The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently pending before the Court is Plaintiffs'  Motion for Partial Summary Judgment with respect to Count II of their Amended Complaint, which alleges that the District of Columbia's Freedom from Cruelty to Animal Protection Act, D.C. Code § 22-1001 et seq. (hereinafter the "Act"), is unconstitutional on its face and as customarily enforced. Plaintiffs' Motion for Partial Summary Judgment, which is opposed by both the District of Columbia and the Individual Defendants to this action, is premised exclusively on Judge John Garrett Penn's March 13, 2007 Memorandum Opinion granting-in-part and denying-in-part Defendants' motions to dismiss Plaintiff's Amended Complaint.*fn1 Judge Penn's opinion, however, merely concluded that Count II of Plaintiffs' Amended Complaint stated a claim upon which relief could be granted, and was therefore sufficient to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Penn did not conclude that the Act was facially invalid, and as a result, any statements in his opinion that may be read to suggest as much are dicta.
The Court has reviewed Plaintiff's Motion for Partial Summary Judgment, the two Oppositions to that Motion, and Plaintiffs' Reply. Based on the foregoing, it appears that an issue may well exist as to whether the Act is unconstitutional on its face. However, the parties' briefs in connection with Plaintiffs' Motion for Partial Summary Judgment are simply insufficient to allow the Court to resolve that question. Accordingly, the Court shall DENY WITHOUT PREJUDICE Plaintiffs'  Motion for Partial Summary Judgment. In the event that Plaintiffs believe they are entitled to summary judgment on the facial challenge included in Count II of their Amended Complaint, they must fully brief the merits of that claim; they cannot simply rely on dicta in Judge Penn's opinion to do their job for them.
Plaintiffs Sunday Daskalea, Frances Norris, and Willie Jackson allege that they "are pet owners in the District of Columbia who have had their pets seized, detained and damaged without due process of law." Am. Compl. ¶ 1. Plaintiffs' Amended Complaint includes both constitutional challenges to the Act and common law claims regarding the alleged seizure, detention, and damaging of Plaintiffs' pets. See generally Am. Compl. Plaintiffs' constitutional challenges to the Act focus on D.C. Code § 22-1004, which is entitled "Arrests without warrant authorized; notice to owner." D.C. Code § 22-1004. That section provides:
(a) Any person found violating the laws in relation to cruelty to animals may be arrested and held without a warrant . . . . The person making the arrest or the humane officer taking possession of an animal shall have a lien on said animals for the expense of such care and provisions.
(b)(1) A humane officer of the Washington Humane Society may take possession of any animal to protect it from neglect or cruelty. The person taking possession of the animal or animals, shall use reasonable diligence to give notice thereof to the owner of animals found in the charge or custody of [a] person arrested, and shall properly care for the animals until the owner shall take charge of the animals; provided that, the owner shall take charge of the animals within 20 days from the date of the notice.
(2) If the owner or custodian of the animal or animals fails to respond after 20 days, the animal or animals shall become the property of the Washington Humane Society and the Washington Humane Society shall have the authority to:
(A) Place the animal or animals up for adoption in a suitable home;
(B) Retain the animal or animals; or
(C) Humanely destroy the animal or animals.
With respect to the individual Plaintiffs, their Amended Complaint alleges that on May 17, 2002, Plaintiff Sunday Daskalea left her dog unattended in her car "while she went up to her apartment to get some things." Id. ¶ 31. According to Plaintiffs, the dog, "a full-breed, pedigreed 'Dogo Argentino,'" which Ms. Daskalea had purchased "for breeding, as well as companionship," "had just been walked, watered and fed, and was in absolutely no danger" in Ms. Daskalea's car. Id. ¶¶ 31, 33-34. Plaintiffs do not specify how long Ms. Daskalea's dog was left unattended, but allege that while Ms. Daskalea was in her apartment, Defendant Sonya Scnoor, a Washington Humane Society (WHS) law enforcement officer, seized the dog from Ms. Daskalea's car. Id. ¶ 36. Plaintiffs assert that Ms. Daskalea's "[r]epeated efforts" to retrieve her dog from the WHS were unsuccessful because WHS "refused to return" the dog," id. ¶ 39, and further allege that "[d]uring the time that defendants had custody and control of" Ms. Daskalea's dog, the dog "was forcibly sterilized by the defendants" without Ms. Daskalea's permission and against Ms. Daskalea's will, id. ¶ 41. Ms. Daskalea's dog was eventually returned to her, but Plaintiffs allege that the dog's "personality has changed, [that Ms. Daskalea] is denied the love and companionship of her dog," and that Ms. Daskalea "is permanently prevented from breeding [the dog], causing pecuniary losses." Id. ¶¶ 43, 45. According to Plaintiffs, Ms. Daskalea "was denied the right to notice and hearing to contest the seizure, detention, sterilization and return of her pet." Id. ¶ 42.
Plaintiffs allege that on July 19, 2001, Plaintiff Frances Norris left her dog unattended in her car while she "went to [a] nearby sports club." Id. ¶ 47. According to Plaintiffs, Dr. Norris "parked her car under a large shade tree . . . cracked all four car windows, [and] left food and water for" her dog. Id. Plaintiffs allege that upon returning to her car, Dr. Norris found that WHS officer H.O. Boozer had entered her car and seized her dog "without her permission, knowledge or consent." Id. ¶ 48. Plaintiffs allege that, at the time Dr. Norris's dog was seized, "she was perfectly fine and in absolutely no danger," id. ¶ 49, and further allege that Dr. Norris's efforts to retrieve her dog from WHS were unsuccessful, id. ¶ 54. According to Plaintiffs, WHS eventually agreed to return Dr. Norris's dog "but only if Dr. Norris agreed to pay unreasonable and unjustifiable fees and costs, and submit [her dog] to unnecessary medical treatment." Id. ¶ 55. Dr. Norris agreed to the medical treatment in order to get her dog back, and alleges that when the dog was released ...