         11-344-cv
         McGRX, Inc., DBA McGregor's Medicine on Time v. State of Vermont et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, Jr.
 8                         Circuit Judges.
 9                ROSLYNN R. MAUSKOPF
10                         District Judge.*
11
12
13       MCGRX, INC., DBA MCGREGOR'S MEDICINE ON TIME,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                11-344-cv
18
19       STATE OF VERMONT, DEPARTMENT OF VERMONT HEALTH ACCESS, PETER
20       SHUMLIN, Governor of the State of Vermont, DOUGLAS A.
21       RACINE, Secretary of the Agency of Human Services, SUSAN
22       BESIO, Director of the Office of Vermont Health Access,
23       NANCY HOGUE, Pharmacy Director for the Department of Vermont
24       Health Access,
25
26                                     Defendants-Appellees.
27



                *
              Judge Roslynn R. Mauskopf, of the United States
         District Court for the Eastern District of New York, sitting
         by designation.
 1   FOR APPELLANT:       MATTHEW B. BYRNE (Robert F. O'Neill, on
 2                        the brief), Gravel and Shea PC,
 3                        Burlington, VT.
 4
 5   FOR APPELLEE:        BRIDGET C. ASAY, Assistant Attorney
 6                        General (William E. Griffin, Assistant
 7                        Attorney General, on the brief), for
 8                        William H. Sorrell, Attorney General for
 9                        the State of Vermont, Montpelier, VT.
10
11        Appeal from the United States District Court for the
12   District of Vermont (Reiss, J.)
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the United States District

16   Court for the District of Vermont be AFFIRMED.

17       Plaintiff-Appellant McGRX, Inc. appeals from a judgment

18   of the United States District Court for the District of

19   Vermont (Reiss, J.), granting, in part, Appellees’ motion to

20   dismiss, granting Appellees’ motion for abstention under

21   Younger v. Harris, 401 U.S. 37 (1971), and denying

22   Appellant’s motion to amend its Second Amended Complaint.

23       We affirm on the limited ground of Younger abstention.

24   Younger clearly applies here and mandates federal court

25   abstention.     Thus, we need not reach the other issues

26   addressed by the district court regarding standing or

27   Appellant’s alleged failure to state a claim.     See Spargo v.

28   N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 74 (2d

29   Cir. 2003).

                                     2
1        Younger requires federal courts to abstain if: “(1)

2    there is a pending state proceeding, (2) that implicates an

3    important state interest, and (3) the state proceeding

4    affords the federal plaintiff an adequate opportunity for

5    judicial review of his or her federal . . . claims.”

6    Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100-01 (2d

7    Cir. 2004).

8        Here, it is undisputed that there is a pending state

9    proceeding.   Although that proceeding was filed after this

10   federal action, that is no bar to Younger abstention as no

11   “proceedings of substance on the merits have taken place in

12   federal court.”   See Hicks v. Miranda, 422 U.S. 332, 349

13   (1975).

14       The underlying state action undoubtedly implicates an

15   important state interest.   In that action Vermont seeks to

16   remedy consumer fraud allegedly committed by Appellant as

17   well as to protect the financial integrity of its Medicaid

18   program—both important state interests.   See, e.g., Trainor

19   v. Hernandez, 431 U.S. 434 (1977).

20       Finally, Appellant will have an adequate opportunity to

21   raise its federal claims in the state action.   Doe v. Conn.,

22   Dep’t of Health Servs., 75 F.3d 81, 86 (2d Cir. 1996). The

23   Vermont state court is more than capable of addressing

                                   3
1    Appellant’s claims under the Americans with Disabilities

2    Act, the Rehabilitation Act, and the Due Process Clause of

3    the Fifth Amendment to the United States Constitution.     Id.;

4    see also, e.g., Charbonneau v. Gorczyk, 176 Vt. 140 (2003).

5        For the foregoing reasons, the judgment of the district

6    court is hereby AFFIRMED.    Appellant’s other motions on this

7    appeal are denied as moot.

 8
 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk
11
12




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