On April 26, 2014, Judge Emmet G. Sullivan issued his Minute Order dispensing at last with the Motion to Dismiss filed by the government.
As predicted, USARK was granted leave to amend its complaint to cure its pleading defects. In lay terms, USARK gets a “do-over” to include facts that should have been plead in its complaint.
Judge Sullivan granted this relief based on USARK’s Response, stating specifically:
[USARK] argues that it can establish both prudential and constitutional standing … and that they have the kind of concrete, particularized injuries required by Article III. Pl.’s Opp’n at 2-14. [USARK] also seeks leave to amend Counts 1 and 4 of its Complaint pursuant to Fed. R. Civ. P. 15(a)(2).
In other words, in its Corrected Response to the Motion to Dismiss, USARK asked that it be permitted to fix its original pleading defects, and the judge granted that request.
The Amended Complaint is now due by May 9th, after which the government may file another Motion to Dismiss, depending on how well USARK is able to fix its original pleading.
The net result is that we are back to square one: USARK will redraft and file a new complaint that will hopefully include factual allegations necessary to survive another Motion to Dismiss.
We are confident that in the six months that will have lapsed between the filing of its original complaint (December 18, 2013) and May 9, 2014 (when the Amended Complaint is due), USARK’s legal team should be able to draft a pleading that will stand so that we can eventually get to the heart of the matter.
With these additional six months of legal wrangling over pleading defects, how much remains in the budget to fund this litigation?
How much has been spent at this point arguing over defective pleadings?
And how much do they anticipate spending on the lawsuit going forward?
As USARK beats the fund raising drum to continue to raise funds for this necessary litigation, they should provide more transparency about how those funds are being allocated and how much more is needed, especially in light of Kelley Drye’s published statement that they have provided a budget to USARK for this lawsuit.
There has not been much action since the defendants in USARK’s lawsuit filed their Reply in support of their Motion to Dismiss USARK’s complaint.
On or around March 25th, USARK issued a statement, ostensibly written by Kelley Drye (“KD”), defending their performance to date in the lawsuit. Since that time, two things have been filed.
First, on March 31st, KD partner, David E. Frulla, filed his Appearance on behalf of USARK. Although Shaun Gehan will apparently remain on the case, KD has assigned a partner to the matter now as well. This should be a welcomed change. Frulla has impressive credentials. Although a partner with his qualifications is going to come at a handsome price, his experience and oversight can only help.
Second, on April 1, 2014, USARK filed its Motion for Oral Argument. The Court has discretion to hear oral arguments on the Motion to Dismiss or to rule on the pleadings. In this case, USARK feels that the complexities of its position require clarification in the form of oral arguments to the Court. No decision yet as to if and when the Court will hear oral arguments.
In its March 25th statement, KD claims that they have developed, a “reasonable budget” for this lawsuit. However, they have declined to name a figure. The frenetic fund raising that ushered in this lawsuit seems to have subsided to a certain degree, but stating their fundraising goals and how close they are to achieving those goals would probably assist with their fundraising efforts.
KD goes on to opine that discovery in this case will somehow be cheaper because the government is required to produce its record. Regardless of the source of the documents, properly preparing a case for litigation will require a thorough review of those documents, a review that must now be done by two partners at two law firms. Although discovery requests can be expensive, the bulk of the fees incurred lie in reviewing, analyzing and strategizing on how to use those documents.
Nonetheless, KD has a budget. Hopefully that budget is not in the nature of a flat fee. After all, if a buyer offers to pay a seller a $10,000 flat fee and tells the seller to send him snakes, the seller has the option to send one normal ball python or 25 coral glow ball pythons. It is not difficult to surmise what the buyer is likely to receive. The more snakes he sends, the lower his profit margin. Law firms operate on the same economics as any other service business.
This is not a simple case and it is, in some respects, a case of first impression. We continue to like some of USARK’s legal arguments, but winning them will require sophisticated lawyering, creative and competent arguments, and more attention to detail. One thing that KD did not address in their post was why USARK’s response brief to the Motion to Dismiss was filed with so many errors that a Notice of Errata was required.
KD has incorrectly stated that Herp Alliance has criticized the lawsuit for not seeking monetary damages. We have never done so, but we have taken the time to summarize issues at various times when explanations were not forthcoming elsewhere, and we will continue to do that. Rather than wasting time in a defensive posture to our posts, we wish KD would focus their attentions and their billable hours on the case at hand, a case that has drastic ramifications for the Reptile Nation, for herpetoculture, and to the thousands of species whose ultimate survival may depend on captive breeding.
We have said every time we have mentioned this suit that those who have an interest in large constrictors should dig deep and donate to this lawsuit, and we will repeat that request now.
As Herp Alliance previously reported, USARK filed its brief in opposition to the motion to dismiss filed by the government defendants. In our report, we noted signs of haste in USARK’s pleading.
On March 10, 2014, USARK filed its USARK Notice of Errata, USARK Corrected Response and Exhibits to Corrected Response. (Copies of all three documents can be viewed through the linked text.) Although USARK will not be penalized because it took advantage of a three day extension in filing its corrected version of its Opposition, it is likely that the government’s Reply brief will now be delayed as well.
As a litigator myself, I have always told clients that litigation is like finding a piece of string on the floor that leads out a closed door. Sometimes, when you pull on that string, a ball of yarn rolls to your feet. But sometimes, you pull that string, and an elephant walks into your sitting room.
On December 18, 2013, USARK filed its Complaint against Sally Jewell, Secretary of the Interior, and US Fish and Wildlife Service challenging the Constrictor Rule to the Lacey Act.
The Defendants responded with a highly technical Motion to Dismiss and USARK responded with an even more technical Response containing a tortured explanation of how USARK is now a conservation organization. We await the government’s Reply which is due within the week. So far, all of the legal wrangling pertains to pleading deficiencies alleged by the government in USARK’s Complaint.
As Herp Alliance has stated repeatedly, we think that USARK will be able to amend its Complaint to correct those pleading deficiencies such that it can overcome the hurdle of standing.
So far, this has little to do with arbitrary and capricious rule making or a reach by the government through the Lacey Act to try to restrict interstate commerce, which is the meat of USARK’s complaint.
We have been asked repeatedly for our opinion of USARK’s case. The strength of a lawsuit does not lie solely in the application of facts to the law. We like USARK’s legal argument. Nonetheless, the case is weak, very weak, and for one major reason: money.
If the rumors on Facebook are true, USARK has raised $137,000 toward the lawsuit. If this lawsuit goes to trial, it will easily cost more than ten times that amount, which is far more money than USARK has. Without the funds to continue the fight, the case will die on the vines. The government knows that USARK is underfunded, and their legal team is probably acutely aware that USARK is going to labor intensely just to make it through discovery, much less early dispositive motions like the pending Motion to Dismiss.
Individuals who are invested in the interstate commerce of large constrictors should reach deeply into their pockets now and donate to USARK’s Legal Defense Fund if they want this lawsuit to continue, otherwise there will be little chance to succeed.
Another problem for USARK is that their lead counsel, Shaun Gehan, the attorney who has so far signed all of USARK’s pleadings, announced today on LinkedIn that he is no longer with Kelley Drye and has started his own firm. Although Kelley Drye is a very large firm with tremendous legal resources, the abrupt departure of USARK’s lead counsel and presumably the attorney most knowledgeable about the case, is very bad news for USARK. Yes, another attorney can step into those shoes, but it will be expensive to bring that attorney up to speed.
But the frailties of the federal lawsuit are not the elephant in the room with herpetoculture today. We have a much bigger problem on our hands, and that problem is the landslide of state ballot initiatives that are marching unfettered across the country right now. Even if USARK wins the federal lawsuit, it will be immaterial if it is illegal to own herps at the state level.
USARK has not testified at any of the state level committee hearings in 2013 or 2014. Andrew Wyatt, former President and CEO of the Herp Alliance, testified at the Committee Hearing of Maryland House Bill 1124 (Criminal Possession of Dangerous Wild Animals), where the bill sponsor had Debbie Leahy (Captive Wildlife Regulatory Specialist, HSUS) seated at his side to present the bill to the House Committee. Prior to joining HSUS, Leahy founded the animal rights group Illinois Animal Action, which she headed for eight years. She then joined PETA and lead their nationwide campaign against circuses and roadside zoos. PETA has bragged about Leahy that she “has dashed onto killing fields to disrupt pheasant hunts,” and “dressed as a giant rabbit to protest cruel animal tests.”
Debbie Leahy is not an attorney. She is an extreme animal rights activist. And she sat in the Maryland General Assembly aside Representative Eric Luedtke and presented a piece of legislation to the House Environmental Matters Committee and helped deliver a first reading of a bill. This is a single example. Lousiana is currently trying to outlaw carpet pythons, among others, and the enormous, over-reaching West Virginia Dangerous Wild Animals Act sailed through both chambers virtually unopposed and now sits on Governor Tomblin’s desk. HSUS is clear on its web site that it believes all reptile ownership should be forbidden:
“Captive snakes and other reptiles are difficult and dangerous to care for, and released or escaped snakes wreak havoc on the environment.”
The animal rights industry is winning the war against reptiles with bill after bill going unopposed across the United States. Being allowed to ship Burmese pythons between states will be an expensive and meaningless victory if it is a criminal act to own them privately.
2014 may be a turning point for herpetoculture and the time to act is upon us.
On February 8, 2014, USARK filed USARK’s Response to the Defendants’ Motion to DismissUSARK’s Complaint. Also attached to the filing were Exhibits, which include a number of declarations (affidavits) of individuals, including USARK president, Philip Goss as well as members and supporters of USARK. The Response filing date was one day past the due date.
It’s important to understand the procedural posture. A motion to dismiss challenges the legal sufficiency of a claim. It does not consider the merits of a case. Here, the government challenged USARK’s complaint based on standing, a statute of limitations argument, and an argument that one count is duplicative of prior counts.
If USARK loses the motion to dismiss, it is nearly a certainty that the Court will give USARK an opportunity to amend its complaint in order to meet the federal pleading requirements. Losing the motion to dismiss, if it happens, is not at all equivalent to losing the case, unless it is dismissed without leave to amend. The court will conduct a hearing on the Motion to Dismiss before it rules.
In either case, winning or losing the motion to dismiss, does not in any way forecast the outcome of this lawsuit. (Not unless the complaint is dismissed without leave to amend.)
USARK’s Response takes a fair run at the legal substance of the Motion to Dismiss and the exhibits attached to it include factual allegations which should be sufficient for the complaint (or an amended complaint) to ultimately survive this volley. Including some of those allegations in the original complaint may have avoided the time and expense of briefing and arguing the present motion to dismiss.
The bigger question that is raised by the Response is USARK’s allegations that USARK “is dedicated to conservation through captive propagation” and “espouses the ideal of … supporting programs that ensure the preservation of threatened and endangered species around the world.” (Response at pp. 3-4.)
USARK is organized as a 501(c)(6) trade organization, not a 501(c)(3) conservation organization. Historically, it has not been involved in “supporting programs that ensure the preservation of threatened and endangered species around the world.” If it cannot provide evidence in support of that, it will lose tremendous credibility with the court.
Also suspect are some of the claims USARK puts forth regarding the support of certain individuals and organizations, which are tenuous at best.
On December 18th, USARK filed its Complaint challenging the Constrictor Rule to the Lacey Act.
On February 21, 2014, the Federal Defendants, including Sally Jewell and the US Fish & Wildlife Service, filed their Motion to Dismiss USARK’s complaint. While we at Herp Alliance are still analyzing the Motion to Dismiss (and will report on same shortly), it essentially alleges that USARK’s complaint is deficient for the following reasons:
USARK lacks standing to bring a private cause of action under NEPA, the APA or the Lacey Act; and
USARK fails to adequately plead a cause of action under multiple counts.
Copies of both pleadings can be read or downloaded at the links above.