ORDER
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;
Background
Plaintiff filed his initial complaint on August 28, 2014, and an amended complaint on September 17, 2014. See ECF Nos. 1 & 9." Plaintiffs 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 Plaintiffs 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 Plaintiffs amended complaint, are as follows.
I. Plaintiffs Military Service and Related Disabilities
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. Plaintiffs 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 accépt 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.
Plaintiffs medical doctors chose a course of treatment for Plaintiffs 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.
III. Requests for Accommodation at CVS Stores
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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, “ T 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 Plaintiffs 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 Pen-dergrass, 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. Pender-grass denied Plaintiffs request, citing CVS policy. Id. Plaintiff informed Pendergrass that she had the authority to accommodate his request' because1 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 searing me.’” Id, She attempted to remove the towel from Plaintiffs 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, “ T 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 fidend requested permission to shop for ten to thirty minutes after hours. Id. Defendant Pendergrass stated, “ Tes, 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, Plaintiffs 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 Plaintiffs letter. Id. at ¶ 92. In his written response, Defendant Robinson identified himself as a district manager and stated Plaintiffs 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 Plaintiffs 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, “ T 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.
IV. Plaintiffs Causes of Action
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 re-^ ceives 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 emo-tionál 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.
Standdrds of Review
I. Motions to Dismiss for Lack of Personal Jurisdiction
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” jurisdic
II. Motions to Dismiss for Failure to State a Claim
When deciding a motion to dismiss made under Federal Rule of CM 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 plaintiffs favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
Discussion
I. Personal Jurisdiction Over CVS Health Corporation and Mark Cosby
Defendants CVS Health Corporation and Mark Cosby move to dismiss Plaintiffs 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
A. Applicable Law
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,
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.,
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.,
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,
B. Analysis
For the reasons stated below, the Court finds it lacks- personal jurisdiction over Defendants CVS Health. Corporation and Mark Cosby.
1. CVS Health Corporation
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,
2. Mark Cosby
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 ahy 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 eohiplaint 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,
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.
11. Americans with Disabilities Act, 42 U.S.C. § 12182 (Denial of Public Accommodations)
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 Plaintiffs 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 I'll 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) Plaintiffs 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 Plaintiffs 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 máintain neither claim is sufficient to state a claim under the ADA. ECF No. 20-1 at 11-12.
A. The ADA
Congress enacted Title III of the ADA to facilitate disabled individuals’ access to places of public accommodation. Montalvo v. Radcliffe,
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
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.,
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 Plaintiffs 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 Plaintiffs 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 dem
“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.,
that the defendant has a discriminatory policy or practice in effect; that he (the plaintiff) requested a reasonable modification in that policy or practice which, if granted, would have afforded him access to the desired goods; that the requested modification—or a modification like it— was necessary to afford that access; and that the defendant nonetheless refused to modify the policy or practice.
Id. (citing PGA Tour, Inc. v. Martin,
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,
B. Whether Individuals Can Be Sued Under Title III
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,
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.” IcL (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.
C. The Court’s Ruling
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 Plaintiffs 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 Plaintiffs 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,
As to the Above-Store Defendants, however, Plaintiffs 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 Plaintiffs. 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 Plaintiffs ADA claim, but grants the Above-Store Defendants’ motions to dismiss Plaintiffs ADA claim.
III. Racial Discrimination, 42 U.S.C. . § 1981
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. EOF No. 20-1 at 12-14; EOF No. 21-1 at 5; EOF No. 22-1 at 2. They also argue Plaintiffs complaint does not contain allegations sufficient to hold the Store-Level or Above-Store Defendants liable under § 1981. EOF 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, Pender-grass, 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, Plaintiffs 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 Plaintiffs white female friend. See Williams,
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. Plaintiffs 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. ECP No. 20-1 at 15, 17-18. They also argue the intracorporate conspiracy doctrine bars Plaintiffs .§ 1985(3) claim. ECP No. 20-1 at 15-17.
A. § 1985(3) Conspiracy Claim
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,
B. Intracorporate Conspiracy Doctrine
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,
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 ánd 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.
C. Analysis
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 intracor-porate 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.
V. Failure to Prevent Deprivation of Rights, 42 U.S.C. § 1986
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,
Defendants argue Plaintiffs § 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 Plaintiffs § 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,
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.
VI. Discrimination under Title VI of the Civil Rights Act of 1964
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,
VII. Discrimination under Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116
Plaintiff seeks to bring a claim under Section 1557 of the Patient Protection and Affordable Care Act
A. A Private Cause of Action Under Section 1557
“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,
(a) In general
Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 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 isreceiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination A.ct shall apply for purposes of violations of this subsection.
(b) Continued application of laws
Nothing in this title (or an amendment made by this title) shall be construed to invalidate or limit the rights, remedies, procedures, or legal standards available to individuals aggrieved under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the Age Discrimination Act of 1975 (42 U.S.C. 611 et seq.), or to supersede State laws that provide additional protections against discrimination on any basis described in subsection (a).
(c) Regulations
The Secretary may promulgate regulations to implement this section.
42 U.S.C. § 18116.
1. Judicial Review of Section 1557
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.,
In Southeastern Pennsylvania Transportation Authority, the plaintiff asserted a claim for discrimination under Section 1557 on the basis of race and disability.
2. Analysis
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,
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 nondiscrimination 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,
Having determined an individual plaintiff can sue under Section 1557, the Court will address the remaining Corporate Defendants’ motion to dismiss Plaintiffs Section 1557 claim.
B. Motion to Dismiss Plaintiffs Section 1557 Claim
In seeking dismissal of Plaintiffs 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
1. “Health Program or Activity”
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.,
Here, however, HHS has proposed but has not promulgated regulations for Section 1557. See Nondiscrimination in Health Programs and Activities,
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,
2. HHS’s Proposed Regulations
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:
Health program or activity means the provision or administration of health-related services or health-related insurance coverage and the provision, of assistance to individuals in obtaining health-related services or health-related insurance coverage. For an entity principally engaged in providing or administering health .services or health insurance coverage, all of its operations are considered part of the health program or activity, except as specifically set forth otherwise in this part. Such entities include a hospital, health clinic, group health plan, health insurance issuer, physician’s practice, community health center, nursing facility, residential or community-based treatment 'facility, or other similar entity. A health program or activity also includes all of the operations of a State Medicaid program.
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 “retail pharmacies (including mail-order pharmacies).” Id. at 54185 (emphasis added).
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 Plaintiffs 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.
VIII. State Law Claims
To summarize Plaintiffs 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,
A. Assault, Battery, and False Imprisonment
Plaintiff brings claims for assault, battery, and false imprisonment against Pen-dergrass
1. Applicable Law
“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,
“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,
“False imprisonment is the deprivation of one’s liberty without justification.” Argoe v. Three Rivers Behavioral Health, L.L.C.,
Under the doctrine of respon-deat 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.,
2. Analysis
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 Pender-grass, 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 “Pen-dergrass 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 Pender-grass 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 agáinst Pendergrass and alleges she is an employee of the rerri'aining 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.,
B. Intentional Infliction of Emotional Distress
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:
(1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct; (2) the conduct was so extreme and outrageous so as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; 1 (3) the actions of the defendant caused plaintiffs emotional distress; and (4) the emotional distress suffered by the plaintiff was severe such that no reasonable man could be expected to endure it.
Hansson v. Scalise Builders of S. Carolina,
The Court finds the complaint, on its face, states a plausible IIED claim against Pendergrass. The allegations relating to Plaintiffs 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,
As for Defendant Keeler, however, the Court finds the complaint lacks sufficient allegations establishing his conduct toward Plaintiff was extreme and outrageous. See Hansson,
C. Civil Conspiracy
Plaintiff alleges a claim for civil conspiracy against the Above-Store and Store-Level Defendants, and against the Corporate Defendants under a theory of respon-deat superior. Amended Complaint at ¶¶ 278-92. All defendants argue Plaintiffs 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,
“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,
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). Plaintiffs failure to adequately describe his special damage impedes the defendants’ ability to litigate tlie ciyil conspiracy claim. See Sheek,
D. Negligence
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 Plaintiffs 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.,
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,
The Court finds Plaintiff has stated á plausible claim for negligence, under a theory of premises liability, against Pen-dergrass. The allegations relating to the incident involving Pendergrass, the facts of which áre summarized above, create a reasonable inference that'she failed to exercise due care to ensure Plaintiffs 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,
However, because Plaintiffs 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 Plaintiffs negligence claim against them.
E. Negligent Supervision and Retention
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.,
1. Negligent Supervision
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,
2. Negligent Retention
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,
3. Analysis
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,
F. Intentional Interference with Contract; Intentional Interference with Prospective Contractual Relations
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 re-spondeat 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.,
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,
The Court agrees with the defendants that-the stranger doctrine bars Plaintiffs claims for both intentional interference with contract and intentional interference with prospective contractual relations. A fair reading of Plaintiff’s complaint revéals 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 Plaintiffs claims for intentional interference with contract and intentional interference with prospective contractual relations.
G. Unfair Trade Practices
: 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 SCUT-PA “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].’ ” WñgH v. Craft,
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 Plaintiffs claim under the SCUT-PA.
IX. Declaratory and Injunctive Relief
Plaintiff seeks declaratory and injunc-tive relief in his sixteenth and seventeenth causes-of action. Amended Complaint at ¶¶ 357-63. All defehdants 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.
Conclusion
The Court GRANTS CVS Health Corporation’s and Mark Cosby’s motions to dismiss for lack of personal jurisdiction and DISMISSES them from all causes of action in Plaintiffs complaint. Regarding the remaining defendants and causes of action, the Court summarizes its ruling below and farther clarifies this ruling in an attached chart. The Court
(1)DENIES the remaining Corporate Defendants (South Carolina CVS Pharmacy, LLC and CVS Pharmacy, Inc.) and the Store-Level Defendants’ motions to dismiss to Plaintiffs ADA claim; but GRANTS the Above-Store Defendants’ motion to dismiss Plaintiffs ADA. claim; '
(2) DENIES the motions to , dismiss Plaintiffs § 1981 discrimination claim filed by the remaining Corporate Defendants and Store-Level Defendants • Gates, Pendergrass, Sosa, and Keeler; but GRANTS the motions to dismiss Plaintiffs .§ 1981 claim as to the Above-Store Defendants and Store-Level- Defendants Brescia, Cessna, Chisholm, Combs, McClure, Poland, Webb, John Doe # 1, Jane Doe # 1, and Jane Doe # 2;
(3) DENIES the motions to dismiss the § 1985(3) conspiracy claim filed by the remaining Corporate Defendants and the Store-Level Defendants; but GRANTS the.motion to dismiss the . § 1985(3) conspiracy claim filed by the Above-Store Defendants;
(4) DENIES the remaining Corporate Defendants and Store-Level Defendants’ motions to dismiss Plaintiffs § 1986 claim; but GRANTS the' Above-Store Defendants’ motion to dismiss the § 1986 claim;
(5) DENIES the remaining Corporate Defendants’ motion to dismiss Plaintiffs Title VI claim;
(6) DENIES the remaining Corporate Defendants’ motion to dismiss Plaintiffs Section 1557 claim;
(7) DENIES the remaining Corporate Defendants’ and Pendergrass’s motions to dismiss the assault, battery, and false imprisonment claims;
(8) DENIES the remaining Corporate Defendants’ and Pendergrass’s motions to dismiss the IIED claim; but GRANTS Keeler’s motion to dismiss the IIED claim;
(10) DENIES the motions to dismiss the negligence claim filed by the remaining Corporate Defendants and Pen-dergrass; but GRANTS the motion to dismiss the negligence claim filed by the Above-Store Defendants and all other Store-Level Defendants;
(11) DENIES the remaining Corporate Defendants’ motion to dismiss the negligent supervision and/or retention cause of action; but GRANTS the Above-Store and Store-Level Defendants’ motions to dismiss this cause of action;
(12) GRANTS all Defendants’ motions to dismiss Plaintiffs cause of action for intentional interference with contract and/or prospective contractual relations;
(13) GRANTS the remaining Corporate Defendants’ motions to dismiss Plaintiff claim under the South Carolina Unfair Trade Practices Act; and
(14)DENIES the remaining Corporate Defendants and Store-Level Defendants’ motions to dismiss Plaintiffs causes of action for declaratory and injunctive relief; but GRANTS the Above-Store Defendants’ motion to dismiss these claims;
In summary, the Corporate Defendants’ motion to dismiss [ECF # 20] is GRANTED in part and DENIED in part; the Store-Level Defendants’ motion to dismiss [ECF #21] is GRANTED in part and DENIED in part; and the Above-Store Defendants’ motion to dismiss .[ECF # 22] is GRANTED. The following defendants are dismissed from this case: CVS Health Corporation, Mark Cosby, Paul Anderson, Shelly Edge, Ronald Elliot, Matt Lesniak, David Purdy, John Robinson, and Darren Twedell. For the sake of clarity, the Court provides an attached chart summarizing which causes of action and respective defendants remain in this case.
IT IS SO ORDERED.
Attachment
. Defendant Ida Pendergrass is improperly identified in the amended complaint as Natasha Pendergrass. See ECF No. 2 Í at 1.
. Defendant Xiomata Sosa is improperly.identified in the amended complaint as Xio Sosa. See ECF No.. 21 at 1.
. Defendant Shelly Edge is improperly identified in the amended complaint as Renee Edge. See ECF No. 22 at 1.
. Defendant Ronald Elliot is improperly identified in the amended complaint as Kevin Elliot. See ECF No. 22 at 1.
. Plaintiff indicates all previous contact with CVS personnel had occurred via telephone communication. See Amended Complaint at ¶ 73 ("[Plaintiff] thought that there may be some type of misunderstanding on the part of CVS personnel when he made requests via telephone rather than in person and so, on or around September 5, 2013, [Plaintiff], accompanied by an acquaintance, went to CVS/pharmacy-,# 7697,”).
. Although Plaintiff’s complaint lumps together all defendants in many of the causes of action (usually referring to them as "the Defendants”), Plaintiff conceded—in his responses to the motions to dismiss and at the hearing in this matter—that not all defendants are being sued for every cause of action. The Court references Plaintiff's concessions where applicable in this order.
. Plaintiff’s counsel stated at the hearing that he does not seek jurisdictional discovery at this time. Transcript at 8.
. In Goodyear, the Supreme Court addressed the question of whether a foreign subsidiary of a United States parent corporation' was amenable to suit in North Caroliriá on claims unrelated to any activity of the subsidiaries in the forum state. Id. at 2850. The Court answered in the negative, unanimously holding that because Goodyear’s foreign subsidiaries were "in no sense at home in North Carolina,” those foreign subsidiaries could not be required to submit to the general jurisdiction of North Carolina courts. Id. at 2857. More recently, the Supreme Court adressed general jurisdiction in Daimler AG v. Bauman, — U.S, —, —,
. The South Carolina long-arm statute is codified at section 36-2-803 of the South Carolina Code (Supp. 2014) and provides:
(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's:
(1) transacting any business in this State;
(2) contracting to supply services or things in the State;
(3) commission of a tortious act in whole or in part in this State;
(4) causing tortious injury or death in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this State;
(5) having an interest in, using, or possessing real property in this State;
(6) contracting to insure any person, property, or risk located within this State at the time of contracting;
(7) entry into a contract to be performed in whole or in part by either party in this State; or
(8) production, manufacture, or distribution of goods with the reasonable expectation that those goods are to be used or consumed in this State and are so used or consumed.
(B) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.
. S.C.Code Ann. §§ 39-5-10 to -560 (1985 & Supp.2014).
. From this point onward, the Court's reference to the Corporate Defendants does not include CVS Health Corporation, and its reference to the Above-Store Defendants does not include Mark Cosby.
. The Above-Store Defendants and Store-Level Defendants argue any Title VI claim against them should be dismissed because, as individuals, they do not receive federal financial assistance. ECF No. 21-1 at 6-7; ECF No. 22-1 at 2; see Farmer,
. 42 U.S.C. § 18001, etseq.
. In his response to the Store-Level Defendants' motion to dismiss, Plaintiff states, “Count VI (ACA § 1557) was not asserted against the individual defendants.” ECF No. 30-1 at 8-9. Additionally, Plaintiff’s counsel stated at the hearing that Plaintiff has brought ¿ Section 1557 claim only against the Corporate Defendants, not against the individual Above-Store or Store-Level Defendants. Transcript at 48.
. The Rumble court issued its .decision on March 16, 2015, noting, "To the [c]ourt’s knowledge, this is the first case that requires interpretation of Section 1557."
. As discussed below, the proposed regulations for Section 1557 specify, "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.” Procedures for Health Programs and Activities Conducted by Recipients and State-based Marketplaces, 80 Fed.Reg. 173, 54220 (Sept. 9, 2015) (to be codified at 45 C.F.R. § 92.302).
. HHS “is responsible for promulgating regulations pursuant to Section 1557 and the [Office, for Civil Rights (OCR) ], a sub-agency of HHS, is responsible for enforcing compliance with Section 1557.” Rumble,
. The notice, preamble, and proposed regulations are available online at the following web address: https://www.federalregister.goy/ articles/2015/09/08/2015-22043/nondiscri mination-in-health-programs-and-activities#h-84.
. ‘‘[P]roposed regulations have no legal force or effect until they become final.” Yo-cum v. United States,
. HHS notes in the preamble that "OCR continues to seek comment on programs and activities that should be considered health programs or activities.” Id. at 54175.
. The Court recognizes the context in which HHS provides the example of retail pharmacies—when describing the circumstances where covered entities must provide meaningful access to health programs or activities to individuals with limited English proficiency. See id. at 54185. Regardless of this particular context, the ‘Court believes that in giving the retail pharmacy example, HHS implicitly assumes covered entities include retail pharmacies.
. Other examples of covered entities, to name a few, include:- hospitals, skilled nursing facilities, home health agencies, physical therapy programs, community health centers, health-related schools, state public health agencies, and physicians. See id. at 54185, 54194-95. :
. Medicare Part D was established through the adoption of Title I of the Medicare Prescription Drug Modernization and Improvement Act of 2003 ..codified at 42 U.S.C. §§ 1395w-101, et seq. Medicare Part D is a managed' care program that uses private health care organizations to sponsor prescription drug benefit plans. The government contracts with private entities to deliver Medicare services through Medicare Advantage Plans .'.. and Medicare prescription drug plans____ Medicare beneficiaries may choose from a number of plans with different coverage and prices.
Fox v. Leavitt,
Federal financial assistance.
(1) Federal financial assistance means any grant, loan, credit, subsidy, contract (other than a procurement contract but including a contract of insurance), or any other arrangement by which the Federal government provides or otherwise makes available assistance in the form of: (i) Funds; (ii) Services of Federal personnel; or (iii) Real and personal property or any interest in or use of such property, including; (A) Transfers or leases of such property for less than fair market value or for reduced consideration; and (B) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal government.
(2) Federal financial assistance provided or administered by the Department includes all tax credits under Title I of the ACA, as well as payments, subsidies, or other funds extended by the Department to any entity providing health insurance coverage for payment to or on behalf of an individual obtaining health insurance coverage from that entity or extended by the Department directly to such individual for payment to any entity providing health insurance coverage.
Id. at 54216 (to be codified at 45 C.F.R. § 92.4).
. If the Section 1557 claim is attacked at the summary judgment stage, it will become necessary to determine the precise standard(s) and burden(s) of proof to apply to the types of discrimination (race, gender, and disability) alleged in Plaintiff’s complaint. Because Plaintiff has alleged a plausible claim under Title VI of the Civil Rights Act of 1964 against the remaining Corporate Defendants based on his race (as explained in the previous section of this order), he may also have stated a plausible claim against them under Section 1557. Cf. Se. Pennsylvania Transp. Auth.,
. As for, the, other Store-Level Defendants (i.e., those besides Pendergrass), the Court notes Plaintiff has not brought a claim against them because he states he "only alleged that Ida Pendergrass and one or more of the John Doe and Jane Doe Defendants are liable for assault, battery, and false imprisonment.” ECF No. 30-1 at 9.
. Plaintiff’s responses do not address Defendant’s argument concerning special damages.
. The Court need not address Defendants’ remaining arguments concerning whether Plaintiff alleges the purpose of the conspiracy was to injure him or whether the intracorpo-rate conspiracy doctrine bars Plaintiff’s claim. Cf. Bailey v. Black Entm’t Television, No. CIVA 3:09CV787,
. See generally Rouse v. Duke Univ.,
. In Santoro, the South Carolina Court of Appeals cited Renden, Inc. v. Liberty Real Estate Ltd. P'ship III,
. As. to Plaintiff's claim for-intentional interference with contract, the Court agrees with the defendants’ argument that the complaint does not allege sufficient facts creating a reasonable inference that there was an existing contract between Plaintiff and any of the defendants. Sea ECF No. 20-1 at 30-31. Plaintiff has therefore failed to allege the first element—the existence of a contract—necessary to state a cause of action for intentional interference with contract. See Webb,
. S.C.Code Ann. §§ 39-5-10 to -560 (1985 & Supp.2014).
. At the hearing, the Court requested clarification from Plaintiff's counsel regarding the precise defendants against whom Plaintiff had brought the SCUTPA claim:
THE COURT: [T]hat claim is made only against the [C]oiporate [Defendants, correct?
ATTORNEY JOHNSTON: That is correct. But, excuse me, Your Honor, all the [Corporate [D]efendants, not the store or executive or whatever level, it’s all the [Corporate [Defendants.
THE COURT: Not the individual defendants.
ATTORNEY JOHNSTON: Not the individual named defendants, correct.
Transcript at 92-93 (emphasis added).