Marshall v. Ga. CVS Pharmacy, L.L.C.
| Decision Date | 07 January 2022 |
| Docket Number | Case No. 1:21-cv-2561-MLB |
| Citation | 580 F.Supp.3d 1301 |
| Parties | Lois MARSHALL, Plaintiff, v. GEORGIA CVS PHARMACY, L.L.C.; Georgia CVS Pharmacy, LLC d/b/a CVS Pharmacy #6106; CVS Pharmacy, Inc.; ABC Company 1–5; Jane Doe 1–5, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Matthew Michaud, Chain Breaker Law Firm, Marietta, GA, for Plaintiff.
Daniel J. Huff, Taylor Chamberlin Tribble, Huff Powell & Bailey, LLC, Atlanta, GA, Max Mathew Wallace, II, Jones Day, Atlanta, GA, for Defendants Georgia CVS Pharmacy, L.L.C., Georgia CVS Pharmacy, LLC, CVS Pharmacy, Inc.
Plaintiff Lois Marshall moves to remand this case to state court for lack of subject matter jurisdiction. (Dkt. 7.) The Court grants Plaintiff's motion.
On April 26, 2021, Plaintiff went to a CVS pharmacy to get a COVID-19 test. (Dkt. 1-1 at 3.) She needed a negative test result for an upcoming trip to Aruba. (Id. ) She had no symptoms and was fully vaccinated. (Id. )
Plaintiff completed her test at 9:14 a.m. (Id. at 4.) CVS employees then told her to wait outside the store until they called her with her test results. (Id. ) They said her results would be ready in about 15 minutes. (Id. )
Plaintiff waited in her car for over an hour, but CVS never called. (Id. ) So she went back into the store (wearing a mask) to ask for an update and to use the bathroom. (Id. ) As she did so, a CVS nurse yelled, (Id. ) Plaintiff asked the nurse if she was talking about her. (Id. ) The nurse said she was, and again shouted (Id. ) Plaintiff said her test result must be a false positive because she was fully vaccinated and recently tested negative. (Id. ) She requested another test to verify whether she was infected. (Id. ) The nurse replied "there is no such thing as a false positive," told Plaintiff she could not use the store bathroom, and threatened to call the police if she did not leave. (Id. ) Other CVS customers heard what the nurse said. (Id. ) The nurse eventually escorted Plaintiff out of the store. (Id. ) As she did so, "[p]eople shunned [Plaintiff] and ran from her as if she was a leper in ancient times." (Id. at 10.)
Plaintiff received her official test results later that morning. (Id. at 5.) They showed she tested positive for COVID-19 at 9:00 a.m. even though she did not actually take the test until 9:14 a.m. (Id. at 5–6.) They also indicated a false positive was possible, contrary to what the CVS nurse had said in the store. (Id. at 5.) Plaintiff took another COVID-19 test at a different facility later that day. (Id. ) This time she got a negative result. (Id. )
Plaintiff ultimately travelled to Aruba without incident. (Id. ) She twice tested negative for COVID-19 while she was there. (Id. ) The Cobb County Health Department also called Plaintiff during her trip. (Id. ) They said CVS had identified her as a COVID-19 carrier, she was now registered as a carrier in "the national database," and she had to quarantine upon her return to the United States. (Id. ) Plaintiff never gave CVS permission to disclose her health information to third parties, including the Health Department. (Id. at 6.) There is no evidence or allegation that Plaintiff actually ended up quarantining or that she suffered any adverse consequence from her registration in the national database (beyond emotional distress).
In May 2021, Plaintiff sued Defendants (a group of CVS entities and fictitious parties) in the State Court of Cobb County. (Dkt. 1-1.) Plaintiff asserted claims for intentional infliction of emotional distress (Count 1), negligent infliction of emotional distress (Count 2), slander (Count 3), libel (Count 4), unauthorized publication of private facts (Count 5), civil rights violations (Count 6), and deceit (Count 7). (Id. at 6–11.) She essentially claimed Defendants lied about her COVID-19 test result, and unlawfully disseminated that lie (including her confidential health information) to other CVS customers and to the Cobb County Health Department. She sought damages of "not less than $45,000.00," plus attorneys’ fees under O.C.G.A. § 19-6-2. (Id. at 12.) In June 2021, Defendants removed to this Court based on diversity and federal question jurisdiction. (Dkt. 1.) Plaintiff now moves to remand for lack of subject matter jurisdiction. (Dkt. 7.)
Defendants say the Court has diversity jurisdiction. (Dkt. 1 ¶ 18.) Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and the suit is between citizens of different states. 28 U.S.C § 1332(a). "[D]iversity jurisdiction is determined at the time of removal." Smith v. Comcast Corp. , 786 F. App'x 935, 939 (11th Cir. 2019). "[T]he removing defendant bears the burden of proving that federal diversity jurisdiction exists." Jarrell v. Giles , 2006 WL 1285074, at *1 (M.D. Ga. May 9, 2006) ; see City of Vestavia Hills v. Gen. Fidelity Ins. Co. , 676 F.3d 1310, 1313 n.1 (11th Cir. 2012).
"Where ... a plaintiff specifically alleges an amount of damages less than the amount in controversy required by § 1332, the defendant must prove to a legal certainty that the amount in controversy actually exceeds $ 75,000." Fernandez v. Integon Nat'l Ins. Co. , 2018 WL 8039758, at *2 (S.D. Fla. Aug. 23, 2018) ; see Lucas v. USAA Cas. Ins. Co. , 716 F. App'x 866, 867 n.1 (11th Cir. 2017). But where, as here, "a plaintiff makes an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the jurisdictional requirement." Roe v. Michelin N. Am., Inc. , 613 F.3d 1058, 1061 (11th Cir. 2010) (emphasis added). "In some cases, this burden requires the removing defendant to provide additional evidence demonstrating that removal is proper." Id. "In other cases, however, it may be facially apparent from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when the complaint does not claim a specific amount of damages." Id. "District courts may make reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that a case establishes the jurisdictional amount." Wineberger v. RaceTrac Petroleum, Inc. , 672 F. App'x 914, 917 (11th Cir. 2016). That is, "courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Roe , 613 F.3d at 1062. Courts "strictly construe the right to remove and apply a general presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Scimone v. Carnival Corp. , 720 F.3d 876, 882 (11th Cir. 2013).
Plaintiff's complaint seeks damages of "not less than $45,000.00" for (1) the "intense emotional distress and humiliation" she felt when she and other CVS store customers thought she had COVID-19; and (2) her "severe anxiety at the possibility of being quarantined and ... being registered as a COVID carrier in a national database," which "ruined" her vacation in Aruba. (See Dkt. 1-1 at 4–7, 12.)1 These injuries are essentially emotional, which makes them inherently hard to quantify. See Love v. N. Tool & Equip. Co. , 2008 WL 2955124, at *5 (S.D. Fla. Aug. 1, 2008) (). Defendants have not "quantified these losses with any specific dollar figures." Bradley v. Kelly Servs., Inc. , 224 F. App'x 893, 895 (11th Cir. 2007). Nor have they "presented any calculations as to the amount of loss." Id. They simply say Plaintiff's "serious allegations ... make clear that this case exceeds the $75,000.00 amount in controversy requirement." (Dkt. 1 ¶ 37.) That conclusory assertion is too speculative to meet their burden. See Leonard v. Enter. Rent a Car , 279 F.3d 967, 972 (11th Cir. 2002) (); Bradley , 224 F. App'x at 895 ().
Even if the Court could speculate about the amount in controversy, it would likely peg this case below $75,000. Plaintiff's own estimate refers to $45,000 (albeit as a floor rather than a ceiling). Plaintiff's emotional injuries were presumably short-lived given that she tested negative for COVID-19 shortly after the CVS incident and again after she spoke with the Cobb County Health Department. She never had to quarantine. Her registration in the "national database" ultimately caused her no harm (beyond her own anxiety about it). There is no allegation of physical injury or any hard expenses such as medical bills. There is no allegation that the handful of people who thought she was infected actually knew her or had any impact on her life. And she does not seek punitive damages. See Gilkes v. Philadelphia Express Tr. , 2021 WL 3913581, at *4 (S.D. Ga. Sept. 1, 2021) (). Her injuries essentially boil down to a moment of embarrassment at CVS and some anxiety about her COVID-19 status, which was ultimately negative. These injuries are not trivial. But they likely fall short of the jurisdictional amount.
Defendants counter that "[a] cursory verdict search utilizing Westlaw reveals an abundance of claims for invasion of privacy and other dignitary torts where plaintiffs received verdicts in excess of $75,000,...
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