# Odden v. Kotek

> District Court, D. Oregon · February 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10395638

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOSEPH ODDEN, GARDEN PATH Case No. 3:22-cv-1086-SI
FERMENTATION LLC, FORTIS
BREWING COMPANY LLC d/b/a OPINION AND ORDER
FORTSIDE BREWING, and MIRAGE
BEER LLC,

Plaintiffs,

v.

TINA KOTEK, Governor of Oregon, in her
official capacity, ELLEN ROSENBLUM,
Attorney General of Oregon, in her official
capacity, PAUL ROSENBAUM, Chairperson
of the Oregon Liquor and Cannabis
Commission, in his official capacity,
JENNIFER CURRIN, Commissioner of the
Oregon Liquor and Cannabis Commission, in
her official capacity, DENNIS DOHERTY,
Commissioner of the Oregon Liquor and
Cannabis Commission, in his official capacity,
KIAUNA FLOYD, Commissioner of the
Oregon Liquor and Cannabis Commission, in
her official capacity, FAY GYAPONG-
PORTER, Commissioner of the Oregon
Liquor and Cannabis Commission, in her
official capacity, MATT MALETIS,
Commissioner of the Oregon Liquor and
Cannabis Commission, in his official capacity,
and MARVIN RÉVOAL, Commissioner of
the Oregon Liquor and Cannabis Commission
in his official capacity,

Defendants.
Alexander Avtgis and Robert Epstein, EPSTEIN SEIF PORTER & BEUTELL LLC, 50 S Meridian
Street, Suite 505, Indianapolis, IN 46204; James A. Tanford, EPSTEIN SEIF PORTER & BEUTELL
LLC, 2303 Woodcock Place, Bloomington, IN 47401; Judith A. Parker, J.A. LAW FIRM LLC, PO
Box 6555, Portland, OR 97228. Of Attorneys for Plaintiffs.

Sheila H. Porter, Senior Assistant Attorney General, YoungWoo Joh, Assistant Attorney
General, and Bijal C. Patel, Assistant Attorney General, OREGON DEPARTMENT OF JUSTICE, 100
SW Market Street, Portland, OR 97201. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiffs Garden Path Fermentation LLC, Fortside Brewing, Mirage Beer LLC, and
Joseph Odden (Odden) bring this lawsuit against Oregon state officials in their official
capacities. Plaintiffs’ original complaint named Oregon Governor Tina Kotek,1 Oregon Attorney
General Ellen Rosenblum, and Chairperson of the Oregon Liquor and Cannabis Commission
(OLCC) Paul Rosenbaum. The OLCC is the state agency charged with enforcing Oregon’s liquor
control laws. Or. Rev. Stat. (ORS) § 471.040.
Against all Defendants, Plaintiffs assert federal civil rights claims under 42
U.S.C. § 1983. Plaintiffs allege that Oregon’s statutory and regulatory frameworks relating to
directly shipping beer to consumers and distributing beer to retail establishments violate the
Commerce Clause of the United States Constitution by discriminating against interstate
commerce and shielding local businesses from competition. Plaintiffs seek declaratory relief and
to enjoin Defendants from enforcing the parts of these statutes and regulations that Plaintiffs
allege to be unconstitutional.
Defendants moved to dismiss. Defendants argue that Plaintiffs’ claims are barred by the
Eleventh Amendment and that Plaintiffs lack standing to request the prospective equitable relief

1 At the time of filing their complaint, Plaintiffs named then-Governor Kate Brown, in
her official capacity, as a defendant. Under Rule 25(d) of the Federal Rules of Civil Procedure,
the Court substitutes current Governor Tina Kotek in place of Governor Brown.
they seek. In their response, Plaintiffs request leave under Rule 15(a)(1) of the Federal Rules of
Civil Procedure to file an amended complaint and attach their proposed First Amended
Complaint. After Defendants replied that no amended complaint had yet been filed, Plaintiffs
filed their First Amended Complaint. In that pleading, Plaintiffs add as defendants the six other
OLCC Commissioners but do not substantively change their claims. Defendants then moved to

strike the First Amended Complaint, arguing that Plaintiffs’ First Amended Complaint is either
untimely under Rule 15(a)(1)(B) or improperly filed without Defendants’ consent or leave of the
Court, as required by Rule 15(a)(2).
Besides naming six new defendants, Plaintiffs’ amended complaint is substantially
identical to their original complaint. The Court therefore construes Defendants’ motion to
dismiss as against Plaintiffs’ First Amended Complaint. See, e.g., Crawford v. Tilley, 15
F.4th 752, 759 (6th Cir. 2021) (“[D]istrict courts may exercise their discretion and apply a
pending motion to dismiss to portions of an amended complaint that are substantially identical to
the original complaint.” (quotation marks omitted)); see also McQuiston v. City of Los

Angeles, 564 F. App’x 303, 305-06 (9th Cir. 2014) (holding that the district court did not err by
applying the defendant’s motion for judgment on the pleadings to an amended complaint when
the amended complaint did not present any new factual allegations or legal arguments and there
was no prejudice flowing from the district court’s decision).
Defendants originally sought to dismiss the claims against all three original defendants:
Governor Kotek, Attorney General Rosenblum, and Chairperson Rosenbaum. In their reply to
the motion to dismiss, Defendants conceded that the Court has subject matter jurisdiction over
the Attorney General and the Chairperson. Defendants also conceded that Plaintiffs have
standing to sue the Attorney General and the Chairperson. Thus, the Court only considers
Defendants’ motion to dismiss Governor Kotek. For the reasons discussed below, the Court
denies Defendants’ motion to strike and grants in part Defendants’ motion to dismiss.2
STANDARDS
A. Rule 12(b)(1) Motion to Dismiss
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256
(2013). As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the

burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035,
1039 (9th Cir. 2004). A defense of lack of “subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535
U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may
be raised by any party, or by the court on its own initiative, at any time. Fed. R. Civ. P. 12(b)(1);
Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).
In a Rule 12(b)(1) motion, a defendant may raise jurisdictional issues like standing and
quasi-jurisdictional issues like sovereign immunity. See, e.g., Chandler v. State Farm Mut. Auto.

Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010) (addressing standing on a Rule 12(b)(1) motion to
dismiss); Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017) (“A
sovereign immunity defense is ‘quasi-jurisdictional’ in nature and may be raised in either a
Rule 12(b)(1) or 12(b)(6) motion.”). The Court must dismiss any case over which it lacks subject
matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th

2 The Court does not believe that oral argument would assist in resolving the pending
motions. See LR 7 1(d)(1).
Cir. 2015) (noting that when a court lacks subject matter jurisdiction, meaning it lacks the
statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even
sua sponte if necessary).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either
“facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject

matter jurisdiction is based on the assertion that the allegations contained in the complaint are
insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the
challenger disputes the truth of the allegations that, by themselves, would otherwise invoke
federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air
for Everyone, 373 F.3d at 1039)).
Defendants brings a facial challenge to the Court’s subject matter jurisdiction. For facial
attacks, the Court resolves the Rule 12(b)(1) motion “as it would a motion to dismiss under
Rule 12(b)(6).” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Thus, in “determin[ing]
whether the [plaintiff’s] allegations are sufficient as a legal matter to invoke the [C]ourt’s

jurisdiction,” the Court “[a]ccept[s] the plaintiff’s allegations as true and draw[s] all reasonable
inferences in the plaintiff’s favor . . . .” Id.
B. Eleventh Amendment Sovereign Immunity
“Generally, States are immune from suit under the terms of the Eleventh Amendment and
the doctrine of sovereign immunity.” Whole Woman’s Health v. Jackson, --- U.S. ---, 142 S.
Ct. 522, 532 (2021). Under the Eleventh Amendment, states are protected from suit in federal
court. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003). In Ex parte
Young, the Supreme Court established a limited exception to Eleventh Amendment sovereign
immunity for certain suits seeking prospective injunctive relief against a state official in his or
her official capacity. 209 U.S. 123, 159-60 (1908). For a plaintiff to sue a state official under Ex
parte Young, that official “must have some connection with the enforcement” of the challenged
law, and that connection must be more direct than a “generalized duty to enforce state law or
general supervisory power over the persons responsible for enforcing the challenged provision.”
L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (quoting Ex parte Young, 209 U.S.
at 157).

BACKGROUND
Plaintiffs Garden Path Fermentation LLC, Fortside Brewing, and Mirage Beer LLC
(Brewery Plaintiffs) are Washington beer producers. Although located in Washington, they
conduct a portion of their business with Oregon retail establishments. They currently distribute
their products to these establishments through a wholesaler. To save costs, they seek to distribute
their products directly to Oregon bar establishments.
Over time, Brewery Plaintiffs also have developed long-term relationships with Oregon
consumers. These consumers would like to purchase Brewery Plaintiffs’ beer online and have
Brewery Plaintiffs ship that beer directly to the consumers’ homes. Plaintiff Odden, an Oregon
resident and beer collector, is one such consumer. Brewery Plaintiffs seek to ship their products

directly to Oregon consumers. Plaintiff Odden seeks to receive malt beverage products directly
from Washington beer producers.
On July 26, 2022, Plaintiffs filed their original complaint. On October 24, 2022, Plaintiffs
filed their First Amended Complaint, which added the six new defendants but did not
substantively change Plaintiffs’ claims. Plaintiffs allege that parts of Oregon’s Liquor Control
Act and its corresponding regulations violate the Commerce Clause by discriminating against
interstate commerce and shielding local businesses from competition. See ORS § 471.027
(stating that ORS Chapter 471, ORS § 474.105, and ORS § 474.115 may be cited as the Liquor
Control Act). Plaintiffs seek declaratory relief and to enjoin Defendants from enforcing the
allegedly unconstitutional portions of the challenged statutes and regulations.
Plaintiffs allege that Oregon beer producers may self-distribute any malt beverage
produced with permits obtained under either ORS § 471.200 or § 471.221 to certain Oregon
retail establishments. Conversely, Plaintiffs allege that ORS § 471.404 prohibits beer producers

outside of Oregon from self-distributing their malt beverages to any Oregon retail
establishments.
Plaintiffs also allege that under ORS § 471.282 and OAR § 845-006-392, Oregon beer
producers may obtain a direct shipper permit that allows them to sell and ship their malt
beverages directly to Oregon consumers. Plaintiffs allege that under ORS § 471.282 and OAR
§§ 845-005-0417 and 845-006-0396, out-of-state beer producers also are allowed to obtain a
direct shipper permit, but out-of-state producers may only ship malt beverage products directly to
Oregon consumers if their home state allows for reciprocity with Oregon. That is, only if Oregon
beer producers can ship malt beverages directly to residents of that state, may out-of-state

producers ship to Oregon consumers. Plaintiffs assert that Washington does not allow any beer
producer, local or out-of-state, to directly ship malt beverages to Washington residents. Thus,
Brewery Plaintiffs cannot sell their products online to Oregon consumers and then directly ship
those products to the consumers’ homes, and Plaintiff Odden cannot purchase and receive beer
directly from Washington beer producers. Plaintiffs challenge these statutes and regulations.
DISCUSSION
A. Motion to Strike
Plaintiffs moved for leave to file an amended complaint under Rule 15(a)(1) on
October 7, 2022, nine days after Defendants moved to dismiss. Rule 15(a)(1)(B), however,
allows a plaintiff to amend their complaint as a matter of course within 21 days after a defendant
files a motion to dismiss under Rule 12(b). Thus, Plaintiffs had the right to amend their
complaint as a matter of course when they moved for leave on October 7, 2022. Defendants,
however, argue that Plaintiffs failed properly to amend their complaint as a matter of course
because Plaintiffs did not “file” their complaint, but instead requested leave to file their
complaint and attached it to their response brief. Plaintiffs did not formally file their complaint

until October 24, 2022, more than 21 days after Defendants filed their motion to dismiss. Thus,
argue Defendants, the First Amended Complaint is untimely under Rule 15(a)(1) and Plaintiffs
did not file a proper motion under 15(a)(2).
The Court is unpersuaded by Defendants’ argument, which places form over substance.
Plaintiffs filed their First Amended Complaint as an attachment on October 7, 2022, within
Rule 15(a)(1)(B)’s deadline. Even if Plaintiffs misinterpreted the procedure under
Rule 15(a)(1)(B), the Court construes Plaintiffs’ request for leave to file the amended complaint
as one under Rule 15(a)(2) and grants leave to amend. See Fed. R. Civ. P. 1 (The Federal Rules
of Civil Procedure “should be construed, administered, and employed by the court . . . to secure

the just, speedy, and inexpensive determination of every action and proceeding.”). Further, there
is no undue prejudice to Defendants in allowing the amendment. The Court grants Plaintiffs
leave to file their First Amended Complaint and deems the First Amended Complaint, ECF 27,
appropriately filed.3

3 Plaintiffs’ First Amended Complaint added as defendants Commissioners Currin,
Doherty, Floyd, Gyapong-Porter, Maletis, and Révoal. In the interest of fairness, the deadline for
their response is triggered as of the date of this Opinion and Order. See Fed. R. Civ. P. 15(a)(3)
(“[A]ny required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading,
whichever is later.”).
B. Motion to Dismiss
The state raises both Eleventh Amendment sovereign immunity, to which Plaintiffs argue
the Ex parte Young exception, and Plaintiffs’ lack of standing to seek the prospective injunctive
relief requested. Although intertwined, standing and the Ex parte Young exception to sovereign
immunity are distinct doctrines. See Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104,

1108 (9th Cir. 1999) (explaining that Ex parte Young does not provide a basis for standing).
Because the Court concludes that Governor Kotek is immune from suit in federal court under the
Eleventh Amendment, the Court declines to address Defendants’ arguments on standing.
Defendants argue that Ex parte Young is inapplicable because Governor Kotek has no
authority to enforce Oregon’s liquor control laws and regulations. Instead, argue Defendants, the
Oregon State Legislature has entrusted the OLCC with the “powers necessary or proper to . . .
carry out . . . all the purposes of [Oregon’s Liquor Control Act].” ORS § 471.040(1).
In response to Defendants’ motion, Plaintiffs highlight Governor Kotek’s authority over
the OLCC, asserting that this authority establishes the necessary connection between Governor
Kotek and enforcement of the allegedly unconstitutional statutes and regulations. First, Plaintiffs

argue that the Governor has the authority to appoint the OLCC’s commissioners and designate a
chairperson. ORS § 471.705(1). Plaintiffs also note that up to “four commissioners may be from
the same political party,” allowing the Governor to appoint her party to a majority. Id. This is
especially relevant, argue Plaintiffs, because “[a] majority of the commissioners constitutes a
quorum . . . for the performance of any duty or for the exercise of any power of the commission.”
ORS § 471.715(2). Plaintiffs contend that this allows Governor Kotek effectively to determine
the manner and degree with which the OLCC enforces Oregon’s liquor control laws and
regulations. Finally, Plaintiffs note that the Governor has the authority to remove OLCC
commissioners “for inefficiency, neglect of duty, or misconduct in office.” ORS § 471.710(1).
The Court notes that Plaintiffs only assert these arguments in their brief. They do not
allege them in their First Amended Complaint. The only fact alleged in Plaintiffs’ First Amended
Complaint is that Oregon’s Liquor Control Act “contemplates a role for the state’s governor in
its enforcement that includes but is not limited to appointing and removing commissioners from
the OLCC and designating the chairperson of the commission.”

Even accepting the facts argued by Plaintiffs as incorporated by reference through the
broad allegation in Plaintiffs’ First Amended Complaint or as facts of which the Court can take
judicial notice, they fail to “establish the requisite connection between [Governor Kotek] and the
[alleged] unconstitutional acts.” See L.A. Branch NAACP v. L.A. Unified Sch. Dist., 714
F.2d 946, 953 (9th Cir. 1983). In Whole Woman’s Health, the Supreme Court made clear that to
sue a state official under Ex parte Young, the plaintiff must point to some provision in the
challenged law that provides the official with the requisite enforcement authority. 142 S. Ct.
at 534 (“[T]he petitioners do not direct this Court to any enforcement authority the attorney
general possesses in connection with S. B. 8 that a federal court might enjoin him from

exercising.”). Plaintiffs point to nothing in the text of the Liquor Control Act conferring a “fairly
direct” connection between Governor Kotek and enforcement of the statutory and regulatory
provisions that are allegedly unconstitutional. See Eu, 979 F.2d at 704. As Defendants note, it is
the OLCC that has the “function, duties and powers . . . [t]o control the manufacture, possession,
sale, purchase, transportation, importation and delivery of alcoholic liquor in accordance with the
[Liquor Control Act].” ORS § 471.730.
Plaintiffs cite Eu in support of their assertion that Governor Kotek’s authority to appoint
and remove OLCC commissioners gives her a fairly direct connection to enforcement of the
allegedly unconstitutional statutes and regulations. The facts of Eu are distinguishable, however,
from those presented here. The plaintiff in Eu challenged a California statute that prescribed the
number of judges in Los Angeles County, arguing that the number of judges was
unconstitutionally low. Eu, 979 F.2d at 699. The Ninth Circuit held that the Ex parte Young
exception applied to that plaintiff’s claims against the governor. Id. at 704. It reasoned that if that
plaintiff’s claim were successful, the state legislature would need to amend the statute to provide
for more judges, and the governor would be statutorily bound to appoint judges to fill those

positions. Id. Thus, the governor had an adequate connection to the challenged law. Id. Here, an
injunction prohibiting enforcement of the allegedly unconstitutional statutory and regulatory
provisions would not affect Governor Kotek’s duty to appoint or remove OLCC commissioners.
Governor Kotek does not have a “duty of enforcement” with respect to the challenged
provisions. See Ex parte Young, 209 U.S. at 157. Instead, the Oregon State Legislature has
entrusted Governor Kotek with a duty of appointment, and Plaintiffs’ claims do not invoke that
duty.
In sum, the Ex parte Young exception does not apply to Plaintiffs’ claims against
Governor Kotek because Governor Kotek’s authority to appoint and remove OLCC

commissioners is not a sufficiently direct connection to enforcement of the allegedly
unconstitutional statutory and regulatory provisions. See Long v. Van de Kamp, 961 F.2d 151,
152 (9th Cir. 1992) (“[U]nder Ex parte Young there must be a connection between the official
sued and enforcement of the allegedly unconstitutional statute . . . .” (citation omitted)). Other
courts have reached similar conclusions on similar facts. See, e.g., Church v. Missouri, 913 F.3d
736, 741, 753 (8th Cir. 2019) (concluding that the Ex parte Young exception did not apply to the
governor in a case alleging state violations of the Sixth Amendment, as the governor’s general
enforcement authority and his authority to appoint members of the State Public Defender’s
Commission did not connect him to the state’s Sixth Amendment obligation); N. Carolina State
Conf. of NAACP v. Cooper, 397 F. Supp. 3d 786, 791, 802 (M.D.N.C. 2019) (concluding that the
governor’s responsibility for appointing and removing members of the State Board of Elections
and other officials did not alone give the governor a special relationship to enforcement of a law
requiring photo identification to vote). Thus, Governor Kotek is immune from suit under the
Eleventh Amendment.
CONCLUSION

The Court GRANTS IN PART Defendants’ Motion to Dismiss (ECF 24), dismissing
Plaintiffs’ claims against Governor Kotek without prejudice but without leave to amend in this
Court, and DENIES Defendants’ Motion to Strike Plaintiffs’ First Amended Complaint
(ECF 28).
IT IS SO ORDERED.

DATED this 17th day of February, 2023.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395638. Public record. Not legal advice.