Allman v. Walgreens Co.

Filing 33

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the parties shall appear before the court on Friday, April 2, 2010, at 10:00 a.m., to determine whether Allmon has satisfied the requirements of diversity of citizenship subject matter jurisdiction under 28 U.S.C. § 1332(a). IT IS FURTHER ORDERED that all pending motions are deferred until the court is satisfied that it possesses subject matter jurisdiction over the case. Signed by Magistrate Judge David D. Noce on 3/18/10. (KXS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION HEATHER M. ALLMON, Plaintiff, v. WALGREEN COMPANY, Defendant. ) ) ) ) ) ) ) ) )

No. 4:09 CV 1151 DDN

MEMORANDUM AND ORDER This action is before the court on the motions of defendant Walgreen Company to strike (Doc. 10) and to dismiss (Doc. 17), and the motion of plaintiff Heather M. Allmon for leave to enter the Pharmacy Liability Provision into the record (Doc. 28). The parties have (Doc. 16.) consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). I. BACKGROUND In her complaint, she (Doc.

On July 21, 2009, plaintiff Heather Allmon commenced this action, pro se, against Walgreen Company (Walgreen). alleges the pharmacy switched her medication with that of another customer on February 17, 1995, when she was only five years old. 1 at 4.) she received a high dosage of prescription Albuterol. Instead of receiving Amoxicillin for her cold, Allmon alleges (Id. at 6-7.)

Allmon attributes a host of medical problems to having unwittingly taken the Albuterol, including extreme weight loss, stunted growth, menstrual problems, ovarian cysts, and diabetes. II. (Id. at 7-9.)

MOTION TO DISMISS (Doc. 17.) The company

Walgreen moves to dismiss the complaint.

argues that in any pharmacy negligence action, Missouri law requires the plaintiff to file an affidavit of support by a legally qualified health care provider - even if the action is based on res ipsa loquitor. Walgreen argues that Allmon has not complied with this requirement, and

that the time for filing such an affidavit has passed. argues that the case must be dismissed. prove Walgreen was negligent. contains clear evidence of

Accordingly, it

(Docs. 18, 22.)

In response, Allmon argues that no expert testimony is needed to She argues that the record already negligence, and that this Walgreen's

negligence would be obvious to any layperson, invoking the doctrine of res ipsa loquitur. (Docs. 20, 23, 26.)

Subject Matter Jurisdiction Before ruling any motion, a federal court must assure itself that it has subject matter jurisdiction over the case. Ry. Co. v. Swan, 111 U.S. 379, 383 (1884). Mansfield, C. & L.M. The necessity of this

inqui r y "is inflexible and without exception," and stems "from the nature and limits of the judicial power of the United States. . . ." Id. at 382. As a result, a federal court may raise the issue of subject Laughlin v. Kmart matter jurisdiction on its own motion, at any time. Corp., 50 F.3d 871, 873 (10th Cir. 1995.) In her civil cover sheet, Allmon notes that she resides in St. Louis County, and that she is suing Walgreen Co. of Deerfield, Illinois. She indicates that the nature of the suit is one for "Personal Injury Med. Malpractice." under tort law. She also writes that the cause of action arises She also does not indicate the In her complaint, she writes She does not, however, check any of the boxes under the In her request, she demands "$20,000 or

heading "BASIS OF JURISDICTION." citizenship of the parties. maximum." the law."

(Doc. 1, Civil Cover Sheet.) (Doc. 1 at 5.)

that is she seeking $20,000, or the "greatest award amount allowed under Looking to the civil cover sheet and Allmon's allegations, only diversity jurisdiction would provide the court with subject matter jurisdiction over the claims in this case. See 28 U.S.C. § 1332(a). To satisfy diversity jurisdiction, the parties must be citizens of different states, and the amount in controversy must exceed the sum or value of $75,000. Id. At this point, it is unclear whether Allmon has See Jones v. Gale, 470 F.3d satisfied either of these two conditions.

1261, 1265 (8th Cir. 2006) (noting that the plaintiff bears the burden -2-

of establishing subject matter jurisdiction).

Accordingly, the court

w i l l hold a hearing on April 2, 2010, at 10:00 a.m., to determine whether Allmon has satisfied the requirements of 28 U.S.C. § 1332(a). The motion to dismiss is deferred. III. In her complaint, MOTION TO STRIKE alleges that Walgreen has reached Allmon

settlements with several states and the United States over charges of improper billing. (Doc. 1 at 7.) She also alleges that Walgreen's Claims Management Service Company, Sedgwick, offered to settle her claim for $3,000. (Id. at 8.) the complaint. Walgreen moves to strike these statements from The company argues that settlements and (Doc. 11.) (Doc. 10.)

settlement negotiations are inadmissible under Federal Rule of Evidence 408, and irrelevant to the case at hand. For the reasons stated above, this motion is deferred until the court is satisfied that it possesses subject matter jurisdiction. IV. MOTION FOR LEAVE TO SUPPLEMENT

Allmon moves for leave to enter into the record of this action documentation setting out Missouri statutory law regarding pharmacy liability. (Doc. 28.) Again, this motion is deferred until the court is satisfied that it possesses subject matter jurisdiction. V. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that the parties shall appear before the court on Friday, April 2, 2010, at 10:00 a.m., to determine whether Allmon has satisfied the requirements of diversity of citizenship subject matter jurisdiction under 28 U.S.C. § 1332(a). IT IS FURTHER ORDERED that all pending motions are deferred until the court is satisfied that it possesses subject matter jurisdiction over the case. /S/ David D. Noce UNITED STATES MAGISTRATE JUDGE Signed on March 18, 2010.

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