Marcelle v. Picayune Urgent Care et al
MEMORANDUM OPINION AND ORDER granting 29 Motion for Judgment on the Pleadings. Teva is terminated as a defendant. Signed by Chief District Judge Louis Guirola, Jr. on 4/10/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MICHAEL H. MARCELLE SR.
CAUSE NO. 1:16CV410-LG-RHW
PICAYUNE URGENT CARE,
WALGREENS DRUG STORE,
and TEVA PHARMACEUTICALS
MEMORANDUM OPINION AND ORDER GRANTING
MOTION FOR JUDGMENT ON THE PLEADINGS AND
DISMISSING TEVA PHARMACEUTICALS
BEFORE THE COURT is the  Motion for Judgment on the Pleadings
filed by Defendant Teva Pharmaceuticals. Teva, which states that it was
incorrectly identified in the pleadings and that its correct name is “Teva
Pharmaceuticals USA, Inc.,” asks the Court to dismiss Plaintiff Michael H. Marcelle
Sr.’s claims against it. Plaintiff Marcelle, who is proceeding pro se, did not respond
to the Motion, and the time for doing so has now expired. See, e.g., Fox v. United
States, No. 3:10cv126-DPJ-FKB, 2013 WL 1310558, at *3 (S.D. Miss. Mar. 28, 2013)
(“[A]lthough pro se litigants are afforded substantial leeway, they too must comply
with court orders and deadlines.”) (citing Fujita v. United States, 416 F. App’x 400,
402-03 (5th Cir. 2011)). Having considered the Motion and the applicable law, the
Court finds that the Motion should be granted because Marcelle is not entitled to
sue Teva pursuant to the Federal Food, Drug and Cosmetics Act (FDCA), 21 U.S.C.
§§ 301, et seq. Accordingly, the Court lacks subject-matter jurisdiction over
Marcelle’s claim against Teva.
Marcelle states that he was prescribed Pravastatin by Picayune Urgent Care
in November 2014 but was “not told of side effects.” (Am. Compl. 4, ECF No. 18).
He further states that “[o]n November 17, 2014 [he] started taking Pravastatin [he]
received from Walgreens Drugs and not told of side effects.” (Id.). He “stopped
taking Pravastatin after hearing of the side effects on February 16, 2015[,] 61 pills
later.” (Id.). He now alleges that he has “been very ill for the last 2 years due to
Pravastatin side effects which I was not told of[,]” and requests an award of
$250,000 in damages for his pain and suffering. (See id.).
Marcelle has not made any specific allegations against Teva, the
manufacturer of Pravastatin, but states in pertinent part that the basis for this
Court’s jurisdiction is “Food and Drug Administration . . . Does not follow FDA
regulations on labeling of side effects.” (Id. at 3). Liberally construing Marcelle’s
Amended Complaint, as it must, the Court has determined that Marcelle is
attempting to state a claim against Teva under the FDCA. See Bell v. Pfizer, Inc.,
716 F.3d 1087, 1094 (8th Cir. 2013) (“The labeling of prescription drugs is governed
by the” FDCA.).
Teva has moved to dismiss Marcelle’s claims against it based on preemption
and because Marcelle is not entitled to sue under the FDCA. The Court need not
consider Teva’s preemption arguments because, as discussed in further detail
below, the Court agrees that Marcelle is not entitled to sue under the FDCA, and,
thus, the Court lacks subject-matter jurisdiction over Marcelle’s claim against
Teva.1 See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”); see also Filer v.
Donley, 690 F.3d 643, 646 (5th Cir. 2012) (“it is the duty of a federal court first to
decide, sua sponte if necessary, whether it has jurisdiction before the merits of the
case can be addressed”).
“The FDA’s responsibility to regulate prescription drugs . . . and to enforce
laws with respect to such drugs, including the precise content of format and
prescription drug labeling[,] is plenary and exclusive.” In re Zyprexa Prods. Liab.
Litig., No. 04-MD-1596, 2008 WL 398378, at *5 (E.D.N.Y. Feb. 12, 2008) (citing to
the FDCA). Only the federal government and in some instances a state may sue
under the FDCA. See 21 U.S.C. § 337. “Every federal court that has addressed the
issue has held that the FDCA does not create a private right of action to enforce or
restrain violations of its provisions and accompanying regulations.” Eli Lilly & Co.
v. Roussel Corp., 23 F. Supp. 2d 460, 476 (D.N.J. 1998). Because Marcelle, as an
individual, cannot sue under the FDCA, the Court lacks subject-matter jurisdiction
over his purported FDCA claim against Teva. See, e.g., Murungi v. Touro
Infirmary, No. 11-1823, 2012 WL 1014811, at *3 (E.D. La. Mar. 21, 2012); Logan v.
After the Court ordered Marcelle to amend his Complaint to assert a basis
for federal jurisdiction, it appears that Marcelle is now relying solely on federal law,
and, thus, federal preemption of any state law claim(s) is not at issue. If Marcelle is
trying to allege a state law claim, he has still failed to show that this Court would
have jurisdiction over such claim.
Burger King Rest., No. 610-141-HFF-WMC, 2010 WL 610741, at *1 (D.S.C. Feb. 18,
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion
for Judgment on the Pleadings filed by Defendant Teva Pharmaceuticals is
GRANTED. Teva is terminated as a Defendant.
SO ORDERED AND ADJUDGED this the 10th day of April, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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