Goulmamine v. CVS Pharmacy, Inc., Civil Action No. 3:15cv370.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: ROBERT E. PAYNE, Senior District Judge.
• Citation: 138 F.Supp.3d 652
• Parties: Redouane GOULMAMINE, M.D., and Midlothian Rehabilitation Associates, LLC d/b/a/ The Petersburg Spine Center, Plaintiff, v. CVS PHARMACY, INC., Defendant.
• Decision Date: 09 October 2015
• Docket Number: Civil Action No. 3:15cv370.

138 F.Supp.3d 652

Redouane GOULMAMINE, M.D., and Midlothian Rehabilitation Associates, LLC d/b/a/ The Petersburg Spine Center, Plaintiff,
v.
CVS PHARMACY, INC., Defendant.

Civil Action No. 3:15cv370.

United States District Court, E.D. Virginia, Richmond Division.

Signed Oct. 9, 2015.

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Richard F. Hawkins, III, The Hawkins Law Firm PC, Richmond, VA, for Plaintiff.

Jonathan William Garlough, Robert Harl Griffith, Foley & Lardner LLP, Chicago, IL, Lori Allison Rubin, Foley & Lardner LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on Defendant CVS Pharmacy, Inc.'s MOTION TO DISMISS. (Docket No. 10). For the reasons set forth below, the motion will be granted in part and denied in part.

BACKGROUND

Plaintiff Redouane Goulmamine, M.D. is a licensed medical doctor and the sole member of Plaintiff "Midlothian Rehabilitation Associates, PLLC d/b/a The Peterburg Spine Center." (Compl. ¶ 8, Docket No. 1). The facts are set forth as alleged in the Complaint.

Beginning in late 2014 and continuing through early 2015, pharmacy employees at several central Virginia locations of CVS Pharmacy Inc. ("CVS") began telling Goulmamine's

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patients that CVS would no longer fill prescriptions written by Goulmamine. (Compl. ¶¶ 12–15, 23). Goulmamine and The Spine Center (hereinafter "Goulmamine") further allege that, during these nearly two-dozen conversations, CVS employees also made:

• Factual (and incorrect) statements relating to Goulmamine: that Goulmamine was in jail (Compl. ¶ 23(k)), that Goulmamine had overprescribed to a pregnant patient (Compl. ¶ 23(k)), that one of Goulmamine's patients had died from an overdose of Xanax (Compl. ¶ 23(m)), and that Goulmamine or someone in his office was producing fraudulent prescriptions. (Compl. ¶ 23(j), (p)).

• Factual (and incorrect) statements relating to Goulmamine's standing in relationship to regulatory bodies: statements that the DEA, FBI, or the Board of Medicine was investigating Goulmamine or had revoked his license. (Compl. ¶ 23(c), (g)-(i), (k), (l ),(q)).

• Potentially misleading statements of fact: per Goulmamine's allegations, CVS employees made several statements that "he is being investigated" or "audited," or that he was "under review." (Compl. ¶ 23(e), (n), (o ), (q)). These statements leave the identity of the investigator ambiguous, but in context, it is reasonable that a patient might believe the investigator to be a regulatory or oversight body, rather than CVS.

• Statements of opinion regarding Goulmamine's prescription practices: "he is filling too many prescriptions" (Compl. ¶ 23(h)) and "he writes too much pain pills and it's against the law." (Compl. ¶ 23(j)).

• Statements of opinion regarding Goulmamine or Goulmamine's relationship with his patients: "he is bad news," (Compl. ¶ 23(c), (d)), variations on "you should find another doctor" or "your doctor won't be in business much longer," (Compl. ¶ 23(f), (q), (r)), and "he may lose his license." (Compl. ¶ 23(h), (q)).

• Factual (and truthful) statements about the relationship between Goulmamine and CVS: variations on "CVS will not fill Dr. Goulmamine's prescriptions." (Compl. ¶ 23(a)-(g), (i)-(s)). The Complaint also alleges that an employee stated that CVS "had problems with [Goulmamine]." (Compl. ¶ 23(j)).

• Statements about third parties: criticisms of patients, such as "you shouldn't be taking these pain pills," "you are probably a drug addict," and "you are just a drug addict." (Compl. ¶ 23(b), (i), (s)).

Goulmamine states that he is, and was during the relevant time frame, in good standing with all regulatory and oversight bodies, that he has never been investigated by such bodies, and that he has never had a patient die as a result of his prescriptions. (Compl. ¶¶ 25–26). Goulmamine states that, "[a]s a result of CVS's campaign of defamation, Dr. Goulmamine and The Spine Center have been substantially harmed. Dr. Goulmamine is losing patients almost daily and he is also losing referrals." (Compl. ¶ 27).

In March 2015, CVS sent Goulmamine a letter stating that it would no longer fill his prescriptions. (Compl. ¶¶ 18–21). Goulmamine alleges that

CVS told Dr. Goulmamine words to the effect that (i) he "wrote too many pain pill" prescriptions; (ii) some of his patients were "red flags"—a euphemism for drug addicts—because they were "self pay"; and (iii) because it [CVS]

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takes to heart drug abuse and diversion," it will no longer fill his prescriptions.

(Compl. ¶ 19). Goulmamine claims that he was "so offended at the letter that he ripped it up and threw it away." (Compl. ¶ 21). CVS attached an exhibit which CVS alleges is the March 2015 letter at Exhibit 1. (Def.'s Br., Ex. 1, Docket No. 11).

Goulmamine's Complaint presents three claims for relief: defamation (Count I); insulting words (Count II); and tortious interference with contract/business expectancy (Count III).

DISCUSSION

CVS argues that Goulmamine has failed to state a set of facts entitling him to relief in any of his claims. CVS is correct as to Counts II and III, and incorrect as to Count I.

A. Legal Standard for a Motion to Dismiss

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir.2006). Federal Rule of Civil Procedure 8(a)(2)"requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." McCleary–Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

When deciding a motion to dismiss, a court "draw[s] all reasonable inferences in favor of the plaintiff." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.2009). However, while the court must "will accept the pleader's description of what happened" and "any conclusions that can be reasonably drawn therefrom," the court "need not accept conclusory allegations encompassing the legal effects of the pleaded facts," Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.1998) ; Chamblee v. Old Dominion Sec. Co., L.L.C., No. 3:13CV820, 2014 WL 1415095, *4 (E.D.Va.2014). Nor is the court required to accept as true a legal conclusion unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest an entitlement to relief." Wright & Miller,supra; Chamblee, supra. In sum, a 12(b)(6) motion should be granted if, "after accepting all well-pleaded allegations ... as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999).

B. Count I: Defamation

The parties concur with the elements of, and relevant defenses to, defamation:

(1) publication; (2) of a statement that is actionable; and (3) requisite intent. Jordan v. Kollman, 269 Va. 569, 612 S.E.2d 203, 206 (2005). Defamation claims may be defeated by a claim of privilege, which, in turn, may be overcome

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if the plaintiff proves malice. Great Coastal Exp., Inc. v. Ellington, 230 Va. 142, 334 S.E.2d 846, 853 (1985).

Andrews v. Virginia Union Univ., No. 3:07CV447, 2008 WL 2096964, at *10 (E.D.Va. May 16, 2008) ; see also Chapin v. Knight–Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.1993) ; Cashion v. Smith, 286 Va. 327, 337–339, 749 S.E.2d 526, 531 (2013). To be actionable, a statement must be false and defamatory. Chapin, 993 F.2d at 1092. Whether a statement is actionable is a matter of law. Id. The existence of qualified privilege is also a question of law; however, the question of whether a defendant has lost or abused a privilege is a question of fact. Cashion, 286 Va. at 337, 749 S.E.2d 526.

CVS alleges that Goulmamine has pled non-actionable statements, and that the remaining statements are protected by qualified privilege. (Def.'s Mem. in Support of Mtn. to Dismiss for Failure to State a Claim 6, 9–12) ("Def.'s Br." Docket 11). Goulmamine replies that he has pled sufficient facts to demonstrate malice and invalidate any privilege defense, and that CVS may not raise the affirmative defense of privilege at the 12(b)(6) stage. (Pl.'s Mem. in Opposition to Mtn. to Dismiss 6–7, 9–10 ("Pl.'s Reply," Docket No. 17)).

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