Church Ekklasia Sozo, Inc. v. CVS Health Corp.

Decision Date27 September 2021
Docket Number3:20-cv-382-MOC-DSC
CourtU.S. District Court — Western District of North Carolina
PartiesCHURCH EKKLASIA SOZO, INC., et al., Plaintiffs, v. CVS HEALTH CORPORATION, et al., Defendants.

CHURCH EKKLASIA SOZO, INC., et al., Plaintiffs,

CVS HEALTH CORPORATION, et al., Defendants.

No. 3:20-cv-382-MOC-DSC

United States District Court, W.D. North Carolina, Charlotte Division

September 27, 2021


Max O. Cogburn Jr. United States District Judge

THIS MATTER comes before the Court on Motion to Dismiss, filed by Defendants CVS Health Corporation and CVS Pharmacy, Inc. (Doc. No. 17).


Plaintiffs filed this action on Complaint on July 14, 2020, bringing numerous claims against Defendants CVS Health Corporation and CVS Pharmacy, Inc. after pharmacists at a CVS retail store refused to fill prescriptions for Suboxone. Plaintiffs filed a First Amended Complaint (FAC) on November 5, 2020. (Doc. No. 12). Plaintiffs in this action include Church Ekklasia Sozo, Inc., Henry Emery, Jeffrey Bishop, Jane Doe, and John Goodyear.

As amended, Plaintiffs' FAC asserts the following eleven claims: (1) failure to accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., (2) disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. 794 et seq., (3) discrimination in violation of the Affordable Care Act, 42 U.S.C. 18116 et seq., (4) discrimination through association in violation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., (5) false advertising in violation of the Lanham Act, 15 U.S.C. 1125(a), (6)


tortious interference with contract, (7) tortious interference with prospective economic advantage, (8) defamation (per se and per quod), (9) unfair and deceptive trade practices, in violation of N.C. Gen. Stat. 75-1.1 et seq., and (10) breach of legal duty. On December 7, 2020, Defendants moved to dismiss the FAC. Plaintiffs have filed a response, Defendants have filed a reply, and this Court held a hearing on the motion to dismiss on February 24, 2021. Thus, this matter is ripe for disposition.

The following facts are taken from Plaintiffs' FAC and are assumed true for purposes of this motion:

Plaintiff Henry Emery is a medical doctor residing in North Carolina. (Compl. ¶ 2). Plaintiff Jeffrey Bishop is a doctor of osteopathic medicine based in West Palm Beach, Florida. (Id. ¶ 3). Plaintiff John Woodyear is a medical doctor who practices in Troy, North Carolina. (Id. ¶ 4). Emery and Bishop each practice medicine and prescribe controlled substances, through Plaintiff Church Ekklasia Sozo (“CES, ” and together with Emery, Bishop, and Woodyear, the “CES Plaintiffs”), while Woodyear serves as CES's medical director. (Id. ¶¶ 50-54).

CES runs a drug rehabilitation program for patients with opioid dependency. (Id. ¶ 38). CES patients enroll for the program online and must sign certain online forms and view online videos before starting the program. (Id. ¶ 44). The entire program is conducted online. CES's physicians do not meet personally with their patients; they consult with patients remotely through telemedicine. (Id. ¶¶ 41-48). In their practice, CES's physicians prescribe Suboxone, among other medications. (Id. ¶ 40). Suboxone is a Schedule III controlled substance due to its potential for abuse and physiological dependence.

Plaintiffs allege that on July 19, 2019, Plaintiff Doe (“Doe”) attempted to fill a prescription for Suboxone written for her by Emery at a CVS Pharmacy store in Rutherfordton,


North Carolina. (Id. ¶ 63). There, a CVS pharmacist declined to fill the prescription, stating she did not recognize the prescribing doctor, she believed CES's program was an “internet thing, ” and she believed the patient had not met personally with the prescribing doctor. (Id. ¶¶ 64-65). Plaintiffs allege further that unidentified CVS pharmacists at additional, unidentified locations have declined to fill prescriptions for other, unidentified CES patients. (Id. ¶ 80). Plaintiffs specify only one other instance where a CVS pharmacist declined to fill a prescription written by a CES physician. Plaintiffs allege that on or about July 3, 2020, an unnamed patient unsuccessfully attempted to fill a prescription for Suboxone written by Plaintiff Bishop at a CVS Pharmacy in Lithonia, Georgia. (Id. ¶¶ 83-84). Plaintiffs do not attribute any alleged statements to CVS Pharmacy employees made during the interaction.


Here, Defendant CVS Health has moved to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Furthermore, both Defendants have moved for dismissal for failure to state a claim under Rule 12(b)(6).

Rule 12(b)(2) provides for dismissal for “lack of personal jurisdiction.” Fed.R.Civ.P. 12(b)(2). Under Rule 12(b)(2), the defendant is required to affirmatively raise a personal jurisdiction challenge, but the plaintiff bears the burden of demonstrating personal jurisdiction at every stage. Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). “[W]hen the court addresses the personal jurisdiction question by reviewing only the parties' motion papers, affidavits attached to the motion, supporting legal memoranda, and the allegations in the complaint, a plaintiff need only make a prima facie showing of personal jurisdiction to survive the jurisdictional challenge.” Grayson, 816 F.3d at 268 (citing Combs, 886 F.2d at 676). Although the court may consider affidavits


submitted by both parties, factual disputes and all reasonable inferences must be made in favor of the party asserting jurisdiction. White v. Aetna Life Ins. Co., No. 3:20-CV-204-MOC-DSC, 2021 WL 467210, at *2 (W.D. N.C. Feb. 9, 2021).

Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510 U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations constitute “a short and plain statement of the claim showing the pleader is entitled to relief” pursuant to Federal Rule of Civil Procedure 8(a)(2). To survive a defendant's motion to dismiss, factual allegations in the complaint must be sufficient to “raise a right to relief above a speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint will survive if it contains “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

For the purposes of a Rule 12(b)(6) analysis, a claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The Court must draw all reasonable factual inferences in favor of the plaintiff. Priority Auto Grp., Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. However, well-pleaded factual allegations are entitled to a presumption of truth, and the court should determine whether


the allegations plausibly give rise to an entitlement to relief. Id. at 679.


A. CVS Health's Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

As an initial matter, Defendant CVS Health contends that Plaintiffs lack personal jurisdiction over it. For the following reasons, the Court agrees.

There are two types of personal jurisdiction that can be established: general jurisdiction or specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8 & 9 (1984). A court may exercise general personal jurisdiction over a defendant when that defendant is essentially “at home” in the forum. See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). For a corporate (or other entity) defendant, “at home” will usually mean their domicile and their principal place of business. See id. at 137. When general personal jurisdiction does not apply, a court may still exercise specific personal jurisdiction if the plaintiff makes a sufficient showing: (1) the defendant purposefully availed themselves of the forum and the benefits and protections of its laws, (2) the plaintiff's claim arises from the purposefully availing conduct, and (3) the exercise of jurisdiction would be constitutionally reasonable. See Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009). Finally, to exercise personal jurisdiction over a non-resident defendant, a court must determine that (1) the exercise of jurisdiction is authorized under the state's long-arm statute, pursuant to Federal Rule of Civil Procedure 4(k)(1)(A); and (2) the exercise of jurisdiction conforms to the Fourteenth Amendment's due process requirements. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).

CVS Health asserts that this Court cannot assert either general or specific jurisdiction over it in this Court. CVS Health asserts that it is a holding company, with no operations other


than those related to its status as a holding company; it does not provide pharmacy services or dispense medications; it does not provide or offer any product or service or place into the stream of commerce any product or service whatsoever; and it is not authorized to transact business in North Carolina, nor does it have a registered agent in North Carolina. (Moffatt Decl. ¶¶ 4, 5, 7; see also (last...

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