Estate of Elaine Purcell et al v. Arauzo et al

Filing 39

ORDER: Defendants U.S. Drug Mart, Inc. d/b/a Park Plaza Pharmacy and Pharmacist in Charge's Motion to Dismiss Plaintiffs' Third Amended Complaint with Prejudice 35 and Defendants Arturo Arauzo, individually and Arturo Arauzo d/b/a Artur o Arauzo, M.D.'s Motion to Dismiss Plaintiffs' Third Amended Complaint with Prejudice 36 are granted to the extent stated herein. The Court denies Defendants' motions to the extent they seek attorney's fees and costs. Plaintiffs' Third Amended Complaint is dismissed with prejudice. The Clerk of Court is directed to close this case. Signed by Judge James S. Moody, Jr on 1/14/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ESTATE OF ELAINE PURCELL, through
PARKER WAGGAMAN as Personal
Representative; PARKER WAGGAMAN,
individually,
Plaintiffs,
v.

Case No. 8:14-cv-1340-T-30TGW

ARTURO ARAUZO, individually; ARTURO
ARAUZO d/b/a ARTURO ARAUZO, M.D.;
USA DRUG MART, INC.; PARK PLAZA
PHARMACY; USA DRUG MART d/b/a
PARK PLAZA PHARMACY; Pharmacist in
Charge, DAVID VERNON, JOHN DOES 19,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants U.S. Drug Mart, Inc. d/b/a
Park Plaza Pharmacy and Pharmacist in Charge’s Motion to Dismiss Plaintiffs’ Third
Amended Complaint with Prejudice (Dkt. 35), Defendants Arturo Arauzo, individually and
Arturo Arauzo d/b/a Arturo Arauzo, M.D.’s Motion to Dismiss Plaintiffs’ Third Amended
Complaint with Prejudice (Dkt. 36), and Plaintiffs’ Responses in Opposition (Dkts. 37 & 38).
Upon consideration of the motions, responses, and being otherwise advised in the premises,
the Court concludes that the motions should be granted and Plaintiffs’ third amended
complaint should be dismissed with prejudice.

DISCUSSION
The claims alleged in this action relate to Defendants’ involvement with prescribing,
dispensing, and shipping prescription medications to Elaine Purcell, the decedent. Pro se
Plaintiffs Estate of Elaine Purcell and Parker Waggaman, individually, filed the instant action
in state court. Parker Waggaman is Elaine Purcell’s son. Plaintiffs allege that Defendants’
actions enabled Elaine Purcell’s addiction to prescription drugs.
On June 17, 2014, this Court dismissed Plaintiffs’ complaint in its entirety, noting
numerous pleading deficiencies. The Court provided Plaintiffs twenty days to file an
amended complaint (Dkt. 6).
On July 7, 2014, Plaintiffs filed their amended complaint. The amended complaint
fared no better. The amended complaint alleged the following claims: (1) civil conspiracy
(Count I); (2) fraud (Counts II-IV); (3) negligence per se (Counts V-VII); (4) intentional
infliction of emotional distress (Counts VIII-IX); (5) battery (Counts X-XII); and (6)
Racketeer Influenced and Corrupt Organizations Act (“RICO”) (Count XIII) (Dkt. 8).
On July 24, 2014, the Court entered an Order dismissing the amended complaint. The
July 24 Order described how each claim was deficient; the Order also noted that Waggaman
did not have standing to raise the claims as an individual, especially because Plaintiffs did
not allege a wrongful death claim. The July 24 Order provided Plaintiffs a final opportunity
to amend and noted that further dismissal of the complaint would be with prejudice (Dkt. 24).
On August 11, 2014, Plaintiffs filed a second amended complaint (Dkt. 15).
Defendants subsequently moved to dismiss the second amended complaint and, on November

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10, 2014, the Court held a hearing on the motions to dismiss and granted Plaintiffs’ oral
motion to amend their complaint for a third time (Dkt. 30).
On December 1, 2014, Plaintiffs filed their third amended complaint (Dkt. 34). The
third amended complaint does not rectify the pleading and standing deficiencies that the
Court addressed in the Court’s prior Orders. And the additional claims of unjust enrichment,
intentional infliction of emotional distress, and the tort of “overprescribing”1 are also
insufficient. Simply put, Plaintiffs’ third amended complaint, Plaintiffs fourth attempt to
state an actionable claim, remains deficient under Federal Rule of Civil Procedure 12(b)(6).
Thus, Plaintiffs’ third amended complaint must be dismissed with prejudice at this juncture
for the same reasons as the Court previously noted in its two prior Orders granting
Defendants’ motions to dismiss (Dkts. 6 & 14).
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants U.S. Drug Mart, Inc. d/b/a Park Plaza Pharmacy and Pharmacist
in Charge’s Motion to Dismiss Plaintiffs’ Third Amended Complaint with
Prejudice (Dkt. 35) and Defendants Arturo Arauzo, individually and Arturo
Arauzo d/b/a Arturo Arauzo, M.D.’s Motion to Dismiss Plaintiffs’ Third
Amended Complaint with Prejudice (Dkt. 36) are granted to the extent stated
herein. The Court denies Defendants’ motions to the extent they seek
attorney’s fees and costs.

2.

1

Plaintiffs’ Third Amended Complaint is dismissed with prejudice.

Notably, Florida does not recognize a tort of “overprescribing.”
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3.

The Clerk of Court is directed to close this case.

DONE and ORDERED in Tampa, Florida on January 14, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-1340.denymtdismiss-finalattempt-pro-se-plaintiff.wpd

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