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 Defendant. 16 17 Through the present action, Plaintiff Ernest L. Bonner, Jr., M.D. (“Plaintiff”) alleges 18 six causes of action (“COA”) against Defendant Rite Aid Corporation (“Defendant”): 19 (1) Unfair Competition (“UCL”); (2) Intentional Interference with Prospective Economic 20 Advantage; (3) Negligent Interference with Prospective Economic Advantage; 21 (4) Defamation; (5) Intentional Infliction of Emotional Distress (“IIED”); and (6) violation of 22 42 U.S.C. § 1981 (“§ 1981”). Presently before the Court are two defense motions: 23 (1) Motion to Dismiss Plaintiff’s Second Amended Complaint (“SAC”), ECF No. 24, and 24 (2) Motion to Strike Portions of Plaintiff’s SAC, ECF No. 25. For the reasons set forth 25 below, Defendant’s Motion to Dismiss is GRANTED and Defendant’s Motion to Strike is 26 DENIED as moot.1 27 1 Because oral argument would not be of material assistance, the Court ordered these matters 28 submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 Plaintiff is a physician who describes himself as a pain management specialist. 4 He enters into written contractual agreements with his patients treated for chronic pain 5 through controlled substances. Such agreements, which further require the patient to 6 obtain prescribed opioids from only one physician and one pharmacy, are well known 7 among physicians and pharmacists. 8 Beginning in March 2018, Plaintiff began hearing from his patients that 9 Defendant’s employees were making odd and defamatory comments when they tried to 10 fill their prescriptions at Defendant’s pharmacies, and the pharmacists were refusing to 11 fill their prescriptions. The following March, one of Defendant’s pharmacists refused to 12 fill the prescription of one of Plaintiff’s patients on the basis that Plaintiff decreased the 13 patient’s opiate medication. When the patient tried to fill his prescription at another 14 pharmacy operated by Defendant, the pharmacist there refused to fill the same 15 prescription. 16 Defendant subsequently sent a letter to Plaintiff stating that Plaintiff wrote too 17 many pain prescriptions and that some of his patients were “redflags” because they were 18 self-paying. Due to these concerns and dangers of drug abuse, Defendant would no 19 longer fill pain prescriptions written by Plaintiff as of April 15, 2019. Plaintiff, who is 20 African American, contacted several white physicians who purportedly wrote more opioid 21 prescriptions than him and learned that none of their patients were prohibited from filling 22 their prescriptions at Defendant’s pharmacies. In addition to no longer filling 23 prescriptions, Plaintiff alleges that Defendant began a “smear campaign” against him. 24 /// 25 /// 26 /// 27 ///
28 2 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s SAC. ECF No. 23. 1 STANDARD 2 3 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 4 Procedure 12(b)(6),3 all allegations of material fact must be accepted as true and 5 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 6 Co., 80 F.3d 336, 337–38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain 7 statement of the claim showing that the pleader is entitled to relief” in order to “give the 8 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 9 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 10 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 11 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 12 his entitlement to relief requires more than labels and conclusions, and a formulaic 13 recitation of the elements of a cause of action will not do.” Id. (internal citations and 14 quotations omitted). A court is not required to accept as true a “legal conclusion 15 couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) 16 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 17 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 18 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 19 that the pleading must contain something more than “a statement of facts that merely 20 creates a suspicion [of] a legally cognizable right of action.”)). 21 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 22 assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and 23 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 24 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 25 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles 26 Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough 27 3 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure, unless 28 noted otherwise. 1 facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . 2 have not nudged their claims across the line from conceivable to plausible, their 3 complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed 4 even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a 5 recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 6 232, 236 (1974)). 7 A court granting a motion to dismiss a complaint must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no 9 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 10 to the opposing party by virtue of allowance of the amendment, [or] futility of the 11 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 12 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 13 be considered when deciding whether to grant leave to amend). Not all of these factors 14 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 15 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 16 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 17 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 18 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 19 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.
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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 Defendant. 16 17 Through the present action, Plaintiff Ernest L. Bonner, Jr., M.D. (“Plaintiff”) alleges 18 six causes of action (“COA”) against Defendant Rite Aid Corporation (“Defendant”): 19 (1) Unfair Competition (“UCL”); (2) Intentional Interference with Prospective Economic 20 Advantage; (3) Negligent Interference with Prospective Economic Advantage; 21 (4) Defamation; (5) Intentional Infliction of Emotional Distress (“IIED”); and (6) violation of 22 42 U.S.C. § 1981 (“§ 1981”). Presently before the Court are two defense motions: 23 (1) Motion to Dismiss Plaintiff’s Second Amended Complaint (“SAC”), ECF No. 24, and 24 (2) Motion to Strike Portions of Plaintiff’s SAC, ECF No. 25. For the reasons set forth 25 below, Defendant’s Motion to Dismiss is GRANTED and Defendant’s Motion to Strike is 26 DENIED as moot.1 27 1 Because oral argument would not be of material assistance, the Court ordered these matters 28 submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 Plaintiff is a physician who describes himself as a pain management specialist. 4 He enters into written contractual agreements with his patients treated for chronic pain 5 through controlled substances. Such agreements, which further require the patient to 6 obtain prescribed opioids from only one physician and one pharmacy, are well known 7 among physicians and pharmacists. 8 Beginning in March 2018, Plaintiff began hearing from his patients that 9 Defendant’s employees were making odd and defamatory comments when they tried to 10 fill their prescriptions at Defendant’s pharmacies, and the pharmacists were refusing to 11 fill their prescriptions. The following March, one of Defendant’s pharmacists refused to 12 fill the prescription of one of Plaintiff’s patients on the basis that Plaintiff decreased the 13 patient’s opiate medication. When the patient tried to fill his prescription at another 14 pharmacy operated by Defendant, the pharmacist there refused to fill the same 15 prescription. 16 Defendant subsequently sent a letter to Plaintiff stating that Plaintiff wrote too 17 many pain prescriptions and that some of his patients were “redflags” because they were 18 self-paying. Due to these concerns and dangers of drug abuse, Defendant would no 19 longer fill pain prescriptions written by Plaintiff as of April 15, 2019. Plaintiff, who is 20 African American, contacted several white physicians who purportedly wrote more opioid 21 prescriptions than him and learned that none of their patients were prohibited from filling 22 their prescriptions at Defendant’s pharmacies. In addition to no longer filling 23 prescriptions, Plaintiff alleges that Defendant began a “smear campaign” against him. 24 /// 25 /// 26 /// 27 ///
28 2 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s SAC. ECF No. 23. 1 STANDARD 2 3 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 4 Procedure 12(b)(6),3 all allegations of material fact must be accepted as true and 5 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 6 Co., 80 F.3d 336, 337–38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain 7 statement of the claim showing that the pleader is entitled to relief” in order to “give the 8 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 9 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 10 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 11 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 12 his entitlement to relief requires more than labels and conclusions, and a formulaic 13 recitation of the elements of a cause of action will not do.” Id. (internal citations and 14 quotations omitted). A court is not required to accept as true a “legal conclusion 15 couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) 16 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 17 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 18 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 19 that the pleading must contain something more than “a statement of facts that merely 20 creates a suspicion [of] a legally cognizable right of action.”)). 21 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 22 assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and 23 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 24 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 25 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles 26 Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough 27 3 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure, unless 28 noted otherwise. 1 facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . 2 have not nudged their claims across the line from conceivable to plausible, their 3 complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed 4 even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a 5 recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 6 232, 236 (1974)). 7 A court granting a motion to dismiss a complaint must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no 9 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 10 to the opposing party by virtue of allowance of the amendment, [or] futility of the 11 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 12 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 13 be considered when deciding whether to grant leave to amend). Not all of these factors 14 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 15 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 16 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 17 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 18 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 19 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 20 1989) (“Leave need not be granted where the amendment of the complaint . . . 21 constitutes an exercise in futility . . . .”)). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 ANALYSIS 2 3 Defendant moves to dismiss the following claims from the SAC: (1) Fifth and 4 Sixth COAs; (2) claims for restitution as alleged in the First COA; and (3) claims for 5 punitive damages as alleged in the Fourth, Fifth, and Sixth COAs.4 6 A. Defendant’s Motion to Dismiss Plaintiff’s Fifth COA for IIED is Granted Without Leave to Amend 7 8 To prevail on a claim for IIED, Plaintiff must show: (1) extreme and outrageous 9 conduct by Defendant with the intention of causing, or reckless disregard of the 10 probability of causing, emotional distress; (2) resulting severe or extreme emotional 11 distress by Plaintiff; and (3) actual and proximate causation of the emotional distress by 12 Defendant’s outrageous conduct. Cochran v. Cochran, 65 Cal. App. 4th 488, 494 13 (1998). “The alleged outrageous conduct ‘must be so extreme as to exceed all 14 bounds . . . usually tolerated in a civilized community.’” Id. 15 Here, Plaintiff alleges that he is one of a small group of California doctors licensed 16 to prescribe Suboxone and that Defendant’s refusal to fill these prescriptions means 17 minority and low-income patients cannot get access to medical care afforded to white 18 patients. SAC ¶¶ 71–77. However, Defendant’s refusal to fill prescriptions written by 19 Plaintiff alone does not translate into a complete bar to medical care since patients can 20 fill their prescriptions at another pharmacy. Plaintiff’s Opposition falls back on his default 21 position that Defendant’s refusal to fill his prescriptions came without explanation but the 22 /// 23 /// 24 /// 25
4 Defendant again moves to strike Plaintiff’s request for restitution and punitive damages under 26 Rule 12(f). Mot. Strike, ECF No. 25. Rule 12(f), however, is the improper vehicle by which to attack damages allegations. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974–75 (9th Cir. 2010). Such 27 attacks should instead be made pursuant to Rule 12(b)(6), especially when, as here, the sufficiency of the pleading is at issue. Id. Accordingly, Defendant’s Motion to Strike is DENIED as moot and the Court will 28 analyze Defendant’s motion to dismiss portions of Plaintiff’s prayer for relief under Rule 12(b)(6). 1 SAC itself states that Defendant sent a letter explaining its concern for prescription drug 2 abuse as the reason for the refusal.5 See Ex. A, Def.’s RJN, ECF No. 26-1. Ultimately, 3 Plaintiff cannot show extreme or outrageous conduct and his Fifth COA is DISMISSED 4 without leave to amend. 5 B. Defendant’s Motion to Dismiss Plaintiff’s Sixth COA Under § 1981 is Granted Without Leave to Amend 6 7 Plaintiff next alleges a violation of § 1981, which provides that all persons shall 8 have the same right “to make and enforce contracts, to sue, be parties, give evidence, 9 and to the full and equal benefit of all laws and proceedings for the security of persons 10 and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. It 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. Dept’ 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). To establish a prima facie case of racial 15 discrimination in non-employment contracts, a plaintiff must show: “(1) [he] is a member 16 of a protected class, (2) [he] attempted to contract for certain services, and (3) [he] was 17 denied the right to contract for such services.” Lindsey v. SLT Los Angeles, LLC, 18 447 F.3d 1138, 1145 (9th Cir. 2006). 19 Here, Plaintiff provides that each of his chronic pain patients treated with opioid 20 medication have signed a written contractual agreement, which require the patient to 21 obtain his or her medication from only one physician and one pharmacy. SAC ¶ 31. 22 However, Plaintiff fails to allege how he attempted to contract for certain services and 23 was denied the right to do so by Defendant. Plaintiff can still enter into such contracts 24 with his patients and continue to write prescriptions pursuant to those agreements. The 25 fact that his patients must fill their prescriptions at another pharmacy does not impair or
26 5 Defendant also submits a Request for Judicial Notice (“RJN”) regarding various documents in support of its Motion, including Plaintiff’s April 22, 2019 Complaint and four opinions issued in this district. 27 Def.’s RJN, ECF No. 26. Plaintiff does not oppose this request, which is the proper subject of judicial notice. See Lee v. Cty. of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (court may take judicial notice of 28 matters of public record). Accordingly, Defendant’s RJN is GRANTED. 1 interfere with Plaintiff’s ability to execute written contractual agreements with his 2 patients. 3 Furthermore, Plaintiff again fails to allege any discriminatory conduct or intent. 4 Plaintiff alleges he contacted several white physicians who wrote more opioid 5 prescriptions than him but none of their patients were prohibited from filling their 6 prescriptions at Defendant’s pharmacies. SAC ¶ 84. Such an allegation is insufficient to 7 show discriminatory intent, especially given that the SAC concedes that Defendant’s 8 reasoning for its refusal to fill Plaintiff’s prescriptions was its concern for prescription drug 9 abuse. Finally, there are no allegations to suggest Defendant knew Plaintiff was African 10 American since the patients visit Defendant’s pharmacies and not the doctor. Plaintiff 11 ultimately fails to show racial discrimination in the enforcement or making of contracts, 12 and accordingly, Plaintiff’s Sixth COA is DISMISSED without leave to amend. 13 C. Defendant’s Motion to Dismiss Plaintiff’s Request for Restitution Under the First COA is Granted Without Leave to Amend 14 15 “Restitution under the UCL is limited to restoration of any interest in money or 16 property, real or personal, which may have been acquired by means of such unfair 17 competition.” Stars & Bars, LLC v. Travelers Cas. Ins. Co. of Am., No. SACV-16-01397- 18 CJC(SSx), 2016 WL 9414093, at *2 (C.D. Cal. 2016) (internal quotation marks omitted). 19 Plaintiff once again fails to allege any facts indicating that any money was paid to 20 Defendant that should be restored to Plaintiff, and therefore, Plaintiff’s request for 21 restitution under the First COA is DISMISSED without leave to amend. 22 D. Defendant’s Motion to Dismiss Plaintiff’s Request for Punitive Damages Under the Fourth COA is Granted Without Leave to Amend6 23 24 For a corporate defendant to be liable for punitive damages, “an officer, director, 25 or managing agent” must have committed the act of oppression, fraud, or malice, or 26 must have had advance knowledge of such an act by an employee and either 27 6 Plaintiff’s Fifth and Sixth COAs presently dismissed, the Court need not address whether Plaintiff 28 adequately pleads punitive damages with respect to those claims. WQAOe CLD YVONNE MMO OO I RT ON Yt OMT
1 || authorized, ratified, or consciously disregarded the act. Cal. Civ. Code § 3294(b). Here, 2 | Plaintiff does not allege any facts to indicate that any of Defendant's officers, directors, 3 || or managing agents participated in the alleged defamation. Furthermore, Plaintiff's 4 | conclusory allegation that Defendant's statements “were made intentionally, willfully, and 5 || maliciously” is insufficient to show malice. SAC 7 64. Therefore, Plaintiff's request for 6 || punitive damages under the Fourth COA is DISMISSED without leave to amend. 7 8 CONCLUSION 9 10 For the reasons stated above, Defendant’s Motion to Dismiss Plaintiffs SAC, ECF 11 No. 24, is GRANTED without leave to amend. Defendant’s Motion to Strike, ECF 12 | No. 25, is also DENIED as moot. This case shall proceed on Plaintiff's First, Second, 13 || Third, and Fourth COAs.’ 14 IT |S SO ORDERED. 15 | Dated: May 29, 2020
17 MORRISON C. ENGLAND, J UNITED STATES DISTRI 18 19 20 21 22 23 24 25 26 7 Defendant requests the Court decline to exercise supplemental jurisdiction over the remaining 27 state law claims. Mot. Dismiss, ECF No. 24, at 14. Because the SAC premises federal jurisdiction on diversity, the Court still retains original jurisdiction over these claims and thus, Defendant's request is 28 | denied. See SAC 5.