R. Bryan Harwell, United States District Judge
Three motions to dismiss are before the Court in this case. See ECF Nos. 20, 21, & 22. Defendants CVS Health Corporation,
For the reasons set forth below, the Court grants in part and denies in part the motions to dismiss.
Plaintiff filed his initial complaint on August 28, 2014, and an amended complaint on September 17, 2014. See ECF Nos. 1 & 9. Plaintiff's amended complaint asserted the following claims: violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; civil rights violations under 42 U.S.C. §§ 1981, 1985, 1986, and 2000d, et seq.; violation of Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116; and various state common law torts. See Amended Complaint, ECF No. 9. Plaintiff also sought declaratory and injunctive relief. See id. On November 13, 2014, the Corporate Defendants, Store-Level Defendants, and Above-Store Defendants filed motions to dismiss, arguing Plaintiff's amended complaint failed to state claims upon which relief could be granted and that the Court lacked personal jurisdiction over two of the defendants, CVS Health Corporation and Mark Cosby. See ECF Nos. 20, 21, & 22. The facts, as alleged in Plaintiff's amended complaint, are as follows.
Plaintiff, an African-American male, joined the United States Marine Corps in 2001 after the events of September 11. Amended Complaint at 2; id. at ¶ 45. In 2002, he was diagnosed with Post-Traumatic Stress Disorder (PTSD), and the Marine Corps discharged him with a service-related disability. Id. at ¶ 47. Plaintiff's PTSD symptoms include extreme agoraphobia, for which he wears a sports towel draped over his head as a psychological coping mechanism. Id. at ¶ 47-48. When Plaintiff encounters multiple unknown persons, he experiences anxiety and panic attacks. Id. at ¶ 55. By 2010, circumstances required Plaintiff to accept Veterans Administration benefits for service-connected disabilities. Id. at ¶ 49. He also was diagnosed with major depression, severe anxiety, and suicidal ideation. Id. at ¶ 50.
Plaintiff's medical doctors chose a course of treatment for Plaintiff's conditions that would allow him to "gradually regain his place in society" and "reacquaint him with social interaction and/or improve his social skills." Id. at ¶¶ 52-53. Doctors believed places of public accommodation would allow Plaintiff to enter the establishment during non-business hours so that he could avoid other customers. Id. Doctors chose this course of treatment so that Plaintiff would be able to request modest accommodations under the Americans with Disabilities Act. Id.
In or around February 2012, based on his Veterans Administration diagnosis of PTSD with accompanying extreme agoraphobia, Plaintiff requested reasonable accommodation from the South Carolina Department of Motor Vehicles (SCDMV) so that he could renew his driver's license. Id. at ¶ 56. The SCDMV accommodated Plaintiff and allowed him to renew his driver's license during non-business hours at an office located in Kingstree, South Carolina. Id. at ¶ 57.
Based on the SCDMV's "warm" response to his request for accommodation, Plaintiff and his doctors agreed Plaintiff should request similar accommodations from a "grocery store, clothing store, hardware store, or other sales or rental establishment." Id. at ¶ 59. Sometime between August and September 2013, Plaintiff requested permission to shop after hours at a Best Buy electronics store located in North Charleston, South Carolina. Id. at ¶¶ 60-61. Best Buy permitted Plaintiff to shop after hours, asking that he provide an advance notice of one day to ensure store personnel would be available to fulfill his requested accommodation. Id. at ¶ 61.
Besides the SCDMV and Best Buy, Plaintiff requested and received accommodations from grocery stores and pharmacies located in other parts of South Carolina, including Columbia, Myrtle Beach, Charleston, Summerville, and North Charleston. Id. at ¶ 62. Those retail establishments included Publix Food and Pharmacy, Food Lion, Delta Pharmacy, Costco, Sam's Club, and Family Dollar. Id.
On or around August 27, 2013, Plaintiff contacted CVS Store #7159, spoke with store manager Defendant Bill Poland, explained to Poland the nature of his disability and need for reasonable accommodation, and requested permission to shop after hours. Id. at ¶ 65. Plaintiff asked if CVS would lock the door at closing time to prevent other customers from entering the store while he was shopping. Id. He also asked if store employees could divert other customers to a portion of the store so that he could "exit and escape the situation of being around too many customers." Id. Citing store policy, Poland denied Plaintiff's requests. Id.
The next day, August 28, Plaintiff again contacted CVS Store #7159, spoke to Defendant John Doe #1, and explained his PTSD diagnosis and related agoraphobia symptoms. Id. at ¶ 66. John Doe #1 "giggled" and asserted store policy prohibited customers from shopping after hours and required all employees to exit the store at closing. Id. Plaintiff later obtained video evidence showing customers shopping after hours and managers present in various CVS stores for over twenty minutes after closing time. Id.
Also on August 28, Plaintiff contacted CVS Store #7568 in Goose Creek, South Carolina, spoke with store manager Defendant Travis Combs, explained the nature of his PTSD-related disability, and requested permission to shop and fill his prescriptions after hours. Id. at ¶ 67. Combs denied Plaintiff's request, citing company policy, loss prevention, and safety concerns. Id.
On August 29, 2013, Plaintiff submitted a complaint to CVS Customer Care via a 1-800 telephone number and spoke to a representative named Abby. Id. at 68. Plaintiff explained his disability to Abby and asked her if CVS policy permitted him to shop for approximately ten minutes after the store closed and after the front doors are locked so that other customers
On September 4, 2013, Plaintiff contacted CVS Store #563, spoke to store manager Defendant Ginny McClure, explained his disability, and requested permission to shop after hours. Id. at ¶ 70. McClure refused the request for accommodation. Id. The same day, Plaintiff contacted CVS Store #7305 and spoke to store manager Defendant Ashley Gates. Id. at ¶ 71. He informed Gates of his disability, stated he would like to shop in the CVS, and explained he needed prescriptions filled. Id. Defendant Gates denied Plaintiff's request for accommodation, citing "`safety reasons'" as the basis for denial. Id.
Also on September 4, Plaintiff contacted CVS Store #563 for a second time and spoke with Defendant Xio Sosa, who identified herself as the manager. Id. at ¶ 72. He explained his disability and requested accommodation, which Sosa refused. Id. Sosa asserted she could not help Plaintiff and that she would not be paid "`to stay here after 10 o'clock.'" Id. Defendant Sosa asked Plaintiff, "`[A]re you the same black guy that contacted us before?'" Id. After Plaintiff answered in the affirmative, Defendant Sosa stated, "`I don't trust you and your request seems suspicious.'" Id.
On September 5, 2013, Plaintiff and an acquaintance went to CVS Store #7697 to request accommodations.
The same day, Plaintiff contacted CVS Store #8492 and spoke with Defendant Joe Cessna, who identified himself as the manager. Id. at ¶ 74. Plaintiff explained his disability to Cessna and requested a reasonable accommodation, but Cessna stated the alarm activates when the door closes and locks, so he could not allow Plaintiff to shop after hours. Id. Plaintiff informed Cessna that, as manager, he had the authority to accommodate Plaintiff and that other, non-CVS stores had provided Plaintiff the requested accommodation: to shop after store hours. Id. Cessna replied, "`Why do so many blacks think they are entitled to special treatment so often?'" and informed Plaintiff that he could not help him. Id.
Also on September 5, Plaintiff contacted CVS Store #7386 and spoke to Defendant Jim Keeler, who identified himself as the manager. Id. at ¶ 75. Plaintiff explained his disability and requested accommodations for it. Id. Keeler laughed and made the following statements: (1) "`I am not allowed to break CVS policies because of your PTSD, regardless if you're a Marine or not, and our whole district and other districts know some black guy wearing a towel was trying to get a special accommodation but none of them are going to help you'"; and (2) "`[Y]ou should choose a different chain store.'" Id. Plaintiff informed Keeler that CVS allows managers
After his experience with Defendants Cessna and Keeler, and after consulting with his doctors, Plaintiff decided to request accommodations only from CVS managers who had stores located outside the greater Myrtle Beach area and who were either females or non-white males. Id. at ¶ 76.
Between mid-September to mid-October 2013, Plaintiff contacted CVS Store #4399 and spoke to Defendant Jane Doe #2, who identified herself as the store manager. Id. at 77. Plaintiff explained his disability and requested an accommodation. Id. Jane Doe #2 explained that "`because of the area the store is in, I won't accommodate you,'" and she cited CVS policies prohibiting any customer from remaining in the store past closing time. Id. Plaintiff contacted CVS Store #4114 and spoke with Defendant Harris Chisholm, who identified himself as the store manager. Id. at ¶ 78. Plaintiff explained his disability to Chisholm and requested an accommodation to shop after closing time, but Chisholm denied Plaintiff's request, citing safety reasons. Id.
Plaintiff then attempted to obtain reasonable accommodation by making a request in person. Id. at ¶ 79. He drove to CVS Store #3199 in Columbia, South Carolina, and while outside the CVS, asked a passerby if they would ask the manager to exit the store and meet with him outside. Id. The manager, Defendant Natasha Pendergrass, came outside, met with Plaintiff beside his vehicle, and identified herself. Id. Plaintiff explained his disability, offered medical documents as proof, and asked Pendergrass if the location would allow him to shop after hours for approximately ten minutes. Id. at ¶ 80. Pendergrass denied Plaintiff's request, citing CVS policy. Id. Plaintiff informed Pendergrass that she had the authority to accommodate his request because she was the store manager. Id. Pendergrass responded that while she may have the authority, she did not feel comfortable or safe allowing Plaintiff to shop after hours with the doors locked while he was wearing a sports towel draped over his head. Id. Plaintiff explained what living with his disability was like and expressed frustration with the fact that nobody at CVS was willing to help him. Id.
Pendergrass began questioning Plaintiff about his disability and the sports towel that he was wearing on his head. Id. at ¶ 81. She reached for the towel, saying, "`What's up with the towel? It's kinda scaring me.'" Id. She attempted to remove the towel from Plaintiff's head, commented on his physique, said "`toughen up, boy, you have all those big muscles,'" and shook him by the shoulder. Id. at ¶ 81-82. Pendergrass called over a group of four or more people who were approaching the CVS store. Id. at ¶ 82. Plaintiff begged her to stop, explaining he may suffer an anxiety attack or worse and was embarrassed by his reactions to crowds. Id. Pendergrass remarked, "`Listen here, boy, you need to toughen up. Why are you so nervous?'" Id. Plaintiff told her, "`I don't think your boss would like what you're doing.'" Id. She replied, "`Well, our district manager already knows about your contact with other stores and we already discussed what I was going to do if you came to my store.'" Id.
After the incident with Pendergrass, Plaintiff lodged a complaint with CVS Customer Relations via a 1-800 telephone number. Id. at ¶ 83. Plaintiff spoke to a customer relations representative and described how CVS personnel had treated him. Id. The representative apologized and offered Plaintiff a $25 gift card. Id. Plaintiff told the representative that the gift card was an insult, so the representative said a "`team'" of people would review Plaintiff's complaint and contact him soon; as of the filing date of the amended complaint, Plaintiff had received no contact. Id.
Since the incident with Pendergrass, Plaintiff has experienced a multitude of feelings including humility, anger, and endured traumatic stress manifesting in flashbacks. Id. at ¶ 85. Plaintiff has also experienced tension headaches, insomnia, panic attack, nervousness, nausea, and dizziness, and has been prescribed multiple medications. Id.
A white female friend of Plaintiff's was outraged by CVS's treatment of him, so she decided to help him test the veracity of CVS's purported inability to make reasonable accommodations. Id. at ¶ 86. On October 16, 2013, the friend called CVS Store #7305 and spoke to the store manager, Defendant Gates. Id. at ¶ 87. The friend told Gates she had been diagnosed with agoraphobia and had anxiety issues, and she asked to shop for approximately fifteen minutes after closing time. Id. Gates permitted Plaintiff's white female friend to enter the store after it was closed and locked. Id.
On October 17, 2013, the white female friend called CVS Store #3199 and spoke to Pendergrass. Id. at ¶ 88. She informed Pendergrass that she had a severe case of anxiety and agoraphobia. Id. The friend requested permission to shop for ten to thirty minutes after hours. Id. Defendant Pendergrass stated, "`Yes, you sound like a sweet girl so, yes, that's not a problem; we will gladly accommodate you. Just call before you come so that I could inform other staff members, and be here right at closing time.'" Id. Additionally, Plaintiff's white female friend called CVS Store #563 and spoke with Sosa, and also called Store #7386 and spoke with Keeler; she requested permission from Sosa and Keeler to shop after hours with the doors locked to prevent other customers from entering the store. Id. at ¶¶ 89-90. Sosa and Keeler both stated they would accommodate her. Id.
On or about April 9, 2014, Plaintiff sent a letter to CVS General Counsel, Thomas Moriarty, and Poland (manager of CVS Store #7159) in which he discussed his requests for accommodation and repeated denials of accommodation by CVS personnel. Id. at ¶ 91. Defendant John Robinson responded to Plaintiff's letter. Id. at ¶ 92. In his written response, Defendant Robinson identified himself as a district manager and stated Plaintiff's request that the store remain open so that he could shop without other customers present was "`not a necessary or reasonable accommodation, would impose an undue hardship on
On or about May 19, 2014, a gray truck flashing its headlights pursued Plaintiff while he was driving near his home. Id. at ¶ 95. Thinking something was wrong with his vehicle, Plaintiff pulled to the side of the road. Id. The truck parked behind Plaintiff's car. Id. A white male driver exited the truck and began threatening Plaintiff about the complaints Plaintiff had lodged with CVS. Id. The driver warned, "`I promise you will get hurt if you file a lawsuit.'" Id. Plaintiff filed a police report after the incident but was unable to identify the driver. Id. at ¶ 96.
Finally, Plaintiff alleges the Above-Store Defendants — President Mark Cosby, Vice President David Purdy, Regional Managers Darren Twedell and Shelly Edge, and District Managers Robinson, Paul Anderson, Ronald Elliot, and Matt Lesniak — cultivated a climate of hostility and discrimination directed against a disabled African-American male seeking reasonable accommodation. Id. at ¶ 98.
Plaintiff asserts the following causes of action: (1) discrimination and failure to accommodate in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., as to all Defendants; (2) racial discrimination in violation of 42 U.S.C. § 1981, as to all Defendants; (3) conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3), as to all Defendants; (4) failure to prevent deprivation of rights in violation of 42 U.S.C. § 1986, as to all Defendants; (5) discrimination in a program or activity that receives federal financial assistance in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., as to the Corporate Defendants; (6) discrimination based on race, gender, and disability in violation of Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116, as to the Corporate Defendants; (7) assault as to the Corporate Defendants, Defendant Pendergrass, and one or more John and Jane Doe defendants; (8) battery as to the Corporate Defendants, Defendant Pendergrass, and one or more John and Jane Doe defendants; (9) false imprisonment as to the Corporate Defendants, Defendant Pendergrass, and one or more John and Jane Doe defendants; (10) intentional infliction of emotional distress as to the Corporate Defendants, Pendergrass, Keeler, and at least some of the John and Jane Doe defendants; (11) civil conspiracy as to all Defendants; (12) negligence as to all Defendants; (13) negligent supervision and/or retention as to all Defendants; (14) intentional interference with contract and/or intentional interference with prospective contractual relations as to all Defendants; (15) unfair trade practices as to the Corporate Defendants; (16) request for declaratory relief as to all Defendants; and (17) request for injunctive relief as to all Defendants.
When a defendant challenges a court's personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff has "the burden of proving" jurisdiction
When deciding a motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pled facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.2009). A complaint must state a "`plausible claim for relief'" to survive a 12(b)(6) motion to dismiss. Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Court will not dismiss the plaintiff's complaint so long as he provides adequate detail about his claims to show he has a "more-than-conceivable chance of success on the merits." Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 396 (4th Cir.2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S.Ct. 1955. A complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. However, when a plaintiff's assertions "amount to nothing more than a `formulaic recitation of the elements'" of a cause of action, the Court may deem such allegations conclusory and not entitled to an assumption of veracity. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Defendants CVS Health Corporation and Mark Cosby move to dismiss Plaintiff's claims on the basis that the Court lacks personal jurisdiction over them. See ECF Nos. 20 & 22. They argue they do not have sufficient minimum contacts with
Two conditions must be satisfied for a plaintiff to assert personal jurisdiction over a defendant. Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir.2001). "First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and, second, the exercise of personal jurisdiction must also comport with Fourteenth Amendment due process requirements." Id. South Carolina's long-arm statute has been construed to be coextensive with, and reach the outer limits allowed by, the Due Process Clause. ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th Cir.2012) (citing Cockrell v. Hillerich & Bradsby Co., 363 S.C. 485, 491, 611 S.E.2d 505, 508 (2005) (construing S.C.Code Ann. § 36-2-803 (2003))). Therefore, "the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one." Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir.1996). Accordingly, the scope of the inquiry is whether a defendant has "certain minimum contacts" with the forum "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). The analytical framework for determining whether minimum contacts exist differs according to which type of personal jurisdiction — general or specific — is alleged. See generally ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623-24 (4th Cir.1997).
If the defendant's contacts with the forum state provide the basis for the suit, those contacts may establish specific jurisdiction. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397 (4th Cir.2003). Under the Fourth Circuit's three-prong test for specific jurisdiction, a court must consider "(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiff['s] claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable." Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir.2009). South Carolina courts may exercise specific jurisdiction over a defendant pursuant to the state long-arm statute, depending upon the defendant's contacts with South Carolina. Cribb v. Spatholt, 382 S.C. 490, 498, 676 S.E.2d 714, 718 (Ct.App.2009). Because the South Carolina long-arm statute is coextensive with the Due Process Clause, the sole question on a motion to dismiss for lack of personal jurisdiction is whether the exercise of personal jurisdiction would violate due process. Tuttle Dozer Works, Inc. v. Gyro-Trac (USA), Inc., 463 F.Supp.2d 544, 547 (D.S.C.2006); see also Cockrell, 363 S.C. at 491, 611 S.E.2d at 508 ("Because South Carolina treats its long-arm statute as coextensive with the due process clause, the sole question becomes whether the exercise of personal jurisdiction would violate due process.").
When the defendant's contacts with the forum state do not form the basis for the suit, personal jurisdiction over the defendant must arise from the defendant's general, more persistent, but unrelated contacts with the state — known as general jurisdiction. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.2002). For general jurisdiction to
The party seeking to invoke personal jurisdiction over a nonresident defendant bears the burden of proving the existence of personal jurisdiction. ESAB Grp., Inc. v. Centricut, LLC, 34 F.Supp.2d 323, 328 (D.S.C.1999). At the pretrial stage, the burden of proving personal jurisdiction over a nonresident is met by a prima facie showing of jurisdiction either in the complaint or in affidavits. Id. In determining whether a prima facie showing has been made, the court may consider the uncontroverted allegations in the plaintiff's complaint. Wolf v. Richmond Cnty. Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984). However, whenever a defendant's sworn affidavit contests the allegations in the complaint, the plaintiff can no longer rest on those allegations. See id. Instead, the plaintiff bears the burden to present an affidavit or other evidence showing jurisdiction exists over the nonresident defendant. See id.; Clark v. Remark, 993 F.2d 228, 1993 WL 134616, at *2 (4th Cir.1993) (unpublished table decision).
For the reasons stated below, the Court finds it lacks personal jurisdiction over Defendants CVS Health Corporation and Mark Cosby.
In support of its motion to dismiss, Defendant CVS Health Corporation (also referred to as "CVS Health") submitted an affidavit from Thomas S. Moffatt, who is the vice president, corporate secretary, and assistant general counsel of the corporate services division of CVS Pharmacy, Inc. See ECF No. 20-2. Moffatt states in his affidavit that he is familiar with the
Plaintiff contends the Court has personal jurisdiction over CVS Health Corporation pursuant to the South Carolina long-arm statute.
The Court finds it has neither specific nor general personal jurisdiction over CVS Health Corporation. Regarding specific jurisdiction, the Court must consider (1) the extent to which CVS Health purposefully availed itself of the privilege of conducting activities in South Carolina; (2) whether Plaintiff's claims arose out of those activities; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable. See Consulting
Although Plaintiff does not argue the Court has general personal jurisdiction over CVS Health, the Court has conducted the appropriate inquiry and finds no such jurisdiction exists. Moffatt's affidavit establishes CVS Health is a holding company incorporated in Delaware with its principal place of business in Rhode Island. Plaintiff has not offered sufficient evidence showing CVS Health has an enduring relationship with South Carolina, as indicated by contacts that are substantial, continuous and systematic, so as to render it essentially at home in this forum. See Daimler AG, 134 S.Ct. at 761. The Court therefore concludes it lacks general personal jurisdiction over CVS Health Corporation.
In support of his motion to dismiss, Defendant Mark Cosby submitted an affidavit in which he states he (1) is currently a resident of Massachusetts; (2) was a resident of Massachusetts and had an office located in Rhode Island when he was president of CVS Pharmacy; (3) may have visited South Carolina for business purposes on rare and isolated instances but cannot specifically recall if or when he made any such visits; (4) has never resided in South Carolina and has never owned any real estate here; and (5) has never had any contact with the Plaintiff and had never heard of him until being named a defendant in the lawsuit. ECF No. 22-3 at 2-3. Plaintiff does not rebut Cosby's affidavit with any affidavits or other admissible evidence. Instead, Plaintiff relies on his amended complaint and asserts he has alleged sufficient facts demonstrating Cosby is subject to the Court's jurisdiction. ECF No. 29-1 at 4-6. Plaintiff also contends the South Carolina Unfair Trade Practices Act
The Court finds Plaintiff has not met his burden of establishing personal jurisdiction over Cosby because Plaintiff has presented no evidence to rebut Cosby's sworn affidavit indicating the requisite minimum contacts do not exist. See Wolf, 745 F.2d at 908 (explaining that when a defendant's sworn affidavit contests the allegations in the complaint, the plaintiff can no longer rest on those allegations and must instead present an affidavit or other evidence showing personal jurisdiction is proper). Cosby's contact with South Carolina is remote at best and does not satisfy the minimum contacts standard, and Plaintiff's argument regarding the South Carolina Unfair Trade Practices Act is meritless. The exercise of personal jurisdiction over a defendant must comport with due process, and in the absence of minimum contacts with the South Carolina, a due process violation occurs. Nolan, 259 F.3d at 215. As to
For the foregoing reasons, the Court grants CVS Health Corporation's and Cosby's motions to dismiss for lack of personal jurisdiction and dismisses them from all causes of action in the amended complaint.
Plaintiff asserts a claim against all defendants under 42 U.S.C. § 12182 of the Americans with Disabilities Act ("ADA") based on their alleged failure or refusal to allow him to shop after hours with the door locked to ensure that other customers would not enter the store while he was shopping. Amended Complaint at ¶¶ 114-39. Defendants argue Plaintiff's ADA claim should be dismissed because (1) Plaintiff has not alleged sufficient facts showing he suffers from a disability within the meaning of the ADA; (2) Plaintiff lacks standing under Article III of the United States Constitution because he was not actually denied the full and equal enjoyment of CVS's goods and services and therefore has not suffered an injury in fact; (3) even if Plaintiff had standing, no barrier obstructed his ability to access CVS's goods and services based on his alleged disability; (4) Plaintiff's request for segregated accommodation is inconsistent with the ADA; and (5) CVS provided Plaintiff with reasonable alternatives (to his request to shop after hours) that would have allowed him to shop at CVS stores. ECF No. 20-1 at 7-12; ECF No. 21-1 at 3-4; ECF No. 22-1 at 2-4. Defendants contend Plaintiff's complaint should be construed either (1) as a challenge to the sufficiency of the goods and services provided by CVS — not as a challenge alleging a denial of goods and services — or (2) as a complaint that CVS did not provide Plaintiff with his preferred accommodation; Defendants maintain neither claim is sufficient to state a claim under the ADA. ECF No. 20-1 at 11-12.
Congress enacted Title III of the ADA to facilitate disabled individuals' access to places of public accommodation. Montalvo v. Radcliffe, 167 F.3d 873, 876 (4th Cir.1999); see 42 U.S.C. § 12101(a)-(b) (containing the congressional findings and purpose for the ADA). Consistent with this goal, the Act contains the following broad statement:
42 U.S.C. § 12182(a). Title III defines discrimination to include "a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter
To state a claim under Title III, a plaintiff must allege (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the defendant denied the plaintiff public accommodations because of his disability. 42 U.S.C. §§ 12182(a)-(b); see Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir.2010); Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir.2008). To establish Article III standing, a plaintiff must demonstrate that he has suffered an injury in fact, that the injury is traceable to the defendant's challenged conduct, and that the injury can be redressed by a favorable decision. Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F.Supp.2d 998, 1001 (W.D.N.C.2011) (case involving the ADA), aff'd, 474 Fed.Appx. 369 (4th Cir.2012). Monetary damages are not available under Title III, but injunctive relief is available. Gregory v. Otac, Inc., 247 F.Supp.2d 764, 770 (D.Md.2003). To have standing to obtain injunctive relief, a plaintiff must "demonstrate a likelihood that he will suffer future discrimination at the hands of the defendant." Id.
Plaintiff alleges Defendants violated the following subsections of 42 U.S.C. § 12182: (1) § 12182(b)(1)(A)(i), by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity; (2) § 12182(b)(1)(A)(ii), by denying Plaintiff, on the basis of his disability, the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation equal to that afforded other individuals; (3) § 12182(b)(1)(A)(iii), by providing Plaintiff, on the basis of his disability, with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals; (4) § 12182(b)(1)(B), by not providing Plaintiff an accommodation in the most integrated setting appropriate for his needs; (5) § 12182(b)(1)(D), by utilizing standards, criteria, or methods of administration that have the effect of discriminating on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control; (6) § 12182(b)(1)(E), by denying goods, services, facilities, privileges, advantages, accommodations, or other opportunities to Plaintiff — with whom Defendants have a relationship or association — because of his known disability; (7) § 12182(b)(2)(A), by engaging in the specific prohibitions of § 12182 and other provisions of the ADA; and (8) § 12182(b)(2)(A)(iv)-(v), by failing to demonstrate the removal of any barrier is not readily achievable. Amended Complaint at ¶¶ 128-135.
Having thoroughly reviewed the facts alleged in the complaint, the Court does not see how subsections 12182(b)(2)(A)(iv)-(v) (denial of access based on architectural barriers) apply to Plaintiff's factual allegations. His allegations instead suggest a narrower claim based on Defendants' alleged failure to provide a reasonable accommodation for Plaintiff — namely, not allowing him to shop after hours with the door locked outside the presence of other customers — so that he could enjoy CVS's goods and services without experiencing the anxiety and panic attacks that occur when he confronts crowds of people. This aspect of Plaintiff's claim appears to fall under § 12182(b)(2)(A)(ii), which provides "discrimination includes ... a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate
"To recover under section 12182(b)(2)(A)(ii) in a retail sale case, a plaintiff must show that he comes within the protections of the ADA as a person with a disability and that the defendant's establishment is subject to the mandates of Title III as a place of public accommodation." Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir.2003) (internal citation omitted). The plaintiff must also show four additional requirements, including
Id. (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n. 38, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001)). If the plaintiff makes this six-part showing, the defendant must make the modification unless it proves either that doing so would alter the fundamental nature of its business, see PGA Tour, 532 U.S. at 683 & 683 n. 38, 121 S.Ct. 1879, or that the requested modification poses a direct threat to the health or safety of others, Bragdon v. Abbott, 524 U.S. 624, 648-49, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The ADA does not require a public entity to provide a disabled individual with the accommodation of his choice. McElwee v. Cnty. of Orange, 700 F.3d 635, 641 (2d Cir.2012).
Regarding Defendants' alleged failure to make reasonable accommodations so that Plaintiff could use CVS's goods and services, Plaintiff bears the burden of proving a modification was requested and is reasonable. Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997). The plaintiff satisfies this burden if he introduces evidence showing the requested modification is reasonable in the general sense — "that is, reasonable in the run of cases." Id. Although the defendant may introduce evidence showing the plaintiff's requested modification is not reasonable, the plaintiff has the ultimate burden of proof on the issue of reasonableness. Id.
Besides the five arguments summarized at the beginning of section (II) of this order, Defendants argue the Above-Store Defendants and Store-Level Defendants, who are individuals, are not proper defendants under Title III. ECF No. 21-1 at 3-4; ECF No. 22-1 at 2. Although the Fourth Circuit has not decided whether individuals may be sued under Title III, "[n]early every court that has decided the issue of individual liability under Title III has found that individuals can be held responsible for violations of these prohibitions against discrimination if they own, lease, or operate a place of public accommodation." Clement v. Satterfield, 927 F.Supp.2d 297, 313 (W.D.Va.2013) (alteration in original). "[T]he question of whether a person is a proper defendant under [Title III] turns not on whether the defendant is a person, partnership, corporation or other entity but, instead, whether the defendant owns, leases or operates a place of public accommodation within the meaning of the ADA." Id. at 313-14 (alterations in original) (emphasis added). Thus, the relevant inquiry is whether the individual defendants operated the CVS stores that allegedly denied Plaintiff's request for
Under Title III, the term "operate" means "to put or keep in operation," "to control or direct the functioning of," or "to conduct the affairs of; manage." Id. at 314. "[C]ourts have focused on the issue of control in determining whether an individual defendant `operated' a place of public accommodation." Id. Courts have interpreted the phrase "to operate" to mean "being in a position of authority and having the power and discretion to perform potentially discriminatory acts[,] where the discriminatory acts are the result of exercise of the individual's own discretion, and not merely the implementation of institutional policies or the mandates of superiors." Id. (internal quotation marks omitted); see id. at 314-15 (stating that in other words, operate "implies the performance of some sort of function, in conjunction with a degree of sanctioned authority"). An individual may be liable as an operator of a public accommodation if (1) he or she is in a position of authority; (2) within the scope of this authority, the individual has both the power and discretion to perform potentially discriminatory acts; and (3) the discriminatory acts result from individual exercising his or her own discretion, not from the implementation of institutional policy or a superior's mandate. Id. at 315.
At this early stage of the proceedings, the Court finds Plaintiff has alleged facts sufficient to state a claim for discrimination under Title III that is plausible on its face against the remaining Corporate Defendants (South Carolina CVS Pharmacy, LLC and CVS Pharmacy, Inc.) and the Store-Level Defendants who denied Plaintiff's request for accommodations. Plaintiff has alleged that he is disabled within the meaning of the ADA, that the remaining Corporate Defendants and the Store-Level Defendants own, lease, or operate a place of public accommodation, and that these defendants denied him public accommodations and access to CVS's goods and services because of his disability. Whether Plaintiff's requested modification was reasonable, and whether it was appropriate to the extent it required segregated accommodation, are issues more properly reserved for summary judgment, at which stage Plaintiff will bear the burden to prove reasonableness. See Johnson, 116 F.3d at 1059.
As to the Above-Store Defendants, however, Plaintiff's allegations do not indicate any of them had direct contact with him. Besides the sole reference to Defendant Robinson, who simply authored a letter explaining the reasons for CVS's refusal to accommodate Plaintiff's after-hours shopping request, Plaintiff has alleged no plausible facts creating a reasonable inference that the Above-Store Defendants engaged in any discriminatory conduct violating the ADA. Plaintiff's ADA claim against the Above-Store Defendants warrants dismissal under Rule 12(b)(6).
In light of the foregoing, the Court denies the remaining Corporate Defendants' and Store-Level Defendants' motions to dismiss Plaintiff's ADA claim, but grants the Above-Store Defendants' motions to dismiss Plaintiff's ADA claim.
Plaintiff brings a claim against all defendants under 42 U.S.C. § 1981, which allows claims by individuals who are discriminated against because of their race. Amended Complaint at ¶¶ 140-64. To establish a prima facie case of discrimination in a § 1981 cause of action relating to the purchase of goods or services, Plaintiff, an African-American, must establish
Defendants argue Plaintiff cannot state a claim under § 1981 because he was not denied the ability to purchase CVS's goods and services. ECF No. 20-1 at 12-14; ECF No. 21-1 at 5; ECF No. 22-1 at 2. They also argue Plaintiff's complaint does not contain allegations sufficient to hold the Store-Level or Above-Store Defendants liable under § 1981. ECF No. 21-1 at 5-6; ECF No. 22-1 at 2-4.
The Court finds that at this stage of the proceedings, Plaintiff has pleaded sufficient facts to state a plausible claim under § 1981 against the remaining Corporate Defendants and the following Store-Level Defendants: Gates, Pendergrass, Sosa, and Keeler. First, Plaintiff is African-American and therefore is a member of a protected class. See 42 U.S.C. § 1981(a) (granting all people within the United States "the same right ... to make and enforce contracts ... as is enjoyed by white citizens"). Second, Plaintiff sought to enter into a contractual relationship with CVS when he attempted to shop there and have prescriptions filled. Third, Plaintiff's allegations indicate he met the ordinary requirements to pay for and receive goods, such as his prescription refills, at any one of the CVS retail establishments. Finally, the remaining Corporate Defendants, Gates, Pendergrass, Sosa, and Keeler denied Plaintiff the opportunity to enter into a contract with CVS even though four CVS stores afforded such an opportunity — in actuality, opportunities — to Plaintiff's white female friend. See Williams, 372 F.3d at 667-68. The Court therefore denies the motions to dismiss Plaintiff's § 1981 claim against the remaining Corporate Defendants (South Carolina CVS Pharmacy, LLC and CVS Pharmacy, Inc.), Gates, Pendergrass, Sosa, and Keeler.
However, regarding the Above-Store Defendants and the remaining Store-Level Defendants (Brescia, Cessna, Chisholm, Combs, McClure, Poland, Webb, John Doe #1, Jane Doe #1, and Jane Doe #2), the Court finds Plaintiff has failed to plead sufficient facts to support a reasonable inference that these particular defendants committed any actions in violation § 1981. Plaintiff's allegations relating to these defendants do not fulfill the fourth prong of the Williams test because he does not allege any of them treated him differently from white customers. The Court therefore grants these defendants' motions to dismiss Plaintiff's § 1981 claim.
Plaintiff brings a claim against all Defendants under 42 U.S.C. § 1985(3). Amended Complaint at ¶¶ 165-87. Defendants argue Plaintiff has neither sufficiently pled the prima facie elements of a § 1985(3) claim, nor alleged a meeting of the minds to state a claim for conspiracy. ECF No. 20-1 at 15, 17-18. They also argue the intracorporate conspiracy doctrine bars Plaintiff's § 1985(3) claim. ECF No. 20-1 at 15-17.
Section 1985(3) permits claims by plaintiffs who are injured by a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). To state a claim under § 1985(3), a plaintiff must prove (1) a conspiracy by two or more persons, (2) who are motivated by a specific, class-based, invidiously discriminatory purpose to (3) deprive the plaintiff of the equal enjoyment of rights secured by law to all, (4) that results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir.2011). "Moreover, the law is well settled that to prove a section 1985 `conspiracy,' a claimant must show an agreement or a `meeting of the minds' by defendants to violate the claimant's constitutional rights." Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995).
The intracorporate conspiracy doctrine, also known as the intracorporate immunity doctrine, "recognizes that a corporation cannot conspire with its agents because the agents' acts are the corporation's own." Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 352 (4th Cir.2013) (applying the doctrine in the context of a § 1985(3) action). "As such, suing the agents individually does not destroy the immunity granted under the doctrine." Id. at 353 (internal quotation marks omitted). The doctrine does not apply if a coconspirator has a personal stake independent of his relationship to the corporation or if the corporation did not authorize the agent's acts. Id.
Plaintiff contends the intracorporate conspiracy doctrine does not apply in this case because of the allegations concerning non-CVS individuals, namely the group of four or more people who allegedly surrounded him at the behest of Defendant Pendergrass and the white male truck driver who accosted and threatened him. ECF No. 39 at 14-16. Plaintiff also argues the intracorporate conspiracy doctrine is inapplicable because he has alleged the CVS employees were dominated by personal motives or acted outside the scope of their corporate duties. Id. at 16.
The Court finds Plaintiff has alleged a prima facie claim under 42 U.S.C. § 1985(3) against the remaining Corporate Defendants and the Store-Level Defendants, but not against the Above-Store Defendants. The complaint contains sufficient facts alleging the remaining Corporate Defendants and the Store-Level Defendants overtly acted together to impede Plaintiff, an African-American, from shopping in CVS stores, which all people can patronize by law, and caused him to suffer physical and mental anguish. These defendants may very well be entitled to summary judgment based on the intracorporate conspiracy doctrine, failure to establish a meeting of the minds, or some
Plaintiff has, however, failed to plead any facts creating a reasonable inference that the Above-Store Defendants participated in a conspiracy against him with a class-based discriminatory motive. Thus, the complaint does not contain sufficient facts alleging the Above-Store Defendants conspired to deprive Plaintiff of his constitutional rights under § 1985(3).
In conclusion, the Court denies the motions to dismiss the § 1985(3) claim filed by the remaining Corporate Defendants and the Store-Level Defendants. The Court grants the Above-Store Defendants' motion to dismiss the § 1985(3) conspiracy claim.
Plaintiff brings a claim against all Defendants under 42 U.S.C. § 1986, which provides a cause of action against anyone who has "knowledge that any of the wrongs conspired to be done, and mentioned in [42 U.S.C. § 1985], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do." 42 U.S.C. § 1986; see Amended Complaint at ¶¶ 188-95. "A cause of action based upon § 1986 is dependent upon the existence of a claim under § 1985." Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
Defendants argue Plaintiff's § 1986 claim fails because he cannot establish a § 1985(3) claim and because he has not pleaded they had knowledge of any alleged conspiracy to harm him. ECF No. 20-1 at 18-19; ECF No. 21-1 at 7; ECF No. 22-1 at 2-4. Again, the Court notes that while Defendants may be entitled to summary judgment on Plaintiff's § 1985(3) claim and thus entitled to it on his § 1986 claim, Plaintiff has alleged sufficient facts establishing the remaining Corporate Defendants and the Store-Level Defendants had knowledge of a race-based conspiracy against Plaintiff and had the power to prevent or aid in the prevention of it. See 42 U.S.C. § 1986. However, because the Court has also found that the complaint does not contain sufficient facts alleging the Above-Store Defendants conspired to deprive Plaintiff of his constitutional rights under § 1985(3), the Court dismisses the § 1986 claim as to the Above-Store Defendants. See Trerice, 755 F.2d at 1085.
Accordingly, the Court denies the motions to dismiss Plaintiff's § 1986 claim filed by the remaining Corporate Defendants and Store-Level Defendants. The Court grants the Above-Store Defendants' motion to dismiss the § 1986 claim.
Plaintiff asserts a claim against the Corporate Defendants under Title VI of the Civil Rights Act of 1964, a statute that prohibits federally assisted programs from discriminating against a person on the basis of his race, color, or national origin. 42 U.S.C. § 2000d; see Amended Complaint at ¶¶ 196-204. To prevail on a claim under Title VI, a plaintiff must prove that the defendant received federal financial assistance and that the defendant engaged in intentional discrimination based on race, color, or national origin. See Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). "[T]he proper defendant in a Title VI case is an entity rather than an individual." Farmer v. Ramsay, 41 F.Supp.2d 587, 592 (D.Md.1999).
Plaintiff seeks to bring a claim under Section 1557 of the Patient Protection and Affordable Care Act
"Section 1557 references and incorporates four different civil rights statutes: Title VI, which prohibits discrimination on the basis of race, color, and national origin; Title IX, which prohibits discrimination on the basis of sex; the Age Discrimination Act, which prohibits discrimination on the basis of age; and section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability." Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *10 (D.Minn. Mar. 16, 2015) (citing 42 U.S.C. § 18116). Section 1557 is entitled "Nondiscrimination" and provides:
42 U.S.C. § 18116.
No court in the Fourth Circuit has had occasion to analyze Section 1557 of the ACA. Two courts in other circuits have issued decisions holding Section 1557 creates a private cause of action: Rumble, supra, and Southeastern Pennsylvania Transportation Authority v. Gilead Sciences, Inc., 102 F.Supp.3d 688, 2015 WL 1963588 (E.D.Pa. May 4, 2015). In Rumble,
In Southeastern Pennsylvania Transportation Authority, the plaintiff asserted a claim for discrimination under Section 1557 on the basis of race and disability. 102 F.Supp.3d at 695-97, 2015 WL 1963588 at *3-4. The district court determined Congress intended to create a private right of action for alleged violations of
To decide whether Section 1557 creates a private cause of action, the Court must first look to the plain language of the statute. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Congress may create, either through a statute's explicit language or by its implication, a private right of action to enforce federal law. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); see Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) ("The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action."). The Court must determine whether the statute "displays an intent to create not just a private right but also a private remedy"; statutory intent is dispositive as to whether a private remedy exists. Id. Absent statutory intent, no cause of action exists and a court may not create one, "no matter how desirable that might be as a policy matter, or how compatible with the statute." Id. at 286-87, 121 S.Ct. 1511. When a federal statute does not expressly create a private right of action but references and incorporates another federal statute, it is possible to find an implied right of action in the statute. See Barnes v. Gorman, 536 U.S. 181, 185, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (finding that although neither Section 202 of the ADA nor Section 504 of the Rehabilitation Act explicitly provide for a private cause of action, they implicitly create one due to their cross-references to each other and to Title VI of the Civil Rights Act of 1964).
Section 1557 cross-references four federal civil rights statutes: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. 42 U.S.C. § 18116(a). The respective prohibitions of those four statutes are discrimination based on race, sex, age, and disability. See 42 U.S.C. § 2000d; 20 U.S.C. § 1681(a); 42 U.S.C. § 6102; 29 U.S.C. § 794(a). The statutory language for non-discrimination in Section 1557 mirrors that used in the four civil rights statutes. Compare 42 U.S.C. § 18116(a) (stating "an
The Court agrees with the District of Minnesota and the Eastern District of Pennsylvania that Section 1557 cross-references the four federal civil rights statutes to classify the four categories of discrimination — race, sex, age, and disability — prohibited by Section 1557. See Rumble, 2015 WL 1197415, at *7 n. 3; Se. Pennsylvania Transp. Auth., 102 F.Supp.3d at 698-99, 2015 WL 1963588, at *6. The Court finds Congress intended to create a private right and private remedy for violations of Section 1557 by expressly incorporating the enforcement provisions of the four federal civil rights statutes. Se. Pennsylvania Transp. Auth., 102 F.Supp.3d at 698-99, 2015 WL 1963588, at *6. In short, the Court concludes Section 1557 creates a private cause of action.
Having determined an individual plaintiff can sue under Section 1557, the Court will address the remaining Corporate Defendants' motion to dismiss Plaintiff's Section 1557 claim.
In seeking dismissal of Plaintiff's Section 1557 claim, the remaining Corporate Defendants argue Plaintiff fails to state a claim because (1) CVS is not a "health program or activity" as defined in Section 1557 and (2) Plaintiff was not denied access to CVS's goods or services. ECF No. 20-1 at 19-21. Plaintiff argues in response that the anti-discrimination mandate of Section 1557 applies to health care activities, not just health insurance as the Corporate Defendants suggest. ECF No. 39 at 21-26. He asserts that as a pharmacy, CVS engages in health care activities as contemplated by the statute. Id. at 21-23. He also claims his complaint contains sufficient allegations that CVS receives federal funds and that Defendants denied
The relevant portion of Section 1557 at issue contains the following language: "an individual shall not ... be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance." 42 U.S.C. § 18116(a) (emphasis added). In arguing CVS is not a "health program or activity" within the meaning of Section 1557, the remaining Corporate Defendants rely on the definition given in the Request for Information that the United States Department of Health and Human Services ("HHS")
In deciding whether to rely on HHS's interpretation of Section 1557, the Court would ordinarily have to apply the two-step process set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (establishing the two-step process to guide judicial review of a federal agency's interpretation of a statute). The Court would first have to "determine whether the plain language of the statute directly addresses the precise question before [it]." Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 530 (4th Cir.2005) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). If the congressional intent were clear from the statute itself, that would be "the end of the matter; for the [C]ourt, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. "However, if the
Here, however, HHS has proposed but has not promulgated regulations for Section 1557. See Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. at 173, 54214 ("For the reasons set forth in the preamble, the Department of Health and Human Services proposes to add 45 CFR part 92 as follows...." (emphasis added)). These proposed regulations have no legal force or effect and are therefore not entitled to Chevron deference.
As noted above, Section 1557 prohibits discrimination based on race, sex, age, and disability by "any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance." 42 U.S.C. § 18116(a). Neither Section 1557 nor the remainder of the ACA defines "health program or activity," and the parties disagree as to whether a retail pharmacy outlet such as CVS qualifies as one. Because the statute is silent as to the meaning of "health program or activity" and because HHS has yet to promulgate final regulations, the Court can afford only Skidmore deference to HHS's definition and interpretation of the phrase. The weight the Court may afford the preamble and proposed regulations depends on "the thoroughness evident in [HHS's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140, 65 S.Ct. 161. As explained below, the Court concludes the proposed regulations provide persuasive authority to support a finding — at the 12(b)(6) stage of this litigation — that CVS provides and administers health programs or activities that fall within the meaning of Section 1557.
The regulations for Section 1557 will appear in Part 92 of Title 45 of the Code of Federal Regulations. See 80 Fed.Reg. at 173, 54214. The proposed purpose statement notes Section 1557 "prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities," and that Part 92 "applies to health programs or activities administered by recipients of Federal financial assistance from [HHS]." Id. at 54214-15 (to be codified at 45 C.F.R. § 92.1). The proposed enforcement provision states, "An individual or entity may bring a civil action to challenge a violation of Section 1557 or this part in a United States District Court in which the recipient or State-based Marketplace is found or transacts business." Id. at 54220 (to be codified at 45 C.F.R. § 92.302). The proposed definition for "health program or activity" is as follows:
Id. at 54216 (emphases added) (to be codified at 45 C.F.R. § 92.4).
The proposed definition for "covered entity" does not provide specific examples of what qualifies as a covered entity, but the preamble to the proposed regulations cites numerous examples. Id. at 54172-214. Among those examples are "
Plaintiff alleges "CVS/pharmacy retail establishments `participate in the administration of the drug benefit added to the Medicare program under Part D of the Medicare Prescription Drug Improvement, and Modernization Act of 2003 (`Medicare Part D') through the provision of services to (CVS) health plan clients and other clients that have qualified as Medicare Part D prescription drug plans."
Evaluating Plaintiff's allegations at the 12(b)(6) stage, the Court finds that because he has alleged the CVS stores at issue in this case receive federal funds in the form of Medicare Part D and are principally engaged in the retail sale of pharmaceutical drugs — which can be fairly construed as health-related services — there is a plausible inference that the remaining Corporate Defendants are covered entities subject to the nondiscrimination provision in Section 1557. The Court is strongly persuaded by the language in
The Court finds Plaintiff has sufficiently alleged (1) that CVS, by virtue of its retail pharmacy operations and receipt of federal funds, is a covered entity that provides or administers health programs or activities, namely "the retail sale of prescription pharmaceuticals"; and (2) that he was denied the right to have his prescriptions filled at CVS stores. Amended Complaint at ¶¶ 30, 67, 219; see 42 U.S.C. § 18116(a) (stating "an individual shall not ... be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance"). Given these allegations, the Court concludes Plaintiff has stated a plausible claim under Section 1557 for discrimination based on his race, gender, and disability.
To summarize Plaintiff's state law claims and clarify the parties against whom these claims are asserted, the Court notes Plaintiff (a) sues the Corporate Defendants, Defendant Pendergrass, and one or more John and Jane Doe defendants for assault, battery, and false imprisonment; (b) sues the Corporate Defendants, Pendergrass,
Plaintiff brings claims for assault, battery, and false imprisonment against Pendergrass
"An assault is an attempt or offer, with force or violence, to inflict bodily harm on another or engage in some offensive conduct." Mellen v. Lane, 377 S.C. 261, 276, 659 S.E.2d 236, 244 (Ct.App. 2008). An assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant. Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 230, 317 S.E.2d 748, 754 (Ct.App.1984). The elements of assault include (1) conduct of the defendant that places the plaintiff (2) in reasonable fear of bodily harm. Mellen, 377 S.C. at 276, 659 S.E.2d at 244.
"A battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree; it is unnecessary that the contact be by a blow, as any forcible contact is sufficient[.]" Gathers, 282 S.C. at 230, 317 S.E.2d at 754. In general, a battery occurs by "the unlawful touching or striking of another by the aggressor himself or by any substance put in motion by him, done with the intention of bringing about a harmful or offensive contact which is not legally consented to by the other, and not otherwise privileged." Mellen, 377 S.C. at 277, 659 S.E.2d at 244. Battery "is sometimes defined as any injury done to the person of another in a rude, insolent, or revengeful way." Id. "Physical injury is not an element of battery. While there must be a touching, any forcible contact,
"False imprisonment is the deprivation of one's liberty without justification." Argoe v. Three Rivers Behavioral Health, L.L.C., 392 S.C. 462, 473, 710 S.E.2d 67, 73 (2011). To state a claim for false imprisonment, a plaintiff must allege (1) the defendant restrained him and the restraint was (2) intentional and (3) unlawful. Id. False imprisonment "does not require an actual injurious touching," and it may occur "by words alone, or by acts alone or by both, and by merely operating on the will of the individual, or by personal violence, or by both." Jones by Robinson v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (Ct.App. 1995).
Under the doctrine of respondeat superior, a principal is liable for the acts of its agent, not because of its consent to be liable, but by operation of law. S. Carolina Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 183, 348 S.E.2d 617, 624 (Ct.App.1986). "This is most plainly illustrated in those cases where the agent acts against the express instructions of his principal, but within the scope of his employment: the principal is still liable." Id. "[T]he master is liable for the torts of his servant even when the servant acts against the express instructions of his master, so long as the servant acts to further the master's business." Wade v. Berkeley Cnty., 330 S.C. 311, 318-19, 498 S.E.2d 684, 688 (Ct.App.1998).
The Court finds that based on the alleged incident outside CVS Store # 3199 involving Pendergrass, Plaintiff has stated plausible claims for assault, battery, and false imprisonment against Pendergrass, and by virtue of the doctrine of respondeat superior, against the remaining Corporate Defendants. Plaintiff sufficiently states claims for assault and battery because he alleges that Pendergrass "reached for the sports towel" he was wearing, that he "jumped back, that "Pendergrass again reached for the sports towel, as if to remove it from [his] head," and "grabbed [him] by the shoulder and shook him." Amended Complaint at ¶¶ 81-82. Plaintiff sufficiently states a claim for false imprisonment because he alleges Pendergrass called over a group of at least four people, who surrounded Plaintiff, and that she "stood on the inside of the driver's side door, thereby preventing [Plaintiff] from closing it and leaving." Id. at ¶ 82. These allegations contain sufficient facts to state plausible claims for assault, battery, and false imprisonment.
Because Plaintiff has plausible claims against Pendergrass and alleges she is an employee of the remaining Corporate Defendants, see id. at ¶ 79, he can hold the remaining Corporate Defendants liable for Pendergrass's actions under the doctrine of respondeat superior. See S. Carolina Ins. Co., 290 S.C. at 183, 348 S.E.2d at 624. Liberally construed, Plaintiff's allegations indicate that while Pendergrass may have bullied and insulted Plaintiff, she simultaneously acted to further the Corporate Defendants' business by discussing with Plaintiff how he could shop in the store, by denying his request for a special shopping accommodation, and by telling him nobody would attack him inside the store. Id. at ¶¶ 80-81; see Wade, 330 S.C. at 318-19, 498 S.E.2d at 688. The Court therefore denies the motion to dismiss filed by Pendergrass and the remaining Corporate Defendants.
Plaintiff brings a claim for intentional infliction of emotional distress ("IIED") against Pendergrass, Keeler, and at least
To state a claim for IIED, also known as the tort of outrage, the plaintiff must allege:
Hansson v. Scalise Builders of S. Carolina, 374 S.C. 352, 356, 650 S.E.2d 68, 70 (2007). Pendergrass and Keeler contend that Plaintiff's IIED claim is merely a restatement of his other claims, that none of their alleged conduct is so extreme and outrageous as to exceed all possible bounds of decency, and that the complaint fails to allege emotional distress so severe that no reasonable person could be expected to endure it. ECF No. 21-1 at 12-14. The remaining Corporate Defendants argue Plaintiff has not alleged sufficient facts satisfying the elements of a claim for IIED. ECF No. 20-1 at 21-23. Additionally, the remaining Corporate Defendants argue they are not liable for the actions of Pendergrass or Keeler because Plaintiff's allegations do not establish a sufficient basis for respondeat superior, given that he claims these CVS employees acted out-side the scope of their employment. Id. at 22-23.
The Court finds the complaint, on its face, states a plausible IIED claim against Pendergrass. The allegations relating to Plaintiff's encounter with Pendergrass, which are summarized in the previous section of this order, create a reasonable inference that Pendergrass's intentional actions were sufficiently outrageous and extreme so as to cause Plaintiff severe emotional distress. See Amended Complaint at ¶¶ 81-82; see generally Hansson, 374 S.C. at 356, 650 S.E.2d at 70. Moreover, by virtue of the doctrine of respondeat superior and for the reasons explained in the previous section of this order, the complaint states a plausible claim for IIED against the remaining Corporate Defendants. The Court therefore denies the motions to dismiss filed by Pendergrass and the remaining Corporate Defendants.
As for Defendant Keeler, however, the Court finds the complaint lacks sufficient allegations establishing his conduct toward Plaintiff was extreme and out-rageous. See Hansson, 374 S.C. at 356, 650 S.E.2d at 70 (stating the defendant's alleged conduct must qualify as "extreme," outrageous," "atrocious," and "utterly intolerable"). Plaintiff alleges that when he called CVS Store # 7386 and explained to Keeler the nature of his disability and desired accommodation, Keeler laughed and denied Plaintiff's request. Amended Complaint at ¶ 75. Plaintiff also claims Keeler became irritated, started talking in a loud, aggressive tone to him, insulted him with a racial slur, and threatened to call the police on Plaintiff. Id. While these allegations certainly suggest crudeness on Keeler's behalf, they do not rise to the level of extreme and outrageous conduct necessary to state a claim for IIED. See Hawkins v. Greene, 311 S.C. 88, 91, 427 S.E.2d 692, 694 (Ct.App.1993) ("Facts which may show extreme insensitivity on the part of the defendant do not necessarily establish the tort of outrage."); see also Gaiters v. Lynn, 831 F.2d 51, 53 (4th
Plaintiff alleges a claim for civil conspiracy against the Above-Store and Store-Level Defendants, and against the Corporate Defendants under a theory of respondeat superior. Amended Complaint at ¶¶ 278-92. All defendants argue Plaintiff's state law civil conspiracy claim must be dismissed because he fails to plead special damages in his complaint and does not allege the purpose of the conspiracy was to injure him.
Under South Carolina law, a plaintiff must allege three elements to state a claim for civil conspiracy: (1) a combination of two or more persons (2) for the purpose of injuring the plaintiff that (3) causes the plaintiff special damage. Hackworth v. Greywood at Hammett, LLC, 385 S.C. 110, 115, 682 S.E.2d 871, 874 (Ct.App.2009). "A claim for civil conspiracy must allege additional acts in furtherance of a conspiracy rather than reallege other claims within the complaint." Id. Moreover, because the essence of a civil conspiracy claim is the special damage resulting to the plaintiff, the alleged damages must exceed the damages alleged for the plaintiff's other claims. Id.
"Special damages are those elements of damages that are the natural, but not the necessary or usual, consequence of the defendant's conduct." Id. at 116, 682 S.E.2d at 875. Unlike general damages, special damages "are not implied by law because they do not necessarily result from the wrong" and they must "must be alleged in the complaint to avoid surprise to the other party." Sheek v. Lee, 289 S.C. 327, 329, 345 S.E.2d 496, 497 (1986). If the plaintiff simply restates the damages from another cause of action and does not specifically allege special damages as part of his civil conspiracy claim, the court should dismiss the civil conspiracy claim. Hackworth, 385 S.C. at 117, 682 S.E.2d at 875.
The Court finds Plaintiff has failed to adequately plead special damages for his civil conspiracy claim. In his cause of action for civil conspiracy, Plaintiff simply realleges the same damages that he alleges in his claims for assault, battery, false imprisonment, and intentional infliction of emotional distress. Compare ¶¶ 288-90 (damages alleged for civil conspiracy claim), with ¶¶ 229-30 (damages alleged for assault), ¶¶ 242-43 (damages alleged for battery), ¶ 252 (damages alleged for false imprisonment), and ¶ 273 (damages alleged for IIED). Plaintiff's failure to adequately describe his special damage impedes the defendants' ability to litigate the civil conspiracy claim. See Sheek, 289 S.C. at 329, 345 S.E.2d at 497. Due to his insufficient pleading, Plaintiff's civil conspiracy claim fails as a matter of law, and the Court grants all defendants' motions to dismiss this cause of action. See Hackworth, 385 S.C. at 117, 682 S.E.2d at 875 (affirming the circuit court's dismissal of the plaintiff's civil conspiracy claim because the plaintiff "repeated verbatim the same damages in its civil conspiracy claim as are alleged in its claim for breach of contract accompanied by a
Plaintiff alleges a negligence claim against the Above-Store and Store-Level Defendants, and against the Corporate Defendants by virtue of respondeat superior. Amended Complaint at ¶¶ 293-306. The defendants, interpreting Plaintiff's negligence claim as one based on premises liability, argue Plaintiff fails to state a claim because he does not allege (1) that they breached any duty or (2) that he suffered any physical injuries. ECF No. 20-1 at 26-28; ECF No. 21-1 at 14; ECF No. 22-1 at 2-4.
To establish a negligence claim, a plaintiff must show the defendant owed him a duty of care, the defendant breached that duty, and the plaintiff suffered a loss caused by the breach. Doe ex rel. Doe v. Wal-Mart Stores, Inc., 393 S.C. 240, 246, 711 S.E.2d 908, 911 (2011). Negligence is the failure to exercise due care. Solanki v. Wal-Mart Store No. 2806, 410 S.C. 229, 237, 763 S.E.2d 615, 619 (Ct.App. 2014). Due care means the degree of care that a person of ordinary prudence and reason would exercise under the same circumstances. Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011). To state a claim for negligence under a theory of respondeat superior, the plaintiff must allege that the defendant's employee committed a tortious act against the plaintiff, that the defendant had and breached a duty to the plaintiff, and that the plaintiff suffered damages as a result of the breach. S. Carolina Ins. Co., 290 S.C. at 176, 177-83, 348 S.E.2d at 620-24.
In his complaint, Plaintiff grounds his negligence claim on a theory of premises liability and characterizes himself as an invitee.
There are two types of invitees: public invitees and business visitors. Id. at 717, 541 S.E.2d at 862. Plaintiff alleges he is a business visitor. Amended Complaint at ¶ 298. "A business visitor ... is an invitee whose purpose for being on the property is directly or indirectly connected with business dealings with the owner." Sims, 343 S.C. at 717, 541 S.E.2d at 862. A property owner owes a business visitor "the duty of exercising reasonable or ordinary care for his safety, and is liable for injuries resulting from the breach of such duty." Id. at 718, 541 S.E.2d at 863.
The Court finds Plaintiff has stated a plausible claim for negligence, under a theory of premises liability, against Pendergrass. The allegations relating to the incident involving Pendergrass, the facts of which are summarized above, create a reasonable inference that she failed to exercise due care to ensure Plaintiff's protection and safety after he, a business visitor, explained to her his disability and "diagnosis of PTSD and PTSD-associated agoraphobia." Amended Complaint at ¶ 80; compare id. at ¶ 55 ("[Plaintiff]'s disability is such that anxiety and panic attacks overtake and adversely affect him when he encounters multiple unknown persons."), with Sims, 343 S.C. at 718, 541 S.E.2d at 863 (observing the requisite degree of care depends on "the particular circumstances involved, including the age and capacity of the invitee"). The complaint contains sufficient factual allegations indicating Pendergrass breached her duty when she summoned a crowd of at least four strangers to surround Plaintiff, the proximate result of which was to cause Plaintiff "to suffer a severe panic attack." Id. at ¶ 82; see Singleton, 377 S.C. at 202, 659 S.E.2d at 205 ("[A]n invitee enters the premises with the implied assurance of preparation and reasonable care for his protection and safety while he is there."). Accepting these assertions as true, the Court finds Plaintiff's complaint contains plausible factual statements supporting a reasonable inference that Pendergrass breached a duty to Plaintiff under a theory of premises liability and that he suffered injury as a proximate result. Moreover, under the doctrine of respondeat superior, the complaint states a claim for negligence against the remaining Corporate Defendants. The Court therefore denies the motions to dismiss filed by Pendergrass and the remaining Corporate Defendants.
However, because Plaintiff's complaint fails to allege facts creating a plausible inference that the Above-Store Defendants or the other Store-Level Defendants (all those besides Pendergrass) breached any duty — under a theory of premises liability — to Plaintiff, the Court grants these defendants' motions to dismiss Plaintiff's negligence claim against them.
In his thirteenth cause of action, Plaintiff alleges claims for negligent supervision "and/or" negligent retention against the Above-Store and Store-Level Defendants, and against the Corporate Defendants by virtue of respondeat superior. Amended Complaint at ¶¶ 307-23. The defendants
"In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public." James v. Kelly Trucking Co., 377 S.C. 628, 631, 661 S.E.2d 329, 330 (2008). "[N]egligent hiring and negligent retention are distinct theories of recovery separate from negligent supervision." Doe v. ATC, Inc., 367 S.C. 199, 205, 624 S.E.2d 447, 450 (Ct.App.2005). An employer cannot be liable for negligent hiring, retention, or supervision unless the employee has committed an actionable tort. Sabb v. S. Carolina State Univ., 350 S.C. 416, 431-32, 567 S.E.2d 231, 238-39 (2002) (Pleicones, J., dissenting) (collecting cases from other states and noting "the torts of negligent hiring, supervision, or training must include as an element an underlying tort or wrongful act committed by the employee").
To state a claim for negligent supervision, a plaintiff must allege an employer's employee intentionally harmed the plaintiff while the employee (1) was upon the premises of the employer or was using a chattel of the employer; (2) the employer knew or had reason to know it had the ability to control its employee; and (3) the employer knew or should have known of the necessity and opportunity for exercising such control. Degenhart v. Knights of Columbus, 309 S.C. 114, 116-17, 420 S.E.2d 495, 496 (1992). Supervisory liability requires the court to focus on whether the employer knew or should have known about the specific conduct of the employee. Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 302, 468 S.E.2d 292, 299 (1996).
To state a claim for negligent retention, a plaintiff must allege the employer had knowledge of its employee's habit of prior wrongdoings, and despite the foreseeability of harm to third parties, the employer failed to terminate the offending employee before he caused the plaintiff harm. Doe, 367 S.C. at 205-06, 624 S.E.2d at 450-51. "The standard ... is whether the employer knew the offending employee was in the habit of misconducting [himself] in a manner dangerous to others." Id. at 206, 624 S.E.2d at 450-51. "Accordingly, many courts have recognized that a plaintiff must demonstrate some propensity, proclivity, or course of conduct sufficient to put the employer on notice of the possible danger to third parties." Id. at 206, 624 S.E.2d at 451.
The Court finds that based on the incident involving Pendergrass, which involved intentional torts that occurred on CVS property, Plaintiff has stated plausible
Regarding the Above-Store and Store-Level Defendants, however, the Court grants their motions to dismiss for two reasons. First, because Plaintiff has not alleged facts creating a plausible inference that the Above-Store or Store-Level Defendants qualify as employers, these defendants cannot be held liable for negligent supervision or retention. See Degenhart, 309 S.C. at 116, 420 S.E.2d at 496 (specifying "[a]n employer may be liable for negligent supervision" (emphasis added)); Doe, 367 S.C. at 205-06, 624 S.E.2d at 450-51 (stating "the master may subject himself to liability" for negligent retention (emphasis added)). Second, Plaintiff alleges no facts sufficient to satisfy the elements of a cause of action for negligent supervision or for negligent retention. See Degenhart, 309 S.C. at 116-17, 420 S.E.2d at 496 (negligent supervision); Doe, 367 S.C. at 205-06, 624 S.E.2d at 450-51 (negligent retention). Accordingly, the Court dismisses the Above-Store and Store-Level Defendants from the claims for negligent supervision and negligent retention.
In his fourteenth cause of action, Plaintiff alleges claims for intentional interference with contract "and/or" intentional interference with prospective contractual relations against the Above-Store and Store-Level Defendants, and against the Corporate Defendants by virtue of respondeat superior. Amended Complaint at ¶¶ 324-33. All defendants argue the stranger doctrine bars both claims. ECF No. 20-1 at 29-30; ECF No. 21-1 at 15; ECF No. 22-1 at 2-4.
To state a claim for intentional interference with contract — also known as tortious interference with contractual relations — a plaintiff must allege (1) the existence of a contract; (2) the defendant's knowledge of the contract's existence; (3) the defendant's intentional procurement of the breach of the contract; (4) the absence of justification; and (5) resulting damage. Camp v. Springs Mortgage Corp., 310 S.C. 514, 517, 426 S.E.2d 304, 305 (1993); Webb v. Elrod, 308 S.C. 445, 447, 418 S.E.2d 559, 561 (Ct.App.1992). To state a claim for intentional interference with prospective contractual relations, a plaintiff must allege "(1) the defendant intentionally interfered with the plaintiff's potential contractual relations; (2) for an improper purpose or by improper methods; (3) causing injury to the plaintiff." Crandall Corp. v. Navistar Int'l Transp. Corp., 302 S.C. 265, 266, 395 S.E.2d 179, 180 (1990).
While intentional interference with contract and intentional interference with prospective contractual relations are distinct torts, they both require a plaintiff to show the defendant was a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract. See Dutch Fork Dev. Grp. II, LLC v. SEL Properties, LLC, 406 S.C. 596, 604, 753 S.E.2d 840, 844 (2012) (discussing intentional interference with contract); Santoro v. Schulthess, 384 S.C. 250, 262, 681 S.E.2d 897, 903 (Ct.App.2009) (discussing intentional interference with prospective contractual relations).
The Court agrees with the defendants that the stranger doctrine bars Plaintiff's claims for both intentional interference with contract and intentional interference with prospective contractual relations. A fair reading of Plaintiff's complaint reveals no allegations suggesting the defendants were strangers to the alleged contractual relations at issue or to any business relationship giving rise to and underpinning the alleged contractual relations. The only contractual relations with which Plaintiff claims the defendants interfered were his own alleged contractual relations with CVS, not with any third party. See Amended Complaint at ¶¶ 326, 331. As a result, Plaintiff cannot maintain a suit against any defendant for either type of tortious interference claim. The Court therefore grants all defendants' motions to dismiss Plaintiff's claims for intentional interference with contract and intentional interference with prospective contractual relations.
Plaintiff brings a claim against the Corporate Defendants alleging they violated the South Carolina Unfair Trade Practices Act
Section 39-5-140(a) of the SCUTPA "creates a private right of action in favor of `[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by § 39-5-20 [of the SCUPTA].'" Wright v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498 (Ct.App.2006) (first alteration in original) (quoting S.C.Code Ann. § 39-5-140(a) (1976 & Supp.2005)). To bring an action under the SCUTPA, a
The Court agrees with Defendants that Plaintiff does not allege an ascertainable loss of money or property in his complaint. The Court therefore grants the remaining Corporate Defendants' motion seeking dismissal of Plaintiff's claim under the SCUTPA.
Plaintiff seeks declaratory and injunctive relief in his sixteenth and seventeenth causes of action. Amended Complaint at ¶¶ 357-63. All defendants move to dismiss these causes of action. ECF No. 20-1 at 33-4; ECF No. 21-1 at 16-17; ECF No. 22-1 at 2-4.
Because the Court dismisses the Above-Store Defendants from all causes of action asserted against them, the Court grants their motion to dismiss. As to the remaining Corporate Defendants and the Store-Level Defendants, however, the Court denies their motions to dismiss because causes of action are still pending against them.
The Court
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In summary, the Corporate Defendants' motion to dismiss [ECF # 20] is
Cause of Action Asserted Against In Out Americans with All defendants • Remaining corporate defendants • Above-store defendantsDisabilities Act • Store-level defendants42 U.S.C. § 1981 All defendants • Remaining corporate defendants • Above-store defendants • Store-level defendants Gates, • Store-level defendants Brescia, Cessna, Chisholm, Pendergrass, Sosa, and Keeler Combs, McClure, Poland, Webb, John Doe #1, Jane Doe #1, and Jane Doe #242 U.S.C. § 1985(3) All defendants • Remaining corporate defendants • Above-store defendants • Store-level defendants42 U.S.C. § 1986 All defendants • Remaining corporate defendants • Above-store defendants • Store-level defendantsTitle VI of the Civil Corporate defendants • Remaining corporate defendantsRights Act of 1964 Section 1557 of the Corporate defendants • Remaining corporate defendantsAffordable Care Act Assault Corporate defendants, Pendergrass, and one or • Remaining corporate defendants more John and Jane Doe defendants • PendergrassBattery Corporate defendants, Pendergrass, and one or • Remaining corporate defendants more John and Jane Doe defendants • PendergrassFalse Imprisonment Corporate defendants, Pendergrass, and one or • Remaining corporate defendants more John and Jane Doe defendants • PendergrassIntentional Infliction of Corporate defendants, Pendergrass, Keeler, and at • Remaining corporate defendants • KeelerEmotional Distress least some of the John and Jane Doe defendants • PendergrassCivil Conspiracy All defendants • All defendantsNegligence All defendants • Remaining corporate defendants • Above-store defendants • Pendergrass • Store-level defendants Brescia, Cessna, Chisholm, Combs, McClure, Poland, Webb, John Doe #1, Jane Doe #1, and Jane Doe #2Negligent Supervision All defendants • Remaining corporate defendants • Above-store defendantsand Retention • Store-level defendantsIntentional Interference All defendants • All defendantswith Contract and/or Prospective Contractual Relations SCUTPA Corporate defendants • Remaining corporate defendantsDeclaratory and All defendants • Remaining corporate defendants • Above-store defendantsInjunctive Relief • Store-level defendants
Corporate defendants (1) CVS Health Corporation (2) South Carolina CVS Pharmacy, LLC (3) CVS Pharmacy, Inc.Remaining corporate defendants (1) South Carolina CVS Pharmacy, LLC (2) CVS Pharmacy, Inc.(*This category excludes CVS Health Corporation, which is dismissed from all causes of action for lack of personal jurisdiction.) Above-store defendants (1) Mark Cosby (2) Paul Anderson(*All Above-store defendants are (3) Shelly Edge (improperly identified in the amended complaint as Renee Edge)dismissed from this case.) (4) Ronald Elliot (improperly identified in the amended complaint as Kevin Elliot) (5) Matt Lesniak (6) David Purdy (7) John Robinson (8) Darren TwedellStore-level defendants (1) John Brescia (2) Joseph Cessna (3) Harris Chisholm (4) Travis Combs (5) Ashley Gates (6) Jim Keeler (7) Ginny McClure (8) Ida Pendergrass (improperly identified in the amended complaint as Natasha Pendergrass) (9) Bill Poland (10) Xiomata Sosa (improperly identified in the amended complaint as Xio Sosa) (11) Susan Webb (12) John Doe #1 (13) Jane Doe #1 (14) Jane Doe #2
More recently, the Supreme Court addressed general jurisdiction in Daimler AG v. Bauman, ___ U.S. ___, ___, 134 S.Ct. 746, 750, 187 L.Ed.2d 624 (2014). The Daimler Court rejected the notion that a foreign corporation could be subjected to general jurisdiction whenever the foreign corporation has an in-state subsidiary or affiliate. Id. at 759-60. The Supreme Court also declined to adopt a per se rule that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business. Id. at 760. Instead, the Daimler Court held the relevant inquiry is whether the foreign "corporation's affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum State." Id. at 761 (alteration in original) (internal quotation marks omitted).
Fox v. Leavitt, 572 F.Supp.2d 135, 138-39 (D.D.C.2008). As HHS notes in the preamble to the proposed regulations, Medicare Part D is federal financial assistance. See 80 Fed. Reg. 173, 54191 n.94 ("We will ask, for example, whether the plan itself receives Federal financial assistance, such as through receipt of Medicare Part D payments."). The proposed definition for "federal financial assistance is:
Federal financial assistance.
Id. at 54216 (to be codified at 45 C.F.R. § 92.4).
Transcript at 92-93 (emphasis added).
