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Little Arm, Inc. v. Prosecutors: Adams

United States District Court, S.D. Indiana, Indianapolis Division

March 31, 2014

LITTLE ARM INC. D/B/A B& B DISTRIBUTIONS, BOHEMIAN GROOVE LLC, MELX2 ENTERPRISES INC., and IDK ANYTHING LLC, Plaintiffs,
v.
PROSECUTORS: ADAMS, ALLEN, BARTHOLOMEW, BENTON, BLACKFORD, BOONE, BROWN, CARROLL, CASS, CLARK, CLAY, CLINTON, CRAWFORD, DAVIESS, DEARBORN, DECATUR, DEKALB, DELAWARE, DUBOIS, ELKHART, FAYETTE, FLOYD, FOUNTAIN, FRANKLIN, FULTON, GIBSON, GRANT, GREENE, HAMILTON, HANCOCK, HARRISON, HENDRICKS, HENRY, HOWARD, HUNTINGTON, JACKSON, JASPER, JAY, JEFFERSON, JENNINGS, JOHNSON, KNOX, KOSCIUSKO, LAGRANGE, LAKE, LA PORTE, LAWRENCE, MADISON, MARION, MARSHALL, MARTIN, MIAMI, MONROE, MONTGOMERY, MORGAN, NEWTON, NOBLE, OHIO, ORANGE, OWEN, PARKE, PERRY, PIKE, PORTER, POSEY, PULASKI, PUTNAM, RANDOLPH, RIPLEY, RUSH, ST. JOSEPH, SCOTT, SHELBY, SPENCER, STARKE, STEUBEN, SULLIVAN, SWITZERLAND, TIPPECANOE, TIPTON, UNION, VANDERBURGH, VERMILLION, VIGO, WABASH, WARREN, WARRICK, WASHINGTON, WAYNE, WELLS, WHITE, WHITLEY, COUNTIES, Defendants

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For BOHEMIAN GROOVE LLC, MELX2 ENTERPRISES INC., IDK ANYTHING LLC, LITTLE ARM INC., doing business as B& B DISTRICTIONS, Plaintiffs: Mark W. Rutherford, THRASHER BUSHMANN GRIFFITH & VOELKEL PC, Indianapolis, IN; Stephen R. Donham, THRASHER BUSCHMANN & VOELKEL, P.C., Indianapolis, IN.

For ADAMS COUNTY PROSECUTOR, ALLEN COUNTY PROSECUTOR, BARTHOLOMEW COUNTY PROSECUTOR, BENTON COUNTY PROSECUTOR, BLACKFORD COUNTY PROSECUTOR, BOONE COUNTY PROSECUTOR, BROWN COUNTY PROSECUTOR, CARROLL COUNTY PROSECUTOR, CASS COUNTY PROSECUTOR, CLARK COUNTY PROSECUTOR, CLAY COUNTY PROSECUTOR, CLINTON COUNTY PROSECUTOR, CRAWFORD COUNTY PROSECUTOR, DAVIESS COUNTY PROSECUTOR, DEARBORN COUNTY PROSECUTOR, DECATUR COUNTY PROSECUTOR, DEKALB COUNTY PROSECUTOR, DELAWARE COUNTY PROSECUTOR, DUBOIS COUNTY PROSECUTOR, ELKHART COUNTY PROSECUTOR, FAYETTE COUNTY PROSECUTOR, FLOYD COUNTY PROSECUTOR, FOUNTAIN COUNTY PROSECUTOR, FRANKLIN COUNTY PROSECUTOR, FULTON COUNTY PROSECUTOR, GIBSON COUNTY PROSECUTOR, GRANT COUNTY PROSECUTOR, GREENE COUNTY PROSECUTOR, HAMILTON COUNTY PROSECUTOR, HANCOCK COUNTY PROSECUTOR, HARRISON COUNTY PROSECUTOR, HENDRICKS COUNTY PROSECUTOR, HENRY COUNTY PROSECUTOR, HOWARD COUNTY PROSECUTOR, HUNTINGTON COUNTY PROSECUTOR, JACKSON COUNTY PROSECUTOR, JASPER COUNTY PROSECUTOR, JAY COUNTY PROSECUTOR, JEFFERSON COUNTY PROSECUTOR, JENNINGS COUNTY PROSECUTOR, JOHNSON COUNTY PROSECUTOR, KNOX COUNTY PROSECUTOR, KOSCIUSKO COUNTY PROSECUTOR, LAGRANGE COUNTY PROSECUTOR, LAKE COUNTY PROSECUTOR, LA PORTE COUNTY PROSECUTOR, LAWRENCE COUNTY PROSECUTOR, MADISON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR, MARSHALL COUNTY PROSECUTOR, MARTIN COUNTY PROSECUTOR, MIAMI COUNTY PROSECUTOR, MONROE COUNTY PROSECUTOR, MONTGOMERY COUNTY PROSECUTOR, MORGAN COUNTY PROSECUTOR, NEWTON COUNTY PROSECUTOR, NOBLE COUNTY PROSECUTOR, OHIO COUNTY PROSECUTOR, ORANGE COUNTY PROSECUTOR, OWEN COUNTY PROSECUTOR, PARKE COUNTY PROSECUTOR, PERRY COUNTY PROSECUTOR, PIKE COUNTY PROSECUTOR, PORTER COUNTY PROSECUTOR, POSEY COUNTY PROSECUTOR, PULASKI COUNTY PROSECUTOR, PUTNAM COUNTY PROSECUTOR, RANDOLPH COUNTY PROSECUTOR, RIPLEY COUNTY PROSECUTOR, RUSH COUNTY PROSECUTOR, ST. JOSEPH COUNTY PROSECUTOR, SCOTT COUNTY PROSECUTOR, SHELBY COUNTY PROSECUTOR, SPENCER COUNTY PROSECUTOR, STARKE COUNTY PROSECUTOR, STEUBEN COUNTY PROSECUTOR, SULLIVAN COUNTY PROSECUTOR, SWITZERLAND COUNTY PROSECUTOR, TIPPECANOE COUNTY PROSECUTOR, TIPTON COUNTY PROSECUTOR, UNION COUNTY PROSECUTOR, VANDERBURGH COUNTY PROSECUTOR, VERMILLION COUNTY PROSECUTOR, VIGO COUNTY PROSECUTOR, WABASH COUNTY PROSECUTOR, WARREN COUNTY PROSECUTOR, WARRICK COUNTY PROSECUTOR, WASHINGTON COUNTY PROSECUTOR, WAYNE COUNTY PROSECUTOR, WELLS COUNTY PROSECUTOR, WHITE COUNTY PROSECUTOR, WHITLEY COUNTY PROSECUTOR, Defendants: David A. Arthur, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.

OPINION

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ENTRY ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

RICHARD L. YOUNG, CHIEF UNITED STATES DISTRICT JUDGE.

Plaintiffs, Little Arm Inc. d/b/a B& B Distributions (" Little Arm" ), Bohemian Groove LLC (" Bohemian" ), MELX2 Enterprises Inc. (" MELX2" ), and IDK Anything LLC (" IDK" ), bring this action against all Prosecuting Attorneys in Indiana (" Defendants" ) seeking injunctive and declaratory relief as to Indiana Code 35-48-4-10.5, which makes it illegal to possess, distribute, or manufacture any " synthetic drug lookalike substance," as defined in Indiana Code § 35-31.5-2-321.5. Plaintiffs allege that the Statute violates due process and the equal protection clause under the U.S. Constitution and the Indiana Constitution and is thus unconstitutional. Defendants have moved to dismiss Plaintiffs' state claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants also move for judgment on the pleadings on Plaintiffs' federal claims pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.[1] For

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the reasons set forth below, the court GRANTS the motion to dismiss and GRANTS IN PART and DENIES IN PART the motion for judgment on the pleadings.

I. Background

A. Parties

Plaintiffs are for-profit companies in Indiana that sell, among other things, aromatherapy products throughout Indiana. (Compl. ¶ ¶ 16-23). Little Arm is located in Fort Wayne; Bohemian is located in Huntington; MELX2 is located in Bloomington; and IDK is located in Carmel. ( Id.). Defendants are prosecutors who are elected officials whose responsibilities include investigating and prosecuting criminal offenses (including those created by the Statute) within the various counties in the State of Indiana. ( Id. at ¶ 24)

B. Statute

Plaintiffs challenge the constitutionality of Indiana Code 35-48-4-10.5 (" Statute" ), effective May 7, 2013, which criminalizes the possession, distribution, and manufacture of synthetic drugs and synthetic drug lookalike substances (" Lookalike Substances" ). (Compl. ¶ ¶ 1, 28). Plaintiffs allege that Defendants have targeted their legal business with the Statute. ( Id. at ¶ 25).

1. Penalties

The Statute provides various civil and criminal penalties for involvement with a synthetic drug or Lookalike Substance. For example, penalties for possession of a synthetic drug or Lookalike Substance may range from a Class B infraction to a Class D felony. Ind. Code 35-48-4-11.5. And the penalties for dealing these substances range from a Class A infraction to a Class C felony. Ind. Code 35-48-4-10.5. Additionally, if a retail merchant has (1) violated this statute by selling or offering to sell these substances in the normal course of business, and (2) the violation resulted in a criminal conviction, then the court " shall recommend the suspension of the registered retail merchant certificate for the place of business for one (1) year." Ind. Code 35-48-4-10.5(d). If the violation resulted instead in an infraction, the court may suspend the retail merchant's certificate for six months. Id.

2. Definitions

The Indiana Code defines " synthetic drug" as a substance containing one or more of a multitude of specific chemical compounds, including an analog of the compound. Ind. Code § 35-31.5-2-321 (amended May 7, 2013). An " analog" is defined as a " new or novel chemical entity, independent of synthetic route or natural origin, having substantially the same: (1) carbon backbone structure; and (2) pharmacological mechanism of action; as a compound specifically defined as a synthetic drug . . . ." Ind. Code § 35-31.5-2-16.5. Moreover, a compound may be determined to be a synthetic drug under an emergency provision. Ind. Code § 35-31.5-2-321(13). This entails the Indiana Board of Pharmacy adopting an emergency rule to declare that a substance is a synthetic drug. Ind. Code § 25-26-13-4.1.

The Indiana Code defines a Lookalike Substance as one (1) or more of the following:

(1) A substance, other than a synthetic drug, which any of the factors listed in

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subsection (c) would lead a reasonable person to believe to be a synthetic drug.
(2) A substance, other than a synthetic drug:
(A) that a person knows or should have known was intended to be consumed; and
(B) the consumption of which the person knows or should have known to be intended to cause intoxication.

Ind. Code Ann. § 35-31.5-2-321.5. The factors listed in the Statute which may be considered in determining whether a substance is a Lookalike Substance include:

(1) the overall appearance of a dosage unit of the substance;
(2) how the substance is packaged for sale or distribution, including its shape, color, size, markings or lack of markings, taste, consistency, and any other identifying physical characteristics;
(3) any statement made by the owner or person in control of the substance concerning the substance's nature, use, or effect;
(4) any statement made to the buyer or recipient of the substance suggesting or implying that the substance is a synthetic drug;
(5) any statement made to the buyer or recipient of the substance suggesting or implying that the substance may be resold for profit;
(6) the overall circumstances under which the substance is distributed, including whether:
(A) the distribution included an exchange of, or demand for, money or other property as consideration; and
(B) the amount of the consideration was substantially greater than the reasonable retail market value of the substance the seller claims the substance to be.

Id. The definition excludes, however, the following: (1) food and food ingredients, (2) alcohol, (3) a legend drug (as defined in Indiana Code 16-18-2-199), (4) tobacco, or (5) a dietary supplement (as defined in Indiana Code 6-2.5-1-16). Id.

3. State Enforcement

Plaintiffs allege that prior to the Statute's enactment, law enforcement targeted Plaintiffs' customers and vendors in an attempt to dissuade them from conducting business with Plaintiffs. (Compl. ¶ 39). Also, law enforcement searched and seized products from Little Arm on December 20, 2012; Bohemian on May 29, 2012, and September 18, 2012; and MELX2 on January 17, 2013. ( Id. at ¶ 40). These searches and seizures were all related to the aromatherapy products sold by the respective stores. ( Id.).

After the Statute's enactment, Indiana State Excise Police (" Excise" ) seized from a non-party a product manufactured by Little Arm, claiming it to be a Lookalike Substance. ( Id. at ΒΆ 41). Excise also threatened adverse action against another business if it chose to sell aromatherapy or ...


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