Shmatko v. Arizona CVS Stores LLC et al

Filing 28

ORDER - IT IS ORDERED: 1. Plaintiff's complaint (Doc. 1 ) is dismissed without prejudice for lack of subject matter jurisdiction. The Clerk of Court shall terminate this action. 2. Defendants' motion to dismiss (Doc. 6 ) is denied. 3. The remaining motions (Docs. 7 , 17 , 18 , 23 , 24 ) are denied as moot. (See document for further details). Signed by Judge David G Campbell on 8/1/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Martha Shmatko,

No. CV-14-01076-PHX-DGC
Plaintiff,

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v.

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Arizona CVS Stores LLC, et al.,

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ORDER

Defendants.

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Defendants Otto Uhrik and Clinic for Pain Relief have filed a motion to dismiss

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for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

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12(b)(1). Doc. 6. The motion is fully briefed and no party has requested oral argument.

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The Court will deny the motion.

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jurisdiction, the Court will dismiss all claims as to all Defendants and will deny all

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pending motions as moot.

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I.

Nevertheless, finding that it lacks subject matter

Background.

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This case arises from the tragic death of Plaintiff’s daughter, Dusti Jo Smith, who

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passed away in October 2012 from intoxication by opioid. Doc. 1, ¶ 17. Smith had been

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using pain medication patches containing the opioid Fentanyl to combat severe back pain

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and pain from oral surgery. Id., ¶¶ 15-17. Plaintiff alleges that Smith suffered from

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depression and “admitted to take more than normal dose of medicine to get relief from

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the pain.” Id., ¶ 15. Because Smith reported that she did not get adequate relief from her

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medications, Smith’s doctor prescribed an increased dosage of Fentanyl that effectively

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doubled her intake of the opioid. Id., ¶ 16. Smith’s death appears to have been caused by

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an overdose of Fentanyl.

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Plaintiff instituted this action on May 20, 2014 naming various doctors, Clinic for

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Pain Relief, and Arizona CVS Stores, LLC as defendants. Plaintiff asserts three claims

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against Defendants, including medical negligence/medical malpractice, strict product

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liability, and breach of warranty.

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II.

Legal Standard.

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The defense of lack of subject matter jurisdiction may be raised at any time by the

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parties or the Court. See Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d

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1074, 1077 (9th Cir. 1983). “The party asserting jurisdiction has the burden of proving

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all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th

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Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936));

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see In re Ford Motor Co./Citibank, 264 F.3d 952, 957 (9th Cir. 2001); Fenton v.

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Freedman, 748 F.2d 1358, 1359, n.1 (9th Cir. 1994).

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The Court has subject matter jurisdiction over cases involving federal questions:

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“The district courts shall have original jurisdiction of all civil actions arising under the

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Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The Court has

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diversity jurisdiction over cases between citizens of different states involving claims

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greater than $75,000. 28 U.S.C. § 1332. Section 1332 requires complete diversity

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between the parties. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). In other

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words, the citizenship of each plaintiff must be diverse from the citizenship of each

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defendant. Id.

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III.

Analysis.

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A.

Defendants’ Motion to Dismiss.

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The Court entered an order on May 22, 2014 instructing the parties that “motions

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to dismiss must contain a certification of conferral indicating that the parties have

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conferred to determine whether an amendment could cure a deficient pleading.” Doc 4 at

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1. Notwithstanding the Court’s warning that “[m]otions to dismiss that do not contain the

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required certification are subject to be stricken on the Court’s motion[,]” Defendants

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Uhrik and Clinic for Pain Relief have filed a motion to dismiss without attaching the

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required certification. Defendants should heed the Court’s orders. The Court will strike

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their motion.

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B.

Sua Sponte Dismissal For Lack of Subject Matter Jurisdiction.

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A district court may dismiss an action sua sponte for lack of jurisdiction at any

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time during the pendency of an action. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th

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Cir. 2002); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir.

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1981). It may do so without providing the parties with notice and an opportunity to

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respond. Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir.

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2003) (“While a party is entitled to notice and an opportunity to respond when a court

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contemplates dismissing a claim on the merits, it is not so when the dismissal is for lack

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of subject matter jurisdiction.”).

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Because Plaintiff’s claims for medical negligence, medical malpractice, strict

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product liability, and breach of warranty are state-law causes of action, Plaintiff’s

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Complaint does not raise a federal question and the Court does not have subject matter

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jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff appears to believe that federal

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question jurisdiction exists because one or more Defendants violated the Food, Drug, and

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Cosmetic Act (“FDCA”) and/or the Drug Enforcement Agency’s (“DEA”) Practitioner

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Manual, which was authored to assist the DEA with the administration of the Controlled

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Substances Act (“CSA”). Doc. 8 a 2-4. Federal law unequivocally holds, however, that

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the FDCA and CSA do not create private rights of action that can give rise to a federal

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question. See 21 U.S.C. § 337 (stating that only the United States may enforce FDA laws

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or regulations); 21 U.S.C. §§ 871 & 882 (granting only the Attorney General or United

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States authority to enforce federal law governing controlled substances).

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It appears from Plaintiff’s complaint that Plaintiff and all Defendants are Arizona

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residents. Doc. 1, ¶¶ 3-9. Because this case is not between citizens of different states,

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the Court lacks diversity jurisdiction. See, e.g., Tosco Corp. v. Cmty. for a Better Env’t,

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236 F.3d 495, 502 (9th Cir. 2001) (affirming district court’s dismissal of case involving

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malicious prosecution, libel, and slander causes of action because complete diversity did

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not exist); Indus. Tectonics, 912 F.2d at 1092 (affirming district court’s dismissal of case

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because complete diversity did not exist).

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IV.

Leave to Amend.

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“The court should freely give leave [to amend a pleading] when justice so

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requires.” Fed. R. Civ. P. 15(a)(2); see 28 U.S.C. § 1653 (authorizing amendment of

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pleadings to cure defective jurisdictional statement). In the Ninth Circuit, “[a] pro se

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litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear

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that the deficiencies of the complaint could not be cured by amendment.” Karim-Panahi

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v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987)); see also Waters v. Young, 100 F.3d 1437, 1441 (9th

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Cir. 1996) (“As a general matter, this court has long sought to ensure that pro se litigants

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do not unwittingly fall victim to procedural requirements that they may, with some

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assistance from the court, be able to satisfy.”).

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The Court will dismiss the complaint without leave to amend. The claims asserted

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in Plaintiff’s complaint are classic state-law claims and simply do not give rise to a

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federal question. Nor can Plaintiff bring a diversity-based claim against Defendants.

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Given these realities, the Court is satisfied that amendment of the complaint would be

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futile.

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IT IS ORDERED:

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1.

Plaintiff’s complaint (Doc. 1) is dismissed without prejudice for lack of
subject matter jurisdiction. The Clerk of Court shall terminate this action.

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2.

Defendants’ motion to dismiss (Doc. 6) is denied.

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3.

The remaining motions (Docs. 7, 17, 18, 23, 24) are denied as moot.

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Dated this 1st day of August, 2014.

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