137 F. Supp. 3d 817
D.S.C.2015Background
- Plaintiff, a disabled African-American military veteran diagnosed with PTSD and severe agoraphobia, sought after-hours, locked-door shopping and prescription-fill accommodations at multiple CVS stores and alleges repeated denials and hostile encounters by store employees.
- Plaintiff alleges CVS corporate defendants (South Carolina CVS Pharmacy, LLC; CVS Pharmacy, Inc.; and CVS Health Corporation) and numerous store- and above-store employees engaged in disability- and race-based discrimination, conspiracy, and related torts; he amended complaints asserting ADA Title III, §1981, §1985(3), §1986, Title VI, ACA §1557, and state tort claims.
- CVS Health Corporation and former CVS president Mark Cosby moved to dismiss for lack of personal jurisdiction; other defendants moved to dismiss various federal and state claims under Rule 12(b)(6).
- The court held CVS Health and Cosby are not subject to personal jurisdiction in South Carolina and dismissed them from the case.
- The court allowed many federal statutory claims to proceed against the operating CVS entities and certain store-level employees (denying dismissal of ADA Title III, §1981 as to select defendants, §1985(3) and §1986 as to corporate and store-level defendants, Title VI, and ACA §1557 as to corporate defendants), but dismissed several claims and defendants (including Above-Store Defendants on many counts and all defendants on state-law civil conspiracy and certain interference and SCUTPA claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over CVS Health Corporation | CVS Health’s sporadic contacts (lease guaranty, settlement payments, corporate integrity agreement) and corporate ties to South Carolina suffice for jurisdiction | CVS Health is a holding company with no direct control of South Carolina operations; contacts are insufficient for general or specific jurisdiction | Dismissed CVS Health for lack of personal jurisdiction (no specific or general jurisdiction) |
| Personal jurisdiction over Mark Cosby | Cosby is tied to CVS corporate decisions; jurisdictional allegations in complaint suffice | Cosby is nonresident with minimal contacts and submitted sworn affidavit denying relevant contacts | Dismissed Cosby for lack of personal jurisdiction (plaintiff failed to rebut affidavit) |
| ADA Title III claim (reasonable modification to allow after-hours shopping) | Plaintiff alleges disability, requested reasonable modification (after-hours locked shopping), and was refused by store managers | Defendants: plaintiff not disabled within ADA meaning; no standing/injury; request is segregated/preferential accommodation or unreasonable/fundamental alteration; individuals not liable under Title III | Denied dismissal as to operating corporate defendants and store-level managers who denied requests (plausible ADA claim); granted as to Above-Store Defendants (no facts showing direct discriminatory conduct) |
| §1981 racial discrimination claim | Plaintiff alleges he was denied equal opportunity to purchase goods/services compared to white customer (friend was accommodated) and individual actors used racial slurs | Defendants: plaintiff was not denied goods/services; insufficient facts to hold many individuals liable | Denied dismissal as to corporate defendants and store managers Gates, Pendergrass, Sosa, Keeler; granted as to Above-Store Defendants and many other store-level employees lacking specific allegations |
| §1557 (ACA) private right and applicability to CVS | §1557 incorporates enforcement mechanisms of Title VI/IX/Age/504 so it creates private cause; retail pharmacies that receive federal funding (e.g., Medicare Part D) are covered | CVS argues it is not a “health program or activity” under §1557 and therefore not subject to claim | Court finds §1557 creates a private cause of action and, at 12(b)(6) stage, plaintiff plausibly alleged CVS is a covered entity (receives Medicare Part D funds and is principally engaged in pharmacy operations); denied dismissal as to corporate defendants |
| §1985(3) conspiracy and §1986 failure to prevent | Plaintiff alleges a racially motivated conspiracy by corporate and store employees to deny accommodations, causing injury; other non-CVS persons participated | Defendants: plaintiff fails to plead meeting-of-minds or class-based intent; intracorporate conspiracy doctrine bars claim | §1985(3) and §1986 survive against corporate and store-level defendants (pleaded sufficiently at pleading stage); dismissed as to Above-Store Defendants (no plausible participation alleged) |
| State torts (assault, battery, false imprisonment, IIED, negligence, negligent supervision/retention, civil conspiracy, interference torts, SCUTPA) | Plaintiff alleges Pendergrass physically handled him, summoned crowd, restrained him; emotional and physical harms followed; claims against corporate defendants under respondeat superior and negligent supervision/retention | Defendants: many state-law claims inadequately pleaded (no special damages for conspiracy; stranger doctrine bars interference claims; no ascertainable monetary loss for SCUTPA); some employees outside scope of employment | Court: assault, battery, false imprisonment, IIED, negligence, negligent supervision/retention survive as to Pendergrass and corporate defendants (respondeat superior) except Keeler (IIED dismissed); civil conspiracy, interference claims, and SCUTPA dismissed; Above-Store and most other store-level defendants dismissed from negligence and supervisory claims |
Key Cases Cited
- In re Celotex Corp., 124 F.3d 619 (4th Cir. 1997) (prima facie showing suffices to defeat a pretrial Rule 12(b)(2) motion when court does not hold an evidentiary hearing)
- New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290 (4th Cir. 2005) (plaintiff need only make a prima facie showing of jurisdiction absent an evidentiary hearing)
- Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003) (courts construe disputed jurisdictional facts in plaintiff’s favor at the pleading stage)
- Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56 (4th Cir. 1993) (jurisdictional pleading standards and inferences)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts due process standard for personal jurisdiction)
- Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915 (2011) (general jurisdiction requires contacts so continuous and systematic as to render defendant at home in forum)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must contain factual content to state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (reasonable modification analysis under disability-access laws)
- Bragdon v. Abbott, 524 U.S. 624 (1998) (direct threat defense and ADA analysis)