“When no complaint is filed, the court lacks jurisdiction to entertain the plaintiff's petition for injunctive relief.”
How later courts described this case
- “When no complaint is filed, the court lacks jurisdiction to entertain the plaintiff's petition for injunctive relief.”
- An Article 78 proceeding “is a ‘purely state procedural remedy,’ ‘designed to accommodate the state court system.’ ”
- “Absent a properly-filed complaint, a court lacks power to issue preliminary injunctive relief.””
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT EDLOECC #T:R ONIC ALLY FILED
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 3/11/2 024
RAVEN’S LANDING, LLC, d/b/a Dr. Nature
RX, et al.
Plaintiffs,
-against-
NEW YORK STATE CANNABIS CONTROL 24-cv-1581 (MKV)
BOARD, NEW YORK STATE OFFICE OF
CANNABIS MANAGEMENT, TREMAINE ORDER
WRIGHT in her official capacity as the
Chairwoman of the New York State Cannabis
Control Board, and CHRIS ALEXANDER in his
official capacity as Executive Director of the New
York State Office of Cannabis Management,
Defendants.
MARY KAY VYSKOCIL, United States District Judge:
On March 1, 2024, Petitioners—through counsel—filed a Petition in this Court, purporting
to commence this action. [ECF No. 1]. Petitioners are a group of hemp product makers,
distributors, and sellers who primarily assert that new New York State cannabis regulations, which
would illegalize many of their products, violate their federal constitutional rights. According to
the petition, the regulations were adopted in November 2023, after a New York State court blocked
enforcement of a set of similar emergency regulations that had been adopted in July. Five days
after filing their Petition, Petitioners filed an ex parte motion for a preliminary injunction.
[ECF No. 15].
The Petition and subsequent motion for a preliminary injunction raise several concerns for
the Court. First, Petitioners have filed no proof of service on Defendants for either the Petition or
the motion for preliminary injunction. See Fed. R. Civ. P. 3 (“The court may issue a preliminary
injunction only on notice to the adverse party.”). Petitioners have provided no reason as to why
service of the petition and motion papers is not necessary in this case.
Additionally, the Court harbors concerns that this action may be a state court action
improperly dressed up as federal constitutional claims. For example, the Petition incorrectly
asserts that “[t]his Court has subject matter jurisdiction to decide this Petition pursuant to New
York Civil Practice Laws and Rules (“CPLR”) § 7803 . . . [and] [t]his Court also has jurisdiction
to render a declaratory judgment pursuant to CPLR § 3001.” [ECF No. 1 at ¶ 19]. These
allegations lend credence to the Court’s concerns that this action, at its core, is a state action. See
e.g., Morningside Supermarket Corp. v. New York State Dep’t of Health, 432 F. Supp. 2d 334, 346
(S.D.N.Y. 2006) (An Article 78 proceeding “is a ‘purely state procedural remedy,’ ‘designed to
accommodate the state court system.’ ”) (first quoting Camacho v. Brandon, 56 F. Supp.2d 370,
380 (S.D.N.Y. 1999), then quoting Herrmann v. Brooklyn Law Sch., 432 F. Supp. 236, 240
(E.D.N.Y. 1976)). In fact, the prior New York State case that blocked enforcement of the set of
similar emergency regulations, and upon which Petitioners rely to argue likelihood of success on
the merits for purposes of their preliminary injunction motion, was an Article 78 special
proceeding. See N. Fork Distribution, Inc. v. New York State Cannabis Control Bd., 81 Misc. 3d
952, 203 N.Y.S.3d 496 (N.Y. Sup. Ct. 2023).
Nonetheless, the Court need not reach those concerns at this time, because the action was
simply improperly commenced. Specifically, Petitioners purported to commence this action—in
federal court—by filing a “Verified Petition.” [ECF No. 1]. In federal court, “the first step in an
action is the filing of the complaint.”1 Fed. R. Civ. P. 3 (emphases added); see also Fed. R. Civ.
1 The Court recognizes that there are limited types of actions that may be commenced by a petition, including petitions
for writs of habeus corpus pursuant to 28 U.S.C. § 2254 and petitions to confirm and enforce final arbitration awards
under 9 U.S.C. §§ 207 et seq. This case does not present one of these scenarios.
P. 7 (“Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an
answer to a counterclaim designated as a counterclaim; .. . [etc.].”) (emphasis added). “Prior to
the filing of a complaint a court lacks subject matter jurisdiction and is powerless to grant
preliminary injunctive relief.” Ning Ye v. New York Bd. of Elections, No. 20-cv-11072 (JPC), 2021
WL 37575, at *2 (S.D.N.Y. Jan. 5, 2021) (quoting Williams v. State Univ. of N.Y., 635 F. Supp.
1243, 1246 (E.D.N.Y. 1986)); see also Powell v. Rios, 241 F. App’x 500, 505 n.4 (10th Cir. 2007)
(“Absent a properly-filed complaint, a court lacks power to issue preliminary injunctive relief.””)
(emphasis added); Hernandez v. Sullivan, No. 18-cv-606 (SMY), 2018 WL 1757601, at *2 (S.D.
Ill. Apr. 12, 2018) (“Plaintiffs’ request for injunctive relief is improper in any event because they
have not actually initiated a lawsuit . . . because Plaintiffs failed to file a Complaint.”) (emphasis
added); LeBoeuf, Lamb, Green & MacRae, LLP y. Abraham, 180 F. Supp. 2d 65, 69 (D.D.C. 2001)
(“When no complaint is filed, the court lacks jurisdiction to entertain the plaintiff's petition for
injunctive relief.”).
Accordingly, Petitioners never properly initiated this action. Therefore, the action is
dismissed without prejudice for lack of subject matter jurisdiction. The Clerk of Court is
respectfully requested to close this case.
SO ORDERED. K. Lys (/
Date: March 11, 2024 eta Keele
New York, NY United States District Judge