Carty v. CVS Pharmacy, LLC

• Decision Date: 11 September 2017
• Docket Number: Civil Action No.: 17–00266 (RC)
• Citation: 264 F.Supp.3d 190
• Parties: Yasmin CARTY, Plaintiff, v. CVS PHARMACY, LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

264 F.Supp.3d 190

Yasmin CARTY, Plaintiff,

v.CVS PHARMACY, LLC, et al., Defendants.

Civil Action No.: 17–00266 (RC)

United States District Court, District of Columbia.

Signed September 11, 2017

Yasmin Carty, Washington, DC, pro se.

Ashley A. Norton, Samir Alfonso Aguirre, Jan E. Simonsen, Carr Maloney, P.C., Washington, DC, for Defendants.

Re Document Nos.: 3, 8

MEMORANDUM OPINION

GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING AS MOOT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff, Yasmin Carty ("Ms. Carty"), sued Defendants, CVS Pharmacy, LLC ("CVS") and its Chief Executive Officer ("CEO"), Larry J. Merlo ("Mr. Merlo"), seeking compensatory and punitive damages for their alleged negligence stemming from incidents involving a pharmacist at Ms. Carty's local CVS.¹ See Notice of Removal at 10, ECF No. 1 (hereinafter "Complaint" or "Compl."). Defendants, CVS and Mr. Merlo, moved to dismiss Ms. Carty's Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Defs.' Mot. Dismiss ("Defs.' Mot.") at 1, ECF No. 3. Thereafter, Ms. Carty opposed Defendants' Motion and filed her own Motion for Summary Judgment. See Pl.'s Reply Opp'n Defs.' Mot. Dismiss and Mot. Summ. J. ("Pl.'s Opp'n & Mot."), ECF No. 8. For the reasons stated below, the Court grants Defendants' Motion to Dismiss and denies Ms. Carty's Motion for Summary Judgment as moot.

II. BACKGROUND²

On January 13, 2017, Ms. Carty received a text message from CVS stating that her medication was ready for her to pickup. Compl. When Ms. Carty went to her local CVS store, the CVS pharmacist on duty gave Ms. Carty a medication that Ms. Carty noted was incorrect. Compl.; Pl.'s Opp'n & Mot. at 1. When Ms. Carty brought this to the pharmacist's attention, the pharmacist told Ms. Carty that her medication was actually not ready and threatened that, next time, she would just give Ms. Carty Advil

. Compl.; Pl.'s Opp'n & Mot. at 1. However, another CVS pharmacy employee subsequently assisted Ms. Carty, found the correct medication in stock, and filled her prescription. Compl.; Pl.'s Opp'n & Mot. at 1.

The next day, on January 14, 2017, Ms. Carty commenced this action against Defendants in the Superior Court of the District of Columbia alleging negligence. See Pl.'s Opp'n & Mot. at 1. Ms. Carty demanded a judgment against Defendants in the amount of $230,000.00, plus punitive damages. Pl.'s Opp'n & Mot. at 1. Defendants removed the action to the United States District Court for the District of Columbia on February 10, 2017, invoking the Court's diversity jurisdiction under 28 U.S.C. § 1332.³ See Notice of Removal at 2, ECF No. 1. Thereafter, Defendants filed a Motion to Dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. See Defs.' Mot. Dismiss at 1. In response, Ms. Carty filed, together with her Opposition to Defendants' Motion to Dismiss, a Motion for Summary Judgment. See Pl.'s Opp'n & Mot.

In her subsequent filings, Ms. Carty sets forth several additional factual contentions.⁴ First, she now claims that she in fact did not receive the correct medication on January 13, 2017, and that she had to return to CVS three times before the clerk gave her the correct medication. Pl.'s Reply Defs.' Reply Brief Supp. Defs.' Mot. Dismiss ("Pl.'s Reply") at 4, ECF No. 10. Ms. Carty also now alleges that she believes the CVS pharmacist was "target[ing]" her in various ways and that "her intention [was] to make sure [that] [Ms. Carty] [does not] get [her] medicines." Pl.'s Reply at 2. For example, she states that the pharmacist, on another occasion, gave her the incorrect diabetes test strips, a problem which allegedly went unresolved for three weeks. Pl.'s Opp'n & Mot. at 2. Ms. Carty also seems to suggest that the pharmacist had previously withheld her medications and medical supplies on other occasions and that the pharmacist regularly encouraged other CVS employees to withhold medications from Ms. Carty as well. Pl.'s Reply at 2–3. Finally, Ms. Carty alleges that when the pharmacist filled her prescriptions, the medicine bottle often "smell[ed] funny," though she does not allege that the medication was adulterated in any way or that she has ever suffered any ill effects from that medication. Pl.'s Reply at 2.

III. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Fed. R. Civ. P. 12(b)(6) ; Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ("When a federal court reviews the sufficiency of a complaint .... [t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."). A court considering a motion to dismiss a pro se plaintiff's complaint should look to "all filings, including filings responsive to a motion to dismiss." Brown , 789 F.3d at 151–52. Further, a court presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g. , Shear , 606 F.2d at 1253 ("The complaint must be construed liberally, with all factual allegations deemed to be true and with doubts to be resolved in favor of the pleader." (internal quotation marks and citation omitted)); United States v. Philip Morris, Inc. , 116 F.Supp.2d 131, 135 (D.D.C. 2000) (same). However, the Court is not required to accept "a legal conclusion couched as a factual allegation," or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). While the factual allegations need not be detailed, the plaintiff must still "provide the ‘grounds’ of [her] ‘entitle[ment] to relief’," Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted), with more than "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). This means that "[d]ismissal under Rule 12(b)(6) is proper when a plaintiff has failed to plead ‘enough facts to state a claim to relief that is plausible on its face’ and to nudge his claims ‘across the line from conceivable to plausible.’ " Abbas v. Foreign Policy Grp. , 783 F.3d 1328, 1338 (D.C. Cir. 2015) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ).

While pro se pleadings are "held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citation omitted) (per curiam), they too "must plead ‘factual matter’ that permits the court to infer "more than the mere possibility of misconduct," Atherton v. D.C. Office of the Mayor , 567 F.3d 672, 681–82 (D.C. Cir. 2009) (quoting Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 ), by the defendants. Accord Brown , 789 F.3d at 150 (quoting Erickson , 551 U.S. at 94, 127 S.Ct. 2197 and Atherton , 567 F.3d at 681–82 ).

IV. ANALYSIS

Upon review of Ms. Carty's Complaint and her subsequent filings, the Court concludes that she has failed to state any claim against Defendants. First, the Court finds that Ms. Carty has failed to state a claim for negligence because she fails to make any allegations regarding Mr. Merlo's involvement in the incidents with the pharmacist, and she fails to allege any injury resulting from CVS's alleged conduct. Second, even construing Ms. Carty's allegations broadly as an assertion of a claim for intentional infliction of emotional distress, the Court finds Ms. Carty's allegations insufficient because she does not allege that CVS's conduct was either "extreme" or "outrageous." Thus, the Court grants Defendants' Motion to Dismiss.

A. Negligence

Defendants moved to dismiss Ms. Carty's negligence claim, arguing that she failed to state a claim upon which relief may be granted. Defs.' Mot. Dismiss at 1, ECF No. 3; see Fed. R. Civ. P. 12(b)(6). Under District of Columbia law,⁵ to state a negligence claim, "a plaintiff must allege ‘(1) a duty, owed by the defendant to the plaintiff, to conform to a certain standard of care; (2) a breach of this duty by the defendant; and (3) an injury to the plaintiff proximately caused by the defendant's breach.’ " Friends Christian High Sch. v. Geneva Fin. Consultants , 39 F.Supp.3d 58, 63 (D.D.C. 2014) (quoting District of Columbia v. Fowler , 497 A.2d 456, 462 n.13 (D.C. 1985) ). Defendants argue that Ms. Carty "cannot state a viable claim for relief" because she does not allege that Mr. Merlo had any involvement in the incident nor does she allege that she suffered any damages. Mem. P. & A. Supp. Defs.' Mot. Dismiss at 2, ECF No. 3–1. The Court agrees.

First, the Court finds that Ms. Carty has failed to state a claim of negligence against Mr. Merlo because she does not allege that he personally acted or inspired any act that injured Ms. Carty. Neither Ms. Carty's Complaint nor her subsequent filings allege any action or inaction taken by Mr. Merlo in connection with any of the various incidents for which Ms. Carty complains. See Compl.; Pl.'s Opp'n & Mot.; Pl.'s Reply. Because Ms. Carty has not pled any facts to support her negligence claim against Mr. Merlo, it must be...