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Ouellette v. Mills

United States District Court, D. Maine

February 23, 2015

CHARLES OUELLETTE, AMELIA ARNOLD, MAINE PHARMACY ASSOCIATION, MAINE SOCIETY OF HEALTH-SYSTEM PHARMACISTS, and RETAIL ASSOCIATION OF MAINE, Plaintiffs,
v.
JANET MILLS, in her official capacity as Attorney General of the State of Maine, and RICHARD ROSEN, in his official capacity as Commissioner of Administrative & Financial Services for the State of Maine, [1] Defendants

For CHARLES OUELLETTE, AMELIA ARNOLD, MAINE PHARMACY ASSOCIATION, MAINE SOCIETY OF HEALTH-SYSTEM PHARMACISTS, RETAIL ASSOCIATION OF MAINE, Plaintiffs: DAVID B. MCCONNELL, JOSEPH G. TALBOT, LEAD ATTORNEYS, PERKINS THOMPSON, PA, PORTLAND, ME; JOHN M. GORE, MICHAEL A. CARVIN, LEAD ATTORNEYS, JONES DAY, WASHINGTON, DC.

For JANET MILLS, in her official capacity as Attorney General of the State of Maine, H SAWIN MILLETT, JR, in his official capacity as Commissioner of Administrative & Finanacial Services for the State of Maine, Defendants: PAUL STERN, THOMAS A. KNOWLTON, OFFICE OF THE ATTORNEY GENERAL, AUGUSTA, ME.

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ORDER ON PARTIES' COMPETING MOTIONS ON FACIAL PREEMPTION

Nancy Torresen, United States Chief District Judge.

Before the Court are the parties' competing motions for judgment on the pleadings

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pursuant to Federal Rule of Civil Procedure 12(c) (ECF Nos. 46, 57). For the reasons stated below, the Plaintiffs' motion is GRANTED and the Defendants' motion is DENIED.

PROCEDURAL HISTORY

Two licensed Maine pharmacists and three trade organizations representing the interests of Maine pharmacists (the " Plaintiffs" ) bring suit against Janet Mills and Richard Rosen, in their official capacities (the " Defendants" or the " State" ), pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, and 42 U.S.C. § 1983. The Plaintiffs claim that the federal Food, Drug, and Cosmetics Act (the " FDCA" ), 21 U.S.C. § § 301-399f, preempts certain amendments to the Maine Pharmacy Act (the " MPA" ), 32 M.R.S. § § 13701-13847.

This Court issued an order on the Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), disposing of the Plaintiffs' Foreign Commerce Clause claim and dismissing the Pharmaceutical Research and Manufacturers of America from this suit. See Order on Mot. to Dismiss (ECF No. 39). Shortly thereafter, the Plaintiffs moved for summary judgment (ECF No. 46), and the Defendants responded by asking this Court either to deny the motion or continue the matter so they could conduct limited discovery (ECF No. 50). The Plaintiffs countered by asserting that no discovery was necessary to resolve their " purely legal" challenge to the Maine legislation. Pls.' Summ. J. Reply & Fed.R.Civ.P. 56(d) Opp'n 1, 14 (ECF No. 51).

The Court called a conference of counsel and determined that it could resolve whether the Plaintiffs are entitled to declaratory relief on their facial preemption challenge without discovery. Report of Conf. of Counsel & Order 2 (ECF No. 56).[2] The Court also determined that it would treat the Plaintiffs' motion for summary judgment as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and disregard any facts that would be properly considered at summary judgment, after the benefit of discovery. Report of Conf. of Counsel & Order 2.[3] The Defendants thereafter filed their own cross-motion for judgment on the pleadings. Defs.' Mem. in Opp'n to Pls.' Mot. for J. on the Pleadings & Cross-Mot. for J. on the Pleadings (ECF No. 57).

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The Court now resolves the parties' competing motions on the facial preemption question.[4]

LEGAL STANDARD

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). This standard applies with equal force where parties file cross-motions for summary judgment, in which case the court's role is to " 'determine whether either of the parties deserves judgment as a matter of law on [the] facts that are not disputed.'" Showtime Entm't, LLC, 769 F.3d at 69 (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). Because this is a facial challenge to the Maine legislation, and no discovery has taken place, the Court decides this matter by the terms of the relevant statutes, without any information about the effects of the Maine legislation or how it is being enforced. See N.H. Motor Transp. Ass'n, 301 F.Supp.2d at 41.

DISCUSSION

I. The Statutory Background

A. The MPA Amendments

In 2013, the Maine legislature passed, without the Governor's signature, " An Act To Facilitate the Personal Importation of Prescription Drugs from International Mail Order Prescription Pharmacies." 2013 Me. Legis. Serv. ch. 373 (S.P. 60) (L.D. 171) (West) (effective Oct. 9, 2013) (the " MPA Amendments" ). The Maine Pharmacy Act generally requires those who " engage in the practice of pharmacy" to be licensed. 32 M.R.S. § 13731(1). The MPA Amendments, which exempt certain entities from the licensing requirement, provide:

B. A licensed retail pharmacy that is located in Canada, the United Kingdom of Great Britain and Northern Ireland, the Commonwealth of Australia or New Zealand that meets its country's statutory and regulatory requirements may export prescription drugs by mail or carrier to a resident of this State for that resident's personal use. A licensed retail pharmacy described in this paragraph is exempt from licensure under this Act; and
C. An entity that contracts to provide or facilitate the exportation of prescription drugs from a licensed retail pharmacy described in paragraph B may provide or facilitate the provision of prescription drugs from that pharmacy by mail or carrier to a resident of this State for that resident's personal use. An entity

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that provides or facilitates the provision of prescription drugs pursuant to this paragraph is exempt from licensure under this Act.

Id.

The MPA Amendments also include a " Consumer Choice Preserved" provision, ...


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