Association for Accessible Medicines v. Frosh et al
MEMORANDUM AND ORDER Denying 46 Motion for an Injunction ending Apeal. Signed by Judge Marvin J. Garbis on 10/12/2017. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ASSOCIATION FOR ACCESSIBLE
CIVIL ACTION NO. MJG-17-1860
FROSH, et al.
Memorandum and Order Re: Entry of Partial Final Judgment and
Injunction Pending Appeal
The Court has before it Plaintiff’s Motion for Entry of Partial
Final Judgment and for An Injunction Pending Appeal [ECF No. 46].
The Court finds that a hearing is not necessary.
Plaintiffs have asserted claims for declaratory and injunctive
relief challenging as unconstitutional Maryland’s House Bill 631
(“HB 631”), which prohibits manufacturers and wholesale distributors
from engaging in price-gouging in the sale of essential off–patent
or generic drugs that are made available for sale in Maryland.
The claims asserted are that:
1. The legislation violates the dormant Commerce Clause.
2. The legislation is unconstitutionally vague and
therefore violates the Due Process Clause.
3. The Court should issue a preliminary injunction and
permanent injunction preventing enforcement of the
Defendants filed a Motion to Dismiss [ECF No. 29] and Plaintiff
filed a Motion for Preliminary Injunction [ECF No. 9].
Memorandum and Order Re: Motion to Dismiss and Preliminary Injunction
[ECF No. 43], the Court granted Defendants’ Motion to Dismiss as to
the dormant Commerce Clause challenge but denied the motion as to
the Due Process challenge.
The Court also denied Plaintiff’s
request for a preliminary injunction.
Plaintiff now requests an entry of a partial final judgment as
to the dormant Commerce Clause cause of action and an injunction
Defendants do not oppose the entry of the partial
final judgment, but do oppose the injunction pending appeal.
PARTIAL FINAL JUDGMENT UNDER RULE 54(b)
Rule 54(b) of the Federal Rules of Civil Procedure provides in
When an action presents more than one claim for
relief . . . the court may direct entry of a final
judgment as to one or more, but fewer than all,
claims . . . only if the court expressly
determines that there is no just reason for
A Rule 54(b) certification should be the exception, not the
rule, for it is important to prevent piecemeal appeals of a case.
As stated by then-Judge (now Justice) Kennedy in Morrison-Knudsen
Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981):
Judgments under Rule 54(b) must be reserved for
the unusual case in which the costs and risks
of multiplying the number of proceedings and of
overcrowding the appellate docket are
outbalanced by pressing needs of the litigants
for an early and separate judgment as to some
claims or parties.
Moreover, in Braswell Shipyards, Inc. v. Beazer East, Inc., the
Fourth Circuit held that to make a proper Rule 54(b) certification,
a district court must first “[d]etermine whether the judgment is
final . . . in the sense that it is ‘an ultimate disposition of an
individual claim entered in the course of a multiple claims
action[,]’” [and then] . . . “determine whether there is no just
reason for the delay in the entry of judgment.”
Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993)(citing
Curtis-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-8 (1980)).
The Fourth Circuit stated that in making this case-specific
determination, which was tilted against piecemeal appeals, the
district court should consider the following five factors if
“(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need for review
might or might not be mooted by future developments in the district
court; (3) the possibility that the reviewing court might be obliged
to consider the same issue a second time; (4) the presence or absence
of a claim or counterclaim which could result in a set-off against
the judgment sought to be made final; (5) miscellaneous factors such
as delay, economic and solvency considerations, shortening the time
of trial, frivolity of competing claims, expense, and the like.”
Braswell Shipyards, 2 F.3d at 1335-36 (internal citations omitted).
In light of the foregoing factors, and all other applicable
facts and circumstances, the requisite two-step determination is
made in the instant case.
First, the contemplated judgment would
most certainly be “final” in the Rule 54(b) sense because it reflects
the resolution of all issues relating to Plaintiff’s dormant Commerce
Clause cause of action.
Second, the unadjudicated Due Process claim
is not related to the adjudicated dormant Commerce Clause claim.
INJUNCTION PENDING APPEAL
Plaintiff also seeks an injunction pending appeal, stating that
the standard for a preliminary injunction is not exactly the same
as the standard for an injunction pending appeal.
ECF No. 46 at 7.
For example, the Fourth Circuit has held that “on an application for
a stay or injunction pending appeal, one of the considerations
should be whether the petitioner has made a strong showing that he
is likely to prevail on the merits of his appeal.”
Chesapeake & O. Ry. Co., 450 F.2d 971, 974 (4th Cir. 1971).
For the reasons discussed the Memorandum and Order Re: Motion
to Dismiss and Preliminary Injunction [ECF No. 43], the Plaintiff
has not made this showing as to the dormant Commerce Clause Claim.
As discussed in the Memorandum and Order, the Court also finds that
any likelihood the Plaintiff would prevail on the merits on the
vagueness claim is outweighed by the remainder of the injunction
factors at issue (i.e., likelihood of irreparable harm, balance of
equities, and public interest).
ECF No. 43 at 31-39.
The Court’s Memorandum and Order was issued less than two weeks
There has been no change in the record to justify a different
Accordingly, the Court declines to grant the requested
injunction pending appeal.
For the foregoing reasons:
1. A final judgment can be entered for Defendants resolving
the dormant Commerce Clause challenge,
2. There is no just reason for delay in the entry of such a
3. Judgment pursuant to Rule 54(b) shall be entered by a
separate Order, and
4. The Motion for an Injunction Pending Appeal [ECF No. 46]
is hereby DENIED.
SO ORDERED, this Thursday, October 12, 2017.
Marvin J. Garbis
United States District Judge
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