Stephanie Patton et al v. Forest Laboratories, LLC

NOTICE OF MOTION AND MOTION to Dismiss Defendants Target Corporation, CVS Pharmacy, Inc. ; Memorandum of Points and Authorities

C.D. Cal.March 8, 2018

5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 1 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S Dennis K. Ames, Esq., State Bar No.: 81460 Brian R. Hill, Esq., State Bar No.: 117151 LA FOLLETTE, JOHNSON, DEHAAS, FESLER & AMES 2677 N. Main Street, Suite 901 Santa Ana, CA 92705 (714) 558-7008 Email: Dames@ljdfa.com Email: Bhill@ljdfa.com Attorneys for Defendants, CVS PHARMACY, INC., and TARGET CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION STEPHANIE PATTON, KENDRICK KNIGHTEN AND THE ESTATE 0F KENNADI KNIGHTEN Plaintiffs, v. FOREST LABORATORIES, INC., FOREST PHARMACEUTICALS, INC., ALLERGAN, INC., LUPIN PHARMACEUTICALS, INC., CIPLA, LTD., CIPLAY USA, INC., TEVA PHARMACEUTICALS USA, INC., CVS HEALTH CORPORATION, CVS PHARMACY, INC., TARGET CORPORATION, THE COUNTY OF RIVERSIDE CALIFORNIA AND RIVERSIDE COUNTY REGIONAL MEDICAL CENTER, Defendants. CASE NO. 5:17-cv-00922 MWF (DTB) Hon. Michael W. Fitzgerald Courtroom: 5A DEFENDANTS, CVS PHARMACY, INC. AND TARGET CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Declaration of Brian R. Hill and [Proposed] Order] DATE: April 9, 2018 TIME: 10:00 a.m. CTRM: 5A TO PLAINTIFFS STEPHANIE PATTON AND KENDRICK KNIGHTEN AND TO THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on the April 9, 2018, at 10:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 5A of the above-captioned Court, Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 1 of 21 Page ID #:1237 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 2 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S located at 350 West First Street, Los Angeles, California, 90012, Defendants CVS PHARMACY, INC. and TARGET CORPORATION (hereinafter “Pharmacy Defendants”) will move this Court for an order dismissing Plaintiffs’ claims against CVS Pharmacy, Inc. and Target Corporation pursuant to Fed. R. Civ. P.12(b)(5) and 12(b)(6). This motion is made following the conferences of counsel pursuant to L.R. 7-3 which took place on February 27, 2018 and again on March 1, 2018. Dated: March 8, 2018 LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES By DENNIS K. AMES, ESQ. BRIAN R. HILL, ESQ. Attorneys for Defendants, CVS PHARMACY, INC., A Rhode Island Corporation and TARGET CORPORATION /s/ Dennis A. Ames Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 2 of 21 Page ID #:1238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S TABLE OF CONTENTS I. INTRODUCTION…………………………………………………………3 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.………..4 III. PLAINTIFFS’ ACTION IS PROPERLY SUBJECT TO A MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) …………………………7 IV. PLAINTIFFS HAVE IMPROPERLY SPLIT THEIR CLAIMS BETWEEN TWO LAWSUITS AGAINST MOVING DEFENDANTS, AND AS SUCH, MOVING DEFENDANTS MUST BE DISMISSED FROM THE PRESENT LAWSUIT……………………………………………………..7 V. PLAINTIFFS’ CLAIMS AGAINST THE PHARMACY DEFENDANTS ARE NOT VIABLE, THUS DEFENDANTS’ MOTION TO DISMISS MUST BE GRANTED…………………………………………………..9 A. Strict Liability and Breach of Warranty…………….………………..10 B. Fraud …………………………………..………….……………….10 C. Negligence and Wrongful Death…………………………………….11 D. CLRA and UCL Claims……………………………………………...11 VI. PLAINTIFFS HAVE NOT PROPERLY SERVED MOVING DEFENDANTS, AND AS SUCH, PLAINTIFFS’ COMPLAINT AGAINST MOVING DEFENDANTS MUST BE DISMISSED…………………...15 VII. CONCLUSION………………………………………………………….18 Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 3 of 21 Page ID #:1239 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S TABLE OF AUTHORITIES Cases Adams v. California Dep't of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007) ....................................................................................................... 8, 9 Ashcroft v. Iqbal, 556 U.S. 662, 679 .................................................................................... 7 Balistgeri v. Pacific Police Department, 901 F.3d 696, 699 (9th Cir. 1990) ....................... 7 Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed. 2d 929 (2007) ............................................................................................................. 7 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986) ............................................................. 17 Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117, 1123 (C.D. Cal. 2016) ............................................................................................... 3, 8, 11 Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) ..................................................... 15 Clements v. Airport Auth. of Washoe Cnty, 69 F.3d 321, 328 (9th Cir. 1995) .............. 8, 11 Conley v. Gibson, 355 U.S. 41, 45-46 ................................................................................. 7 Corcoran v. CVS Health Corporation, 169 F.Supp. 970, 989 (C.D. Cal. 2016) ................. 8 Cranford v. U.S., 359 F. Supp. 2d 981, 983-84 (2005) .................................................... 16 Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1169 (2012) ................................... 13 Elias v. Hewlett-Packard Co., 903 F.Supp.2d 843, 858 (N.D. Cal. 2012) ....................... 14 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) .................................................. 16 Garza v. Endo Pharmaceuticals, 2012 WL 5267897 (C.D. Cal. 2012) ........................ 4, 10 Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987) ................................................. 15 Hickory Travel Sys., Inc. v. TUI AG, 213 F.R.D. 547, 551-52 (N.D. Cal. 2003) ...................................................................................................... 16 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124.) ......................................... 10, 11, 12, 14, Khoury v. Maly’s of Calif., Inc. 14 Cal. App. 4th 612, 619 (1994) .................................... 12 McKell v. Wash. Mut., Inc., 142 Cal.App.4th 1457, 49 Cal.Rptr.3d 227 (2006) ...................................................................................................................... 13 Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 4 of 21 Page ID #:1240 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S Murphy v. E. R. Squibb & Sons, Inc., 40 Cal. 3d 672, 675, 221 Cal. Rptr. 447 (1985) .................................................................................................................. 4, 10 Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir. 1987)…………………7 Taylor v. Sturgell, 553 U.S. 880, 904, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) ......................................................................................................................... 8 UFCW, Locals 197 & 373 v. Alpha Beta Co.., 736 F.2d 1371, 1382 (9th Cir. 1984) ......................................................................................................... 15 United States v. Haytian Republic, 154 U.S. 118, 125 (1894) ............................ 3, 8, 11, 15 Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) ............................................................ 15 Statutes Business and Professions Code section 17200 ................................................... 4, 11, 13,14 California Civil Code section 1770.................................................................................... 12 California Civil Code section 1782.................................................................................... 11 Rules Federal Rule of Civil Procedure 4(a) ............................................................................. 6, 17 Federal Rule of Civil Procedure 9(b) ........................................................................... 10, 12 Federal Rule of Civil Procedure 12(b)(5) ............................................ 2, 3, 4, 13, 15, 17, 18 Federal Rule of Civil Procedure 12(b)(6) .................................................. 2, 3, 7, 13, 14, 18 Local Rule 7-3 .................................................................................................................. 2, 4 Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 5 of 21 Page ID #:1241 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 3 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants CVS Pharmacy, Inc. and Target Corporation (collectively, the “Pharmacy Defendants”) file this Motion to Dismiss pursuant to Rule 12(b)(6) and Rule 12(b)(5) of the Federal Rules of Civil Procedure. Plaintiffs assert claims relating to the manufacture, marketing, promotion, advertising and dispensing of Lexapro (including its generic version, escitalopram), alleging that the defendants caused decedent Kennadi Knighten (“K.K.”) to commit suicide. First Amended Complaint (“FAC”) (Dkt. No. 85). The allegations in the FAC indicate that the Pharmacy Defendants filled K.K.’s prescription for Lexapro/escitalopram exactly as prescribed by her physicians. Plaintiffs aver that the wrongful conduct by the Pharmacy Defendants was their alleged failure to include FDA-approved “Proper Labeling” with the prescription medication. FAC ¶¶ 81-87. The claims in the FAC against the Pharmacy Defendants should be dismissed for three independent reasons. First, Plaintiffs’ allegations of negligence and wrongful death against the Pharmacy Defendants are duplicative of a state court action brought against the same defendants on the same theories of liability and arising out of the same events. In both this case and the state court action, Plaintiffs allege that K.K.’s suicide was caused by the Pharmacy Defendants’ failure to warn K.K. or her parents about the risks of taking Lexapro. Plaintiffs have implicitly acknowledged that both suits arise out of the same transaction or occurrence, in that Plaintiffs filed a “Notice of Related Cases” in the state court action. The splitting of claims in this manner is not permitted. Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117, 1123 (C.D. Cal. 2016) (quoting United States v. Haytian Republic, 154 U.S. 118, 125 (1894)). Second, the products liability, breach of warranty and other “sales-based” claims against the Pharmacy Defendants must be dismissed as a matter of law. Under California law, dispensing prescription medications is a service that is part of a pharmacist’s professional responsibility; it is not a sale of a product in the ordinary stream of commerce. Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 6 of 21 Page ID #:1242 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 4 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S Murphy v. E. R. Squibb & Sons, Inc., 40 Cal. 3d 672, 675, 221 Cal. Rptr. 447 (1985); Garza v. Endo Pharmaceuticals, 2012 WL 5267897 (C.D. Cal. 2012) (granting motion to dismiss strict liability and breach of warranty claims against a pharmacy based on California law). A pharmacist’s failure to meet his or her professional responsibilities in dispensing prescription medications could theoretically support a cause of action for professional negligence or wrongful death, but it would not support a claim of products liability, breach of warranty or other “sales-based” causes of action. Further, Plaintiffs’ claims under the California Civil Remedies Act and Bus. and Prof. Code section 17200 are barred, as Plaintiffs failed to satisfy state-law notice requirements, the claims are improperly pled, and they do not address actionable business practices as intended by these statutes. Third, Plaintiffs never properly served either CVS Pharmacy, Inc. or Target Corporation with the original summons and complaint, through their agent for service of process in California, CT Corporation. Accordingly, the FAC should be dismissed pursuant to Rule 12(b)(5) for failure to serve the Pharmacy Defendants within the statutory time allowable under Rule 4, or by July 3, 2017. Counsel for Pharmacy Defendants complied with the meet and confer requirements under L.R. 7-3 based on phone conferences with Plaintiffs’ counsel that took place on February 27, 2018 and again on March 1, 2018, (See Brian R. Hill Decl. ¶ 10). II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiffs, the parents of the decedent, K.K., brought the instant lawsuit arising out of the death of K.K. by way of alleged suicide. (Dkt. No. 85, ¶¶ 1-2) Plaintiffs allege that the Pharmacy Defendants were negligent in dispensing K.K.’s prescription as written for escitalopram (generic for Lexapro) and that K.K. committed suicide because she took this prescription medication. (Id. ¶ 3) Plaintiffs filed two separate suits arising out of K.K.’s suicide. The first (the “State Action”) was filed in Superior Court in Riverside County, California, on January 30, 2017, alleging medical malpractice/professional negligence and wrongful death. The original complaint in the State Action did not include the Pharmacy Defendants as defendants, but Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 7 of 21 Page ID #:1243 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 5 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S included K.K.’s treating providers and hospital. (Compl. (Dkt. No. 1- 2)). Thereafter, on May 15, 2017, Plaintiffs filed an amended pleading in the State Action adding the Pharmacy Defendants as additional defendants. That suit includes claims of negligence and wrongful death against the Pharmacy Defendants, alleging that they failed to reasonably advise Plaintiffs of the risks of Lexapro at the time that the Pharmacy Defendants filled K.K.’s prescriptions. (FAC (Dkt. No. 85)) The second suit (the “Federal Action”), the matter now before this Court, was filed on April 4, 2017, also in Superior Court. (Dkt. No. 1-2), and named the Pharmacy Defendants, as well as various drug manufacturers (the “Manufacturer Defendants”), and Riverside County Regional Medical Center (“RCRMC”) (Dkt. No. 74-2). In addition to negligence and wrongful death claims, the Plaintiffs set forth claims in the Federal Action for product liability, fraud, breach of warranty, and violations of California consumer protection laws. Plaintiffs claim in the Federal Action that the manufacturer defendants failed to disclose the dangers of the drug to healthcare providers. (Original complaint ¶ 52). Plaintiffs also contend that the Pharmacy Defendants acted as “distributor[s]” of the drug, and as such, are liable under products liability theories. The FAC adds allegations that “Defendants” did not include “Proper Labeling” and that the distribution of the product without proper labeling constituted a “defect in the product itself.” (Dkt. No. 85 ¶ 84) The second suit was removed to this Court on the basis of diversity jurisdiction, which removal withstood Plaintiffs’ motion for remand. The basis of the motion for remand was that one of the defendant parties, Riverside County Regional Medical Center (RCRMC), was a California citizen, thus defeating the claim of diversity. The allegations against RCRMC, that RCRMC had dispensed Lexapro to the patient without warning the patient of the medication’s dangerous propensities, were identical to the allegations currently made against these moving defendants. The motion for remand was opposed on the basis that the joinder of RCRMC was effectively fraudulent as the “products liability- based” claims were not valid claims against the RCRMC pharmacy; and the remaining negligence and wrongful death claims were duplicative of the same claims brought by the Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 8 of 21 Page ID #:1244 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 6 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S same Plaintiffs in the State action (in which RCRMC was also a defendant). This Court denied the motion for remand on two grounds: “The Motion is denied both on the basis of claims-slitting and the impossibility that RCRMC (Riverside County Regional Medical Center) is a valid defendant to defeat diversity.” (Dkt No. 37, p. 5) The Court determined that the claims alleged against RCRMC in the action before the Court were the same as alleged in an identical State court proceeding and that the joinder of RCRMC amounted to that defendant being “fraudulently joined.” (Id.) This Court further ruled that the only claims that could be alleged against RCRMC for pharmacy conduct were for negligence and wrongful death-claims alleged already in Plaintiff’s State suit. This court, in ordering dismissal of the other, remaining claims, which have been repeated again in the First Amended Complaint, and alleged against the Pharmacy Defendants, pointed out in detail why the non-negligence and wrongful death claims could not possibly proceed against RCRMC. Similarly, as to these moving party Defendants here, other than the slight, additional ground that RCRMC is a public entity, the very same arguments and case law this Court embraced in its dismissal of RCRMC apply equally to the Pharmacy Defendants as set forth in this Motion to Dismiss. (Dkt No. 37, pp. 5- 6) As an entirely separate basis for dismissal suit, now pending before this court, Moving Parties point out that Plaintiffs have never properly served either Pharmacy Defendant with the Summons and Complaint. Instead, on June 2, 2017, Plaintiffs served various documents, including the Notice of Removal, Notice of Associated Cases, and discovery responses from the first suit, to Pharmacy Defendants’ agent for service of process, CT Corporation. (See Brian R. Hill Decl., Ex. 1 and Ex. 2) Although the Summons and Complaint of the second suit are contained among the documents served on CT corporation on June 2, 2017, as an Exhibit to both the Notice of Related Cases and the Notice of Removal, the Summons contained as Exhibits to the above-referenced pleadings does not meet the requirements under Rule 4(a) to amount to proper service of the summons and complaint. As such, service was not proper. Since that time, Plaintiffs have not attempted to effect proper service on the Pharmacy Defendants and instead have Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 9 of 21 Page ID #:1245 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 7 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S maintained that service was proper. (Hill Decl., Ex. 3) Plaintiffs’ filing of their FAC on January 29, 2018, and electronic service of that document on the offices of the Pharmacy Defendants’ attorney resulting in this motion should not be construed as a waiver of the aforementioned fatal service deficiencies because those deficiencies were required to be cured by July 3, 2017 (90 days after the filing of the Complaint on April 4, 2017). This basis for dismissal was raised in moving Defendant’s initial Motion to Dismiss in response to Plaintiffs’ original Complaint. III. PLAINTIFFS’ ACTION IS PROPERLY SUBJECT TO A MOTION TO DISMISS PURSUANT TO RULE 12(B)(6). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is proper where the pleadings fails to state a claim upon which relief can be granted. Conley v. Gibson, 355 U.S. 41, 45-46. A Rule 12(b)(6) dismissal is proper where there is either a “lack of cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistgeri v. Pacific Police Department, 901 F.3d 696, 699 (9th Cir. 1990); Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir. 1987.) “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint” is inapplicable to legal conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (Citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed. 2d 929 (2007)). IV. PLAINTIFFS HAVE IMPROPERLY SPLIT THEIR CLAIMS BETWEEN TWO LAWSUITS AGAINST MOVING DEFENDANTS, AND AS SUCH, MOVING DEFENDANTS MUST BE DISMISSED FROM THE PRESENT LAWSUIT. The doctrine of claim-splitting is well-settled and upholds the principle that “a party is ‘not at liberty to split up his demand, and prosecute it by piecemeal, or present only a Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 10 of 21 Page ID #:1246 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 8 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S portion of the grounds upon which special relief is sought and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.’” Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117, 1123 (C.D. Cal. 2016) (quoting United States v. Haytian Republic, 154 U.S. 118, 125 (1894)). The purpose of the rule is to “‘protect the Defendant from being harassed by repetitive actions based on the same claim’ and to promote judicial economy and convenience” Clements v. Airport Auth. of Washoe Cnty, 69 F.3d 321, 328 (9th Cir. 1995). When faced with duplicative allegations, “[d]ismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive disposition of litigation.” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007). Plaintiffs have “no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Here, a review of the State Action and the Federal Action reveals that Plaintiffs are clearly improperly attempting to split their claim. Both lawsuits arise out of the Pharmacy Defendants’ dispensing of the prescribed medication to K.K., and nothing else. See, Corcoran v. CVS Health Corporation, 169 F.Supp. 970, 989 (C.D. Cal. 2016) (any duty a pharmacist owes arises out of pharmacist’s “status as a health care provider”). In both lawsuits, as against these Pharmacy Defendants, Plaintiffs allege that K.K.’s suicide was caused by the Pharmacy Defendants’ failing to warn K.K. or her parents about the risks of taking Lexapro. Plaintiffs also acknowledged that both suits arise out of the same transaction or occurrence in that Plaintiffs filed a “Notice of Related Cases” in both State Court cases which concedes that the first action involves the same parties and arises from the same or substantially identical transactions. (See Hill Decl., Ex. 1 and Ex. 2; Notice of Filing of Related Case in State Court Actions (Dkt. No. 6)). Further, both lawsuits as pled Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 11 of 21 Page ID #:1247 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 9 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S are malpractice actions against Pharmacy Defendants, and Plaintiffs seek identical relief in their two lawsuits. The case law clearly prohibits this type of splitting of claims. Although Pharmacy Defendants maintain that they were never properly served in the instant case, Pharmacy Defendants respectfully request that this Court dismiss the present suit against them because Plaintiffs’ claims against CVS Pharmacy, Inc. and Target Corporation are identical to the first state court proceeding, thus the present case is duplicative, and dismissal of this duplicative lawsuit, promotes judicial economy and the comprehensive disposition of litigation. (See Adams v. California Dep’t of Health Servs., supra, 487 F.3d 684 (9th Cir. 2007). V. PLAINTIFFS’ CLAIMS AGAINST THE PHARMACY DEFENDANTS ARE NOT VIABLE, THUS DEFENDANTS’ MOTION TO DISMISS MUST BE GRANTED. Plaintiffs’ original second Complaint removed to Federal Court directed all of its allegations to “Defendants,” collectively, even though none of the allegations related to CVS Pharmacy, Inc. or Target Corporation, which are pharmacies. That Complaint, when read as a whole, was clearly directed at the drug manufacturer defendants. With their instant FAC, Plaintiffs’ attempt to broaden the scope of their pleadings by alleging that the Pharmacy Defendants increased the risk of harm associated with the distribution of Lexapro/escitalopram by not including “Proper Labeling” for these medications. (FAC ¶¶ 81-85 (Dkt. No. 85)). Pharmacy Defendants were not and are not currently in the business of developing, manufacturing, or promoting Lexapro or escitalopram in interstate commerce. Plaintiffs themselves differentiate the duties and actions properly alleged against the Manufacturer Defendants from those associated with the Pharmacy Defendants’ unrelated duties in filling the prescriptions and dispensing the medications. In several places in the FAC, Plaintiffs continue to allege that the “Defendants” (including by reference these moving Pharmacy Defendants) failed to inform doctors, pharmacies, and other healthcare providers of the alleged risks of Lexapro. (FAC ¶ 43) The FAC continues, “Defendants . . . continued to represent that Lexapro was safe for teenagers and continued Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 12 of 21 Page ID #:1248 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 10 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S to mislead both consumers and physicians by failing to include a proper warning(s) on the Lexapro/escitalopram label and/or inserts or in their PHARMA [Manufacturer] Defendants’ marketing scheme designed to convince health care providers to prescribe, distribute and sell Lexapro/escitalopram on behalf of (and to the benefit of) Defendants.” (FAC ¶ 43) These allegations are clearly aimed at the manufacturers of the drug to support the product liability-type claims against those defendants, and are, on their face, senseless as a basis of any claim against the Pharmacy Defendants. A. Strict Liability and Breach of Warranty. It is well-established that a pharmacy or pharmacist cannot be held strictly liable for dispensing a properly prescribed medication that leads to negative side effects for the patient. See Murphy v. E. R. Squibb & Sons, Inc., 40 Cal. 3d 672, 675, 221 Cal. Rptr. 447 (1985). See also Garza v. Endo Pharmaceuticals, 2012 WL 5267897 (C.D. Cal. 2012) (granting motion to dismiss strict liability and breach of warranty claims against a pharmacy based on California law). Thus, Plaintiffs’ third cause of action for strict product liability and their eighth cause of action for breach of warranty against the Pharmacy Defendants fail. B. Fraud Rule 9(b) requires that fraud allegations must be “specific enough to give defendants notice of the particular misconduct [. . .] so they can defend against the charge and not just deny they have done anything wrong.” (See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) The allegations must include “the who, what, where, when, and how of the misconduct charged.” (Id.) As in their original Complaint, in the FAC Plaintiffs continue, by general reference to “Defendants,” to improperly include the Pharmacy Defendants as co-conspirators in the alleged fraud--though within the body of the FAC Plaintiffs are explicit that the alleged fraudulent conduct was undertaken by the Manufacturer Defendants in furtherance of their so-called “Marketing Scheme.” (FAC ¶ 99) There is nothing within the FAC which would raise to the level of the legally-required specific allegation of fraudulent conduct by the Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 13 of 21 Page ID #:1249 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 11 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S Pharmacy Defendants that would give notice to these defendants of any particular misconduct against them to which they need muster a defense. The clear focus of the fraud claim is directed at the Manufacturer defendants, in furtherance of their “Marketing Scheme” rather than any alleged fraudulent conduct by the Pharmacy Defendants. Therefore, Plaintiffs’ fourth cause of action against Pharmacy Defendants fails to state any claim upon which relief could be granted. (See Kearns v. Ford Motor Co., supra at 1124.) C. Negligence and Wrongful Death While it is possible that the allegations within the FAC might support causes of action for Negligence (FAC Fifth Cause of Action) and Wrongful Death (FAC Ninth Cause of Action) against the Pharmacy Defendants, as set forth above, those claims are already the subject of the State Action brought by these same plaintiffs against these same defendants. Plaintiffs’ action in bringing this second suit to assert the same claims against the same defendants, constitutes improper claim splitting and harassment. Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117, 1123 (C.D. Cal. 2016) (quoting United States v. Haytian Republic, 154 U.S. 118, 125 (1894)). The purpose of the rule is to “‘protect the Defendant from being harassed by repetitive actions based on the same claim’ and to promote judicial economy and convenience” Clements v. Airport Auth. of Washoe Cnty, 69 F.3d 321, 328 (9th Cir. 1995). “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive disposition of litigation.” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007). Accordingly, the Fifth and Ninth Causes of Action within the FAC should be dismissed. D. CLRA and UCL Claims Plaintiffs’ claims against Pharmacy Defendants under the Consumer Legal Remedies Act (“CLRA”) and Bus. & Prof. Code section 17200 (“UCL”) are also defective. First, Plaintiffs failed to provide the required 30-day notice to the Pharmacy Defendants before filing their CLRA claim against it. See Cal. Civ. Code section 1782. Plaintiffs Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 14 of 21 Page ID #:1250 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 12 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S have since recognized the failure to provide the proper notice of their CLRA claim and served on both CVS Pharmacy, Inc. and Target Corporation, through their agent for service of process, CT Corporation, a Letter of Intent setting forth an intent to bring claims under CLRA. (Hill Decl., Ex. 3 and Ex. 4. The September 11, 2017 letter was served after Plaintiffs filed their initial complaint in the instant case alleging claims under CLRA, and after the Court’s ruling denying Plaintiffs’ Motion for Remand, in which the Court indicated that Plaintiffs had failed to provide the required 30-day notice to Defendants before filing their CLRA claims., and as such, the letter does not serve to fulfill the requirement of notice under Cal. Civ. Code section 1782. Further, the CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale. . .of goods or services to any consumer.” Cal. Civ. Code section 1770. The provisions of the CLRA which Plaintiffs cite in the FAC relate to “misrepresenting the source, sponsorship, approval or certification of the goods; misrepresenting the affiliation, connection or association with, or certification [of the goods] by, another; and/or representing that goods have sponsorship, approval, characteristics or ingredients which they don’t have. (FAC ¶ 113) The alleged violation of these provisions by the Pharmacy Defendants is “failure and refusal to include the Proper Labeling in the packaging of Lexapro and Escitalopram which was distributed to [K.K.]” (FAC ¶ 114) This is essentially a restatement of the grounds for the claims of negligence and wrongful death, duplicative of the allegations in the State Action; and, even if substantively proper, must be addressed solely in that forum. More importantly, under Rule 9(b), “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (See Kearns, supra at 1125, see also Khoury v. Maly’s of Calif., Inc. 14 Cal. App. 4th 612, 619 (1994)) Reviewing the charging allegations of the FAC in support of the CLRA claim, there is no factual basis alleged that would support a claim that these Pharmacy Defendants were guilty of unfair competition or wrongful Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 15 of 21 Page ID #:1251 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 13 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S inducement of the patient to purchase these FDA-approved medications specifically prescribed by the patient’s treating physician, whether by misleading the source or certification of the medication, misrepresenting the affiliation or connection of the medication to another, or representing that the medications have sponsorship or approval by another that they do not have. The cited provisions of the CLRA have no application to the facts of this case: the Pharmacy Defendants did nothing more than accurately fill a prescription of medication prescribed by the patient’s private physician. The patient came in to the pharmacy to purchase the medication-without inducement or representation of any kind by the Pharmacy Defendants. The Pharmacy Defendants filled and dispensed the prescribed medication in accordance with their professional obligations. As such, citation to the CLRA (which implies misleading inducement for purchase) as a basis to establish a claim against these defendants is misplaced. Even if accepted as true, the allegation that the Pharmacy Defendants failed to provide K.K. with “Proper Labeling” along with the prescribed medication does not fairly imply a plausible violation of the statutory elements of the CLRA. On that basis the Sixth Cause of Action should be dismissed for failure to state a claim upon which relief can be granted. (Rule 12 (b)(6).) Similarly, in the Seventh Cause of Action, again generically brought against “Each Defendant,” Plaintiffs allege a series of acts in violation of Cal. Bus. & Prof. Code section 17200-unfair business practices. Bus. & Prof. Code section 17200, known as the Unfair Competition Law (“UCL”) prohibits “unlawful, unfair or fraudulent business act[s] or practice[s]” and “unfair, deceptive, untrue or misleading advertising.” “In McKell v. Wash. Mut., Inc., 142 Cal.App.4th 1457, 49 Cal.Rptr.3d 227 (2006), the California Court of Appeal held that, ‘[a] business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.’ Id. at 1473, 49 Cal.Rptr.3d 227. In determining whether a business practice is unfair under this approach, California courts balance the ‘impact on its alleged victim’ against ‘the reasons, justifications, and motives of the alleged wrongdoer.’ Id.; cf. Davis v. HSBC Bank Nevada, Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 16 of 21 Page ID #:1252 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 14 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S N.A., 691 F.3d 1152, 1169 (2012).” Elias v. Hewlett-Packard Co., 903 F.Supp.2d 843, 858 (N.D. Cal. 2012) In weighing the defendant’s conduct against the stated provisions of the UCL, the courts typically analyze the statute together with the CLRA. Elias v. Hewlett- Packard Co., supra at 854. In the charging allegations to support their cause of action under section 17200, incorporating by reference the earlier allegations of the FAC (thus, a restatement of the allegations of fraud in the Marketing Scheme by the Manufacturer Defendants, and, as discussed above at Section V, subpart B, the inadequate allegations of “fraud” against the Pharmacy Defendants), Plaintiffs allege that “Defendants directly and indirectly engaged in fraudulent activity described herein above, for purposes of:” inducing K.K. and her physicians and healthcare providers to rely on the skill and representations of the defendants; disseminating before the public false statements and/or making untrue and misleading statements known to be false [without required specification of who allegedly said what to whom (see Kearns, supra at 567 F.3d at 1124 )] and without specification of any false statements allegedly attributable to Pharmacy Defendants. (FAC ¶ 120) The only attempt to attach these alleged violations of the UCL to the Pharmacy Defendants is, again, the alleged failure of the Pharmacy Defendants to provide “Proper Labeling” documents to the patient. (FAC ¶ 122) Once again, however, the alleged failure to provide “Proper Labeling” documents does not fairly provide these moving defendants with notice of a plausible violation of an unfair or fraudulent business practice or act, or of unfair, untrue of misleading advertising, said to have unfairly induced the patient to take the very FDA- approved medication her physician prescribed. Therefore, dismissal pursuant to Rule 12 (b)(6) is appropriate. Elias v. Hewlett-Packard Co., supra at 854-858. Given that each of Plaintiffs’ causes of action as pled against Pharmacy Defendants fails to state a claim upon which relief can be granted, and given that Plaintiffs are concurrently maintaining a separate State Court action against Pharmacy Defendants that is improper, Pharmacy Defendants, CVS Pharmacy, Inc. and Target Corporation, respectfully request their motion to dismiss pursuant to Rule 12(b)(6) be granted, without leave to amend. Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 17 of 21 Page ID #:1253 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 15 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S VI. PLAINTIFFS HAVE NOT PROPERLY SERVED MOVING DEFENDANTS, AND AS SUCH, PLAINTIFFS’ COMPLAINT AGAINST MOVING DEFENDANTS MUST BE DISMISSED. Rule 12(b)(5) allows a defendant to move to dismiss an action where the service of process of a summons and complaint is insufficient. If proper service is not accomplished within 90 days after the complaint is filed and the party on whose behalf service was required cannot show good cause why such service was not made, the action must be dismissed. (Rule 4 (m); Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987). In the Ninth Circuit, dismissals due to technical noncompliance with Rule 4(i) may be excused if (1) the party to be served personally received notice; (2) the defendant would suffer no prejudice from the service defect; (3) there is justifiable excuse or good cause for the failure to serve properly; and, (4) the plaintiff would be severely prejudiced if his complaint was dismissed. Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984). However, if good cause is not shown, dismissal is required. See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (Emphasis added). Rule 4 specifically states that the contents of the summons must include the following: (A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff’s attorney or- if unrepresented-of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court’s seal. While Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint, UFCW, Locals 197 & 373 v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984), “neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction” absent substantial Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 18 of 21 Page ID #:1254 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 16 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S compliance with its requirements. Cranford v. U.S., 359 F. Supp. 2d 981, 983-84 (2005) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986)). Plaintiff bears the burden of establishing the validity of service. Hickory Travel Sys., Inc. v. TUI AG, 213 F.R.D. 547, 551-52 (N.D. Cal. 2003). Although dismissal is a “harsh penalty” and should only be granted in extreme circumstances, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), it is appropriate in the instant case. Here, Plaintiffs filed their original Complaint in State Court on April 4, 2017. (See Dkt. No. 1-2) With respect to moving Defendant, CVS Pharmacy, Inc., rather than serve the Summons and Complaint through the agent for service of process in California, CT Corporation in accordance with Rule 4, on June 2, 2017, Plaintiffs served CT Corporation with 117 pages of pleadings which included the Notice of Related Cases filed by Plaintiffs with the corresponding Exhibits, and the Notice of Removal by Defendant Forest Laboratories, LLC along with Exhibits (Hill Decl. and Ex. 1) Although both Plaintiffs’ Notice of Related Cases and the Notice of Removal contained the Summons and Complaint for Case No. RIC1705864, given that they were attached as Exhibits to the pleadings filed by Plaintiffs and co-defendant Forest Laboratories, neither were a summons and complaint directed at CVS Pharmacy, Inc., indicating that it was Plaintiffs’ intent to serve CVS Pharmacy, Inc., and they expected CVS Pharmacy, Inc., to respond in the redundant second lawsuit Case No. RIC1705864, or stating the date on which service was completed. (Hill Decl. and Ex. 2) The documents served by Plaintiffs on CT Corporation do not meet any of the requirements of a proper summons under Rule 4 (a) as they are not directed at the defendant to be served; they do not state the time within which the defendant must appear and defend; and they do not notify the defendant that a failure to appear and defend will result in a default judgment against the defendant. Similarly, Plaintiffs failed to properly serve moving Defendant Target Corporation whose agent for service of process in California is also CT Corporation. The documents received by Target Corporation from CT Corporation on June 2, 2017, the date Plaintiffs’ Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 19 of 21 Page ID #:1255 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 17 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S contend that they served Pharmacy Defendants based on the proofs of service filed on August 21, 2017 (Dkt. No. 50), were the same documents received by CT Corporation on behalf of CVS Pharmacy, Inc., 117 pages of pleadings including co-defendant Forest Laboratories, LLC’s Notice of Removal with Exhibits and the Plaintiffs’ Notice of Related Cases. (See Hill Decl., Ex. 1 and Ex. 2) Again, although the documents served had as Exhibits copies of the Summons and Complaint, those Exhibits did not meet the requirements under Rule 4(a) to qualify as the Summons and Complaint directed at Defendant Target Corporation; and did not fairly notify Target Corporation that Plaintiffs had served and expected Target Corporation to respond to the redundant second lawsuit. As such, Pharmacy Defendants maintain that Plaintiffs did not effectuate proper service of the original Summons and Complaint in Case No. RIC1705864 or the instant case before this court within the 90 days allowed by Rule 4(m). Additionally, counsel for Pharmacy Defendants attempted to meet and confer with Plaintiffs’ counsel regarding service of the Complaint and Plaintiffs’ counsel refused to make any additional attempts to complete service on Pharmacy Defendants, instead maintaining that service was completed on June 2, 2017 by way of the documents attached hereto as Exhibit Nos. 1 and 2. The time for Plaintiffs to properly serve the Complaint on Pharmacy Defendants in the present case expired on July 3, 2017 (90 days after the filing of the Complaint on April 4, 2017 or per Rule 4(m)). Further, as set forth above, Plaintiffs’ action as to Pharmacy Defendants should be dismissed due to a variety of defects which would prevent Plaintiffs from maintaining any of the causes of action asserted against Pharmacy Defendants in the present case. Thus, future proper service would be futile and as such, the Court can dismiss Plaintiffs claims against Pharmacy Defendants under Rule 12(b)(5) for insufficient service of the summons and complaint. Additionally, Plaintiffs will not be severely prejudiced by the dismissal of the instant action because they are currently maintaining a separate lawsuit in State Court against moving Defendant, CVS Pharmacy, Inc., under the same theories of liability alleged herein. (Defendant Target Corporation has been dismissed from the State Court case based on agreement between counsel for the parties.) Therefore, Pharmacy Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 20 of 21 Page ID #:1256 5:17-cv-00922 \\ljdfasapdc1\d ocuments\654 .39095 patton\pl - pleadings - 654.39095\pat - 18 - NOTICE OF MOTION AND MOTION TO DISMISS ALL CLAIMS AGAINST CVS PHARMACY, INC. AND TARGET CORPORATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA F O LL E TT E , J O H N S O N , D eH A A S , F E S LE R & A M E S Defendants respectfully request the Court grant their motion to dismiss, without leave to amend. VII. CONCLUSION Based upon the foregoing, Pharmacy Defendants, CVS PHARMACY, INC. and TARGET CORPORATION, respectfully request the Court grant the instant motion to dismiss pursuant to Rule 12(b)(5) and (6), in its entirety without leave to amend, thereby dismissing Plaintiffs’ First Amended Complaint against Defendants, CVS PHARMACY, INC. and TARGET CORPORATION. Dated: March _8, 2018 LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES By DENNIS K. AMES, ESQ. BRIAN R. HILL, ESQ. Attorneys for Defendants, CVS PHARMACY, INC., A Rhode Island Corporation and TARGET CORPORATION /s/ Dennis A. Ames Case 5:17-cv-00922-MWF-DTB Document 91 Filed 03/08/18 Page 21 of 21 Page ID #:1257