Gonzalez v. Walgreens Co., 88-2200

• Decision Date: 11 July 1989
• Docket Number: No. 88-2200,88-2200
• Parties: Ivette GONZALEZ, et al., Plaintiffs, Appellants, v. WALGREENS COMPANY and the Travelers, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 560

878 F.2d 560

14 Fed.R.Serv.3d 279

Ivette GONZALEZ, et al., Plaintiffs, Appellants, v. WALGREENS COMPANY and the Travelers, Defendants, Appellees.

No. 88-2200.

United States Court of Appeals, First Circuit.

Submitted June 6, 1989.

Decided July 11, 1989.

Hilda Rodriguez Forteza on brief, for plaintiffs, appellants.

Miguel A. Raldiris, San Juan, P.R., and Rivera, Tulla & Ferrer, Hato Rey, P.R., on brief, for defendants, appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

Plaintiff-appellant, Ivette Gonzalez ("Gonzalez") appeals from the district court's judgment of dismissal for lack of jurisdiction. We affirm.

Gonzalez alleged in her complaint that she had sustained injuries as a result of a fall in Walgreen's, a pharmacy located in San Patricio Plaza, Puerto Rico. She filed suit against Walgreen Company, an Illinois corporation ("Walgreen-Illinois"), and The Travelers, an insurance company doing business in Puerto Rico. Appellee states that the plaintiff served a summons and complaint only upon Walgreen of San Patricio, Inc., ("Walgreen-San Patricio") a Puerto Rico corporation and, apparently, a subsidiary or a franchisee of Walgreen-Illinois.

The defendant moved to dismiss for lack of jurisdiction. In support of its motion, defendant presented affidavits which stated that Walgreen-Illinois and Walgreen-San Patricio exist as separate corporate entities and that the Walgreen store in which plaintiff was allegedly injured is a store owned, operated, and managed by Walgreen of San Patricio, Inc. Plaintiff did not present any facts to refute the statements presented in the aforementioned affidavits. Moreover, plaintiff is a citizen of Puerto Rico, so no diversity jurisdiction would exist over an action by her against Walgreen-San Patricio. Instead, plaintiff rather vaguely argued that because the store bore the label "Walgreen," defendant Walgreen-Illinois should be liable for the alleged injuries. The district court treated the motion to dismiss as a motion for summary judgment, granted the motion, and dismissed the complaint for lack of jurisdiction.

As we have stated on prior occasions, a parent company may not be subject to jurisdiction merely because its subsidiary resides in the forum. See Alvarado-Morales v. Digital Equipment Corp., 843 F.2d 613, 616 (1st Cir.1988) (affirming the dismissal of a complaint against the nonresident, parent corporation in the absence of showing that the parent company had any involvement in the actions giving rise to the complaint); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904-05 (1st Cir.1986) (affirming the dismissal of a complaint against a foreign, parent corporation where plaintiff failed to show that the parent corporation exercised the degree of control over the subsidiary as to ascribe its alleged negligence to the parent). In her sworn statement in support of her opposition to defendant's motion to dismiss, plaintiff merely stated that Walgreen-Illinois owned, operated, maintained, and supervised the Walgreen pharmacy in which she was allegedly injured. She set forth no supporting facts. Whereas the general manager of Walgreen-San Patricio stated in his affidavit that the pharmacy was owned, operated, and managed by Walgreen of San Patricio, Inc., there is no basis to conclude that plaintiff had any personal knowledge upon which to base her assertion to the contrary. An affidavit must be based upon personal knowledge. Fed.R.Civ.P. 56(e). See Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 29 (1st Cir.1980). Plaintiff's bare, conclusory assertion, therefore, was insufficient to create a genuine issue of material fact as to whether Walgreen-Illinois controlled the activities of Walgreen-San Patricio or whether the latter was an actual agent of Walgreen-Illinois such that Walgreen-Illinois would be responsible for the alleged negligence of Walgreen-San Patricio.

Apart from an actual agency theory of liability, appellant also may have sought to hold Walgreen-Illinois liable on an apparent agency or...