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Missouri Pet Breeders Association v. County of Cook

United States District Court, N.D. Illinois, Eastern Division

May 21, 2015



MATTHEW F. KENNELLY, District Judge.

Plaintiffs, the Missouri Pet Breeders Association (MPBA) and three Cook County pet shops and their owners, have sued Cook County, the President of the Cook County Board of Commissioners, and the Director of Cook County Animal & Rabies Control, alleging that a Cook County ordinance regulating the sale of dogs, cats, and rabbits by pet stores in the County violates the United States and Illinois Constitutions. Defendants have moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court grants defendants' motion for the reasons stated below.


For purposes of the motion to dismiss, the Court accepts as true the following facts alleged in plaintiffs' complaint. See Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014). The Cook County Board of Commissioners passed the Cook County Companion Animal and Consumer Protection Ordinance (Ordinance No. 14-2408) in April 2014. Although the ordinance was scheduled to take effect on October 1, 2014, the Court entered an agreed order on September 11, 2014 deferring enforcement of the ordinance during the pendency of this litigation.

The ordinance regulates the sales of dogs, cats, and rabbits by pet stores located in Cook County, Illinois. Under the ordinance, a "pet shop operator" may only sell animals obtained from a breeder that (among other requirements) holds a USDA class "A" license and "owns or possesses no more than five (5) female dogs, cats, or rabbits capable of reproduction in any twelve (12) month period." Cook County, Ill., Rev. Ordinances ch. 10, art. I, § 10-13(a)(3) (2014).[1]

The ordinance defines "pet shop operator" by reference to the Illinois Animal Welfare Act (IAWA). Id. § 10-2. A "pet shop operator" under the IAWA is "any person who sells, offers to sell, exchange, or offers for adoption with or without charge or donation dogs, cats, birds, fish, reptiles, or other animals customarily obtained as pets in this State, " unless that person "sells only such animals that he has produced and raised." 225 ILCS 605/2. Although the IAWA definition is expansive, the Cook County ordinance exempts local not-for-profit entities (including humane societies and rescue organizations) and government-run entities (including animal control centers, animal care facilities, kennels, pounds, and training facilities) from the restrictions placed on pet shop operators. Cook County, Ill., Rev. Ordinances ch. 10, art. I, § 10-13(b). Accordingly, those entities can sell pets directly to consumers without regulation. Additionally, pet stores may obtain pets from not-for-profit and government-run entities without any restrictions. Id. § 10-13(a)(1).

Plaintiffs in this case are the Missouri Pet Breeders Association (MPBA), a professional pet organization that advocates for the interests of its member pet breeders, and three Cook County pet shops and their owners. The pet stores claim that they will go out of business if the ordinance takes effect, because there are not enough breeders that meet the ordinance's requirements to supply the desired number of specialty pets to Cook County pet stores. Am. Compl. ¶¶ 56-58. Specifically, they claim that very few breeders have five or fewer female dogs, so pet stores purchase most of the pets they sell from breeders with more than five dogs. Of the breeders that currently have five or fewer dogs, plaintiffs say, very few have the required class A license, because the United States Department of Agriculture (USDA) does not require breeders with four or fewer female dogs to obtain a license. If the ordinance takes effect, plaintiffs claim, there will not be enough breeders to meet consumers' demands for pure- and specialty-breed pets. For instance, plaintiffs say, there will only be three grade A-licensed breeders in Illinois that meet the ordinance's requirements. Id. ¶ 56. Plaintiffs have not indicated how difficult it would be for existing breeders to obtain a class A license. They admit that "[t]heoretically, a breeder with fewer than 5 dogs could ask the USDA to regulate them" but state that "next to none do so because they are legally exempt from requiring a USDA license." Id. ¶ 42.

Plaintiffs also claim that the ordinance will impact out-of-state breeders, including the Missouri breeders that MPBA represents. Even though breeders are not directly regulated, plaintiffs contend that the ordinance would "ban[] local pet shops from selling puppies imported from 98% of America's breeders." Id. ¶ 76. Moreover, plaintiffs claim that the ordinance will cause out-of-state pet breeders to lose business to in-state pet breeders. Specifically, they assert that because the ordinance does not regulate sales from breeders to consumers, breeders without licenses will be able to sell to Cook County residents without restriction even if they house more than five female dogs. Thus, Cook County residents who want specialty breeds and cannot find them at pet stores (because the supply at Cook County pet stores will be depleted by the regulation) will instead purchase dogs directly from breeders. Although the ordinance does not distinguish between Illinois and out-of-state breeders, plaintiffs contend that Illinois breeders will gain business from Cook County customers. According to plaintiffs, Cook County "consumers will often want to see an animal before making a purchasing decision" but "are not likely to travel into another state to purchase an animal if they can purchase directly from a breeder located in Illinois." Id. ¶ 50. Thus, out-of-state breeders will be forced to either lose business to Illinois breeders or establish a physical presence in Cook County. Id. ¶¶ 50, 76.

Plaintiffs claim that the ordinance violates the U.S. Constitution because it impermissibly burdens interstate and foreign commerce (count 1), violates plaintiffs' equal protection rights (count 2), and is impermissibly vague (count 4). Plaintiffs also contend that the ordinance is preempted by state and federal law and that the county has exceeded its home rule powers under the Illinois Constitution (count 3). The pet shops and their owners (but not MPBA) contend that the ordinance violates the Contract Clause of the U.S. Constitution (count 5). And finally, plaintiffs request a permanent injunction enjoining defendants from enforcing the ordinance against them (count 6).


When considering a motion to dismiss, the Court accepts plaintiffs' allegations as true and draws reasonable inferences in their favor. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). In order to state a viable claim, plaintiffs must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A. Standing

Defendants argue that certain claims must be dismissed for lack of standing under Federal Rule of Civil Procedure 12(b)(1).

1. MPBA's standing

Defendants argue that MPBA does not meet the constitutional or prudential requirements for standing. MPBA does not challenge defendants' contention that it lacks standing to sue on its own behalf under Article III. To sue in its own right, MPBA must establish that the organization itself suffered a concrete and particularized injury that is traceable to defendants' challenged actions and would be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). MPBA does not allege that it has suffered any injury itself; it only alleges injuries to its members. Thus, it has not met the minimum constitutional requirements for standing to sue on its own behalf. See Milwaukee Police Ass'n v. Bd. of Fire & Police Comm'rs of Milwaukee, 708 F.3d 921, 926-27 (7th Cir. 2013).

MPBA does, however, have standing to sue on behalf of its members, Missouri pet breeders. An association has Article III standing to sue on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).

First, MPBA's members would have standing to sue under Article III. They allege a concrete and imminent injury, namely, that they will lose sales if the ordinance takes effect. Specifically, MPBA alleges that the ordinance will cause Missouri breeders to sell fewer pets to Cook County pet stores. They also claim that they will lose business to Illinois breeders, because consumers will choose to buy more pets directly from breeders but will be more likely to go to Illinois breeders due to geographical convenience. Although the effect is indirect, as the Court describes below in considering plaintiffs' Commerce Clause claim, MPBA has articulated a sufficiently concrete injury to its breeders to satisfy the requirements of Article III. See, e.g., Alliance for Clean Coal v. Miller, 44 F.3d 591, 594-95 (7th Cir. 1995) (ruling that a trade association whose members included Colorado and Oregon coal companies had alleged an injury-in-fact by claiming that the challenged legislation would make utilities less likely to use western coal).

Second, MPBA seeks to protect interests that are germane to the association's purpose. MPBA "exists, in part, to advocate for the interests of its members, " and the association filed this lawsuit to protect those interests. Am. Compl. ¶ 9.

Finally, MPBA can represent the interests of its members without their individual participation. When an "association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured." Warth v. Seldin, 422 U.S. 490, 515 (1975). Accordingly, "individual participation' is not normally necessary when an association seeks prospective or injunctive relief for its members." United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 546 (1996) (citing Hunt, 422 U.S. at 511). Here, plaintiffs have requested declaratory and injunctive relief, which would likely benefit all MPBA members if granted. Thus, MPBA has standing to sue on behalf of its members under Article III.

"In addition to the constitutional limitation on standing, courts also impose 'prudential limitations' on the class of persons who may invoke federal jurisdiction. Among these prudential restrictions is the general rule that a litigant must assert his own legal rights and cannot assert the legal rights of a third party." Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (internal citation omitted). Defendants contend that MPBA cannot sue to enforce the rights of others. Contrary to defendants' assertion, MPBA has not asserted the rights of others. With the exception of certain individual ...

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