Bonner v. Rite Aid Corp. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST L. BONNER, JR., M.D., No. 2:19-cv-00674-MCE-EFB 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 RITE AID CORPORATION, and DOES 1 through 50, 15 Defendants. 16 17 Through the present action, Plaintiff Ernest L. Bonner, Jr., M.D. (“Plaintiff”) alleges 18 seven causes of action (“COA”) against Defendant Rite Aid Corporation (“Defendant”) 19 arising from Defendant’s refusal to fill prescriptions written by Plaintiff and from alleged 20 defamatory comments made by Defendant’s employees to Plaintiff’s patients. Presently 21 before the Court is Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint 22 (“FAC”). ECF No. 11. Specifically, Defendant moves to dismiss Plaintiff’s fifth, sixth, 23 and seventh claims for relief for failure to state a claim upon which relief may be granted 24 pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Additionally, pursuant to both 25 Rules 12(b)(6) and 12(f), Defendant moves to strike the portion of Plaintiff’s prayer for 26 relief seeking restitution and punitive damages. ECF Nos. 11, 12. For the reasons set 27 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless 28 otherwise noted. 1 forth below, Defendant’s Motion to Dismiss is GRANTED and Defendant’s Motion to 2 Strike is DENIED as moot.2 3 4 BACKGROUND3 5 6 Beginning in March 2018, Plaintiff began hearing from his patients that 7 Defendant’s employees were making odd and defamatory comments when they tried to 8 fill their prescriptions at Defendant’s pharmacies and that the pharmacists were refusing 9 to fill their prescriptions. For example, one patient said a pharmacist told him that 10 Defendant would no longer fill Plaintiff’s prescriptions and that Plaintiff is being 11 investigated for writing too many prescriptions. About two months later, another patient 12 told Plaintiff that one of Defendant’s employees said Defendant would not fill 13 prescriptions written by Plaintiff because Plaintiff “doesn’t know how to write 14 prescriptions” and that “he should not be practicing medicine.” 15 In March 2019, one of Defendant’s pharmacists refused to fill the prescription of 16 one of Plaintiff’s patients. Plaintiff spoke to the pharmacist and patient on a three-way 17 call, and Plaintiff was informed that Defendant would not fill the patient’s prescription 18 because Plaintiff decreased patient’s opiate medication. When the patient tried to fill his 19 prescription at another pharmacy operated by Defendant, the pharmacist there refused 20 to fill the same prescription. 21 On April 1, 2019, Defendant sent a letter to Plaintiff stating that Plaintiff wrote too 22 many pain prescriptions and that some of his patients were “redflags” because they were 23 self-paying. Due to these concerns and dangers of drug abuse, Defendant would no 24 /// 25 /// 26 2 Because oral argument will not be of material assistance, the Court ordered this matter 27 submitted on the briefs. E.D. Cal. Local Rule 230(g). 28 3 The following recitation of facts is taken from Plaintiff’s FAC. ECF No. 9. 1 longer fill pain prescriptions written by Plaintiff as of April 15, 2019.4 In addition to no 2 longer filling prescriptions, Plaintiff alleges that Defendant began a “smear campaign” 3 against him. 4 On April 22, 2019, Plaintiff filed his original complaint. ECF No. 1. On June 20, 5 2019, Plaintiff filed his FAC, alleging seven causes of action against Defendant: 6 (1) Unfair Competition (“UCL”); (2) Intentional Interference with Prospective Economic 7 Advantage; (3) Negligent Interference with Prospective Economic Advantage; 8 (4) Defamation; (5) Intentional Infliction of Emotional Distress (“IIED”); (6) violation of 9 42 U.S.C. § 1981 (“§ 1981”); and (7) violation of Title VII. 10 11 STANDARD 12 13 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 14 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 15 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 16 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 17 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 18 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 19 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 20 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 21 detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of 22 his entitlement to relief requires more than labels and conclusions, and a formulaic 23 recitation of the elements of a cause of action will not do.” Id. (internal citations and 24 quotations omitted). A court is not required to accept as true a “legal conclusion 25 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 26 4 Defendant states that the letter stressed Defendant’s concern about controlled substance 27 prescription abuse and that Defendant and its pharmacists “have a responsibility to take appropriate steps to reduce the potential that drugs they dispense are not diverted or abused.” Def.’s Mot. Dismiss, ECF 28 No. 11, at 4. 1 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 2 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 3 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 4 pleading must contain something more than “a statement of facts that merely creates a 5 suspicion [of] a legally cognizable right of action”)). 6 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 7 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 8 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 9 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 10 the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright & 11 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 12 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 13 claims across the line from conceivable to plausible, their complaint must be dismissed.” 14 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 15 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 16 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 17 A court granting a motion to dismiss a complaint must then decide whether to 18 grant leave to amend. Leave to amend should be “freely given” where there is no 19 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 20 to the opposing party by virtue of allowance of the amendment, [or] futility of the 21 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 22 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 23 be considered when deciding whether to grant leave to amend). Not all of these factors 24 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 25 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 26 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 27 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 28 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 2 1989) (“Leave need not be granted where the amendment of the complaint . . . 3 constitutes an exercise in futility . . . .”)). 4 5 ANALYSIS 6 7 Defendant moves to dismiss the following claims from the FAC: (1) Fifth, Sixth, 8 and Seventh COAs; (2) claims for restitution as alleged in the First COA; and (3) claims 9 for punitive damages as alleged in the Fourth, Fifth, and Sixth COAs.5 10 A. Defendant’s Motion to Dismiss Plaintiff’s Fifth COA for IIED is Granted With Leave to Amend 11 12 To prevail on a claim for IIED, Plaintiff must show: (1) extreme and outrageous 13 conduct by the Defendant with the intention of causing, or reckless disregard of the 14 probability of causing, emotional distress; (2) resulting severe or extreme emotional 15 distress by the Plaintiff; and (3) actual and proximate causation of the emotional distress 16 by the Defendant’s outrageous conduct. Cochran v. Cochran, 65 Cal. App. 4th 488, 494 17 (1998). “The alleged outrageous conduct ‘must be so extreme as to exceed all 18 bounds . . . usually tolerated in a civilized community.’” Id. In addition, the requisite 19 severe emotional distress must be such that “no reasonable [person] in civilized society 20 should be expected to endure it.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 21 1004 (1993). Plaintiff fails to allege any emotional distress or intentional conduct 22 causing that distress. Therefore, Plaintiff’s Fifth COA is DISMISSED with leave to 23 amend. 24 /// 25 5 Defendant also moves to strike Plaintiff’s request for restitution and punitive damages under Rule 12(f). Mot. Strike, ECF No. 12. Rule 12(f), however, is the improper vehicle by which to attack 26 damages allegations. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). Such attacks should instead be made pursuant to Rule 12(b)(6), especially when, as here, the sufficiency of the 27 pleading is at issue. Id. Accordingly, Defendant’s Motion to Strike, ECF No. 12, is DENIED as moot and the Court will analyze Defendant’s motion to dismiss portions of Plaintiff’s prayer for relief under 28 Rule 12(b)(6). 1 B. Defendant’s Motion to Dismiss Plaintiff’s Sixth COA under § 1981 is Granted With Leave to Amend 2 3 Defendant argues that Plaintiff’s Sixth COA fails because Plaintiff is not an 4 employee of Defendant and the FAC does not involve the making and enforcement of 5 contracts. Section 1981 provides “a federal remedy against discrimination in private 6 employment on the basis of race.” Johnson v. Railway Exp. Agency, Inc., 412 U.S. 454, 7 459-60 (1975). It further provides, in pertinent part, that all persons shall have the same 8 right “to make and enforce contracts, to sue, be parties, give evidence, and to the full 9 and equal benefit of all laws and proceedings for the security of persons and property as 10 is enjoyed by white citizens.” 42 U.S.C. § 1981. Section 1981 is not, however, “a 11 general proscription of racial discrimination . . . it expressly prohibits discrimination only 12 in the making and enforcement of contracts.” Peterson v. State of Cal. Dep’t of Corr. 13 and Rehab., 451 F. Supp. 2d 1092, 1101 (E.D. Cal. 2006), quoting Patterson v. McLean 14 Credit Union, 491 U.S. 164, 176 (1989). 15 Here, Plaintiff alleges that Defendant’s conduct “denied employment opportunities 16 providing substantial compensation and benefits” and “deprived [Plaintiff] an African 17 American Doctor of the same rights as are enjoyed by white citizens to the creation, 18 performance, enjoyment, and all benefits and privileges.” FAC, ECF No. 9, at 17-18. 19 First, Plaintiff fails to allege any discriminatory conduct or intent. To support his claim 20 Plaintiff merely states that because of his race, Defendant refused to fill prescriptions 21 written by him. Such conclusory assertions are insufficient to show that Plaintiff’s race 22 motivated Defendant’s decision, especially when it is undisputed that Defendant sent 23 Plaintiff a letter stating concern for prescription drug abuse as the reason behind the 24 refusal. 25 Second, Plaintiff argues that Defendant’s conduct affects Plaintiff’s existing and 26 future contractual relationships with patients. To establish a prima facie case of racial 27 discrimination in non-employment contracts, a plaintiff must show: “(1) [he] is a member 28 of a protected class, (2) [he] attempted to contract for certain services, and (3) [he] was 1 denied the right to contract for such services.” Lindsey v. SLT Los Angeles, LLC, 2 447 F.3d 1138, 1145 (9th Cir. 2006). Plaintiff does not assert any contractual 3 relationship between him and Defendant and instead alleges that Defendant’s conduct 4 interfered with his contractual relationships with third parties. These contract arguments, 5 however, were first addressed in Plaintiff’s Opposition and thus the Court cannot 6 consider these arguments at this time.6 Therefore, Plaintiff’s Sixth COA is DISMISSED 7 with leave to amend. 8 C. Defendant’s Motion to Dismiss Plaintiff’s Seventh COA under Title VII is Granted Without Leave to Amend 9 10 Next, Defendant seeks dismissal of Plaintiff’s Title VII claim because Plaintiff is 11 not an employee. The protections of Title VII apply only to employees. Murray v. 12 Principal Fin. Grp., Inc., 613 F.3d 943, 944 (9th Cir. 2010). Plaintiff fails to address this 13 contention in his Opposition. See ECF No. 18; Tatum v. Schwartz, No. Civ. S-06-01440 14 DFL EFB, 2007 WL 419463, at *3 (E.D. Cal. Feb. 5, 2007) (holding that the plaintiff 15 “tacitly concede[d]” that her claim should be dismissed by failing to address defendants’ 16 argument in her opposition, and granting defendants’ motion to dismiss with respect to 17 that claim). Plaintiff is an independent physician and has never worked for Defendant. 18 See generally FAC, ECF No. 9. Because Plaintiff is not an employee and fails to 19 address this in his Opposition, Plaintiff’s Seventh COA is DISMISSED without leave to 20 amend. 21 D. Defendant’s Motion to Dismiss Plaintiff’s Request for Restitution under the First COA is Granted With Leave to Amend 22 23 Defendant also seeks dismissal of Plaintiff’s request for restitution under the First 24 COA because Plaintiff failed to allege how Defendant was unjustly enriched at Plaintiff’s 25 expense. “Restitution under the UCL is limited to restoration of any interest in money or 26 property, real or personal, which may have been acquired by means of such unfair 27 6 Plaintiff also alleges for the first time in his Opposition that his chronic pain patients sign a written 28 contractual agreement if they are treated with opioid medication. Pl.’s Opp., ECF No. 18, at 8. 1 competition.” Stars & Bars, LLC v. Travelers Cas. Ins. Co. of Am., No. SACV-16-01397- 2 CJC(SSx), 2016 WL 9414093, at *2 (C.D. Cal. 2016) (internal quotation marks omitted). 3 The FAC fails to allege facts indicating that any money was paid to Defendant that 4 should be restored to Plaintiff. Therefore, Plaintiff’s request for restitution under the First 5 COA is DISMISSED with leave to amend. 6 E. Defendant’s Motion to Dismiss Plaintiff’s Request for Punitive Damages under the Sixth COA is Granted With Leave to Amend7 7 8 Punitive damages are available in an action brought under § 1981. See Johnson, 9 421 U.S. at 460. Punitive damages are available “when the defendant’s conduct is 10 shown to be motivated by evil motive or intent, or when it involves reckless or callous 11 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 12 (1971) (applying to 42 U.S.C. § 1983 claim); see Woods v. Graphic Commc’ns., 925 13 F.2d 1195, 1206 (9th Cir. 1991) (applying Smith to punitive damages under § 1981). 14 Here, Plaintiff fails to include any factual assertions supporting a conclusion that 15 Defendant acted with evil motive. Plaintiff’s conclusory statement that Defendant “acted 16 with malice or reckless indifference” is insufficient to justify an award of punitive 17 damages. Therefore, Plaintiff’s request for punitive damages under the Sixth COA is 18 DISMISSED with leave to amend. 19 20 CONCLUSION 21 22 For the reasons stated above, Defendant’s Motion to Dismiss Plaintiff’s Fifth COA, 23 Sixth COA, and requests for restitution and punitive damages, ECF No. 11, is 24 GRANTED with leave to amend but GRANTED without leave to amend as to Plaintiff’s 25 7 Plaintiff further requests punitive damages for his Fourth and Fifth COAs, both of which fall under state law. Defendant argues that Plaintiff failed to comply with California Code of Civil Procedure 26 § 425.13, which states a plaintiff cannot seek punitive damages from a healthcare provider on a claim for professional negligence without leave of court. There is a great jurisdictional split on whether this statute 27 applies in federal court, but both parties fail to address this issue. Additionally, Plaintiff fails to allege any malice, oppression, or fraud. Therefore, the Court DISMISSES this request with leave to amend, 28 specifically to address the applicability of this statute in federal court. 1 | Seventh COA. Defendant’s Motion to Strike, ECF No. 12, is also DENIED as moot. Not 2 | later than twenty (20) days following the date of this Memorandum and Order is 3 | electronically filed, Plaintiff may (but is not required to) file an amended complaint. If no 4 | amended complaint is filed within said twenty (20)-day period, without further notice to 5 | the parties, the causes of action dismissed by virtue of this Memorandum and Order will 6 | be deemed dismissed with prejudice. 7 IT |S SO ORDERED. 8 | Dated: February 18, 2020 10 MORRISON C. ENGLAND, J UNITED STATES DISTRI 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28