Marcelle v. Picayune Urgent Care et al

Filing 39

MEMORANDUM OPINION AND ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION: granting 35 Motion for Judgment on the Pleadings; granting 37 Motion to Dismiss for Lack of Jurisdiction Signed by Chief District Judge Louis Guirola, Jr, on 6/21/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MICHAEL H. MARCELLE SR.
v.

PLAINTIFF
CAUSE NO. 1:16CV410-LG-RHW

PICAYUNE URGENT CARE and
WALGREENS DRUG STORE

DEFENDANTS

MEMORANDUM OPINION AND ORDER DISMISSING ACTION
FOR LACK OF SUBJECT-MATTER JURISDICTION
BEFORE THE COURT are the [35] Motion for Judgment on the Pleadings
filed by Defendant Walgreens Co., which states that it was incorrectly identified as
Walgreens Drug Store, and the [37] Motion to Dismiss for Lack of Subject Matter
Jurisdiction filed by Defendant Picayune Urgent Care. Plaintiff Marcelle, who is
proceeding pro se, did not respond to the Motions, and the time for doing so has now
expired.1 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)); Ray v. Edgar, 115
F. App’x 293, 293 (5th Cir. 2004) (“The local rules of the district court provide
sufficient notice for a pro se litigant such as [Plaintiff].”). Having considered the
Motions and the applicable law, the Court is of the opinion that it lacks subject-

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Plaintiff Marcelle participated in a telephonic case management conference
on May 22, 2017, in which counsel for Defendants Walgreens and Picayune Urgent
Care informed the Court that they would each be filing dismissal motions. Further,
both defense counsel certified that they mailed copies of the subject motions and
accompanying memoranda to Marcelle.

matter jurisdiction over this action. Accordingly, this action must be dismissed
pursuant to Federal Rule of Civil Procedure 12.
BACKGROUND
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.).
The only possible basis for subject-matter jurisdiction in this action is federal
question jurisdiction, as Marcelle does not allege that Defendants are citizens of
different states. Liberally construing Marcelle’s Amended Complaint, the Court has
determined that Marcelle is attempting to allege claims against Defendants
pursuant to the Federal Food, Drug and Cosmetics Act (FDCA), 21 U.S.C. §§ 301, et
seq. It also appears to the Court that Marcelle is attempting to allege claims
pursuant to Mississippi state law against Defendants.
DISCUSSION
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

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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 any purported FDCA claim against Defendants. See, e.g., Murungi v. Touro
Infirmary, No. 11-1823, 2012 WL 1014811, at *3 (E.D. La. Mar. 21, 2012); Logan v.
Burger King Rest., No. 610-141-HFF-WMC, 2010 WL 610741, at *1 (D.S.C. Feb. 18,
2010).
Turning then to Marcelle’s purported state law claims, “[i]f a district court
has original jurisdiction over a civil action, the court ‘shall have supplemental
jurisdiction over all other claims that are so related’ to that civil action that ‘they
form part of the same case or controversy[.]’” French Gourmet, Inc. v. FFE Transp.
Servs., Inc., No. H-10-3503, 2011 WL 1230212, at *3 (S.D. Tex. Mar. 30, 2011)
(quoting 28 U.S.C. § 1367(a)). “Thus, for a court to exercise supplemental
jurisdiction it must first have original jurisdiction with respect to at least one of the
. . . claims.” Id. Because the FDCA does not confer original jurisdiction in this
action, “the court also lacks supplemental jurisdiction” over any state law claims.
See id.; see also, e.g., Hix v. County, No. W:13-CV-136, 2013 WL 12130311, at *1
(W.D. Tex. Aug. 16, 2013) (“Because the Court is persuaded it does not have original
jurisdiction over any of Plaintiff’s claims, it cannot exercise supplemental
jurisdiction over Plaintiff’s remaining state-law claims.”). This action must be

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dismissed. 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”).
IT IS THEREFORE ORDERED AND ADJUDGED that the [35] Motion
for Judgment on the Pleadings filed by Defendant Walgreens and the [37] Motion to
Dismiss for Lack of Subject Matter Jurisdiction filed by Defendant Picayune Urgent
Care are GRANTED.
SO ORDERED AND ADJUDGED this the 21st day of June, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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