Tashjian v. CVS Pharmacy, Inc.
| Decision Date | 13 March 2020 |
| Docket Number | CIVIL ACTION NO. 19-11164-TSH |
| Parties | CHARLES TASHJIAN, on behalf of himself and all others similarly situated, Plaintiff, v. CVS PHARMACY, INC.; CVS HEALTH CORPORATION; AND CVS CAREMARK, INC. Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Hennessy, M.J.
This matter comes before the Court on Defendants CVS Pharmacy, Inc. ("CVS Pharmacy"), CVS Health Corporation ("CVS Health"), and CVS Caremark, Inc.'s (collectively "Defendants") motion to dismiss. (Docket #16). Plaintiff Charles Tashjian has filed an opposition to the motion. (Docket #22) to which Defendants have replied (Docket #25). This matter is now ripe for adjudication. For the reasons that follow, I recommend that the motion to dismiss (Docket #16) be ALLOWED as to Defendants CVS Health and CVS Caremark, Inc. and as to counts I, II, III, IV, and VI and DENIED as to count V.
Tashjian utilized CVS Pharmacy Store #1852 in Medway, Massachusetts to fill his prescriptions. (FAC ¶ 20)1. In June 2018, CVS Pharmacy sent a letter entitled "Request to Close Potential Gap in Therapy" to Tashjian's medical provider, Dr. Fouad Aoude, stating that a CVSPharmacy employee had spoken to Tashjian about diabetes care. (FAC ¶ 21, Docket #14-1 at 45). The letter also stated that Tashjian wanted CVS Pharmacy to reach out on his behalf to Dr. Aoude to determine if it was appropriate for Tashjian to start a statin therapy. (FAC ¶ 24). This letter was added to Tashjian's medical file. (FAC ¶ 31).
In November of 2018, CVS Pharmacy again sent a Gap in Therapy letter to Dr. Aoude stating that a CVS Pharmacy employee had spoken with Tashjian about diabetes care and that Tashjian wanted CVS Pharmacy to reach out to Dr. Aoude to determine if it was appropriate for Tashjian to start a statin therapy. (FAC ¶¶ 35-36, 38, Docket #14-1 at 46). This letter was also added to Tashjian's medical file.
Tashjian does not have diabetes and never consulted with any CVS Pharmacy employee about diabetes care nor did he ever request that CVS Pharmacy send a letter to his physician concerning statin therapy. (FAC ¶¶ 26-28).
On February 27, 2019, Tashjian filed a complaint on behalf of himself and all others similarly situated against the Defendants in the Superior Court of Suffolk County. (Docket #14-1 at 4). He filed an amended complaint on April 26, 2019 in which he asserts claims of negligence, breaches of confidentiality, appropriation of Tashjian's name and likeness, tortious misappropriation of private and personal information, unfair trade practices, and declaratory judgment. (FAC ¶¶ 77-179). On May 23, 2019, Defendants removed the case to this court on the basis of 28 U.S.C. § 1332(d). (Docket #1).
CVS Health and CVS Caremark, Inc. seek to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. The Defendants also seek to dismiss thecase in its entirety pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
"To hear a case, a court must have personal jurisdiction over the parties, 'that is, the power to require the parties to obey its decrees.'" Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002) (quoting United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999)). The plaintiff bears the burden of establishing that the court has personal jurisdiction over the defendants. Id. In assessing whether the plaintiff has met this burden, the court may employ one of three standards: the "prima facie" standard; the "preponderance-of-the-evidence" standard; or the "likelihood" standard. Boston Post Partners II, LLP v. Paskett, No. 15-13804-FDS, 2016 U.S. Dist. LEXIS 88811, at *13 (D. Mass. July 8, 2016). "Where, as here, the court is called to make this assessment without first holding an evidentiary hearing, the prima facie standard is applied." Id. (citing United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)).
Under the prima facie standard, "the inquiry is whether [the plaintiff] has provided evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (quoting Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008)). A plaintiff may not "rely on unsupported allegations in its pleadings[,]" but "[r]ather [the plaintiff] must put forward 'evidence of specific facts' to demonstrate that jurisdiction exists." Id. (quoting Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)). Facts offered by the defendant "become part of the mix only to the extent that they are uncontradicted." Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009) (quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007)).
Defendants argue that CVS Caremark, Inc. is not a corporate entity and therefore the claims against it are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(2). (Docket #17 at 5). In his opposition to the motion, Tashjian characterizes the Defendants' argument as stating that dismissal is appropriate under Fed. R. Civ. P. 12(b)(2) because "CVS Caremark, Inc. is no longer a corporate entity at all because effective September 3, 2014, Caremark Corporation's name was changed to CVS Health Corporation." (Docket #22 at 5) (quotation and alteration omitted). However, Tashjian misconstrues Defendants' argument.
The declaration of Thomas S. Moffatt, the Vice President, Assistant Secretary, and Assistant General Counsel of CVS Health, reveals that CVS Health was formerly known as "CVS Caremark Corporation" until September 3, 2014. (Docket #17-1 at ¶ 8) (emphasis added). However, "CVS Caremark, Inc." is not a valid corporate entity and is not an entity incorporated in any state. (Id. at ¶ 8) (emphasis added). Tashjian has provided no evidence to dispute this statement. As this court does not have jurisdiction over non-existent entities, I recommend that the court dismiss the claims against CVS Caremark, Inc. See Ladonicolas v. Beury, No. 92-16555, 1994 U.S. App. LEXIS 6950, at *6 (9th Cir. Apr. 1, 1994); James v. Univ. of N.C. Health Care Hosp., No. 1:18CV339, 2018 U.S. Dist. LEXIS 161627, at *9 (M.D.N.C. Sept. 20, 2018) ("(Failure to name the proper party in the complaint constitutes grounds for dismissal [pursuant to Fed. R. Civ. P. 12(b)(2)]").
There are two types of personal jurisdiction: general and specific. Ace Am. Ins. Co. v. Oyster Harbors Marine, Inc., 310 F. Supp. 3d 295, 303 (D. Mass. 2018) (citing United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992)). Generaljurisdiction allows a court to assert jurisdiction over corporations "to hear any and all claims against them." Daimler AG v. Bauman, 571 U.S. 117, 122 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). General jurisdiction is not directly founded on the defendant's forum-based contact, but exists where the defendant, either as a domiciliary of the forum or due to some significant and continuous activity within the forum state, is considered "at home" in the forum state. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). "Specific jurisdiction, on the other hand, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Goodyear, 564 U.S. at 919 (internal quotation and alteration omitted).
Defendants have provided evidence that CVS Health is a Delaware corporation with a principal place of business in Rhode Island. (Docket #17-1 at ¶ 2). Furthermore, CVS Health has no office or place of business in Massachusetts nor does it own or lease real property in Massachusetts. (Id. at ¶ 7). CVS Health is a holding company and its primary functions are to hold the equity interests of its subsidiaries, to issue equity and debt securities to the public, and to file reports with the U.S. Securities and Exchange Commission consistent with those required of public companies. (Id. at ¶ 3). It does not offer pharmaceutical products or services to the public. (Id.). CVS Health is not licensed or registered to do any business in Massachusetts and does not have any agent or employees in Massachusetts. (Id. at ¶ 5). Tashjian asserts that, through its absorption of CVS Caremark, CVS Health has continuous and systematic activity in Massachusetts through its mail-order pharmacies. (Docket #22 at 5). Tashjian points to a chart available at cvshealth.com which lists under "Rx Benefits Management": (Docket #22-1). Tashjian also cites the Gap in Therapy letters sent by CVS Pharmacy to his physician which indicate that a recipient may opt out of receiving future communications by sending an email to "do_not_call@cvscaremark.com." (Docket #14 at 45-46).
Turning first to general jurisdiction, the undersigned must evaluate whether Tashjian has made a prima facie showing that, based on CVS Health's contacts with Massachusetts, CVS Health is "essentially at home" in this forum. Daimler, 571 U.S. at 138-39. "The 'paradigm' forums in which a corporate defendant is 'at home' [] are the corporation's place of incorporation and its principal place of business." BNSF Ry. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017). However, "[t]he exercise of general jurisdiction is not limited to these forums; in an 'exceptional case,' a corporate defendant's operations in another forum 'may be so substantial and of...
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