The opinion of the court was delivered by: EDWARD CHEN, Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS (Docket No. 8)
Plaintiffs Afshin Adibi and International Pharmaceutical
Services ("IPS") have filed suit pursuant to 42 U.S.C. § 1983
against Defendants the California State Board of Pharmacy
("Board") and its executive director Patricia Harris in her
official capacity. Plaintiffs seek (1) a declaration that
Defendants have violated the Dormant Commerce Clause by trying to
revoke or suspend Plaintiffs' pharmaceutical license and permit
and (2) an injunction barring Defendants from revoking or
suspending the same. Currently pending before the Court is
Defendants' motion to dismiss for failure to state a claim upon
which relief can be granted and for lack of subject matter
jurisdiction. Having considered the parties' briefs and
accompanying submissions, the Court hereby DENIES Defendants'
motion to dismiss.
I. FACTUAL & PROCEDURAL BACKGROUND
In their complaint, Plaintiffs allege the following facts.
The Board is the official body of the state that regulates
licensed pharmacists and licensed wholesalers of pharmaceuticals
in the State of California. See Compl. ¶ 4. Ms. Harris is the executive director of the Board. See id. Mr. Adibi has been
licensed by the Board as a pharmacist since 1991. See id. ¶ 5.
Since 1995, IPS has held a wholesaler permit issued by the Board.
See id. Mr. Adibi is the sole owner, president, and operator of
IPS. See id.
Beginning in 1995, Plaintiffs began to export pharmaceuticals
to foreign countries. See id. ¶ 6. All of the shipments were
made by IPS at the instance and direction of Mr. Adibi. See id.
Subsequently, Defendants brought an administrative proceeding
against Plaintiffs, seeking to revoke or suspend both Mr. Adibi's
license and IPS's wholesaler permit based on Plaintiffs'
exportation of pharmaceuticals. See id. ¶ 7. After Defendants
initiated the administrative proceeding against Plaintiffs,
Plaintiffs filed the instant suit, claiming that Defendants'
attempt to revoke or suspend the license and permit was a
violation of the Commerce Clause of the Constitution. See id. ¶
9 ("Defendants' assertion of disciplinary authority over
[P]laintiffs' license and permit, respectively, on the basis of
[P]laintiffs' conduct which took place entirely in foreign
commerce violates that Constitution of the United States in that
it constitutes an extraterritorial application of the laws of
California and an attempt by [D]efendants as agents of the State
of California to regulate the conduct of foreign commerce.");
see also Opp'n at 1 ("Does the Commerce Clause, or perhaps what
is called the Silent Commerce Clause, of the federal Constitution
override the disciplinary authority of the State of California
with respect to conduct which has occurred solely in the foreign
commerce of the United States and which has no separate effects
within that State?").
Based on papers filed by Defendants,*fn1 it appears that
Defendants sought to revoke or suspend Plaintiffs' license and
permit for various reasons, including but not limited to the
(1) Dispensing dangerous drugs at retail without being licensed
as a pharmacy (as opposed to a wholesaler), a violation of
California Business & Professions Code § 4110. See Cal. Bus. &
Prof. Code § 4110(a) ("No person shall conduct a pharmacy in the
State of California unless he or she has obtained a license from
the board."). (2) Failing to obtain a DEA registration to dispense and export
dangerous drugs, a violation of 21 C.F.R. § 1301.11(a), thereby
violating California Business & Professions Code § 4059.5(e).
See 21 C.F.R. § 1301.11(a) ("Every person who manufactures,
distributes, dispenses, imports, or exports any controlled
substance or who proposes to engage in the manufacture,
distribution, dispensing, importation or exportation of any
controlled substance shall obtain a registration unless exempted
by law or pursuant to §§ 1301.22-1301.26."); Cal. Bus. & Prof.
Code § 4059.5(e) ("A dangerous drug or dangerous device shall not
be transferred, sold, or delivered to a person outside this
state, whether foreign or domestic, unless the transferor,
seller, or deliverer does so in compliance with the laws of this
state and of the United States and of the state or country to
which the dangerous drugs or dangerous devices are to be
transferred, sold, or delivered.").
(3) Transferring, selling, or delivering dangerous drugs
outside of the United States to persons unauthorized by local and
international law to receive the drugs, a violation of California
Business & Professions Code § 4059.5(e). For example, Plaintiffs
allegedly exported dangerous drugs to a foreign country subject
to a trade embargo by the United States without prior government
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a
defendant may move to dismiss for "failure to state a claim upon
which relief can be granted." Fed.R.Civ.P. 12(b)(6). In
deciding whether to dismiss, a court may consider only the facts
alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters of which
the court may take judicial notice. See United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ("A court may . . .
consider certain materials documents attached to the complaint,
documents incorporated by reference in the complaint, or matters
of judicial notice without converting the motion to dismiss
into a motion for summary judgment."). The court must accept the
plaintiff's allegations in the complaint as true and construe
them in the light most favorable to the plaintiff. See Janas v.
McCracken (In re Silicon Graphics Sec. Litig.), 183 F.3d 970,
983 (9th Cir. 1999). Dismissal is improper "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a
defendant may also move to dismiss for "lack of jurisdiction over
the subject matter." Fed.R.Civ.P. 12(b)(1). "A Rule 12(b)(1)
jurisdictional attack may be facial or factual. In a facial
attack, the challenger asserts that the allegations contained in
a complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction." Safe Air v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). "In resolving a factual attack
on jurisdiction, the district court may review evidence beyond
the complaint without converting the motion to dismiss into a
motion for summary judgment." Id.
In their motion, Defendants ask the Court to dismiss
Plaintiff's case pursuant to both Rule 12(b)(6) and 12(b)(1).
More specifically, Defendants argue that Plaintiffs' case should
be dismissed (1) because the State has sovereign immunity under
the Eleventh Amendment; (2) because the State is not a "person"
who may be sued for a § 1983 violation; (3) because the Board and
its officers have absolute immunity from suit; (4) because
Burford abstention is applicable; and (5) because Younger
abstention is applicable. To the extent that Defendants seek
dismissal of the case based on abstention doctrines, Defendants
are not so much challenging subject matter jurisdiction
(Plaintiffs' § 1983 claim undoubtedly falls under federal
question jurisdiction) as arguing that the Court should decline
from asserting jurisdiction as a matter of equity and comity.
See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727-28
(1996) ("[T]he power to dismiss under the Burford doctrine, as
with other abstention doctrines, derives from the discretion
historically enjoyed by courts of equity. . . . [The] exercise of
this discretion must reflect `principles of federalism and
comity.'"); Attorney General of Guam v. Torres, 419 F.3d 1017,
(9th Cir. 2005) (stating that "evolution of the Younger
abstention doctrine has confirmed that it is based on
considerations of equity and comity").
B. Sovereign Immunity Under the Eleventh Amendment
Defendants argue first that the case should be dismissed both
against the Board and its executive director Ms. Harris, sued in
her official capacity because they are protected by sovereign
immunity pursuant to the Eleventh Amendment. "Eleventh Amendment immunity extends to state agencies and
other governmental entities that can be viewed as `arms of the
State.'" Maryland Stadium Auth. v. Ellerbe Becket, Inc.,
407 F.3d 255, 261 n. 8 (4th Cir. 2005) (citing P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) ("[A]
State and its `arms' are, in effect, immune from suit in federal
court."). As noted by Plaintiffs, however, Defendants have not
provided any evidence nor even made any argument as to why the
Board is a State agency or arm of the State. See Fresenius Med.
Care Cardiovascular Res. Inc. v. Puerto Rico, 322 F.3d 56, 61
(1st Cir. 2003) (stating that the entity asserting Eleventh
Amendment immunity "bears the burden of showing it is an arm of
the state"); Gragg v. Ky. Cabinet for Workforce Dev.,
289 F.3d 958, 963 (6th Cir. 2002) ("[T]he entity asserting Eleventh
Amendment immunity has the burden to show that it is entitled to
immunity, i.e., that it is an arm of the state."); ITSI TV
Prods. v. Agricultural Ass'ns, 3 F.3d 1289, 1292 (9th Cir. 1993)
("[T]he public entity ought to bear the burden of proving the
facts that establish its immunity under the Eleventh
Amendment."). Accordingly, the Court denies without prejudice the
Board's claim of immunity under the Eleventh Amendment.
While sovereign immunity might protect the Board from suit,
see Cozzo v. Tangipahoa Parish Council-President Gov't,
279 F.3d 273, 280-81 (5th Cir. 2002) ("When a state agency is the
named defendant, the Eleventh Amendment bars suits for both money
damages and injunctive relief unless the state has waived its
immunity."), it does not protect Ms. Harris, even in her official
capacity, because Plaintiffs do not ...