Church Ekklasia Sozo, Inc. v. CVS Health Corp.
| Decision Date | 25 February 2022 |
| Docket Number | Civil Action 3:20-cv-00382-RJC-DSC |
| Parties | CHURCH EKKLASIA SOZO INC., HENRY EMERY MD, JEFFREY BISHOP DO, JOHN WOODYEAR MD, and JANE DOE Plaintiffs, v. CVS HEALTH CORP. and CVS PHARMACY INC. Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on Defendants' Motion to Dismiss (Document #17) and the parties' briefs.
The Motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and is now ripe for the Court's consideration.
Accepting the factual allegations of the Complaint as true, Plaintiff Church Ekklasia Sozo, Inc. (“CES”) is a North Carolina non-profit corporation that operates a drug rehabilitation program for persons with opioid dependency. (Doc. 12 at 9). Plaintiff Henry Emery is a physician who resides in North Carolina. Plaintiff Jeffrey Bishop is an osteopathic physician based in West Palm Beach, Florida. Plaintiff John Woodyear is a physician who practices in Troy North Carolina. (Id. at 2). Emery and Bishop both practice medicine and prescribe controlled substances through CES (together with Emery, Bishop, and Woodyear, the “CES Plaintiffs”). Woodyear serves as CES's medical director. (Id. at 11). Plaintiff Jane Doe is an opiate dependent resident of North Carolina who suffers from adult abstinence syndrome and participates in CES's rehabilitation program. (Id. at 2).
CES's Supervised Drug Rehabilitation Program operates online under the website name of “bupe.me” and utilizes telemedicine to monitor and treat patients remotely. (Id. at 9-10). The program prescribes Suboxone to assist patients in their rehabilitation and to stop their opioid use. Suboxone is a Schedule III controlled substance due to its potential for abuse and physiological dependence. New patients must register online and discuss the program with a medical team member. If an assessment determines the patient is a good fit for the program, a prescription for Suboxone will be sent to a pharmacy chosen by the patient. The patient must undergo counseling to remain in the program and is required to attend a live, online meeting every Thursday. If the patient is unable to attend, they can watch a recording. (Id. at 10).
Plaintiffs allege that on July 19, 2019, Doe attempted to fill a prescription for Suboxone written by Dr. Emery at a CVS Pharmacy in Rutherfordton, North Carolina. (Id.). The CVS pharmacist declined to fill the prescription, stating she did not recognize the prescribing physician, believed CES's program was an “internet thing, ” and that the patient had not met personally with the prescribing physician. (Id.). Plaintiffs further allege that unidentified CVS pharmacists at other unidentified locations have declined to fill prescriptions for other unidentified CES patients. (Id. at 15). Plaintiffs allege only one other instance where a CVS pharmacist declined to fill a prescription written by a CES physician-that on or about July 3, 2020, an unnamed patient unsuccessfully attempted to fill a prescription for Soboxone written by Dr. Bishop at a CVS Pharmacy in Lithonia, Georgia. (Id.) Plaintiffs do not attribute any alleged statements to CVS Pharmacy employees made during the transaction.
Plaintiffs filed their Amended Complaint on November 5, 2020 alleging eleven counts against Defendants: (1) Disability Discrimination and Failure to Accommodate under the ADA, 42 U.S.C. § 12101 et seq.; (2) Disability Discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.; (3) Discrimination under § 1557 of the Affordable Care Act (ACA), 42 U.S.C § 18116 et seq.; (4) Discrimination through Association under the ADA, 42 U.S.C. § 12101 et seq.; (5) False Advertising under the Lanham Act, 15 U.S.C. § 1125(a); (6) Breach of a Legal Duty of Standard of Care; (7) Tortious Interference with Contract; (8) Tortious Interference with Prospective Economic Advantage (9) Defamation Per Se; (10) Defamation Per Quod; and (11) Unfair and Deceptive Trade Practices in violation of N.C. Gen. Stat. § 75-1.1 et seq. (Doc. 12). Defendants filed a Motion to Dismiss Plaintiffs' First Amended Complaint on December 7, 2020. (Doc. 17).
Defendant CVS Health has moved to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Both Defendants have moved to dismiss for failure to state a claim under Rule 12(b)(6).
Rule 12(b)(2) provides for dismissal for “lack of personal jurisdiction.” 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 resolved 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. In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss 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). “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.
In Iqbal, the Supreme Court articulated a two-step process for determining whether a complaint meets this plausibility standard. First, the court identifies allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy “because of” its adverse effects on protected group was conclusory and not assumed to be true).
Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure] mark [] a notable and generous departure from the hyper technical, code pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.
Second, to the extent there are well pleaded factual allegations, the court should assume their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief “will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “Where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not ‘show[n]'-‘that the pleader is entitled to relief, '” and therefore should be dismissed. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
The sufficiency of the factual allegations aside, “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.” Sons of Confederate Veterans v. City of Lexington, 722 F.3d 224, 228 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). Indeed, where “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed.” Neitzke v. Williams, 490 U.S. at 328; see also Stratton v. Mecklenburg Cnty. Dept. of Soc. Servs., 521 Fed.Appx. 278, 293 (4th Cir. 2013). The court must not “accept as true a legal conclusion couched as a factual allegation.” Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).
Defendant CVS Health argues a lack of personal jurisdiction. There are two types of personal jurisdiction: general jurisdiction and 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 when the 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...
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