Opinion
Case No. 02-CV-70595-DT
March 6, 2002
MEMORANDUM OPINION AND ORDER
I. BACKGROUND/FACTS
On February 14, 2002, Plaintiff's filed the instant suit against Defendants. The Court entered an order granting Plaintiffs' Motion for Temporary Restraining Order at that time. The TRO, inter alia, ordered that Defendants completely and properly care for the animals at issue and enjoined Defendants from disposing, selling or harming the animals. Pursuant to Fed.R.Civ.P. 65(b), the terms of the TRO expire within ten (10) days of the entry of the Order. The parties, however, agreed at oral argument to abide by the TRO and other stipulations they had privately made until this Court issued its Opinion on March 6, 2002. This matter is now before the Court on Plaintiffs' Motion for Preliminary Injunction. Defendant Kinde only has filed a response, along with a Motion to Dismiss. The TRO stated that if Plaintiff's were to file a reply to the response, such reply should be hand delivered to chambers by Thursday, February 28, 2002, 4:00 p.m. Instead of a Reply, Plaintiff's filed a response to Defendant Kinde's Motion to Dismiss on the morning of oral argument, March 4, 2002.
Plaintiffs allege three counts in their Complaint: mandatory and prohibitive injunctions under Fed.R.Civ.P. 65(b) (Count I); claim and delivery (Count II); accounting and constructive trust (Count III); dissolution of limited liability company or rescission (Count IV); intentional interference with advantageous business relationship (Count V); and civil conspiracy (Count VI). Plaintiff's claim this Court has federal question jurisdiction under The Animal Welfare Act, 7 U.S.C. § 2131 et seq. and the Endangered Species Act, 16 U.S.C. § 1540(c). However, Plaintiff's specifically state in their Verified Complaint that "[n]o claims are asserted under the Endangered Species Act by this complaint." (Verified Complaint, ¶ 9)
Plaintiff Michael Walker is licensed by the U.S. Department of Agriculture under 7 U.S.C. § 2133 to publicly exhibit animals. The license to exhibit may be suspended and revoked if the Secretary of Agriculture has reason to believe that a licensee has violated any of the rules and regulations under the Animal Welfare Act, 7 U.S.C. § 2131 et seq. Specifically, 7 U.S.C. § 2139 provides that, "the act, omission, or failure of any person acting for or employed by . . . an exhibitor shall be deemed the act, omission or failure of such exhibitor." As a licensee, Plaintiff's claim that Plaintiff Walker's license may be suspended and revoked because of the acts, omissions, or failure of others caring for the animals in Plaintiff Walker's charge.
Whispering Pines Animal Kingdom, LLC, is a business engaged in the exhibition of exotic and endangered animals to the public. Plaintiffs claim that neither Defendants Christine Kinde nor Kirk Elya are licensed to care for, handle, transport, or exhibit animals, except under Plaintiff Walker's license. Plaintiffs state that Defendants ejected Plaintiff Walker from Whispering Pines in mid-January. Plaintiff Walker at that time believed the ejection was temporary, but since that time Defendants' behavior have become increasingly unusual. In the last several days, Defendants have prevented Plaintiff Walker from exercising his duties and responsibilities under his license and have given him reason to believe that they will commit acts which will endanger the animals and the public and place Plaintiff Walker's license in jeopardy.
Whispering Pines exhibits approximately 30 exotic animals, such as Lions, Tigers, Leopards, Monkeys, Kangaroos, Coatimundi, Binturoing, Camels, Kinkajou, African Serval Cat, Grizzly Bear, Lynx, and others. At least 13 of the animals exhibited by Whispering Pines are listed on the endangered species list which Plaintiff's claim are under the protection of the Endangered Species Act, 16 U.S.C. § 1531, et seq. In their Verified Complaint, Plaintiff's claim that Defendants will not properly care for the animals and may remove the animals from the property in violation of the Acts mentioned above. Plaintiffs claim that they and the public would be irreparably harmed if Defendants are not enjoined from allowing Plaintiff Walker to care for the animals.
Plaintiffs claim in their Verified Complaint and Motion that the reason why Plaintiff Walker was ejected from the premises was that Defendant Kinde and Defendant Elya were having a romantic relationship and conspired to have Plaintiff Walker ejected from the premises and from the business.
On February 25, 2002, Defendant Kinde only filed a response to Plaintiffs' Motion for Preliminary Injunction along with a Motion to Dismiss for lack of jurisdiction and/or standing. No response has been filed on behalf of Defendant Elya to date. Defendant Kinde argues that Plaintiff's cannot prevail on its Motion for Preliminary Injunction because the Animal Welfare Act does not confer a private cause of action on individuals. All the other allegations are state law claims, therefore, Defendant Kinde claims this Complaint should be dismissed. Although the Motion to Dismiss has not been scheduled for a hearing, the merits of the motion will be addressed because the arguments go to the issue of whether Plaintiff's can prevail on the merits, which is a factor to be weighed in a motion for preliminary injunction.
Defendant Kinde also claims that the TRO was used to harass and intimidate Defendant Kinde and to gain leverage in the dissolution of the business and not due to any sincere interest in the animals. Defendant Kinde further claims that it is Plaintiff who has chosen not to take care of the animals and that it has been Defendant Kinde all along who has been primarily responsible for doing the daily feeding and care of the animals. Defendant Kinde indicates that she and Plaintiff Walker had a business relationship and also a personal relationship. Defendant Kinde and Plaintiff had cohabited at Defendant Kinde's residence. The animals were housed on Defendant Kinde's property at the same place as her residence. It was only after the break-up of the romance between Plaintiff Walker and Defendant Kinde that Plaintiff Walker suddenly decided that Defendant Kinde was not capable of taking care of the animals. To rebut Plaintiffs' accusations that the condition of the animals has deteriorated under Defendant Kinde's care, Defendant Kinde had the animals inspected by their regular veterinarian. His affidavit is attached to the response indicating that the animals are healthy and well cared for. Should the Court continue with the preliminary injunction, Defendant Kinde claims that Plaintiff Walker should be required to tend to the animals on a daily basis, during regular business hours and be responsible for one-half of the cost of their care and feed.
Defendant Kinde claims that she is an "authorized" person to care for the animals in the license application but the license application was not submitted to the Court for review.
II. ANALYSIS A. Rule 65(b) Standard
Four factors must be balanced and considered before the Court may issue a preliminary injunction pursuant to Fed.R.Civ.P. 65(b): 1) the likelihood of the plaintiffs success on the merits; 2) whether plaintiff will suffer irreparable injury without the injunction; 3) the harm to others which will occur if the injunction is granted; and 4) whether the injunction would serve the public interest. In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985); In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989).
B. Success on the Merits
As to the first factor, a review of the Verified Complaint indicates that all of the "claims" or "counts" asserted by Plaintiff's (other than Count I for injunctive relief) are state law claims. It is only in the jurisdictional portion of the Verified Complaint that Plaintiff's assert that the "claims asserted herein arise under The Animal Welfare Act" and that the Court has jurisdiction over the subject matter pursuant to the Animal Welfare Act and the Endangered Specifies Act. (Verified Complaint, ¶¶ 5-6) Plaintiff's specifically assert that there are no claims asserted under the Endangered Species Act. (Verified Complaint, ¶ 9)
Federal courts are courts of limited jurisdiction conferred by Article III of the United States Constitution and the Acts of Congress. Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir. 1983). Federal district courts have original jurisdiction over cases which "arise under" the federal Constitution or laws or diversity cases. 28 U.S.C. § 1331, 1332. In a diversity jurisdiction action, complete diversity is required between the plaintiff and all defendants. City of Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69-70 (1941).
At the onset, the Court notes that there is no diversity jurisdiction between the parties since all of the parties are Michigan residents. (Verified Complaint, ¶¶ 1-4) As noted above, the "counts" or "claims" in the Verified Compliant are all based on state law claims. As specifically alleged by Plaintiff's, they have no claims under the Endangered Species Act. (Verified Complaint, ¶ 9) The only alleged federal question is Plaintiffs' statement that this Court has jurisdiction over the matter based on the Animal Welfare Act. Plaintiffs do not allege a "claim" under the Act nor cite to a specific provision of the Act which Plaintiff's claim that Defendants have violated.
Defendant Kinde cites In Defense of Animals, et al, 785 F. Supp. 100 (N.D. Ohio 199 1) (J. Batchelder) to support her argument that there is no private cause of action under the Animal Welfare Act. In this case, the district court held that the plaintiffs could not state a cause of action under the Animal Welfare Act because that statute does not provide for private suits to enforce its terms. Id. at 103; see also, International Primate Protection League v. Institute for Behavioral Research, 799 F.2d 934, 939-40 (4th Cir. 1986) (the Animal Welfare Act does not imply any provision for lawsuits by private individuals; the Secretary of Agriculture has the authority to enforce the provisions of the Act, including treatment of the animals); and, Moor-Jankowski v. The Board of Trustees of New York University, 1998 WL 474084 *1, *8 (S.D.N Y 1998) (unpublished) (Congress did not intend to extend beyond the administrative action by the Secretary of Agriculture to include a private cause of action; the main purpose of the Act is to confer authority to the Secretary of Agriculture to insure the proper care and treatment of animals and that the Secretary be the exclusive investigator and enforcer of the AWA).
In response to Defendant Kinde's argument, Plaintiff's claim that Section 2146 of the Animal Welfare Act confers jurisdiction on this Court, specifically,
The United States district courts . . . are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of this chapter, and shall have jurisdiction in all other kinds of cases under this chapter, except as provided in section 2149(c) of this title [involving appeal of adverse license actions to the United States Courts of Appeals].7 U.S.C. § 2146. Plaintiffs cite Cort v. Ash, 422 U.S. 66 (1975) to support their argument that this Court has jurisdiction over the case at issue.
It is noted that the provision cited by Plaintiff's specifically states that the district court does not have jurisdiction over adverse license actions and that any appeal to the courts regarding the Secretary of Agriculture's denial or revocation of a license must be filed with the Court of Appeals. 7 U.S.C. § 2146, 2149(c). This clearly indicates that the district court does not have jurisdiction over any matters regarding licensure under the Act. This Court has no authority to review any claims Plaintiff Walker may have regarding his license or the authority to act in any manner to prevent anyone from jeopardizing Plaintiff Walker's license. This Court has not been given the authority to determine whether Plaintiff Walker should be able to maintain his license.
As to Plaintiffs' argument regarding Cort, the district court in Moor-Jankowski, supra, applied the Cort analysis to the Animal Welfare Act. In Cort, the Supreme Court set forth a fourpart inquiry for determining whether a statute implies a private cause of action: 1) does plaintiff belong to the class for whose special benefit the statute was enacted; 2) is their any indication of an explicit or implicit legislative intent to grant, or deny such a remedy; 3) is it consistent with the underlying purposes of a legislative scheme to imply such a remedy on behalf of the plaintiff and, 4) is this cause of action traditionally related to state law in areas of concern to the states so that it would be inappropriate to infer a cause of action based solely on federal law. Moor-Jankowski, 1998 WL 474084 at *7; citing Cort, 422 U.S. at 78.
The district court found that as to the first factor, the Animal Welfare Act seeks primarily to insure that animals intended for use in research facilities are provided humane care and treatment pursuant to 7 U.S.C. § 2131 (1). Moor-Jankowski, at *7. The Act authorizes the Secretary of Agriculture, the person statutorily charged with administering and enforcing the Act, to promulgate regulations "as he may deem necessary" in order to effectuate this main purpose of the Act. Id.; See 7 U.S.C. § 2151. Plaintiffs claim that neither the Act nor the regulations provide for protection of Plaintiff's from the act of others. Because the Secretary is given the authority to promulgate regulations regarding licensing, silence on the issue of protecting the loss of a license supports the conclusion that Plaintiff Walker, a licensee, does not belong to the class for whose special benefit the statute was enacted. See Moor-Jankowski, 1998 WL 474084 at *7.
Addressing the second factor, the district court concluded that there existed no explicit or implicit congressional intent to allow whistleblowers a private cause of action under the Act. Id. at *8. The district court noted that Congress explicitly placed in the hands of the Secretary of Agriculture all investigative and enforcement authority for the Act and its implementing regulations pursuant to 7 U.S.C. § 2146, 2149. Id. "Nowhere does the AWA provide for private citizens, to file private causes of action for violations of the statute or of any of its implementing regulations promulgated by the Secretary. This silence is significant insofar as on numerous occasions Congress has explicitly provided for private causes of action by employees subject to retaliation for reporting violations of federal law." Id. "The fact that Congress chose not to do so here weighs against any finding of implicit or explicit congressional intent to allow whistleblowers a private cause of action under the AWA." Id. Plaintiff's in this case have failed to show any provision under the Act which explicitly or implicitly allows a licensee a private cause of action in order to prevent a third party from jeopardizing his/her license. To the contrary, the provision cited by Plaintiff 7 U.S.C. § 2146, provides that any appeal regarding licensure issues must be filed with the Court of Appeals. Plaintiff Walker's claim to protect his license is really an issue of whether his license will be revoked, which is strictly a matter before the Secretary of Agriculture and any appeal of that decision must be brought before the Court of Appeals.
The third and fourth factor need not be addressed because Congress's failure to include a private cause of action provision when it has done so in other laws that regulate the private sector, Supreme Court precedent indicates that the Cort analysis need not continue. Id. citing Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 94 n. 31 (1981).
Based on the cases above, the Animal Welfare Act does not confer a private cause of action on Plaintiff's in this case. Alleged violations of the Act must be brought by the Secretary of Agriculture who has the authority to enforce the Act. Plaintiffs, therefore, cannot prevail on the merits of any claim under the Animal Welfare Act. As noted above, the actual "counts" do not specifically point to any provisions under the Animal Welfare Act and only allege state law claims.
The state law claims appear to be monetary in nature in that the claims go to the dissolution of the corporation and how the property should be divided up. Generally, an injunction may not issue if there is an adequate remedy at law. Gilley v. United States, 649 F.2d 449, 454 (6th Cir. 1981).
C. Irreparable Harm to Plaintiff's
In their Verified Complaint, Plaintiff Walker claims that he would suffer irreparable injury given that his license is in jeopardy. However, because the Animal Welfare Act does not confer a personal cause of action to individuals, this Court has no authority to determine whether Plaintiff Walker's license should or should not be revoked. As to Plaintiffs' claim that the animals are in danger, again, this Court has no jurisdiction under the Animal Welfare Act to provide relief The Secretary of Agriculture has the authority to protect the animals. Defendant Kinde indicated at oral argument that the United States Department of Agriculture ("USDA") is willing to work with the parties in the dissolution of the business and how the animals should be handled. Defendant Kinde further claims that it is Plaintiff Walker who is not tending to the animals and that Defendant Kinde has all along been the one to care for the animals. Plaintiffs agreed at the hearing that it was not the Court's function to see that the animals are cared for but rather it was the Court's duty to protect Plaintiff Walker's license which he claims is being jeopardized by Defendants' conduct. Plaintiffs have not pointed to any provision under the Animal Welfare Act where the Court has such a duty. Plaintiffs also have not identified a provision under the Animal Welfare Act which he claims Defendants have violated. In any event, based on the Veterinarian's affidavit submitted by Defendant Kinde, it appears that the animals are being taken care of Plaintiff's cannot show irreparable injury.
D. Harm to Others
Defendant Kinde claims that she is being harmed in that Plaintiff Walker has not taken care of the animals. Defendant Kinde also claims that she is the one spending money on the care of the animals and that Plaintiff Walker should be required to contribute to the care of the animals. Defendant Kinde further claims that Plaintiff Walker is using this action to gain leverage on the dissolution of the business.
E. Public Interest
Plaintiffs in their Motion claim that the public would be endangered if the animals were not taken care of or if the animals were sold. Defendant Kinde submitted an affidavit by the Veterinarian indicating that the animals were taken care of and were healthy. There is a public interest in the humane care of animals. However, it appears that the animals are adequately cared for at this point in time. There is also a public interest that the provisions under the Animal Welfare Act are followed, including proper licensure of individuals who are caring for the animals covered under the Act.
Dr. J Frederick Walton stated that he examined the animals on February 22, 2002, after the TRO was issued. Dr. Walton found all the animals to be in good health and well nourished and the animals' living conditions were well maintained and clean.
F. Weighing the Factors
Weighing the factors above, Plaintiff's have failed to state a claim under the Animal Welfare Act and, therefore, cannot prevail on the merits of the federal question claim, if any. Plaintiffs have also failed to establish irreparable harm to his license status since Plaintiff's have not shown that Defendants have violated any portion of the Animal Welfare Act nor have Plaintiff's shown that the Court has authority under the Act to make sure that Plaintiff's license is not placed in jeopardy. The harms to others and to the public do not strongly weigh in favor of either side. Plaintiffs are not entitled to preliminary injunction in this case since Plaintiff's cannot show they will prevail on the merits nor has Plaintiff Walker shown he will suffer irreparable harm if the injunction is not issued.
G. Motion to Dismiss
There is currently a Motion to Dismiss pending as to the remaining state law claims. Since the Court has held that the Animal Welfare Act does not confer a private cause of action to individuals, the remaining state law claims will be dismissed. "Generally, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well." Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). Plaintiff's may refile their state law claims in the State Courts. Plaintiffs' counsel was reluctant to address the merits of the Motion to Dismiss even though Plaintiff's had submitted a response to the motion and cited to the response brief in his oral argument. Plaintiffs' counsel agreed, however, that the merits of the Motion to Dismiss address one of the factors to be weighed in a Preliminary Injunction motion — whether a plaintiff can prevail on the merits. The Court has addressed the merits of the Motion to Dismiss above. The parties have had an opportunity to discuss the merits of the motion and the Court finds that the matter must be dismissed.
Accordingly,
IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction ( Docket No. 2-2, filed February 14, 2002) is hereby DENIED.
IT IS FURTHER ORDERED that any federal claim under the Animal Welfare Act is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss ( Docket No. 6, filed February 25, 2002) is GRANTED. The state law claims are DISMISSED without prejudice.