|Baker v. SeaWorld Entertainment, Inc.||Slip Copy, 2019 WL 6118448 (S.D. Cal. Nov. 18, 2019)||Plaintiffs brought a securities fraud class action against the collective Defendants, including Seaworld Entertainment, Inc. This action involved statements and omissions made by the Defendants following a 2013 documentary titled Blackfish. The issues centered on the attendance impact that the documentary had on Seaworld. Company-wide attendance declined in 2013 and 2014, however, several officials of the Company made statements that there was no attendance impact resulting from the documentary. Both Plaintiffs and Defendants moved to exclude the testimony of several experts. The Court ultimately affirmed its tentative rulings, denied Defendant’s motion to exclude the testimony of two of Plaintiff’s experts, granted Defendant’s motion to exclude the testimony of Dr. James Gibson, granted in part and denied in part Plaintiff’s motion to exclude the testimony of Dr. Craig Lewis, granted Plaintiff’s motion to exclude the testimony of Dr. Randolph Bucklin, and denied Defendant’s motion for summary judgment.|
|Wemer v. Walker||Slip Copy, 2015 WL 2058960 (Ohio Ct. App. May 1, 2015)||
In this case, James Wemer appealed the lower courts decision to grant summary judgment in favor of the defendant John Walker. Wemer initially filed suit against Walker alleging that the injuries he suffered from a horse-bite at Walker’s barn was due to negligence and wanton recklessness of Walker. The trial court reviewed the issue and granted summary judgment in favor of Walker based on the Equine Immunity statute. The Court of Appeals reversed and remanded the trial court’s decision on appeal. However, the trial court once against granted summary judgement in favor of Walker and Wemer appealed. On the second appeal, the Court of Appeals determined whether or not Walker was immune from liability under the Equine Immunity statute. The Court of Appeals found that Walker was immune from liability under statute because of the fact that Walker had warned Werner that his horses had a tendency to fight and Wemer voluntarily chose to get involved in separating the horses which led to his injuries. The Court of Appeals focused on the fact that both parties had a knowledge regarding equine activity and that Wemer was unable to establish that Walker’s conduct was willful or wanton under the circumstances presented. As a result, the Court of Appeals affirmed the summary judgment in favor of Walker.
|Lewis v. Chovan||Slip Copy, 2006 WL 1681400 (Ohio App. 10 Dist.)||
This Ohio case raises the issue of whether an employee of a pet grooming establishment is a "keeper" under state law, thereby preventing the application of strict liability for injury. The employee was bitten by dog while attempting to assist the establishment's owner and another employee in giving the dog a bath. She then brought an action against dog's owners asserting, among other things, that the owners were strictly liable for her injuries. The court relied on its previous definition of the word "keeper" in the context of R.C. 955.28(B) as "one having physical charge or care of the dogs." Based upon this precedent, the court found that a person who is responsible for exercising physical control over a dog is a "keeper" even if that control is only temporary.
|Coos County Bd. of County Com'rs v. Norton||Slip Copy, 2006 WL 1720496 (D.Or.)||
Alleging violations of the Endangered Species Act (ESA) and the Administrative Procedure Act (APA), plaintiffs sought to compel defendants to publish in the Federal Register proposed and final rules to remove the Washington, Oregon and California population of the marbled murrelet (a coastal bird) from the list of threatened species. Plaintiffs alleged that after defendants completed a five year review of the murrelet, defendants violated the ESA and the Administrative Procedure Act (APA) by failing to publish proposed and final rules "delisting" the murrelet. However, the court found that under the subsection upon which plaintiffs rely, the Secretary need publish a proposed regulation only after receiving a petition to add or remove species from the lists of threatened and endangered species and making certain findings. Because plaintiffs have not alleged or demonstrated that they filed a petition, they cannot establish that the Secretary has a duty to publish a proposed regulation. Thus, defendant's motion to dismiss was granted.
|State v. Siliski||Slip Copy, 2006 WL 1931814 (Tenn.Crim.App.)||
In this Tennessee case, the defendant, Jennifer Siliski, was convicted of nine counts of misdemeanor animal cruelty. Williamson County Animal Control took custody of over two hundred animals forfeited by the defendant as a result of her criminal charges and convictions. Third parties claiming ownership of some of the animals appeared before the trial court and asked for the return of their animals. This appeal arises from third parties claiming that they were denied due process by the manner in which the trial court conducted the hearing regarding ownership of the animals and that the trial court erred in denying their property claims. The appellate court concluded that the trial court did not have jurisdiction in the criminal case to dispose of the claims, and reversed the judgment.
|Toledo v. Tellings - Reversed - 871 N.E.2d 1152 (Ohio, 2007)||Slip Copy, 2006 WL 513946 (Ohio App. 6 Dist.), 2006-Ohio-975||
Reversed - 871 N.E.2d 1152 (Ohio, 2007). In this Ohio case, defendant, who owned three pit bull type dogs, was convicted in the Municipal Court of violating city ordinance limiting ownership to only one pit bull per household, and of violating statute requiring owner of a "vicious dog" to provide liability insurance. On appeal, the court held that the statute requiring an owner of a pit bull to provide liability insurance was unconstitutional. Further, the statute, which provides that the ownership of a pit bull is prima facie evidence of the ownership of a vicious dog, was unconstitutional because after hearing evidence the trial court found that pit bulls as a breed are not inherently dangerous. Thus, the court held that R.C. 955.11(A)(4)(a)(iii) is unconstitutional, since it has no real and substantial relationship to a legitimate state interest.
|State v. Davidson||Slip Copy, 2006 WL 763082 (Ohio App. 11 Dist.), 2006-Ohio-1458||
In this Ohio case, defendant was convicted of 10 counts of cruelty to animals resulting from her neglect of several dogs and horses in her barn. On appeal, defendant argued that the evidence was insufficient where the prosecution witness did not state the dogs were "malnourished" and said that a couple were reasonably healthy. The appellate court disagreed, finding that defendant mischaracterized the veterinarian's testimony and that there was no requirement to prove malnourishment. Further, the dog warden testified that she did not find any food or water in the barn and that the animals' bowls were covered with mud and feces.
|Humane Society of U.S. v. Johanns||Slip Copy, 2007 WL 1120404 (D.D.C.)||
In this case, plaintiffs alleged that by creating a fee-for-service ante-mortem horse slaughter inspection system without first conducting any environmental review under the National Environmental Policy Act (NEPA), has violated NEPA and the Council on Environmental Quality's (CEQ's) implementing regulations, abused its discretion, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). At the time Plaintiffs filed their Complaint, horses were slaughtered at three different foreign-owned facilities in the United States to provide horse meat for human consumption abroad and for use in zoos and research facilities domestically. The instant case pertains to the web of legislation and regulations pertaining to the inspection of such horses prior to slaughter. Based on the Court's finding of a NEPA violation, the Court declared the Interim Final Rule to be in violation of the APA and NEPA, vacated the Interim Final Rule, permanently enjoined the FSIS from implementing the Interim Final Rule, and dismissed this case. This present action is defendant-intervenor Cavel International, Inc's Emergency Motion for a Stay of the Court's March 28, 2007 Order. The Court notes that as of the Court's March 28, 2007 Order, Cavel was the only facility still in operation processing horsemeat for human consumption. The Court finds that a stay of its March 28, 2007 Order would not be in the public interest, and particularly in light of Cavel's failure to demonstrate a likelihood of success on the merits and adequately demonstrate irreparable injury, the Court finds that a balancing of the factors enumerated above supports denying Cavel's request for a stay.
|Western Watersheds Project v. Hall||Slip Copy, 2007 WL 2790404 (D.Idaho)||
Plaintiff Western Watersheds Project filed the instant action challenging the “90-Day Finding” issued by the Defendants United States Fish and Wildlife Service that denied protection of the Interior Mountain Quail as endangered or threatened under the Endangered Species Act. The Service determined that the Petition had failed to provide information demonstrating that the Interior Mountain Quail population is discrete under the ESA. The District Court stated that, in order to qualify as a DPS, a population must “be both discrete and significant.” The court found that the Service's conclusion appropriately determined that this discreteness standard was not met and it provided a rational basis for concluding the Petition had failed to provide evidence of a marked separation between the populations of the same taxon.
|Donald HENDRICK and Concerned Citizens for True Horse Protection, Plaintiffs v. UNITED STATES DEPARTMENT OF AGRICULTURE (USDA), and Animal and Plant Health Inspection Service (Aphis), Defendants.||Slip Copy, 2007 WL 2900526 (W.D.Ky.)||
This matter is before the Court on the motion of Defendant United States Department of Agriculture's Motion to Dismiss. The Horse Protection Act (HPA) is federal legislation which outlaws the practice of “soring” (harm to the feet or limbs of horses in order to enhance the attractiveness of a light-stepped or high-stepping gait during horse-show performances), which is a particular concern for the breed of Tennessee Walking Horses. Plaintiffs seek to have the Court define “sore” and “scar” beyond the definitions provided in the regulations (specifically the “scar rule”). The court found, however, that any alleged or threatened injury based on the HPA or the Scar Rule has not yet occurred. Mere uncertainty about the HPA and Scar Rule alone does not create an injury in fact.
|State v. West||Slip Copy, 2007 WL 2963990 (Table) (Iowa App.)||
In this Iowa case, the defendant, West, shot his neighbor's dogs after the dogs were seen running the perimeter of his deer-pen, agitating 15 of his deer in the process. Defendant was subsequently convicted of two counts of animal abuse charges and fifth degree criminal mischief. On appeal, West argued that the section 351.27 (a provision that allows a person to kill a dog caught in the act of worrying livestock) provides an absolute defense to the charges of animal abuse and that he had the right under the facts and this statute to summarily kill Piatak's dogs because they were worrying and chasing his deer. He also contended that the statute has no additional “reasonableness” requirement, and the trial court was incorrect to graft the “reasonably acting” standard from the animal abuse law. The appellate court agreed, finding that section 351.27 provides an absolute defense to a charge of animal abuse under section 717B.2.
|Stephens v. City of Spokane||Slip Copy, 2007 WL 3146390 (E.D.Wash.)||
Before the court here is defendant's motion for summary judgment and plaintiff's motion to certify a class. Plaintiffs claim is based on Spokane's "barking dog" ordinance" for which they were each issued an infraction by animal control officers. Plaintiffs contend the ordinance is void for vagueness. The court disagreed, finding that the ordinance has incorporated the reasonableness standard and is presumptively constitutional. In the ordinance, the citizen of average intellect need not guess at the prohibition of allowing an animal to unreasonably disturb persons by “habitually barking, howling, yelping, whining, or making other oral noises.”
|State v. Conte||Slip Copy, 2007 WL 3257378 (Ohio App. 10 Dist.), 2007 -Ohio- 5924||
Plaintiff-appellant, State of Ohio/City of Bexley, appeals from a judgment of the Franklin County Municipal Court dismissing the indictment against defendant-appellee, Joseph Conte. Appellant cited appellee for violating Bexley City Code 618.16(e), entitled “Dangerous and Vicious Animal.” Two days later, animal control then issued another citation against appellee for allowing his dog to run free without restraint in violation of Bexley City Code Section 618.16(e). In granting appellee's motion to dismiss, the trial court struck down a portion of Bexley City Code 618.16(e) as unconstitutional that provided that the owner of a vicious or dangerous animal shall not permit such animal to run at large. On appeal, this court found that the ordinance was not unconstitutional where the prosecution must prove at trial that the dog is vicious or dangerous as an element of the offense.
|Ocean Mammal Inst. v. Gates||Slip Copy, 2008 WL 2185180 (D.Hawai'i)||
Plaintiffs sued the Navy over the use of sonar; the Plaintiffs feared that the sonar would kill whales and other marine life. This case dealt with the required production of documents the Defendant claimed were privileged and or work product material. The Court found that the Defendant must hand over the material to the Plaintiffs because the documents were not in fact privileged.
|Animal Protection and Rescue League v. California||Slip Copy, 2008 WL 315709 (S.D.Cal.)||
Plaintiffs move for a temporary restraining order (TRO) to compel defendant City of San Diego to place a seasonal rope barrier at the La Jolla Children's Pool Beach to limit human interaction with harbor seals during pupping season. In denying the TRO, the court noted that plaintiffs failed to identify a single incident of harassment occurring since December 15, 2007 (the beginning of the pupping season) or any causal nexus between miscarriages and people walking up to the seals. While the parties agree placement of the barrier would not harm people and act as an effective tool, the court noted that the focus of irreparable harm is on the harm sought to be prevented not on the difficulty in carrying out the task.
|Oregon Natural Desert Ass'n v. Kimbell||Slip Copy, 2008 WL 4186913 (D.Or.)||
After filing a complaint challenging certain decisions by the United States Forest Service and the National Marine Fisheries Service authorizing livestock grazing within a national forest, Plaintiffs filed a Motion for Temporary Restraining Order and/or Preliminary Injunction seeking an order prohibiting the authorization of livestock grazing on certain public lands until Plaintiffs’ claims could be heard on the merits. The United States District Court, D. Oregon granted Plaintiffs’ motion, finding that Plaintiffs are likely to succeed on the merits of at least one of its claims, and that Plaintiffs made a sufficient showing that irreparable harm would likely occur if the relief sought is not granted.
|Giaconia v. Delaware County Soc. for the Prevention of Cruelty to Animals||Slip Copy, 2008 WL 4442632 (E.D.Pa.)||
Plaintiff brought various claims against Defendants after Plaintiff’s cat was euthanized prior to the standard 72 hour waiting period. On Defendants’ motion to dismiss, the United States District Court, E.D. Pennsylvania found that Defendants were not acting under color of law. Because any and all claims for which the Court had original jurisdiction were being dismissed, the Court declined to exercise supplemental jurisdiction over Plaintiff’s State law claims.
|Californians for Humane Farms v. Schafer||Slip Copy, 2008 WL 4449583 (N.D.Cal.) (Not Reported in F.Supp.2d)||
Plaintiff, a nonprofit ballot committee established to sponsor Proposal 2, a State ballot initiative that would result in prohibiting the tethering and confinement of egg laying hens and other farm animals, brought an action against Defendant, the United States Secretary of Agriculture, alleging a violation of the Administrative Procedure Act, after Defendant approved a decision by the American Egg Board (the “Egg Board”) to set aside $3 million for a consumer education campaign to educate consumers about current production practices. The United States District Court, N.D. California granted Plaintiff’s motion for preliminary injunction, finding that Plaintiff was likely to succeed on the merits, direct harm to Plaintiff was likely to occur if the injunction was not granted, and that the public interest would be served by granting the preliminary injunction.
|Center for Biological Diversity v. Kempthorne||Slip Copy, 2008 WL 4543043 (N.D.Cal.)||
In an action alleging multiple violations of the Endangered Species Act (ESA), the Administrative Procedures Act (APA), and the National Environmental Policy Act (NEPA) pursuant to Defendants’ final rule designating the polar bear as threatened and promulgation of a special rule under section 4(d) of the ESA, Defendants Kempthorne and the United States Fish and Wildlife Service brought a motion to transfer the case to the United States District Court for the District of Columbia, Intervenor-Defendant Arctic Slope Regional Corporation brought a separate motion to transfer the case to the District of Alaska, and Intervenor-Defendant Alaska Oil and Gas Association filed a motion with the Judicial Panel on Multidistrict Litigation (MDL Panel) seeking to transfer the case to the D.C. District Court . The United States District Court, N.D. California denied the motion to transfer the case to the District of Alaska, and decided to take the motion to transfer to the District of Columbia into submission and rule on it once the MDL Panel has issued its decision on whether to transfer the case to the District of Columbia.
|U.S. v. William||Slip Copy, 2008 WL 4587250 (D.Virgin Islands)||Defendants charged with unlawfully taking an endangered species and unlawfully possessing, carrying and transporting an endangered species within the United States in violation of the Endangered Species Act filed motions to suppress all evidence, including undersized lobsters and a sea turtle seized in connection with their stop and arrest after they had been stopped on suspicion of being illegal immigrants. The District Court of the Virgin Islands, Division of St. Croix suppressed the evidence, finding that although the approaching police officer had reasonable suspicion to believe that criminal activity was taking place at the time the stop was made, the subsequent confinement of Defendants and search of their vehicle exceeded the limited purpose of the investigative stop.|
|Range v. Brubaker||Slip Copy, 2008 WL 5248983 (N.D.Ind.)||
Plaintiff brought a civil rights action against Defendants employed by the City of South Bend, Indiana (the “City”), part of the allegations being that Defendants unlawfully failed to interview Plaintiff for a position on the Animal Control Commission (the “Commission”). During discovery, Defendants filed a, after Defendants had already disclosed the names of such individuals. The United States District Court, N.D. Indiana, Fort Wayne Division granted Defendants’ motion for a protective order to bar the disclosure of the home addresses of the Commission’s volunteer members, finding that Defendants provided “a particular and specific demonstration of fact” such that Plaintiff’s discover of the Commission members’ addresses should be barred, and that the relative lack of relevance of the discovery sought did not outweigh the potential harm caused by disclosure of the Commission members’ addresses.
|Rivero v. Humane Soc. of Fayette County||Slip Copy, 2009 WL 18704 (W.D.Pa.)||Plaintiffs brought action against Defendants under 42 U.S.C. § 1983 alleging Defendants violated their First and Fourth Amendment rights under the United States Constitution after Defendant dog control officers removed Plaintiffs’ dog from their home during an investigation into a report of a dead dog. The United States District Court, W.D. Pennsylvania granted Defendant Township’s motion for partial summary judgment, finding that Plaintiffs’ allegations, standing alone, do not state a claim against Defendant-Township, and that Plaintiffs failed to provide any factual support for their state law claims.|
|Center for Biological Diversity v. Henson||Slip Copy, 2009 WL 1882827 (D.Or.)||
Defendants brought a motion to stay in an action brought by Plaintiffs seeking re-initiation of consultation under ESA with respect to the Oregon Department of Forestry’s Habitat Conservation Plan promulgated in 1995 and their Incidental Take Permit obtained in 1995, which allows incidental taking of Northern Spotted Owls for sixty years in connection with timber harvest in the Elliot State Forest. The United States District Court granted Defendants’ motion, finding that the potential harm and likelihood of damage to Plaintiffs if the action is stayed is low. The court also found that Defendants showed an adequate likelihood of hardship in having to go forward without a stay. The stay would likely result in the action ultimately becoming moot and/or at the very least greatly simplified, therefore saving judicial time and resources.
|Reed v. Vickery||Slip Copy, 2009 WL 3276648 (S.D.Ohio)||
A veterinarian performed a pre-purchase examination on a horse and indicated to the prospective buyers that the horse was in good health. The vet facility failed to disclose that a different vet at the same facility had injected the horse to mask lameness. The purchasers had a cause of action for negligence where the statements made by the facility constituted misrepresentations or concealment. The measure of damages was the difference between the horse’s fair market value before and after the loss.
|Center for Biological Diversity v. Chertoff||Slip Copy, 2009 WL 839042 (N.D.Cal.)||
Plaintiff, the Center for Biological Diversity, brought an action against Defendant, the United States Coast Guard, alleging that Defendant violated the ESA by failing to consult with the NMFS to ensure that Defendant’s activities in the Santa Barbara Channel and other shipping lanes off the California Coast would not harm the continued existence of threatened and/or endangered species after Defendant amended Traffic Separation Schemes (“TSS”) and a number of blue whales were subsequently struck by ships and killed. On the parties’ cross motions for summary judgment, the United States District Court , N.D. California dismissed Plaintiff’s claims pertaining to Defendant’s implementation of or actions under the TSS in the approaches to Los Angeles – Long Beach and granted Defendant’s motion for summary judgment and denied Plaintiff’s motion for summary judgment with respect to Defendant’s alleged violations of the ESA arising out of Defendant’s implementation of or actions under the TSS in the Santa Barbara Channel.
|Rossi v. Mohawk and Hudson River Humane Soc.||Slip Copy, 2009 WL 960204 (N.D.N.Y.)||
Petitioner-Debtor challenged the Bankruptcy Court’s denial of Petitioner’s application for a Temporary Restraining Order and for a stay pending appeal after the Mohawk and Hudson River Humane Society seized 23 cats from Petitioner’s prior home for failure to provide proper sustenance/cruelty to animals and subsequently obtained a bond against Petitioner for the cost of providing animal care. The United States District Court, N.D. New York denied Petitioner’s motion for leave to appeal requesting relief identical to that which was denied by the Bankruptcy Court, finding that the exhibits submitted show that Petitioner was currently charged with four misdemeanors, and that the commencement of the criminal charges against Petitioner and the posting of security pending the disposition of such criminal charges fall within the exception to the automatic stay under federal law.
|Carrelli v. Dept. of Natural Resources||Slip Copy, 2010 WL 1268163 (Ohio App. 12 Dist.,2010)||
Wildlife rehabilitation permit applicant was denied a permit by the Ohio Department of Natural Resource’s Division of Wildlife. She requested an administrative hearing to challenge the denial of her application. On appeal, the court held that because wildlife rehabilitation permit applicants do not possess a private property interest in wildlife or in receiving a rehabilitation permit, the state may deny a permit based on its own discretion, so long as the decision to deny the permit is reasonably related to the state’s legitimate government interest. Therefore, even when an applicant possesses the proper credentials required to obtain a permit, the state may deny the permit in protecting the state’s legitimate government interest.
|Sierra Club v. California American Water Co.||Slip Copy, 2010 WL 135183 (N.D.Cal.,2010)||
The Sierra Club and the Carmel River Steelhead Association (CRSA) brought suit against the California American Water Company (CAW), a water and wastewater utility, seeking injunctive relief and alleging that the company was wrongfully diverting water from the Carmel River and causing harm to the South Central California Coast Steelhead fish (steelhead), an endangered species under the Endangered Species Act (ESA). CAW moved to dismiss the action, arguing that the Court must dismiss the action under the Younger abstention doctrine because hearing the Plaintiffs' claim would interfere with ongoing state judicial proceedings. At the time that the Sierra Club and CRSA brought suit, CAW was involved in ongoing proceedings with the California State Water Resources Control Board (SWRCB), which maintains original jurisdiction over the appropriation of surface waters within the state. The Court found that the Younger abstention applied and dismissed the complaint for lack of jurisdiction.
|Bassani v. Sutton||Slip Copy, 2010 WL 1734857 (E.D.Wash.)||
Plaintiff initiated this lawsuit in 2008 claiming money damages under 42 U.S.C. §§ 1983, 1985, and 1988,and alleging violations of his Fourth and Fourteenth Amendment rights. In 2004, plaintiffs two dogs were seized by Yakima County Animal Control after responding to a citizen's report that he had been menaced by dogs as he ran past plaintiff's house. Before the court here are Defendants' Motion to Dismiss and Opposition to Plaintiff's Motion for Leave to File First Amended Complaint. In granting the motions, the court held that the doctrine of res judicata did warrant a grant of summary judgment as defendants' failure to release plaintiff's dog. Further, the animal control officer was entitled to qualified immunity because he reasonably relied on the deputy prosecuting attorney's advice. Finally, there was no evidence of a pattern of behavior on the part of Yakima County sufficient to be a "moving force" behind a constitutional violation.
|Barber v. Pennsylvania Dept. Agriculture||Slip Copy, 2010 WL 1816760 (W.D.Pa.)||
The plaintiffs in this Pennsylvania case are owners and operators of a non-profit animal rescue and kennel that houses housing about 500 dogs doing business in and throughout Fayette County, Pennsylvania. The current dispute stems from a series of inspections of the kennels that occurred throughout the 2007 calendar year. Plaintiffs allege that defendants conspired in violation of 42 U.S.C. § 1985, and that the PSPCA and the Bureau of Dog Law Enforcement (the inspection branch of the Dept. of Agriculture) failed to take reasonable steps to protect them from the conspiratorial activity in violation of 42 U.S .C. § 1986. Plaintiffs also state that the PSPCA and the Bureau violated various of their constitutional rights in contravention of 42 U.S.C. § 1983. The Plaintiffs also seek to hold the Defendants liable for malicious prosecution under 42 U.S .C. § 1983. Finally, other counts allege that Defendant Delenick sexually harassed Plaintiff Rachel Lappe-Biler in violation of 42 U.S.C. § 1983; that plaintiff Pauline Gladys Bryner-Lappe was assaulted and battered in contravention of 42 U.S.C. § 1983 and the Fourth Amendment; and that the defendants intentionally inflicted emotional distress. Defendants filed a motion to dismiss all claims.
|Jaeger v. Cellco Partnership||Slip Copy, 2010 WL 965730 (D.Conn.,2010)||
The Connecticut Siting Council granted Cellco Partnership a Certificate allowing the company to build a cell tower in Falls Village, Connecticut. Dina Jaeger brought suit against Cellco and the Council to prevent the building of the cell tower. In her complaint, Jaeger cited the harmful effects of radio frequency emissions (RF emissions), and alleged violations of the International Migratory Bird Treaty, the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), the Telecommunications Act (TCA), and the 10 th and 14 th Amendments to the U.S. Constitution. Defendants moved to dismiss Jaeger's claims on various grounds, including that the Council was preempted from considering the environmental effects of RF emissions under the TCA. The Court found in favor of the Defendants, holding that the TCA preempts local and state regulation of cell towers solely on the basis of RF emissions.
|U.S. v. Braddock||Slip Copy, 2011 WL 327416 (C.A.4 (S.C.),2011)||
Defendant-appellants appealed their convictions following guilty pleas to offenses relating to illegal cockfighting and gambling activities. On appeal, they challenged the denial of their motion to dismiss for selective prosecution or, in the alternative, for discovery in support of their selective prosecution claim. In particular, appellants contend that district court should have dismissed the indictment or granted leave to obtain discovery because they, as Caucasians, were prosecuted federally, while two Hispanic co-conspirators and thirty-six Hispanic people arrested in connection with another cockfighting ring in Hampton County, South Carolina, faced only state charges. The Court of Appeals, Fourth Circuit, found that appellants failed to show that they were similarly situated to the Hispanic defendants who were not prosecuted on federal charges.
|Tarquinio v. City of Lakewood, Ohio (unpublished)||Slip Copy, 2011 WL 4458165 (N.D.Ohio)||
Plaintiffs sought a declaratory judgment from the court that Lakewood City Ordinance (“LCO”) 506.01, which bans pit bull dogs or those dogs with "appearance and characteristics of being predominantly of such breeds," unconstitutional under the Ohio Constitution Home Rule provisions. In this motion, plaintiffs argue that LCO 506 conflicts with and impermissibly expands the provisions of Ohio Revised Code § 955.22. The court found that while § 955.22 outlines requirements that must be met by a person who houses vicious dogs, including all pit bulls, it does not explicitly permit pit bulls. The court found that the General Assembly intended to allow municipalities to regulate the possession of pit bulls.
|Pearson v. U.S. Dept. of Agriculture||Slip Copy, 2011 WL 559083 (C.A.6,2011)||
Petitioner seeks review of the decision and order of the Secretary of the USDA, terminating his license to own and exhibit wild animals (82 lions, tigers, and bears), issuing a cease and desist order, and imposing civil sanctions in the amount of $93,975 in violation of the AWA. In 2006, inspection showed 280 incidents of non-compliance. On appeal, the Sixth Circuit first held that there was no abuse of discretion in failing to grant the continuance after a fire at Petitioner's home because he is unable to resulting establish prejudice. Further, the Court discounted Petitioner's challenge that the revocation of his license was not supported where the court found the evidence "substantial, perhaps overwhelming."
|Center for Biological Diversity v. Salazar||Slip Copy, 2011 WL 6000497 (D.Ariz.)||
Plaintiffs filed action against Interior and FWS to set aside FWS's finding that the desert bald eagle does not qualify as a distinct population segment (“DPS”) entitled to protection under the Endangered Species Act (“ESA”). Plaintiff's motions for summary judgment was granted. The Court found that FWS' 12–month finding was based on the 2007 delisting rule, which failed to comport with the notice, comment, and consultation requirements of the ESA. The Court set aside the 12–month finding as an abuse of discretion.
|U.S. v. Felts (unpublished)||Slip Copy, 2012 WL 124390 (N.D.Iowa)||
Defendant kennel operator was found to violate the AWA on multiple occasions when inspected by APHIS representatives. From 2005 to 2009, defendant repeatedly failed inspections where APHIS found that he provided inadequate veterinary care, did not maintain complete records on the dogs, and did not properly maintain the housing facilities for the dogs. The Administrator of APHIS filed and served on Defendant an administrative complaint for violations. Defendant never filed an answer, and so a Default Decision and Order was entered against Defendant. The Plaintiff's Motion for Summary Judgment was granted in part because Defendant failed to file an answer to the administrative complaint, and so was deemed to have admitted the allegations in the complaint.
|Moser v. Pennsylvania Soc. for Prevention of Cruelty to Animals||Slip Copy, 2012 WL 4932046 (E.D. Penn.)||
After the defendants confiscated mare without a warrant and required that the plaintiff surrender another mare and a few other animals in order to avoid prosecution, the plaintiffs sued the defendants for violating the U.S. Constitution, the U.S. Civil Rights Act and Pennsylvania statutory and common law. However, the plaintiffs lost when the district court granted the defendants motion for summary judgment on all counts.
|Wilkins v. Daniels||Slip Copy, 2012 WL 6644465 (S.D.Ohio, 2012)||
Various owners of exotic and wild animals filed a lawsuit in order to obtain a temporary restraining order and a permanent/preliminary injunction against the Ohio Department of Agriculture and its Director, David Daniels. The owners of the exotic and wild animals argued the Ohio Dangerous Wild Animals and Restricted Snakes Act, which the Ohio Department of Agriculture and its Director were trying to enforce, was unconstitutional. The district court denied the owners’ motion for obtain a temporary restraining order and a permanent/preliminary injunction reasoning that the exceptions to the Act’s ban on owning wild and exotic animals does not violate the owners’ freedom of association rights, that the legislature had a legitimate purpose so as to not violate procedural due process with regards to micro-chipping wild and exotic animals, and that the Act did not constitute an unconstitutional takings. Significantly, the court recognized that owners of wild and exotic animals have a limited or qualified property interest in said animals.
|Mostek v. Genesee County Animal Control||Slip Copy, 2012 WL 683430 (E.D., Mich. 2012)||
Defendant officer removed a gravely-ill cat that needed veterinary care from Plaintiff's backyard. Plaintiff sued alleging Fourth Amendment claims pursuant to 42 U.S.C. § 1983. Plaintiff disclaimed ownership of the cat, thus her property rights were not violated by the seizure. Officer was shielded by the doctrine of qualified immunity, because animal control officers may enter property and remove animals that appear to be in danger.
|United States v. Kent State University||Slip Copy, 2016 WL 5107207 (N.D. Ohio Sept. 20, 2016)||
In this case, the United States Government brought an action against Kent State University alleging that the University’s failure to have any policy in place that would allow for the University to consider emotional support animals violated the Fair Housing Act. The parties resolved their differences in the form of a consent decree and asked the court to approve the decree. The court approved the consent decree but suggested that the parties make a few additions to the decree. The first suggestion that the court made was to specify what type of qualifications were necessary to make someone a “qualified third-party” for the purpose of making a statement to the University about an individuals need for an emotional support animal. Secondly, the court suggested that the University begin reviewing the logistics of how the University would manage having animals in its housing and how the animals would be properly cared for. Lastly, the court urged the University to look at whether or not the University offered sufficient break times between classes so that a student would have enough time to check on the animal and ensure that the animal was not neglected on a routine basis.
|Riley v. Bd. of Commissioners of Tippecanoe Cty.||Slip Copy, 2016 WL 90770, 2016 WL 90770 (N.D. Ind. Jan. 6, 2016) (unpublished)||The plaintiff filed suit based on violations of the Americans With Disabilities Act (ADA) and the Rehabilitation Act (RA) after he was denied entrance into the Tippecanoe County Courthouse with his service dog. Initially, defendant's claims were dismissed because the Court did not adequately allege that his dog was a service dog. Defendant then filed an amended complaint with plausible allegations that his dog is a service dog. The defendants moved to dismiss the case, stating that the plaintiff had not established that his dog was a service dog according to the definition listed under rules promulgated under the Americans With Disabilities Act (ADA). The court found that the plaintiff’s dog was a service dog under the definition because the dog was “individually trained to, among other things, provide [plaintiff] with balance support and assistance during episodes of PTSD.” As a result, the defendant’s motion to dismiss the case was denied.|
|United States v. Charette||Slip Copy, 2017 WL 1012974 (D. Mont. Mar. 15, 2017)||
In this case, Brian F. Charette filed an appeal after he was sentenced to six months of imprisonment and ordered to pay $5,000 in restitution for shooting and killing a grizzly bear in violation of the Endangered Species Act. Charette argued three issues on appeal: (1) that the trial court's denial of a jury trial violated his constitutional rights; (2) that the trial court erred in defining the elements of his charged offense; and (3) that the trial court erred in denying Charette's Rule 29 motion for a judgment of acquittal. The court found that the trial court did not err in denying a jury trial because Charette’s offense was considered a petty offense because it carried a maximum sentence of six months. For all crimes that are considered petty offenses, the Sixth Amendment right to a trial by jury is not triggered. Lastly, the court addressed Charette’s Rule 29 motion which calls for an acquittal if the essential elements of the offense are not proven beyond a reasonable doubt. In order for someone to be convicted of knowingly taking an endangered species the government must prove beyond a reasonable doubt, that: (1) the defendant knowingly killed the animal; (2) the animal was engendered; (3) the defendant had no permit to kill the animal; and (4) the defendant did not act in self-defense or defense of others. Charette argued that the government failed to prove that he did not have a permit to kill the grizzly bear. The court ultimately found that the government did prove this element on the basis that Charette told officers that he did not report shooting the bear because he did not want to deal with the “hassle.” The court found that it was reasonable to believe that had Charette had a permit to kill the grizzly bear, he would not have found reporting it to be a hassle and therefore the government sufficiently established this element. As a result, the court affirmed the lower court’s decision.
|State v. Graves||Slip Copy, 2017 WL 3129373 (Ohio Ct. App., 2017)||In this Ohio case, defendant Graves appeals his misdemeanor cruelty to animals conviction under R.C. 959.13(A)(3). The conviction stems from an incident in 2016 where Graves left his dog in locked and sealed van while he went into a grocery store. According to the facts, the van was turned off in an unshaded spot with windows closed on a 90+ degree day. Witnesses at the scene called police after they engaged in an unsuccessful attempt to get defendant to leave the store. In total, the dog spent about 40-45 minutes locked in the van. Graves was issued a citation for cruelty to animals and later convicted at a bench trial. On appeal, Graves first asserts that R.C. 959.13(A)(3) is unconstitutional because the statute is void for vagueness as applied to him and overbroad. This court found that the definition of cruelty was not so unclear that it could not be reasonably understood by Graves. The court was unconvinced by appellant's arguments that the statute provided insufficient guidance to citizens, and left open relevant question such as length of time a dog can be left unattended, exact weather conditions, and issues of the size of dogs left in vehicles. The court noted that most statutes deal with "unforeseen circumstances" and do not spell out details with "scientific precision." In fact, the court noted "[t]he danger of leaving an animal locked in a sealed vehicle in hot and humid conditions is well-known." Additionally, the court did not find the law to be overbroad, as defendant's right to travel was not infringed by the law. Finally, defendant contends that his conviction was against the manifest weight of the evidence. In rejecting this argument, the court found Graves acted recklessly under the law based on the hot and humid weather conditions and the fact that humans outside the van were experiencing the effects of extreme heat. Thus, the lower court's judgment was affirmed.|
|Smith v. City of Detroit||Slip Copy, 2017 WL 3279170 (E.D. Mich. Aug. 2, 2017); [Reversed and Remanded by 751 F. App'x 691 (6th Cir. 2018)]||[Reversed and Remanded by Smith v. City of Detroit, Michigan, 751 F. App'x 691 (6th Cir. 2018)] This case stems from the killing of three dogs by Detroit Police Officers in 2016. Plaintiff-dog owners brought a 42 U.S.C. § 1983 action based on unlawful seizure their dogs in violation of the Fourth Amendment. In addition, plaintiffs raised Monell municipal liability claims and state laws claims for conversion and intentional infliction of emotional distress (IIED). Before this court is defendants' motion for summary judgment. The shooting of the dogs occurred during a drug raid pursuant to a search warrant (the marijuana charges were eventually dismissed due to the failure of police officers to appear at trial). One of the dogs escaped his barricade in the basement and was shot after allegedly charging the officers. The other dog "opened and closed the bathroom door by himself" according to testimony of the officers in their depositions, information that was absent from initial police reports according to the court. The last dog was shot as she began "charging" up the basement stairs while officers were at the top of the stairs. Depositions statements also reveal that none of the officers received any specific training on handling animal encounters during raids and one of the officers indicated he had shot at least 69 animals and another had shot 39. In analyzing the plaintiffs' Fourth Amendment interests in their dogs, the court held that because plaintiffs failed to properly license their dogs under Michigan law, they did not have a "legitimate possessory interest protected by the Fourth Amendment." Thus, plaintiffs' claims based on the Fourth Amendment were dismissed. Specifically, the court stated, "in the eyes of the law it is no different than owning any other type of illegal property or contraband." As to the violation of a clearly established constitutional right for the seizure of the dogs under the Fourth Amendment against the police department, the court found the Detroit Police Department's plan did not violate the Fourth Amendment, especially where the informant said there was only a "small dog" present at the residence. The individual officers' actions were also found to be reasonable based on the "imminent threat" of the dogs. As to the Monell claim, plaintiffs failed to establish a pattern of violations showing deliberate indifference that is sufficient to establish municipal liability. Finally, on the IIED claim, the court relied on the fact that there is no precedent in Michigan to permit recovery for damage to property (to wit, a dog). Similarly, plaintiffs' conversion claim also failed where the court found the unlicensed status removed any "legitimate interest" in the dogs. The court subsequently granted defendants' motion for summary judgment.|
|Frost v. City of Sioux City, Iowa||Slip Copy, 2017 WL 4126986 (N.D. Iowa, 2017)||In this case, the City of Sioux City had adopted a local ordinance that made it "unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport or sell within the City ... any pit bull." The ordinance goes on further to define pit bulls based on appearance and certain listed characteristics. Plaintiffs alleged that the ordinance is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment because it: (1) is unconstitutionally vague; (2) violates their rights under the equal protection clause; and (3) violates their rights under the due process clause, both in substance and procedure. Here, the district court found that the due process and equal protection claims survived the defendant's motion to dismiss, but found that the ordinance was not facially unconstitutionally vague. As a result, defendants' Motion to Dismiss was DENIED in part and GRANTED in part. Plaintiffs' claim that the ordinance is unconstitutionally vague was DISMISSED, and plaintiffs may proceed with their remaining equal protection clause and due process clause claims.|
|Evelyn Alexander Wildlife Rescue Ctr. Inc. v. New York State Dep't of Envtl. Conservation||Slip Copy, 2017 WL 4868956 (N.Y. Sup. Ct. Oct. 12, 2017)||Petitioners, licensed wildlife rehabilitators with New York Wildlife Rehabilitation Licenses (WRL), challenged two statewide modifications to the WRL pertaining to white-tailed deer, which became effective in 2016. Petitioners contend these actions violated the state Administrative Procedures Act (SAPA). Additionally, they argue the modifications were irrational, arbitrary, capricious, and an abuse of discretion, and WRLs were improperly modified without a prior State Environmental Quality Review Act (SEQRA). The first modification limits the time white-tailed fawns can be held for rehabilitation to a period of only April 15 to September 15 (absent prior written approval). The second modification limits the maximum holding period for an adult white-tailed deer (before release or euthanization) to 48-hours. This court did not find either modification was arbitrary, capricious, or an abuse of discretion. In response to the challenges, the state, through a wildlife biologist, contends they are intended to prevent habituation and the spread of chronic wasting disease (CWD). The explanatory statements provided for the modifications support reasonable and rational interpretations of rehabilitation and do not violate the SAPA. The September 15th cut-off day for fawns was based on scientific research conducted by the state's "Big Game Team" that sought to address issues of disease as well as "a documented pattern of licensed wildlife rehabilitators in New York who have been reluctant to either euthanize or release white-tailed deer." As to the modification for adult deer, there was a rational basis since that time period allows the care of a temporarily stunned deer in need of a short rehabilitation period balanced against disease and habituation concerns. The court also found that the issuance of WRL is a ministerial action exemption from environmental review under SEQRA. The petitions in this consolidated action were denied in their entirety and the proceeding dismissed.|
|Animal Legal Defense Fund, Inc. v. Thomas J. Vilsack||Slip Copy, 2017 WL 627379 (D.D.C., 2017)||
In this case, the Animal Legal Defense Fund (ALDF) sought to intervene on a proceeding dealing with the United States Department of Agriculture (USDA) and a family owned-zoo in Iowa for alleged violations of the Animal Welfare Act. The USDA was seeking enforcement of the Animal Welfare Act against the Iowa zoo and the ALDF sought to intervene because it has long criticized the zoo's care and handling of its animals. The ALDF was prevented from intervening by the administrative law judge (ALJ) that was presiding over the matter. The ALJ did not allow the ALDF to intervene in the matter on the basis that the “ALDF’s stated interests were beyond the scope of the proceeding.” The ALDF filed suit challenging this decision according to Section 555(b) of the Administrative Procedure Act (APA), which allows “interested persons” to participate in agency proceedings “so far as the orderly conduct of the public business permits.” The court found that the ALDF should have been allowed to intervene in the proceeding according to 555(b) because the ALDF’s "demonstrated interest in the welfare of the zoo's animals falls squarely within the scope of the USDA enforcement proceeding.” The court also found that there was no evidence to suggest that having ALDF intervene would "impede the orderly conduct of the public business permits.” As a result, the court held in favor of the ALDF’s motion for summary judgment and remanded the case back the case back to USDA for further consideration of ALDF's motion to Intervene.
|Tuman v. VL GEM LLC||Slip Copy, 2017 WL 781486 (S.D.N.Y. Feb. 27, 2017)||
In this case, Tuman sued the owners of her apartment complex, VL GEM LLC and GEM Management Partners LLC, after the apartment complex refused to allow her to keep an emotional support dog in her apartment to help her deal with her post-traumatic stress disorder. Truman argued that she was discriminated against after she requested a “reasonable accommodation” for her disability, in violation of the Fair Housing Act (FHA). The defendants argued that Truman failed to provide sufficient medical documentation of her need for the support dog and therefore were not liable for discrimination under the FHA. The court found that Truman was able to establish a disability under FHA by showing that her PTSD “causes her to have severe anxiety and difficulties with socialization.” The court held that this satisfied the requirement under the FHA that the disability must “substantially limit one or more major life activities.” Since Truman qualified as disabled under the FHA, the court turned to whether or not she had provided the apartment complex with sufficient documentation and notice. Ultimately, the court found that Truman had provided the apartment with sufficient documentation because she provided them with a note from her doctor stipulating that Truman needed an accommodation in order to cope with her disability. Lastly, the court found that the apartment complex knew of Truman’s disability and request for an accommodation and still refused to allow her to have a dog, which resulted in a violation under the FHA. As a result, the court found for Truman.
|United States v. Robinson||Slip Copy, 2017 WL 806655 (D. Neb. Mar. 1, 2017)||
In this case, defendants were charged with conspiracy to distribute marijuana and conspiracy to launder money after the defendant’s vehicle was searched by law enforcement during a traffic stop. During the stop, the police officer used a service dog while searching the vehicle. The defendants argued that any evidence gained by the police officer be suppressed on the grounds that the search of the vehicle was not constitutional. Specifically, the defendants argued that the police officer did not have reasonable suspicion to use the service dog while searching the vehicle. Ultimately, the court found that the search by the police officer and his service dog did not violate the defendant’s constitutional rights because the police officer had reasonable suspicion to search the vehicle. The court focused on the fact that the officer had legally stopped the vehicle and while talking to the driver and passengers he had established a reasonable suspicion that the defendants were transporting drugs. Once the police officer had a reasonable suspicion that the vehicle was transporting drugs, the police officer was legally allowed to use the service dog to search the vehicle. As a result, the court held that none of the evidence found during the search should be suppressed for violating the defendant’s constitutional rights.
|Missouri Primate Foundation v. People for Ethical Treatment of Animals, Inc.||Slip Copy, 2018 WL 1420239 (E.D. Mo. Mar. 22, 2018)||This matter is a motion of counterclaim by defendants Missouri Primate Foundation to dismiss PETA's (the counterclaim plaintiff) assertion that two chimpanzees were being held in conditions that deprived the chimpanzees of adequate social groups, space, and psychological stimulation, putting them at risk of and causing physical and psychological injury, such as deteriorated cardiovascular and musculoskeletal health, stress, anxiety and depression. PETA also alleges that the chimpanzees were denied a sanitary environment, proper ventilation, a healthy diet, and adequate veterinary care. PETA claimed that the Missouri Primate Foundation (MPF) (the counterclaim defendants) were holding the two chimpanzees in conditions that “harm” and “harass” the chimpanzees, thus violating the “take” prohibition of the Endangered Species Act (ESA). MPF's motion contends that PETA’s counterclaim is based on allegations that they failed to comply with the Animal Welfare Act, not the ESA. MPF further contends that because the chimpanzees at its facility were lawfully in captivity and under the auspices of the AWA as administered by the USDA–APHIS, so the chimpanzees cannot be subject to a “take” under the ESA. They further argued that PETA lacked standing as the AWA preempts or supersedes the ESA as to animals held at USDA licensed facilities. Because the AWA does not allow citizen suits, MPF argued, the case must be dismissed. After examining similar cases, this court concluded that claims under the AWA and ESA are complementary and do not conflict, and that the ESA protects captive animals regardless of whether the alleged violator is an AWA licensed entity. The court found that the allegations by PETA are sufficient at this stage of the case and issues of proof are reserved for trial. As such, the court denied the motions of the counterclaim defendants.|