William D. Quarles, Jr.
Joseph Weigel sued the State of Maryland and Armistead Homes Corporation ("Armistead") for declaratory and injunctive relief. ECF No. 1. On September 12, 2012, Weigel moved for a temporary restraining order ("TRO") and preliminary injunction. ECF Nos. 2, 3. On October 15, 2012, Weigel and others(collectively, the "Plaintiffs") filed an amended, class action complaint. ECF No. 20. On October 25, 2012, the Plaintiffs filed a second motion for a TRO and preliminary injunction. ECF No. 22. On November 7 and 8, 2012, the Defendants moved to dismiss. ECF Nos. 25, 28. No hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the following reasons, the State Defendants' motion to dismiss will be granted; all other pending motions will be denied as moot.
Armistead is a nonprofit, nonstock cooperative housing corporation that owns, in fee simple, about 1500 residential properties in Baltimore, Maryland. ECF No. 16-1 H 3; ECF No. 20 H 34. Membership in Armistead is open to persons who enter into a leasehold agreement for one of the properties. ECF No. 20 H 34. Each lease is for a 99-year term, with two options to renew. See ECF No. 16-2 at 2 (Part I). Upon entering the agreement, members pay a membership fee and a downpayment on the "[d]welling [p]rice" of their homes. See Id . (Part II). Members also submit monthly payments to Armistead, which include part of the outstanding balance of the dwelling price plus interest, repayment of home-related loans, and operating charges set by Armistead's board of directors. See Id . (Part III). "There is no doubt that a membership in [Armistead], together with the related leasehold interest in a dwelling unit, constitutes a property interest." 85 Md. Op. Att'y Gen. 265, 267 (2000) .
In exchange for membership, members are
subject to the provisions of [Armistead's] Articles of Incorporation, By-Laws, Rules, Regulations, Dwelling Leaseholds[, ] and Conditions of Dwelling Leaseholds of the Corporation, including . . . the following restrictions, limitations, and conditions:
. . .
(c) that [the Membership Certificate], and all rights and privileges of Membership, are subject to termination and cancellation by [Armistead] in case:
(1) an event of default occurs under the Dwelling Leasehold or the aforesaid provisions applicable to Memberships; and (2) the Member, after [3 0] days notice of the default, fails to cure the default in a manner satisfactory to [Armistead]....
ECF No. 16-6 at 2.
Under the Dwelling Leasehold, a member "defaults" when he "default[s] in the performance of any of the covenants, or agreements or conditions on the part of the Member to be preformed [sic] under this Dwelling Leasehold." ECF No. 16-2 at 3 (Part IV(5)). The Dwelling Leasehold incorporates, by reference, the Conditions of Dwelling Leaseholds (the "Conditions"). ECF No. 16-2 at 2 (Part I). Accordingly, failure to comply with the Conditions is a default. The Conditions provide:
[Armistead] reserves the right to impose any reasonable rules and regulations and to change the same from time to time, as in its judgment may be necessary or desirable for the continued protection of the Housing Development as a good living environment, for the safety, care[, ] and cleanliness of Dwellings and surrounding premises, and for the preservation of good order and comfort there. Each Member shall faithfully observe and comply with such rules and regulations and all persons living in the Dwelling shall also observe and comply with such rules and regulations.
ECF No. 16-3 at 2 (f 5(c)) .
Upon a member's default, Armistead must provide him with notice of the default and an opportunity to "cure." ECF No. 16-2 at 3 (Part V). Failure to cure authorizes Armistead to file suit for breach of lease and eviction. See generally Md. Code Ann., Real Prop. § 8-402.1; 85 Md. Op. Att'y Gen. at 267-70.
B. The Plaintiffs
The Plaintiffs and the proposed class are members and leaseholders of Armistead and, accordingly, "assumed and agreed to become bound by all the covenants of [D]welling [L]easeholds, pertaining to the respective premises." ECF No. 20 11 36, 49; ECF No. 22-1 at 3. Each owns one or more licensed dogs "believed to be" pit bulls or pit bull mixes. ECF No. 20 11 20- 22, 39-40. Under Maryland law, licensed dogs are "personal property." Md. Code Ann., Art. 24 § 11-506.
C. Tracey v. Solesky
1. The April 26, 2012 Decision
Tracey v. Solesky ("Tracey") arose from a pit bull attack on a young boy named Dominic Solesky. Having sustained "life threatening injuries" during the attack, Solesky underwent multiple surgeries and spent a year in rehabilitation. Tracey, 50 A.3d at 1078. On March 24, 2008, Solesky's parents sued the dog's owners and the landlord of the property from which the dog had escaped, in the Circuit Court for Baltimore County. Solesky v. Tracey, 17 A.3d 718, 720 (Md. Ct. Spec. App. 2011). The plaintiffs asserted negligence and strict liability claims against all defendants, and additional assault and battery claims against the dog's owners. Id. at 723 & n.3. The claims against the owners were discharged in bankruptcy. Id. at 720.
At the close of the plaintiffs' case, the court granted the defendant landlord's motion for judgment. Tracey, 50 A.3d at 1078. The court held that that there was insufficient evidence of negligence to present the case to the jury. Id. The Maryland Court of Special Appeals reversed, holding that the evidence created a jury issue about the extent of the landlord's prior knowledge of the dog's dangerousness. Id.
On April 26, 2 012, the Court of Appeals of Maryland affirmed and directed the Court of Special Appeals to remand for a retrial. Tracey, 50 A.3d at 1089-90. The court recognized that the trial judge had correctly applied the then-prevailing standard of negligence to the landlord's conduct. Id. At 1078. However, the court decided to "modify" that standard, "as it relates to attacks by pit bull and cross-bred pit bull dogs against humans." Id. at 1079. Under the court's new rule,
upon a plaintiff's sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person (s) who has the right to control the pit bull's presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner's or lessor's premises.
Id. at 1089.
This modification was warranted, the court reasoned, because of pit bulls' "aggressive and vicious nature" and "capability to inflict serious and sometimes fatal injuries, " Tracey, 50 A.3d at 1080. The court relied upon "strong dicta" in Matthews v. Amberwood Associates Ltd. Partnership, Inc.; a 2000 report on dog attacks in the Journal of the American Veterinary Medical Association; a 2011 article in the Annals of Surgery; Mortality and Morbidity weekly reports by the Centers for Disease Control; and caselaw from other jurisdictions. See Id . at 1083-89. The court also emphasized that at least 10 other states have "some form of state-strict liability statute in which the finding of dangerousness of the particular attacking dog is not necessary to establish [liability]." Id. at 1089.
Judge Greene wrote a lengthy dissent. He contended, inter alia, that Tracey's new rule was "grounded ultimately upon perceptions of a majority of this Court about a particular breed of dog, rather than upon adjudicated facts showing that the responsible party possessed the requisite knowledge of the animal's inclination to do harm." Tracey, 50 A.3d at 1090 (Greene, J., dissenting). Those perceptions transformed "a clear factual question into a legal one in an effort to create liability." Id. Judge Greene argued that the transformation was particularly problematic given the disputed accuracy of dog bite statistics and the lack of expert testimony on pit bulls' allegedly inherent dangerousness. Id. at 1090-91. In light of this conflicting evidence, he concluded that "[t]he issues raised involving breed-specific regulation are not appropriate for judicial resolution; rather, those issues are best resolved by the Maryland General Assembly."
2. The August 21, 2012 Reconsideration
On May 25, 2012, the defendant landlord moved for reconsideration, arguing that "the imposition of avnew duty' on landlords was fundamentally unfair and unconstitutional as applied." On August 21, 2012, the court granted the motion in part and denied it in part. Tracey, 50 A.3d at 1098. The court denied the motion "[a]s to the Court's holding with respect to pit bulls, " explaining that "there is [no]thing unconstitutional or unfair about holding Ms. Tracey liable for the gruesome damage done to Dominic Solesky by a pit bull that she knowingly . . . allowed her tenant to keep on her property." Id. at 1096-97. The court emphasized that its April 26, 2012 decision was "not as dramatic and pervasive as the [landlord's] motion claim[ed]" because it neither "prohibit[ed] the ownership or breeding of pit bulls" nor "require[d] that persons who own such dogs get rid of them." Id. at 1097. Instead, the decision "simply requires that those who possess [pit bulls] or permit [pit bulls] to be on their property take reasonable steps to assure that they do not run loose or otherwise are in a position to injure other people." Id.
However, the court granted the motion in part to delete any reference to cross-bred pit bulls, "so that the Court's holding would apply only to pit bulls that are not cross-breds." Tracey, 50 A.3d at 1097. The court gave two reasons for this amendment. First, there was "never any assertion, suggestion, or finding in this case that the dog was a cross-bred." Id. Second, "it is not at all clear what(cross-bred' really means." Id.
3. Tracey's Aftermath
Before the April 26, 2012 Tracey decision, Armistead's "Handbook for Member-Residents" permitted members' ownership of "no more than two animals." ECF No. 20 1 41. The Handbook did not prohibit pit bulls. Id. At a June 7, 2012 meeting, Armistead's board of directors considered a motion that no pit bull or cross-bred pit bull be permitted on Armistead's premises, and that any leaseholder who "caused" or "allows" any such dog to be brought onto the premises "shall have committed a material breach of the Dwelling Leasehold and the Conditions of Dwelling Leasehold." ECF No. 16-1 \ 4. The motion passed unanimously. Id. By August 10, 2012 letter, Armistead President Sharon Vick notified members of the new rule:
Maryland's highest court recently ruled that pit bulls and cross-bred pit bull mixes are "inherently dangerous." The court also ruled that, if a pit bull or cross-bred pit bull mix bites someone, the dog's owner will be liable for the bite, and the landowner who can control access to such dogs could be liable as well.
The board of directors has decided that it is in the best interests of Armistead . . . and the residents to ban pit bulls and cross-bred pit bull mixes. Therefore, no pit bulls or cross-bred pit bull mixes are permitted on Armistead Property. If you have a pit bull or cross-bred pit bull mix, you must get rid of the animal immediately. If you have a visitor to your leasehold, you must not permit the visitor to bring a pit bull or cross-bred pit bull mix onto Armistead Property.
The Board may take legal action, including termination, against leaseholders [who] fail to comply with the ban.
ECF No. 16-4 at 2 (emphasis in original) . Armistead did not define "pit bull." See Id . As of September 26, 2012, Vick swore that Armistead had not given notice of default to--or sued to evict--any member based solely on his pit bull ownership. ECF No. 16-1 i[H 5-6.
The Plaintiffs assert that they and the proposed class "subsist on an extremely low income and cannot afford to pay the rents charged elsewhere" and "will be forced to sleep in parks, under bridges, or in their cars, or to set up tents or trailers in the woods" if evicted. ECF No. 20 HH 1, 37. Further, the Executive Director of the Baltimore Animal Rescue and Care Shelter, Inc. ("BARCS") swears that 500 dogs may be "implicated by" Armistead's decision to ban pit bulls,  and indicates:
BARCS is not equipped to handle such a volume of animals and, while we would do our best to place the animals in a rescue, foster care, or up for adoption, it is likely that the vast majority of them would have to be euthanized. Furthermore, it would also be impossible to process and contain the animals from Armistead . . . until a speedy disposition could be effectuated. Therefore we would have to consider closing our doors to incoming animals until space and time allow.
ECF No. 20-11j 8. The Plaintiffs stress that, if BARCS closes, the public "will not be able to bring in sickly animals that are infected with contagious diseases, posing a serious public health risk to both people and animals." ECF No. 22-1 at 2.
They conclude that immediate action is necessary to prevent these "looming catastrophic ...