UNITED CANNABIS PATIENTS AND CAREGIVERS OF MAINE v. MAINE DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL SERVICES

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

UNITED CANNABIS PATIENTS )

AND CAREGIVERS OF MAINE, et )

al., )

)

Plaintiffs, )

)

v. )

) Docket No. 1:20-cv-00388-NT

MAINE DEPARTMENT OF )

ADMINISTRATIVE AND )

FINANCIAL SERVICES, et al., )

)

Defendants. )

)

ORDER ON MOTIONS TO DISMISS AND

PLAINTIFFS’ SECOND MOTION TO AMEND COMPLAINT

In this case, the Plaintiffs challenge the Maine Department of Administrative

and Financial Services’ (the “Department”) decision not to enforce a statutory

provision restricting adult-use marijuana licenses to businesses wholly owned by

Maine residents. The Plaintiffs contend that in granting licenses to entities that do

not meet the residency requirement, the Defendants—the Department and its

commissioner, Kirsten Figueroa—knowingly misapplied the dormant Commerce

Clause of the United States Constitution.1 The Defendants (and several Parties-in-

Interest) have moved to dismiss the Complaint (ECF Nos. 24, 29, 30). After those

motions were filed, the Plaintiffs filed a motion for leave to file a second amended

1 The Commerce Clause grants Congress the power “[t]o regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

“Although the Clause thus speaks in terms of powers bestowed upon Congress,” the Supreme Court

“long has recognized that it also limits the power of the States to erect barriers against interstate

trade.” Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980).

complaint (ECF No. 36). For the reasons stated below, the motion to amend the

Complaint is GRANTED, and the motions to dismiss are GRANTED.

I. MOTION TO AMEND THE COMPLAINT

A plaintiff who has already amended his or her complaint may further amend

only with the written consent of the opposing party or with leave of court. United

States ex rel. Poteet v. Bahler Med., Inc., 619 F.3d 104, 116 (1st Cir. 2010); see Fed. R.

Civ. P. 15(a)(1), (2). Generally, a court “should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). But while the Federal Rules of Civil Procedure

“reflect[] a liberal amendment policy . . . the district court enjoys significant latitude

in deciding whether to grant leave to amend.” Kader v. Sarepta Therapeutics, Inc.,

887 F.3d 48, 60–61 (1st Cir. 2018) (alterations in original) (quoting ACA Fin. Guar.

Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008)).

The Plaintiffs filed a motion for leave to file a Second Amended Complaint

(“SAC”) on January 5, 2021, after the motions to dismiss had been filed. Pls.’ Mot. for

Leave to File Second Am. Compl. (“Pls.’ Mot.”) (ECF No. 36). They state that they

seek to file the SAC “to cure identified defects and omissions in the [First Amended

Complaint (“FAC”)] relevant to the pending motions to dismiss for lack of federal

jurisdiction and failure to state a claim.” Pls.’ Mot. 1–2. They maintain that the SAC

“does not substantively change the nature of the claims” and that the “proposed

amendments are wholly consistent with the summary and discussion of their action

set forth throughout the opposition to the motions to dismiss.” Pls.’ Mot. 3 (quotations

omitted). In their oppositions to the motion (ECF Nos. 38 and 40), the Parties-in-

Interest assert that amendment will be futile because the SAC fails to cure the

deficiencies identified in the motions to dismiss. The Defendants have not responded

to the motion.

I conclude that judicial efficiency and clarity will be aided by granting the

Plaintiffs’ motion. Moreover, because the amendments that the Plaintiffs seek do not

substantively alter the operative complaint and because the same standard of review

applies to assessing futility and the motions to dismiss, I find that granting the

Plaintiffs’ motion will not unduly prejudice the Defendants or the Parties-in-Interest.

See Charette v. St. John Valley Soil & Water Conservation Dist., Docket no. 1:17-cv-

35-GZS, 2017 WL 2683951, at *1 (D. Me. June 20, 2017).

II. MOTIONS TO DISMISS

BACKGROUND

A. Adult-Use Marijuana Licensing Scheme

In 2018, the Maine Legislature amended the Marijuana Legalization Act (the

“Act”) and created the regulatory framework for the sale of adult-use recreational

marijuana in the state. SAC ¶ 23 (ECF No. 36-1). The Act states that applicants “for

a license to operate a marijuana establishment must meet each of the” specified

licensing criteria. 28-B M.R.S.A. § 202. One of those criteria, the “Residency

Requirement,” reads as follows:

Resident. If the applicant is a natural person, the applicant must be a

resident. If the applicant is a business entity:

A. Every officer, director, manager and general partner of the

business entity must be a natural person who is a resident; and

B. A majority of the shares, membership interests, partnership

interests or other equity ownership interests as applicable to the

business entity must be held or owned by natural persons who are

residents or business entities whose owners are all natural

persons who are residents.

28-B M.R.S.A. § 202(2). “Resident” is defined as a “natural person who . . . [i]s

domiciled in this State; and . . . [m]aintains a permanent place of abode in this State

and spends in the aggregate more than 183 days of the taxable year in this State.”

Id. § 102(48). The Department is tasked with implementing, administering, and

enforcing the Act and adopting rules necessary to achieve that purpose. It has the

“sole authority” to grant or deny applications and impose any penalty authorized

under the Act. Id. § 104(1). Since the Act’s passage, the Department has promulgated

rules for the implementation of the Act, including a rule that incorporated the

Residency Requirement. SAC ¶ 28.

B. Enforcement of the Residency Requirement and Legal Challenges

On March 20, 2020, a non-resident corporation hoping to enter Maine’s adult-

use marijuana market, as well as NPG, LLC (“NPG”)—one of the Parties-in-Interest

here—filed suit in this Court, seeking a preliminary injunction against enforcement

of the Residency Requirement and a declaration that the requirement violated the

dormant Commerce Clause. See NPG, LLC v. Me. Dep’t of Admin. & Fin’l Servs., Dkt.

No. 1:20-cv-00107-NT (ECF Nos. 1, 3). After reviewing relevant precedent, the

Attorney General advised that the Residency Requirement was subject to significant

constitutional challenges. Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) 4 (ECF No. 30). The

Department subsequently decided that it would not enforce the requirement, and on

May 11, 2020, the parties in that case agreed to a stipulation of dismissal without

prejudice. Defs.’ Mot. 4. The Department also issued a public notice announcing that

it would cease enforcement of the Residency Requirement. SAC ¶ 33. The Maine

Legislature has not amended the Act or modified the Residency Requirement. SAC ¶

37.

The Department subsequently revised its licensure application process and

has stopped collecting certain data from applicants. SAC ¶¶ 34–35. For example, the

Department eliminated forms used to ensure that applicants provided enough

information to determine their residency status. SAC ¶ 35. The Department issued

the first set of final, active licenses on September 8, 2020. SAC ¶ 42.

Shortly after the Department announced it was not enforcing the Residency

Requirement, Plaintiffs United Cannabis Patients and Caregivers of Maine, Dawson

Julia, and Christian J. Roney filed suit in Maine Superior Court. Compl. for

Declaratory J. (ECF No. 24-2). They sought a declaratory judgment and an order

compelling the Department to enforce the Residency Requirement and barring the

Department from issuing licenses to non-residents. See Compl. for Declaratory J.

NPG intervened to oppose the lawsuit. United Cannabis Patients & Caregivers of Me.

v. Me. Dep’t of Admin. & Fin. Servs., No. CV-2020-73 (Me. Super. Ct. Aug. 21, 2020)

(ECF No. 24-1). The Superior Court dismissed the case, concluding that the Plaintiffs

lacked standing and failed to state a claim and that separation-of-powers concerns

cautioned against judicial involvement. United Cannabis Patients & Caregivers of

Me. v. Me. Dep’t of Admin. & Fin. Servs., No. CV-2020-73, at 6–10. On the last point,

the Superior Court emphasized that the Legislature had directed the executive

branch to enforce the law and that “[a] proper respect for the roles of the three great

departments of State Government counsels the court that it should not direct the

Executive to enforce a law it believes cannot withstand constitutional scrutiny.” Id.

at 9. The Plaintiffs’ appeal of that decision is currently pending before the Law Court.

See Defs.’ Mot. 4.

In the most recent iteration of this litigation, the Plaintiffs here—three of

whom were Plaintiffs in the Superior Court case—ask me to weigh in. The Plaintiffs

have also filed a parallel Complaint in Superior Court (ECF No. 24-3), which contains

the same state law claims advanced here. According to NPG, that case is currently

stayed. See NPG, LLC d/b/a Wellness Connection’s Mot. to Dismiss Compl. 3 n.1 (ECF

No. 24).

C. The Parties and the Claims

Plaintiff United Cannabis Patients and Caregivers of Maine is a marijuana

business trade group that supports Maine adult-use and medical marijuana

businesses through networking and advocacy. SAC ¶ 53. Plaintiffs Dawson Julia and

Christian J. Roney, both Maine residents, cultivate medical marijuana and operate

licensed medical marijuana storefronts as caregivers.2 SAC ¶¶ 11–12, 55. Roney has

also applied for an adult-use marijuana license from the Department. SAC ¶ 12.

Plaintiff Green Cures, LLC, operates an actively licensed adult-use marijuana store

in Auburn, Maine, in full compliance with the Residency Requirement. SAC ¶ 13.

2 Maine legalized the cultivation, sale, and use of marijuana for medical purposes in 2009 and

authorized registered caregivers to sell marijuana to qualified patients. Defs.’ Mot. to Dismiss 2-3

(ECF No. 30).

In addition to suing the Department and the Commissioner, the Plaintiffs have

named seven Parties-in-Interest, which are allegedly not in compliance with the

Residency Requirement. SAC ¶¶ 16–22, 86–87, 94–95, 102–03, 110–11, 118–19, 126–

27, 134–35.

The Plaintiffs assert nine counts. In Count I, the Plaintiffs seek a declaratory

judgment holding “that the United States Constitution’s Commerce Clause (together

with its negative Dormant Commerce Clause) cannot apply to any aspect of Maine’s

intrastate marijuana marketplace nor the state laws regulating Maine’s marijuana

marketplace.” SAC 15. In Count IX, the Plaintiffs ask me to “enjoin Commissioner

Kirsten Figueroa from issuing any adult-use marijuana license to any entity in

violation [sic] based upon Ms. Figueroa’s unlawful misinterpretation and

misapplication of the federal Commerce Clause as declared by the Court.” SAC 26.

Both Count I and Count IX are brought pursuant to the Declaratory Judgment Act,

28 U.S.C. §§ 2201–02. The Plaintiffs also assert several state-law claims, seeking

review of the Department’s issuance of licenses to each of the Parties-in-Interest.

(Counts II–VIII). SAC 16–25.

The Plaintiffs allege that the Department’s decision not to enforce the

Residency Requirement eliminated the economic advantage that the Act was

intended to provide for Maine residents and that issuing licenses to non-residents

“wrongfully increas[es] economic competition to Plaintiffs’ business operations from

entities that the Maine Legislature expressly excluded from Maine’s marijuana

marketplace.” SAC ¶¶ 58, 63; see also SAC ¶ 56 (asserting that Green Cures, which

is a Maine-owned company that has obtained an adult-use license, “suffers a

competitive disadvantage from the Department’s issuance of active marijuana

establishment licenses to market competitors in violation of the Residency

Requirement”). This, according to the Plaintiffs, amounts to “direct economic harms.”

SAC ¶ 64. The Plaintiffs state that they relied on that anticipated economic

advantage in investing in their Maine marijuana businesses and in developing and

tailoring their anticipated business operations. SAC ¶¶ 61–62. Finally, the Plaintiffs

contend that the Department’s “non-enforcement of the Residency Requirement has

inflated real estate prices through increased market competition from out-of-state

entities,” noting that “[i]nflated commercial warehouse pricing caused Plaintiff Roney

to lose a leased commercial growing warehouse” to a non-resident higher bidder. SAC

¶¶ 65–66.

NPG filed a motion to dismiss on December 1, 2020 (ECF No. 24), the other

Parties-in-Interest filed a motion to dismiss on December 7, 2020 (ECF No. 29), and

the Defendants moved to dismiss on December 9, 2020 (ECF No. 30). These motions

raise similar arguments: (1) the Plaintiffs lack standing, (2) there is no federal-

question jurisdiction, (3) Maine’s sovereign immunity bars the Plaintiffs’ claims, and

(4) the Plaintiffs’ claims are precluded by res judicata.

DISCUSSION

Although the Defendants and Parties-in-Interest assert several grounds for

dismissing this case, any one of which might suffice, I confine my analysis to the

Eleventh Amendment’s jurisdictional bar of suits against nonconsenting states by

individuals.3 See Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 105 (1st Cir.

2015) (“Eleventh Amendment questions are often labeled jurisdictional, and

generally, jurisdictional issues must be resolved before analyzing dismissals under

Rule 12(b)(6).” (quotations and citations omitted)). In doing so, I take the complaint’s

well-pleaded facts as true and draw all reasonable inferences in the plaintiff’s favor.

See Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016); Yershov v.

Gannet Satellite Info. Network, Inc., 204 F. Supp. 3d 353, 358 (D. Mass. 2016).

The Eleventh Amendment of the United States Constitution provides that

“[t]he Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. “Long interpreted as an affirmation of state sovereign immunity, the

amendment . . . also bars a citizen from bringing a federal court action against his or

her own State, including instrumentalities of the state, such as state agencies.” Town

of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015) (quotations and citations

omitted). This interpretation stems from the understanding that “each State is a

sovereign entity in our federal system”; that “ ‘it is inherent in the nature of

3 The First Circuit has “recognize[d] that Eleventh Amendment immunity has some attributes

of subject matter jurisdiction but not others.” Hudson Sav. Bank v. Austin, 479 F.3d 102, 109 (1st Cir.

2007). But it has also described Eleventh Amendment immunity as jurisdictional, see Mulero-Carrillo

v. Román-Hernández, 790 F.3d 99, 105 (1st Cir. 2015), and it has held that dismissal is proper without

a consideration of the case’s merits where the Eleventh Amendment question is “straightforward.”

Brait Builders Corp. v. Mass., Div. of Cap. Asset Mgmt., 644 F.3d 5, 10–12 (1st Cir. 2011). Thus,

although the Defendants and Parties-in-Interest also assert that dismissal is warranted pursuant to

Federal Rule of Civil Procedure 12(b)(6), see, e.g., Defs.’ Mot. to Dismiss 17–18 (arguing that the

Plaintiffs’ claims would be precluded due to res judicata), I do not decide those issues.

sovereignty not to be amenable to a suit’ absent consent”; and that this “fundamental

aspect of sovereignty constrains federal ‘judicial authority.’ ” Allen v. Cooper, 140 S.

Ct. 994, 1000 (2020) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 & n.13

(1996); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991)).

Although sovereign immunity generally bars suits against state officials as

well as the state itself, “this proscription is subject to a well recognized exception

memorialized in Ex parte Young.” Town of Barnstable, 786 F.3d at 138 (quotations

omitted) (citing 209 U.S. 123, 159–60 (1908)). This exception “permits suits to proceed

against state officers in their official capacities to compel them to comply with federal

law.” Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 477–78 (1st Cir. 2009);

see also Redondo-Borges v. U.S. Dep’t of Hous. & Urb. Dev., 421 F.3d 1, 7 (1st Cir.

2005) (stating that the exception also permits injunctive relief against state

defendants in their individual capacities). It is premised on the notion “that, since a

state could not authorize an official to violate federal law, by doing so, a state official

is stripped of her authority and thus a suit against her does not implicate the state’s

sovereign immunity.” Irizarry, 587 F.3d at 478 (citing Ex parte Young, 209 U.S. at

159–60); see also Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011)

(explaining that a state official who enforces an “unconstitutional legislative

enactment . . . comes into conflict with the superior authority of the Constitution,”

and thus “when a federal court commands a state official to do nothing more than

refrain from violating federal law, he is not the State for sovereign-immunity

purposes” (quotations omitted)).

A. Claims Against the Department

The Defendants and the Parties-in-Interest argue that the claims against the

Department are barred by the Eleventh Amendment. The Defendants note that “the

Department is plainly the type of agency that qualifies as an arm of the state for

purposes of sovereign immunity” and that “Maine scrupulously guards its Eleventh

Amendment sovereign immunity rights.” Defs.’ Mot. 8 (citing 14 M.R.S. § 8118

(“Nothing in this chapter or any other provision of state law shall be construed to

waive the rights and protections of the State under the Eleventh Amendment of the

United States Constitution, except where such waiver is explicitly stated by

law . . . .” (emphasis in quotation))).

By statute, the Department “is established as the principal fiscal department

of State Government.” 5 M.R.S.A. § 281. It is responsible for “coordinat[ing] financial

planning and programming activities of departments and agencies of the State

Government for review and action.” Id. Like other Maine agencies, the Department

is not “independent and separate,” but rather is an arm of the State shielded by the

Eleventh Amendment from suit in federal court. See Abdisamad v. City of Lewiston,

No. 2:19-CV-00175-LEW, 2019 WL 2552194, at *2 (D. Me. June 20, 2019) (quoting

Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean

Cardiovascular Ctr. Corp., 322 F.3d 56, 63 (1st Cir. 2003)) (holding that the Maine

Department of Agriculture, Conservation and Forestry is an arm of the state). In their

Opposition to the Motions to Dismiss, the Plaintiffs make no argument that the

Department should be characterized differently.4

Nor do the Plaintiffs attempt to demonstrate that the State has consented to

suit for any of the claims they advance or that the State’s sovereign immunity has

otherwise been abrogated.5 See Tierney v. Town of Framingham, 292 F. Supp. 3d 534,

542 (D. Mass. 2018) (“Plaintiffs bear the ‘burden of proving [that] sovereign immunity

has been waived.’ ”) (alteration in original) (quoting Mahon v. United States, 742 F.3d

11, 14 (1st Cir. 2014))). Thus, I conclude that the claims brought directly against the

Department are barred.

B. Claims Against Commissioner Figueroa

Typically, “[a] lawsuit against a state official in [her] official capacity is a

lawsuit against the State, and is prohibited in federal court by the Eleventh

Amendment.” Nillson-Borrill v. Burnheimer, 505 F. Supp. 2d 180, 181 (D. Me. 2007)

(citing Pennhurst, 465 U.S. at 99–100). In response to the Defendants’ Eleventh

Amendment argument, the Plaintiffs rely exclusively on the Ex parte Young exception

4 At one point, the Plaintiffs appear to suggest that the Ex parte Young exception would

authorize their suit of the Department. See Pls.’ Opp’n to Parties-in-Interest and Defs.’ Mots. to

Dismiss (“Pls.’ Opp’n”) 4 (ECF No. 33) (“Plaintiffs allege that Commissioner Figueroa and the

Department are engaged in ongoing conduct . . . .” (emphasis added)). But this undeveloped argument

is contrary to the holding of Ex parte Young and the express language of subsequent cases, which have

emphasized that state agencies are immune from suit. See Ex parte Young, 209 U.S. 123, 151, 159–60

(1908); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01 (1984) (explaining that

Eleventh Amendment bars suits against states and state agencies “regardless of the nature of the

relief sought”); O'Neill v. Baker, 210 F.3d 41, 47 (1st Cir. 2000) (“The Supreme Court has clearly said

that the Eleventh Amendment bars federal suits by citizens against the state or state agencies . . . .”).

5 There is no express language in the Declaratory Judgment Act that abrogates state sovereign

immunity. See Philadelphia Indem. Ins. Co. v. Goff, Civil Action No. 10-10224-GAO, 2010 WL 2204828,

at *1 (D. Mass. May 27, 2010); MA LEG Partners 1 v. City of Dallas, 442 F. Supp. 3d 958, 970 & n.37

(N.D. Tex. 2020); Wise v. Michigan, No. 10-CV-11438, 2011 WL 4469151, at *1 (E.D. Mich. Sept. 27,

2011).

to state sovereign immunity to justify their claims against Commissioner Figueroa.6

Pls.’ Opp’n to Parties-in-Interest and Defs.’ Mots. to Dismiss (“Pls.’ Opp’n”) 3–6 (ECF

No. 33). In Counts I and IX—the two claims brought pursuant to the federal

Declaratory Judgment Act—the Plaintiffs seek a declaratory judgment that the

Residency Requirement does not violate the dormant Commerce Clause and an

injunction preventing Commissioner Figueroa “from issuing any adult-use marijuana

license to any entity . . . based upon [her] unlawful misinterpretation and

misapplication of the federal Commerce Clause.” SAC 15, 26.

As the Plaintiffs acknowledge, “[t]o determine applicability of the Ex parte

Young exception, ‘a court need only conduct a straightforward inquiry into whether

the complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.’ ” Pls.’ Opp’n 4 (quoting Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., 535 U.S. 635, 645 (2002)). No such violation of federal law is alleged

here. The SAC alleges that Commissioner Figueroa is engaged in ongoing conduct—

the knowing misinterpretation and misapplication of the federal Constitution’s

Commerce Clause—that fails “to conform . . . to the requirements of federal law.” Pls.’

6 The Amended Complaint (“FAC”) explicitly stated that Commissioner Figueroa was being

sued in her “official capacity,” but the Plaintiffs deleted that language in the SAC, replacing it with

the statement that Commissioner Figueroa is “individually responsible for all acts of the Department

undertaken in excess of her of [sic] the Department’s lawful authority to act as a representative of the

state of Maine.” Compare FAC at 1 & ¶ 15 (ECF No. 11), with SAC at 1 & ¶ 15. Despite this confusing

alteration, the case caption in the SAC still identifies Defendant Figueroa as “KIRSTEN FIGUEROA,

as Commissioner,” and the Plaintiffs still seek relief that Commissioner Figueroa can only satisfy by

acting in her official capacity, see SAC 26 (seeking to enjoin how Commissioner Figueroa grants

licenses, one of her official duties). Moreover, the Plaintiffs state that the SAC “does not substantively

change the nature of the claims,” Pls.’ Mot. for Leave to File Second Am. Compl. 3 (quotations omitted)

(ECF No. 36), and they make no mention of altering the nature of the suit against Commissioner

Figueroa in their motion. Thus, I conclude that these claims are still brought against Commissioner

Figueroa in her official capacity.

Opp’n 3–4 (emphasis deleted) (quoting Quern v. Jordan, 440 U.S. 332, 337 (1979)).

But, as is clear from the SAC, the crux of the Plaintiffs’ claims is that the

Commissioner did not enforce the state Residency Requirement when issuing

licenses. See SAC ¶ 1 (alleging that there has been a “violation of Maine’s Residency

Requirement for licensure”), 43 (alleging that Commissioner Figueroa “violated the

Act and its rules when [she] issued active licenses by failing to consider whether

applicants complied with the Residency Requirement”); SAC ¶ 141 (asserting that

certain licenses were “issued in knowing violation of Maine law”). Thus, the true

conduct that the Plaintiffs challenge—the decision not to enforce the Residency

Requirement and to award licenses to non-residents—can at most be characterized

as violations of state law.

To be sure, the Plaintiffs attempt to disguise these state law grievances as

federal law claims. The SAC asserts that Commissioner Figueroa’s “violation of her

statutory obligations is predicated on her ongoing misinterpretation and

misapplication of the federal Constitution’s Commerce Clause.” SAC ¶ 38; see also

SAC ¶ 1 (claiming that Commissioner Figueroa is issuing licenses based on an

“unlawful interpretation and application of the federal Commerce Clause”); SAC

¶ 140 (“The Department and Commissioner Kirsten Figueroa should be enjoined to

conform their conduct—the interpretation and application of the federal Commerce

Clause—with the requirements of federal law.”). But despite this crafty language, the

Plaintiffs point to no actual conduct that can be read as an alleged violation of federal

law. The Commerce Clause simply grants Congress the power to regulate interstate

and foreign commerce, and the dormant Commerce Clause, by implication, “limits

the power of the States to erect barriers against interstate trade.” Lewis v. BT Inv.

Managers, Inc., 447 U.S. 27, 35 (1980). Here, Commissioner Figueroa has refused to

apply a state Residency Requirement that is arguably itself a barrier against

interstate trade. There is no actual allegation in either the FAC or SAC that

Commissioner Figueroa has violated the dormant Commerce Clause, and she is not

alleged to have erected any barriers against interstate trade. Rather, the Plaintiffs

only allege that she has misinterpreted the dormant Commerce Clause’s

requirements in a way that favors interstate trade. The Plaintiffs’ challenge of her

alleged action—whether that action is required by the dormant Commerce Clause or

not—cannot seriously be considered an allegation of a violation of federal law.

The Plaintiffs are quick to point out that an analysis of the merits of Plaintiffs’

federal claims should not be undertaken during this stage of the Court’s jurisdictional

review. Pls.’ Opp’n 4–5. But this misses the point. I am not assessing the merits of

whether the Residency Requirement actually does run afoul of the dormant

Commerce Clause. My decision that there is no federal jurisdiction rests on the fact

that the Plaintiffs—even in their SAC—have not alleged an ongoing violation of

federal law.7

7 In Verizon Maryland, Inc. v. Public Service Commission of Maryland, the Supreme Court held

that the Ex parte Young doctrine permitted a suit to proceed even though the Court of Appeals

suggested that the state’s action was “probably not inconsistent with federal law.” Verizon Md., Inc. v.

Pub. Serv. Comm'n of Md., 535 U.S. 635, 646 (2002) (emphasis deleted). The Court explained that “the

inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the

claim.” Id. (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997) (“An allegation of an

ongoing violation of federal law . . . is ordinarily sufficient.” (emphasis added in quotation))). But the

issue here is not that the Plaintiffs have failed to prove that there was a violation of federal law, or

In failing to allege that the Commissioner is violating federal law, the Plaintiffs

have failed to bring themselves within the Ex parte Young exception to state

sovereign immunity. See Pennhurst, 465 U.S. at 106 (explaining that the justification

for the Ex parte Young exception is to “vindicate the supreme authority of federal

law” and that the “entire basis for the doctrine of Young . . . disappears” when “a

plaintiff alleges that a state official has violated state law”); Booth v. Maryland, 112

F.3d 139, 142–43 (4th Cir. 1997) (“To have a state sued in federal court without even

a contention of an ongoing violation of federal law would only multiply the indignity

of subjecting a State to the coercive process of judicial tribunals at the instance of

private parties.” (internal quotations omitted)); Town of Barnstable, 786 F.3d at 138

(“A ‘pivotal question’ under Ex parte Young is whether the relief ‘serves directly to

bring an end to a present violation of federal law.’ ” (quoting Whalen v. Mass. Trial

Court, 397 F.3d 19, 29 (1st Cir. 2005))). Thus, Counts I and IX are barred.

Generally, “the unfavorable disposition of a plaintiff’s federal claims at the

early stages of a suit . . . will trigger the dismissal without prejudice of any

supplemental state-law claims.” Lambert v. Fiorentini, 949 F.3d 22, 29 (1st Cir. 2020)

(alteration in original) (quoting Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177

(1st Cir. 1995)). While district courts may retain jurisdiction over the remaining

claims if the “interests of fairness, judicial economy, convenience, and comity” so

warrant, they should not “retain jurisdiction over a pendent state law claim when

that their argument that the Residency Requirement is consistent with the dormant Commerce Clause

may fail. Rather, the issue is that the Plaintiffs fail to allege a violation of federal law.

that state law claim presents a substantial question of state law that is better

addressed by the state courts.” Id. (quoting Camelio v. Am. Fed’n, 137 F.3d 666, 672

(1st Cir. 1998); Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017)). “Needless decisions

of state law should be avoided,” id. (quoting United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966)), and caution is especially warranted when the remaining

claims raise “novel or sensitive” state law issues,” see id. (quotations omitted); 28

U.S.C. § 1367(c)(1).

In Counts II through VIII, the Plaintiffs ask me to vacate the issuance of adult-

use marijuana licenses to the Parties-in-Interest. Because I have dismissed Counts I

and IX and because the remaining state claims involve thorny questions about the

separation of powers within the State, I decline to exercise jurisdiction over them.8

8 There are additional reasons why these state law claims do not belong in federal court. First,

Maine law specifies that challenges to final agency action are to be brought in Superior Court, see 5

M.R.S.A. §§ 11001, 11002, and Maine has not waived its sovereign immunity for such suits in federal

court, see Abdisamad v. City of Lewiston, No. 2:19-CV-00175-LEW, 2019 WL 2552194, at *2 (D. Me.

June 20, 2019) (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,

676 (1999)); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n.9 (1984) (“[A] State’s waiver

of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the

federal courts.”).

Second, these claims ask a federal court to compel a state official to comply with state law,

relief that is barred by sovereign immunity. See Perry v. Treseler, No. 3:18-CV-30194-KAR, 2020 WL

1877877, at *11 (D. Mass. Apr. 15, 2020) (“[T]he Eleventh Amendment bars Plaintiff from seeking

injunctive relief to force Defendant to comply with a state law.”); Pennhurst, 465 U.S. at 119–121

(holding that this rule applies to state law claims brought into federal court through pendent

jurisdiction). More fundamentally, any argument that Commissioner Figueroa acted beyond her

authority would raise state constitutional issues that are not appropriately resolved by a federal court.

See ACA Int’l v. Healey, 457 F. Supp. 3d 17, 24 (D. Mass. 2020) (“[I]t is not for a federal court to police

the boundaries of a state constitution for violations by its officials.”). And it seems especially

inappropriate for a federal court to police such boundaries after a state court declined to do so in part

because of its own separation-of-powers concerns. See United Cannabis Patients & Caregivers of Me.

v. Me. Dep’t of Admin. & Fin. Servs., No. CV-2020-73, at 9 (Me. Super. Ct. Aug. 21, 2020) (ECF No. 24-

1) (“[I]t would not be appropriate for the court to intrude upon the prerogative of the Executive to

exercise its judgment as to whether a statute should be enforced, notwithstanding the existence of

serious concerns about its constitutional legality.”).

CONCLUSION

For the reasons stated above, the Court GRANTS the motion for leave to file

a second amended complaint (ECF No. 36), and GRANTS the motions to dismiss all

claims (ECF Nos. 24, 29, 30).

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 22nd day of April, 2021.