United States District Court, D. Colorado
SAFE STREETS ALLIANCE, PHILLIS WINDY HOPE REILLY, and MICHAEL P. REILLY, Plaintiffs,
ALTERNATIVE HOLISTIC HEALING, LLC, d/b/a Rocky Mountain Organic, JOSEPH R. LICATA, JASON M. LICATA, 6480 PICKNEY, LLC, PARKER WALTON, CAMP FEEL GOOD, LLC, ROGER GUZMAN, BLACKHAWK DEVELOPMENT CORPORATION, WASHINGTON INTERNATIONAL INSURANCE CO., JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of Colorado, BARBARA J. BROHL, in her official capacity as Executive Director of the Colorado Department of Revenue, W. LEWIS KOSKI, in his official capacity as Director of the Colorado Marijuana Enforcement Division, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PUEBLO, and PUEBLO COUNTY LIQUOR & MARIJUANA LICENSING BOARD, Defendants.
ORDER RE MOTIONS TO DISMISS
Robert E. Blackburn United States District Judge
The matters before me are (1) the State Defendants’ Motion To Dismiss Count VII of Plaintiffs’ Complaint Under Rules 12(b)(1) and 12(b)(6) [#83],  filed April 30, 2015; and (2) the Pueblo Defendants’ Motion To Dismiss [#85], filed April 30, 2015. I grant the motions, dismiss Counts VII and VIII of the First Amended Complaint, enter judgment in favor of both the state and Pueblo defendants as to those severed counts, and also dismiss plaintiffs’ RICO claims against the Pueblo defendants.
I putatively have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Defendants’ motions raise issues under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). A motion to dismiss under Fed.R.Civ.P. 12(b)(1) may consist of either a facial or a factual attack on the complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Because defendants’ motion presents a facial attack, I must accept the allegations of the complaint as true. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994); Fritz v. Colorado, 223 F.Supp.2d 1197, 1199 (D. Colo. 2002).
When ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I must determine whether the allegations of the complaint are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). For many years, “courts followed the axiom that dismissal is only appropriate where ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Noting that this standard “has been questioned, criticized, and explained away long enough, ” the Supreme Court supplanted it in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). Pursuant to the dictates of Twombly, I now review the complaint to determine whether it “‘contains enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974). “This pleading requirement serves two purposes: to ensure that a defendant is placed on notice of his or her alleged misconduct sufficient to prepare an appropriate defense, and to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim.” Kansas Penn Gaming, 656 F.3d at 1215 (citation and internal quotation marks omitted).
As previously, I must accept all well-pleaded factual allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). Contrastingly, mere “labels and conclusions or a formulaic recitation of the elements of a cause of action” will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (“Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which the claim rests.”) (quoting Twombly, 127 S.Ct. at 1974) (internal citations and footnote omitted). Moreover, to meet the plausibility standard, the complaint must suggest “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493 F.3d at 1177 (“[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.") (emphases in original). For this reason, the complaint must allege facts sufficient to “raise a right to relief above the speculative level.” Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard will not be met where the allegations of the complaint are “so general that they encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d at 1248. Instead “[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id.
The nature and specificity of the allegations required to state a plausible claim will vary based on context and will “require the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950; see also Kansas Penn Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.“ Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127 S.Ct. at 1965) (internal quotation marks omitted).
In 2012, Colorado voters approved Amendment 64, legalizing the cultivation, manufacture, and possession of recreational marijuana in the state. Under the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904, however, marijuana continues to be classified as a Schedule I drug, which makes the manufacture, distribution, or possession of marijuana a crime under federal law. Plaintiff Safe Streets Alliance is “a membership organization whose members are interested in law enforcement issues, particularly the enforcement of federal laws prohibiting the cultivation, distribution, and possession of marijuana.” (Am. Compl. ¶ 8 at 4.) To that end, they have brought this lawsuit, challenging the legality vel non of Amendment 64.
Both motions presently before me implicate Counts VII and VIII of the First Amended Complaint,  designated therein as the “Preemption Counts, ” against Colorado Governor John W. Hickenlooper, Executive Director of the Colorado Department of Revenue Barbara J. Brohl, and Director of the Colorado Marijuana Enforcement Division W. Lewis Koski. (the “state defendants”), as well as the Board of County Commissioners of the County of Pueblo and the Pueblo County Liquor & Marijuana Licensing Board (the “Pueblo defendants”). In addition, the Pueblo defendants’ motion also challenges the remaining counts of the operative complaint, which charge the Pueblo defendants and the remaining defendants in this lawsuit with various violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Because none of these claims ultimately are viable, I grant both motions to dismiss.
As originally pled, Counts VII and VII of the complaint purported to state claims directly under the Supremacy Clause, U.S. Const. Art. IV, cl. 2. (See Compl. ¶ 124 at 38 & ¶ 131 at 39 [#1], filed February 19, 2015.) Not long after the complaint was filed, however, the Supreme Court issued its opinion in Armstrong v. Exceptional Child Center, Inc., - U.S. -, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015), in which it squarely rejected the premise that there exists “an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation.” Id., 135 S.Ct. at 1383 (citation and internal quotation marks omitted). The Supremacy Clause, said the Court, is a rule of decision: “It instructs courts what to do when state and federal law clash[.]” Id. It is not, however, “the source of any federal rights, and certainly does not create a cause of action.” Id. (internal citations and quotation marks omitted). Such a conclusion was found to be implicit in the history and structure of the Supremacy Clause, as well as in its place within the broader context of the Constitution itself:
It is unlikely that the Constitution gave Congress such broad discretion [under the Necessary and Proper Clause, Art. I, § 8] with regard to the enactment of laws, while simultaneously limiting Congress's power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors. If the Supremacy Clause includes a private right of action, then the Constitution requires Congress to permit the enforcement of its laws by private actors, significantly curtailing its ability to guide the implementation of federal law. It would be strange indeed ...