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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELEANOR HEALD, RAY HEALD,
JOHN ARUNDEL, KAREN BROWN,
RICHARD BROWN, BONNIE MCMINN,
GREGORY STEIN, MICHELLE MORLAN,
WILLIAM HORWATH, MARGARET CHRISTINA,
ROBERT CHRISTINA, TRISHA HOPKINS,
JIM HOPKINS, MALVADINO VINEYARDS, INC.,
and DOMAINE ALFRED, INC., Case No. 00-CV-71438-DT
Plaintiffs, BERNARD A. FRIEDMAN
United States District Judge
v
MARC L. GOLDMAN
JOHN ENGLER, Governor of Michigan, Magistrate Judge
JENNIFER M. GRANHOLM, Attorney
General of Michigan; and JACQUELYN
STEWART, Chairperson, Michigan Liquor
Control Commission, in their official
capacities,
Defendants,
and
MICHIGAN BEER & WINE WHOLESALERS
ASSOCIATION,
Intervenor-Defendant.
/
BRIEF IN SUPPORT OF DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFF DOMAINE ALFRED, INC.
Page 2
2
TABLE OF CONTENT
S
Page
INDEX OF AUTHORITIES................................................................................................ii, iii
STATEMENT OF FACTS................................................................................................... 1
ARGUMENTS
I. THE LACK OF ADEQUATE FACTUAL ALLEGATIONS IN
SUPPORT OF PLAINTIFF DOMAINE ALFRED, INC.'S
COMPLAINT WARRANTS ITS DISMISSAL......................................... 2
A. Plaintiff Domaine Alfred, Inc.'s Complaint presents no real ...
case or controversy for this Court to decide. .......................................... 2
B. Plaintiff Domaine Alfred, Inc. lacks standing to bring
this lawsuit....................................................................................... 4
C. Plaintiff Domaine Alfred, Inc. cannot maintain a
42 U.S.C. ¤ 1983 action supported only by conclusory
allegations. ....................................................................................... 5
II. THE DEFENDANTS' ARGUMENTS FOR DISMISSAL
OF THE COMPLAINT, SUBMITTED PRIOR TO THIS COURT
GRANTING PLAINTIFFS' MOTION TO ADD THIS PLAINTIFF,
APPLY TO PLAINTIFF DOMAINE ALFRED, INC., AS WELL.......... 8
CONCLUSION ............................................................................................................ 8
RELIEF REQUESTED 9
Page 3
3
INDEX OF AUTHORITIES
CASES PAGES
Baker v. McCollan,
443 U.S. 137; 99 S.Ct. 2689; 61 L.Ed.2d 433 (1989) ........................................................5
Chapman v. City of Detroit,
808 F.2d 459 (6th Cir. 1986)..............................................................................................5
Conley
v. Gibson,
355 U.S. 41; 2 L.Ed.2d 80; 78 S.Ct. 99 (1957) ..................................................................6
Jackson v. Dukakis,
526 F.2d 64 (1st Cir. 1975) ................................................................................................5
Lincoln Cercpac v. Health and Hosp. Corp.,
977 F. Supp. 274 (S.D.N.Y. 1997),
aff'd,
147 F.3d 165 (2d Cir. 1998)...............................................................................................8
New York and Philadelphia,
S.S. Co. v. Comm'rs of Emigration,
113 U.S. 33; 5 S.Ct. 352; 28 L.Ed. 899 (1885)...................................................................3
Parratt v. Taylor,
451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420 (1981),
overruled on other grds
...............5
Scheid v. Fannie Farmer Candy Shops,
859 F.2d 434 (6th Cir. 1988)..........................................................................................6, 7
United States v. Raines,
362 U.S. 17; 80 S.Ct. 519; 4 L.Ed.2d 524 (1960) ..............................................................3
Warth v. Seldin,
422 U.S. 490; 95 S.Ct. 2197; 45 L.Ed. 343 (1975).........................................................4, 5
Yusuf v. Vassar College,
35 F.3d 709 (2d Cir. 1994).................................................................................................8
Page 4
4
FEDERAL STATUTES
42 U.S.C. ¤¤ 1981, 1982.............................................................................................................4
42 U.S.C. ¤ 1983.................................................................................................................2, 4, 5
STATE STATUTES
MCL 436.1203............................................................................................................................2
RULES
F
ED
.ÊR.ÊC
IV
.ÊP.Ê8(a)...........................................................................................................6, 7
F
ED
. R. C
IV
. P. 12(b)(1)..............................................................................................................7
F
ED
. R. C
IV
. P. 12(b)(6)......................................................................................................1, 7, 8
F
ED
. R. C
IV
. P. 12(c)...................................................................................................................1
F
ED
. R. C
IV
. P. 56 .......................................................................................................................7
Page 5
5
STATEMENT OF FACTS
The original Plaintiffs included thirteen individual residents of two Michigan
counties. These Plaintiffs contended in the original complaint that they would like to
purchase (unidentified) wines from out-of-state sources (also unidentified), which
wines they contend are not currently available in Michigan, and have these wines
shipped directly to their homes without compliance with Michigan's laws.
Following the Defendants' filing of a motion to dismiss for various reasons
pursuant to F
ED
. R. C
IV
. P. 12(b)(6) and 12(c), including an argument based on lack of
standing, Plaintiffs filed, and this Court granted, Plaintiffs' motion to add two outstate
wineries as Plaintiffs. These wineries are Malvadino Vineyards, Inc. and Domaine
Alfred, Inc. This Court extended the schedule for briefing and argument on
Defendants' original Motion, as well as motions filed by Intervenor-Defendant and by
Plaintiffs, to provide Defendants with a short opportunity to conduct discovery.
Defendants submitted Interrogatories and Requests for Production of Documents
to each of the winery Plaintiffs on October 27, 2000. Domaine Alfred, Inc., responded to
those interrogatories, but Malvadino Vineyards did not. Counsel for Plaintiffs has
requested the dismissal of Malvadino Vineyards from this action, so Domaine Alfred,
Inc. remains the only winery Plaintiff.
In Domaine Alfred, Inc.'s responses to Interrogatories, it indicates that it has
never sought licensure to sell its wines in Michigan, has never contacted a Michigan
licensed entity to market and sell its wines, has never shipped wine to Michigan, and
has no knowledge of ever having sold wine to a Michigan resident. The remainder of
the facts have been set out previously.
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ARGUMENT
I.
THE LACK OF ADEQUATE FACTUAL ALLEGATIONS IN SUPPORT
OF PLAINTIFF DOMAINE ALFRED, INC.'S COMPLAINT
WARRANTS ITS DISMISSAL.
A. Plaintiff Domaine Alfred, Inc.'s Complaint presents no real case
or controversy for this Court to decide.
Plaintiff Domaine Alfred, Inc. has failed to allege facts that could establish an
actual case or controversy before this Court.
The statute that Plaintiff seeks to invalidate, MCL 436.1203 provides in pertinent
part: Except as provided in this section and section 301, a sale, delivery,
or importation of alcoholic liquor, including alcoholic liquor for personal
use, shall not be made in this state unless the sale, delivery, or importation
is made by the commission, the commission's authorized agent or
distributor, an authorized distribution agent approved by order of the
commission, a person licensed by the commission, or by prior written
order of the commission. All spirits for sale, use, storage, or distribution
in this state, shall originally be purchased by and imported into the state
by the commission, or by prior written authority of the commission. . . .
This provision relates to one of the most essential functions of the Michigan
Liquor Control Commission and the state's authority over trafficking in alcohol
pursuant to the Twenty-First Amendment; it provides for the approval and/or licensing
by the Commission of anyone who seeks to sell, deliver or import alcoholic liquor in
Michigan for any purpose, including personal use. Plaintiff alleges it unconstitutionally
infringes on rights guaranteed by the Commerce Clause of the Constitution and
enforceable by an action under 42 U.S.C. ¤ 1983.
Plaintiff Domaine Alfred, Inc. is a California winery located in San Luis Obispo,
California. In responses to Interrogatories, Plaintiff stated that it had never applied for
a Michigan license as a wine wholesaler, wine retailer, Outstate Seller of Wine or
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Michigan winery. Ex. 1, Int. #1. Plaintiff further denied having ever inquired of the
Michigan Liquor Control Commission, the Governor, the Attorney General, or any
other person or agency, how its wines could be sold in Michigan. Ex. 1, Int. #3.
Plaintiff has only existed and been licensed as a winery since 1997, Ex. 1, Int. #6, and
has only bottled and released one vintage, comprised of a total of 2300 cases, 1000 of
which have been sold. Ex. 1, Int. #6. None of the wine produced has been shipped to
Michigan, Ex. 1, Int. #6 c., #10.
There is no factual allegation that Domaine Alfred, Inc., has requested approval
for a product and been denied, or requested licensure and been denied, based on its
out-of-state status. In fact, it is clear that this Plaintiff has never applied to be licensed
to sell its wines legally in Michigan and been denied. Nor, from the facts contained in
the Complaint and as set forth in answers to Interrogatories, does it appear that this
Plaintiff has suffered any type of enforcement action of the laws that restrict sales and
deliveries of alcoholic beverages in Michigan to only those entities licensed and
approved by the State. It appears that Plaintiff has made a marketing decision to not
sell its very limited number of bottles of wines in Michigan.
The United States Supreme Court has long recognized that a federal court does
not have jurisdiction:
. . . to pronounce any statute, either of a state or of the United States, void,
because irreconcilable with the Constitution, except as it is called upon to
adjudge the legal rights of litigants in actual controversies . . . [I]n the
exercise of that jurisdiction, it is bound by two rules, to which [the
Supreme Court] has rigidly adhered, never to anticipate a question of
constitutional law in advance of the necessity of deciding it; never to
formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.
United States v. Raines,
362 U.S. 17, 21; 80 S.Ct. 519; 4 L.Ed.2d 524 (1960), quoting from
the Court's decision in
New York
and
Philadelphia,
S.S. Co. v. Comm'rs of Emigration,
113
U.S. 33, 39; 5 S.Ct. 352; 28 L.Ed. 899 (1885).
Page 8
8
Plaintiff Domaine Alfred, Inc. has alleged no enforcement action against it, nor
has it alleged that it has made any effort whatsoever to become licensed or approved to
sell its wines in the State. At the May 30, 2000, hearing on the Michigan Beer and Wine
Wholesalers Association's Motion to Intervene before Magistrate Marc Goldman,
counsel for Plaintiffs suggested that the particular wines sought by the individual
Plaintiffs are produced by small, elite wineries with no need to develop a market in
Michigan, and no desire to request licensure or approval for the legal sale and delivery
of their wines in Michigan. This appears to be precisely the case with this winery
Plaintiff. Therefore, in reality, the situation is not that the Plaintiff could not legally sell
its products in Michigan, but rather, that it does not choose to apply for a license or seek
to have its products handled by a wine wholesaler or Outstate Seller of Wine, so that it
can sell its wines in Michigan legally.
Accordingly, because there is no actual case or controversy currently before this
Court, Plaintiff's action should be dismissed in its entirety.
B. Plaintiff Domaine Alfred, Inc. lacks standing to bring this lawsuit.
The U.S. Supreme Court has consistently held that a plaintiff lacks standing if he
has not acted as necessary to create an actual case or controversy.
In
Warth v. Seldin,
422 U.S. 490; 95 S.Ct. 2197; 45 L.Ed. 343 (1975) plaintiffs
challenged the zoning ordinances of a Rochester, New York, suburb on the basis that
they effectively excluded persons of low or moderate income from living in the town in
violation of plaintiffs' constitutional rights and 42 U.S.C. ¤¤ 1981, 1982 and 1983. The
Supreme Court held that the plaintiffs lacked standing because there was no allegation
that any of them had demonstrated "specific, concrete facts" that they were harmed by
the ordinances.
To have standing to bring an action, a plaintiff must demonstrate a personal
stake in the outcome of a controversy by showing that he or she has suffered an actual
or a threatened injury.
Warth, supra
. In addition to actual injury, a causal link between
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that injury and the defendant's conduct must be established. Here, Plaintiff has alleged
no facts relating to conduct on the part of any of the Defendants that caused an injury to
it. Although standing requirements are often construed liberally in civil rights claims
based on constitutional rights, the requirement to establish at least an "identifiable
trifle" of injury requires that however trifling, the injury must be both real and
immediate, rather than merely conjectural or hypothetical.
Jackson v. Dukakis,
526 F.2d
64 (1st Cir. 1975).
Accordingly, because Plaintiff lacks standing, this case should be dismissed for
lack of subject matter jurisdiction.
C. Plaintiff Domaine Alfred, Inc. cannot maintain a 42 U.S.C. ¤ 1983
action supported only by conclusory allegations.
42 U.S.C. ¤ 1983 was designed to provide a remedy to persons who have been
deprived of rights, privileges, or immunity secured by the Constitution or the laws of
the United States.
Parratt v. Taylor,
451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420 (1981),
overruled on other grds
. In order to find a violation of ¤ 1983, one must find another
federally protected right that has been violated by official action.
In order to demonstrate liability under 42 U.S.C. ¤ 1983, Plaintiff Domaine
Alfred, Inc. must first establish that each named Defendant acted under color of state
law and that his or her actions offended rights secured by the Constitution and/or laws
of the United States.
Baker v. McCollan,
443 U.S. 137; 99 S.Ct. 2689; 61 L.Ed.2d 433 (1989).
Conclusory, unsupported allegations of constitutional deprivations do not state a
claim.
Chapman v. City of Detroit,
808 F.2d 459, 465 (6th Cir. 1986):
It is not enough for a complaint under ¤ 1983 to contain mere
conclusory allegations of unconstitutional conduct by persons acting
under color of state law. Some factual basis for such claims must be set
forth in the pleadings.
Place v. Shepherd,
446 F.2d 1239 (6th Cir. 1971).
Dismissing a civil rights complaint in
Blackburn v. Fisk University,
443 F.2d
121 (6th Cir. 1971), this court found conclusory allegations of
unconstitutional acts insufficient, stating:
Page 10
10
There are no facts alleged in support of the conclusions, and
we are required to accept only well pleaded facts as true,
L'Orange v. Medical Protective Co.,
394 F.2d 57 (6th Cir.
[1968]), not the legal conclusions that may be alleged or that
may be drawn from the pleaded facts.
Id.
at 124 (citations
omitted). Accord,
Smith v. Rose
, 760 F.2d 102, 106 (6th Cir.
1985).
There is a sound reason for requiring that a civil rights action
against a government official or employee state a claim in terms of facts
rather than conclusions. When a government employee is sued, if no
factual allegations are made, discovery and perhaps even trial may be
required to demonstrate that the claim has no merit. Such activities
require the government defendant and others such as government
attorneys involved in defense of the claim to divert their attention from
their usual activities and to become involved in the litigation to the neglect
of their assigned duties.
In this Complaint, Plaintiff has alleged that the Governor, Attorney General and
Chairperson of the Michigan Liquor Control Commission have responsibility for
enforcement of certain liquor laws.
However, Plaintiff has failed to allege or provide any facts that could possibly
establish that an act of any of the Defendants gave rise to an injury.
F
ED
.ÊR.ÊC
IV
.ÊP.Ê8(a) provides, in pertinent part:
. . . A pleading which sets forth a claim for relief, whether an original
claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a
short and plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has jurisdiction and the
claim needs no new grounds of jurisdiction to support it, (2) a short and
plain statement of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader seeks.
The purpose of Rule 8(a) is to provide the Defendants with "fair notice of what
Plaintiffs' claim is and the grounds upon which it rests."
Conley
v. Gibson,
355 U.S. 41,
47; 2 L.Ed.2d 80; 78 S.Ct. 99 (1957). The Sixth Circuit articulated the standard for
reviewing a motion under Rule 8(a) in
Scheid v. Fannie Farmer Candy Shops,
859 F.2d 434,
437 (6th Cir. 1988):
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We are not holding the pleader to an impossibly high standard; we
recognize the policies behind Rule 8 and the concept of notice pleading.
The plaintiff will not be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when a complaint omits
facts that, if they existed, would clearly dominate the case, it seems fair to
assume that those facts do not exist.
This Complaint contains no specific factual allegations as to any harm suffered
by Plaintiff Domaine Alfred, Inc., or as to any act by any Defendant causing any harm
or potential harm. There has not been supplied a single fact to establish that the
Defendants are enforcing a law that on its face, or as applied, violates any civil right of
the Plaintiff or the Commerce Clause of the United States Constitution. Accordingly,
the suggestion in
Scheid
,
supra,
that "when a complaint omits facts that, if they existed,
would clearly dominate the case, it seems fair to assume that those facts do not exist",
appears apt here.
Because of the complete lack of factual support for the
allegations, these Defendants request that Plaintiff Domaine
Alfred, Inc.'s Complaint (as well as the complaint of the
other Plaintiffs) be dismissed for lack of jurisdiction under
F
ED
. R. C
IV
. P. 12(b)(1), for failure to state a claim upon
which relief can be granted under F
ED
. R. C
IV
. P. 12(b)(6) and
for failure to comply with F
ED
. R. C
IV
. P. 8(a), as well as F
ED
.
R. C
IV
. P. 56.
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II.
THE DEFENDANTS' ARGUMENTS FOR DISMISSAL OF THE
COMPLAINT, SUBMITTED PRIOR TO THIS COURT GRANTING
PLAINTIFFS' MOTION TO ADD THIS PLAINTIFF, APPLY TO
PLAINTIFF DOMAINE ALFRED, INC., AS WELL.
Defendants will not reiterate their prior arguments, but submit that they apply
equally here as well, and entitle Defendants to a judgment dismissing all Plaintiffs'
actions.
CONCLUSION
Dismissal of a complaint is appropriate when, as here, "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief."
Lincoln Cercpac v. Health and Hosp. Corp.,
977 F. Supp. 274, 278 (S.D.N.Y.
1997),
aff'd,
147 F.3d 165 (2d Cir. 1998). Indeed, "a complaint that consists of nothing
more than bald assertions and claims with no facts upon which a court could find a
violation fails to state a claim under Rule 12(b)(6)."
Id.
(citing
Yusuf v. Vassar College,
35
F.3d 709 (2d Cir. 1994)).
Accordingly, inasmuch as Plaintiff Domaine Alfred, Inc.'s Complaint seeks to
dismantle Michigan's regulatory system governing the sale and distribution of all
alcohol within this State, but lacks factual or legal basis to support any legitimate cause
of action, Defendants respectfully request that this Court dismiss Plaintiff's Complaint.
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