Judge Denies Appeal To Bring Handmade Cigar Lawsuit Back To Texas

Judge Denies Appeal To Bring Handmade Cigar Lawsuit Back To Texas

The Texas premium, handmade cigar industry’s lawsuit against the FDA will likely be tried in a Washington D.C. courtroom after a judge denied the industry’s attempt to transfer the lawsuit back to the Lone Star state.

In his decision filed yesterday in the U.S. District Court for the Eastern District of Texas, U.S. District Judge Amos Mazzant affirmed a July 2 transfer order to move the case, known as En Fuego Tobacco Shop et al. v. United States Food and Drug Administration et al., to Washington, D.C.

The Texas lawsuit was originally filed in January by En Fuego Tobacco Shop, which operates three locations; Cuba Libre Enterprises, owners of the El Cubano Cigar Factory; and the Texas Cigar Merchants Association that represents handmade cigar manufacturers and retailers in the state. The main contentions of the lawsuit are related to the FDA’s warning label and warning plan requirements, which the plaintiffs argue are a violation of their First Amendment rights.

Last month, Magistrate Judge Kimberly C. Priest Johnson, who had heard oral arguments for the case in June and was set to decide on it, opted instead to transfer the case to Washington, D.C. In response to that decision, the plaintiffs filed an Emergency Appeal in an attempt to return the case back to Texas.

Judge Mazzant, however, explained in his filing that he could not reverse Magistrate Judge Priest Johnson’s July 2 order because her decision was not “clearly erroneous” or “contrary to law.”

“Plaintiffs argue that the timing of the decision to grant Defendants’ Motion to Transfer is contrary to the interests of justice because it substantively denies Plaintiffs’ request for an injunction before regulation becomes effective on August 10, 2018,” wrote Judge Mazzant in his filing. “However, Plaintiffs fail to explain how the July 2 Order is clearly erroneous and cite no case law or other legal authority articulating a ‘timing’ exception to the first-to-file rule.” 

Additionally, in light of the recent ruling by a Washington, D.C. judge to postpone the warning label scheme effective date, Judge Mazzant saw no need to step in and file an injunction of his own.

“... Plaintiffs face no imminent, irreparable harm here, which is a mandatory requirement for the issuance of an injunction,” he wrote.

The plaintiffs have the right to appeal Judge Mazzant’s decision, but it is unknown if they will decide to do so.