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Perfect Puppy, Inc. v. City of East Providence

United States Court of Appeals, First Circuit

December 8, 2015

PERFECT PUPPY, INC., Plaintiff, Appellant,
v.
CITY OF EAST PROVIDENCE, RHODE ISLAND, Defendant, Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. William E. Smith, U.S. District Judge.

J. David Breemer, with whom Pacific Legal Foundation, Lesley S. Rich, and Rich Law Associates, were on brief for appellant.

Marc DeSisto, with whom Kathleen M. Daniels, DESISTO LAW, and Timothy J. Chapman, City Solicitor, City of East Providence, were on brief, for appellee.

Michael G. Bongiorno, Ian Coghill, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for The Humane Society of the United States, amicus curiae.

Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.

OPINION

Page 416

THOMPSON, Circuit Judge.

Prologue

We write today about a suit started in state court and removed to federal

Page 417

court. As relevant here, Perfect Puppy, Inc. (our plaintiff) believes it has a rock-solid facial- and as-applied-takings claim against the City of East Providence (our defendant) based on a city ordinance banning dog and cat sales.[1] A district judge, though, gave any supposed facial claim the boot on summary judgment for lack of development and remanded the as-applied claim to state court for lack of subject-matter jurisdiction. An unhappy Perfect Puppy appeals. But we see no error with the judge's facial-takings ruling and have no jurisdiction over the judge's remand order -- a dual appraisal that leads us to affirm in part and dismiss in part. We will explain our thinking shortly. First, some background.

How the Case Got Here

2014 was certainly a whirlwind year for Perfect Puppy. On April 26, Perfect Puppy signed a lease to use an East Providence building for a " Puppy Sales store" (a quote from the lease), which is the only use permitted by the lease. About a month later, though, on May 20, the East Providence city council introduced and preliminarily passed an ordinance banning dog and cat sales -- we say " preliminarily" because the ordinance required a second passage to become effective. The next day, May 21, Perfect Puppy both received a state " PET SHOP" license (a quote from the license) and opened its doors for business. But whatever excitement its owners must have felt quickly vanished after the city council formally passed the ordinance on June 3.

Not willing to take this lying down, Perfect Puppy sued East Providence in state court, claiming (among other things) that the ordinance infracts the equal-protection and due-process clauses of the state and federal Constitutions and the commerce clause of the federal Constitution. East Providence removed the case to federal court on federal-question grounds. See 28 U.S.C. § § 1441(a), 1331. Perfect Puppy then amended its complaint to add a claim that the ordinance so constricted its property rights ...


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