpoena in a civil action
between private parties. In this case, the civil investigative demands—essentially
subpoenas—are administrative in nature. Specifically, AS § 45.50.592 authorizes the
Attorney General to issue CIDs when the Attorney General believes a party may have
documentary evidence believed to be relevant to an authorized antitrust investigation.
Petitions pertaining to such demands “may be filed in the superior court for the judicial
district in which the person on whom the demand is served resides.” AS § 45.50.592(f).
The Lupin Plaintiffs acknowledge that courts have found that Younger abstention is
appropriate in the face of similar civil investigative demands,7 but argue that those cases were
“eviscerate[d]” by the Supreme Court’s opinion in Sprint. Pls.’ Resp. at 8. The Lupin
Plaintiffs argue that this case is instead analogous to Google v. Hood, --- F. Supp. 3d ----, 2015
WL 1546160 (S.D. Miss. Mar. 27, 2015), and that Younger abstention does not apply. In the
Google case, the district court found that a subpoena issued under the Mississippi Consumer
Protection Act by a state’s attorney general did not fit into any of the three Younger types of
cases. In reaching that conclusion, however, the district court noted that there was no
pending attempt to enforce the subpoena.8 Id. at *6 (“At this time, there is no ongoing state
criminal prosecution relating to this matter, nor are there civil proceedings involving certain
7
These cases include Temple of the Lost Sheep, Inc. v. Abrams, 761 F. Supp. 237, 242-43 (E.D.N.Y.
1989), and Cuomo v. Dreamland Amusements, Inc., 2008 WL 4369270, at *10 (S.D.N.Y. Sept. 22, 2008).
8
Notably, the district court also found that the subpoena had been issued in bad faith by the
attorney general in response to Google’s refusal to comply with certain requests made by the
attorney general concerning Google’s services.
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orders uniquely in furtherance of the state courts’ ability to perform their judicial
functions.”). Thus, the Google case is immediately distinguishable because the attorney
general in that case never sought to enforce the subpoena through an action in the state
court. In this case, the Attorney General has already filed a proceeding in Alaska Superior
Court, thereby triggering judicial oversight of the CIDs. In this respect, therefore, the Lupin
Plaintiffs’ argument reveals itself as a mere distinction without a difference. The subpoenas
at issue in Juidice were not issued by a court itself; instead, they were issued by a private
party’s attorney acting “as an officer of the court.” 430 U.S. at 329 n2. Similarly, the CIDs
in this case are issued by the Attorney General, but like in Juidice, can only be enforced after
involving a state court. Accordingly, this Court finds that Juidice requires this Court to
abstain under the third category of the Younger Doctrine.9
B) The Alaska Proceeding as a Parallel Action
The Lupin Plaintiffs next argue that “this Court should not abstain in favor of the
show cause petition because it is not a truly parallel state proceeding that raises the
constitutional questions that Plaintiffs have presented in their federal complaint.”10 Pl.’s
Resp. 12-13, ECF No. 32. The Lupin Plaintiffs argue that the proceeding will be restricted
to whether the Lupin Plaintiffs willfully disobeyed the CIDs and that “it appears unlikely
9
In light of this Court’s holding with respect to the third Younger category, this Court sees no need
to address the issue whether the Alaska Proceeding qualifies as a civil enforcement action akin to a
criminal prosecution under the second Younger category.
10
The Lupin Plaintiffs’ argument on this point refers to three factors recognized in Middlesex County
Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982): (1) whether there is an ongoing
state judicial proceeding; (2) whether the proceedings implicate important state interest; and (3)
whether there is an adequate opportunity in the state proceedings to raise constitutional challenges.
See id. at 432. In Sprint, the Supreme Court clarified that these factors were “additional factors
appropriated considered by the federal court before invoking Younger” rather than “dispositive”
conditions. See 134 S. Ct. at 593.
11
that the Alaska superior court will decide the defense that the AG lacked constitutional
authority to issue the CIDs to Plaintiffs.” Id. at 13. The Lupin Plaintiffs assert that the
Alaska statute only expressly allows improper service of the CID to be raised and prohibits
defenses going to a CID’s validity; thus, the Lupin Plaintiffs argue that their challenge to the
Attorney General’s jurisdictional authority to even issue the CIDs to the Lupin Plaintiffs is
an issue that will not be reached.
The Lupin Plaintiffs’ speculation about the purported inadequacy of the Alaska
proceeding fails to prevent the application of Younger abstention in this case. The Supreme
Court has explained that “the burden . . . rests on the federal plaintiff to show that state
procedural law bar[s] presentation of its claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14
(1987) (internal quotation marks omitted). “[W]hen a litigant has not attempted to present
his federal claims in related state-court proceedings, a federal court should assume that state
procedures will afford an adequate remedy, in the absence of unambiguous authority to the
contrary.” Id. at 15. The Lupin Plaintiffs have not cited to any case authority from Alaska
that suggests constitutional or jurisdictional challenges cannot be raised in response to the
show cause petition. Indeed, such limitations is unlikely because the Alaska Superior Court
is the court of general jurisdiction in the State. Accordingly, while the statute is somewhat
ambiguous as to the full gambit of defenses that may be raised during a show cause petition
arising out of a CID, the Lupin Plaintiffs have failed to present unambiguous authority that
would justify a conclusion by this Court that an Alaskan state judge would “interpret
ambiguities in state procedural law to bar presentation of federal claims.” Id.
C) The Timing of the State and Federal Actions
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The Lupin Plaintiffs next argue that abstention is inappropriate because, in its view,
there have been proceedings on the merits in this case, and the Attorney General did not file
the Alaska Proceeding until after the Lupin Plaintiffs filed their Motion for Preliminary
Injunction in this Court. Citing to Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238
(1984), the Lupin Plaintiffs argue that their motion for preliminary injunction “put the merits
of the Plaintiffs’ case in play.” Pl.’s Resp. at 15. However, in Midkiff, the district court had
granted an injunction—i.e., there was a ruling on the issues raised by the parties. In this
case, however, the Court has not made any substantive rulings to date; therefore, there is no
basis for this Court to refuse to abstain based upon proceedings on the merits in federal
court.
D) Exceptions to the Younger Doctrine
The Lupin Plaintiffs also argue that several of the exceptions to the Younger Doctrine
apply to this case. Indeed, the Supreme Court has recognized a few exceptions to Younger
abstention. These exceptions include state proceedings initiated in bad faith or for purposes
of harassment. Additionally, an exception exists where a statute is “flagrantly and patently
violative of express constitutional prohibitions in every clause, sentence and paragraph, and
in whatever manner and against whomever an effort might be made to apply it.” Younger,
401 U.S. at 53-54.
1) The Lupin Plaintiffs’ Alleged Irreparable Loss of Constitutional Claims
The Lupin Plaintiffs assert that, through this action, they seek to “vindicate their
constitutional right to structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit.” Pls.’ Resp. at 16 (internal
13
marks omitted). In Younger, the Court alluded to the possibility of an exception for
irreparable injury that is “both great and immediate.” See 401 U.S. at 46. The Court
clarified, however, that such a threat of injury to federally protected rights “must be one that
cannot be eliminated by [the] defense against a single criminal prosecution,” and that “the
cost, anxiety, and inconvenience” of responding to a proceeding were insufficiently severe to
prevent abstention. Id.
In this case, the concerns raised by the Lupin Plaintiffs—although undoubtedly
relating to jurisdictional issues—boil down to harms arising from responding to the Alaska
Proceeding itself. As discussed above, the Lupin Plaintiffs have failed to demonstrate that
they have no way of vindicating their rights through the Alaska Proceeding and, thus, they
have failed to show that the threatened harm constitutes an irreparable injury for purposes
of Younger.
2) The Alleged Retaliatory Nature of the Alaskan Proceeding
The Lupin Plaintiffs argue that the Attorney General’s show-cause petition is
retaliatory because such a petition is warranted under Alaska law only when a recipient
“willfully disobeys” a CID, but not when a recipient merely “challenges” a CID. See Mot. in
Opposition, ECF No. 32. The question then becomes whether filing the present motion for
injunctive relief constitutes a response to the CID under § 44.62.590(a)(2).
Plaintiffs argue that § 45.50.592(f), the provision outlining how a recipient may
challenge a CID without being in contempt, could be interpreted to permit the present
motion as a “response” for the purposes of § 44.62.590(a)(2). The statute reads in relevant
part “a petition to extend the return date for, or to modify or set aside a demand issued
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under (a) of this section, stating good cause, may be filed in the superior court for the judicial district
where the parties reside.” Alaska Stat. Ann. § 45.50.592(f) (emphasis added). The Lupin
Plaintiffs contend that because the statute does not expressly foreclose the possibility of
filing a challenge to a CID in a federal district court of a different state, the present action
must be construed as a valid “response,” and not a refusal that would justify the Attorney
General’s show-cause petition. This argument is unpersuasive, as the context of the statute
indicates contemplation of a “superior court,” the common denomination of an intermediate
court in Alaska, not a federal court established under Article III of the U.S. Constitution. At
best, such interpretive creativity hardly reveals the show-cause petition to be “bad faith” or
“retaliatory” as alleged by the Lupin Plaintiffs.
3) The Alleged Waiver of the Abstention Issue
Plaintiffs next contend that by virtue of the Attorney General’s motion for an
extension to respond to Plaintiffs’ motion for preliminary injunction, the Attorney General
waived any claim for Younger abstention. In support, Plaintiffs cite to Ohio Civil Rights
Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). In Ohio Civil Rights Comm’n, the
Supreme Court held that the United States District Court for the Southern District of Ohio
properly abstained under Younger from enjoining the Ohio Civil Rights Commission from
exercising jurisdiction over a sex discrimination complaint brought by a discharged teacher.
Id. In dicta, the Supreme Court explained that a State may “voluntarily submit to federal
jurisdiction even though it might have had a tenable claim for abstention,” but noted that
these were cases where “the State expressly urged this Court or the District Court to proceed
to an adjudication of the constitutional merits.” Id. at 626. Requesting adjudication is hardly
15
analogous to filing a motion for an extension to respond to a Complaint. Quite simply, the
Attorney General did not forfeit any argument under Younger by merely requesting an
extension of time to respond.
CONCLUSION
For the reasons stated above, Defendant Craig Richards’ Motion to Dismiss (ECF
No. 23) is GRANTED, and this case is DISMISSED.
A separate Order follows.
Dated:
July 2, 2015
/s/
Richard D. Bennett
United States District Judge
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