Alcala v. CVS Caremark Corporation et al

Filing 4

MEMORANDUM AND ORDER: Alcala's request to proceed in forma pauperis ("IFP") is granted. For the reasons discussed in this Memorandum & Order, however, the action is dismissed. Alcala is granted thirty days from the date of this Order to file an amended complaint. If Plaintiff does not amend the complaint as directed, or otherwise show good cause for failing to do so, judgment shall be entered dismissing the action. The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order to the pro se Plaintiff and note the mailing on the docket. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 1/7/2025. (APJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
LUIS ALCALA,

MEMORANDUM & ORDER
24-CV-03555 (EK)(LB)

Plaintiff,
-againstCVS CAREMARK CORPORATION; CVS
CAREMARK CORPORATION,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:

Plaintiff Luis Alcala brings the instant complaint,
asserting a product liability claim.

Proceeding pro se, he

names CVS Caremark Corporation as a defendant twice, with a
different address each time: one address in Rhode Island and one
in Brooklyn, New York.

Alcala’s request to proceed in forma

pauperis (“IFP”) is granted.

For the reasons discussed below,

however, the action is dismissed.

Alcala is granted thirty days

from the date of this Order to file an amended complaint.
Background
The following factual allegations are taken from the
plaintiff’s complaint and are assumed to be true, unless
otherwise noted.

See, e.g., Barreto v. Cnty. of Suffolk, 455 F.

App'x 74, 75 (2d Cir. 2012).

Alcala alleges that he has

diabetes and has, for the past twenty-five years, been taking
insulin via Beckton Dickinson needles purchased from Defendants’

pharmacy.

Complaint at 8, ECF No. 1.

Starting in 2017, the

needles that he purchased from Defendants were often bent, would
snap when he injected himself, would remain in his body, and
would cause him to bleed when he removed them.

Id. at 10.

Alcala asserts that the needles were not correctly calibrated
and caused him to draw too much insulin.

Id.

He seeks monetary

damages.
Legal Standard
Under 28 U.S.C. § 1915(e)(2)(B), a district court must
dismiss an in forma pauperis action where the action “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.”

Pro se complaints

are “held to less stringent standards” than pleadings drafted by
attorneys, and the Court will read a pro se complaint liberally
and interpret it as raising the strongest arguments it suggests.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Discussion
The subject matter jurisdiction of the federal courts
is limited.

If the Court “determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery Corp.
v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir.
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2015) (holding that a district court may dismiss an action for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1)
when the court “lacks the statutory or constitutional power to
adjudicate it.” (quoting Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000))).
Construing Plaintiff’s allegations to “raise the
strongest arguments they suggest,” McLoed v. Jewish Guild for
the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v.
United States, 478 F.3d 489, 491 (2d Cir. 2007)), the complaint
still suggests no basis for the exercise of federal question
jurisdiction.

See Sunvestment Energy Grp. NY 64 LLC v. Nat'l

Grid USA Servs. Co., 116 F.4th 106 (2d Cir. 2024)

(federal

question arises when federal law creates the plaintiff’s cause
of action or in “a special and small category of actual state
claims that present significant, disputed issues of federal
law”) .
Alcala’s cover sheet invokes a federal statute: 42
U.S.C. § 1983.

The complaint itself, however, invokes no

federal law; instead, it indicates that his claim is for
“products liability.”

See Compl. at 12. 1

1 The cover sheet is not part of the pleadings.
“The civil cover sheet,
of course, is merely an administrative aid to the court clerk, and is
therefore not typically considered part of a litigant's pleading papers.”
Mavrommatis v. Carey Limousine Westchester, Inc., 476 F. App’x 462, 467 (2d
Cir. 2011).

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To support a Section 1983 claim, the “the conduct at
issue must have been committed by a person acting under color of
state law.”

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(quotations omitted).

Such “state action occurs where the

challenged action of a private party is fairly attributable to
the state.”

Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1027

(2d Cir. 1995).

Alcala does not allege that CVS Caremark was

acting under color of state law or explain how its actions could
be attributed to the state.
Moreover, Alcala has not adequately invoked the
Court’s diversity jurisdiction.

Under the diversity statute,

federal courts have subject matter jurisdiction over claims when
the plaintiff and defendant are of diverse citizenship and “the
matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs.”

28 U.S.C. § 1332(a); see also

Bayerische Landesbank, N. Y. Branch v. Aladdin Capital Mgmt.
LLC, 692 F.3d 42, 48 (2d Cir. 2012).

The party asserting

diversity jurisdiction bears the burden of alleging it at this
stage.

Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d

635, 638 (2d Cir. 2005); Abatayo v. Tella, No. 24-CV-01204, 2024
WL 866233, at *2 (E.D.N.Y. Feb. 28, 2024).
Plaintiff does not plausibly allege that the Court has
diversity jurisdiction.

The complaint indicates that he resides

in Brooklyn, New York, and he names CVS Caremark Corporation as
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a defendant twice — once in Rhode Island and once in Brooklyn.
Compl. 2-3 (listing Defendants’ addresses as “1 CVS Drive,
Woonsocket, RI 02895” and “1402 Sheepshead Bay Rd, Brooklyn, NY
11235”).

Alcala does not expressly allege the defendants’

citizenship.

See 28 U.S.C. § 1332 (a corporation is a citizen

of any state in which it is incorporated and of the state in
which it has its principal place of business).

But given the

allegations that both Alcala and one of the defendants are from
New York, diversity of citizenship appears likely to be lacking.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Pa. Pub. Sch.
Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 118 (2d
Cir. 2014) (complete diversity requires that “all plaintiffs
. . . be citizens of states diverse from those of all
defendants”).
Given Alcala’s pro se status, he is granted thirty
days from the date of this Memorandum and Order to file an
amended complaint.

To the extent that he seeks to bring claim

based on diversity jurisdiction, he must allege the citizenship
of each defendant.

See Carter v. HealthPort Techs., LLC, 822

F.3d 47, 60 (2d Cir. 2016) (where plaintiff invokes the court’s
diversity jurisdiction, plaintiff must allege the citizenship of
all parties); see generally Jaser v. N.Y. Prop. Ins.
Underwriting Ass'n, 815 F.2d 240, 243 (2d Cir. 1987) (district
court should allow a pro se plaintiff an opportunity “to drop
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dispensable nondiverse defendants whose presence would defeat
diversity of citizenship”).
Any amended complaint Alcala will completely replace,
not supplement, the prior complaint.

Therefore, the amended

complaint must include all claims and factual allegations
against all defendants.

It must be captioned an “Amended

Complaint” and bear the same docket number as this Memorandum
and Order.
Conclusion
Accordingly, the complaint, filed in forma pauperis,
is dismissed without prejudice for lack of subject matter
jurisdiction.

Fed. R. Civ. P. 12(h)(3); 28 U.S.C. §

1915(e)(2)(B).

The Court grants Plaintiff thirty days to file

an amended complaint.

If Plaintiff does not amend the complaint

as directed, or otherwise show good cause for failing to do so,
judgment shall be entered dismissing the action.
The Clerk of Court is respectfully directed to mail a
copy of this Memorandum and Order to the pro se Plaintiff and
note the mailing on the docket.
The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal would not be taken in good faith,
and therefore, in forma pauperis status is denied for the
purpose of any appeal.

Coppedge v. United States, 369 U.S.438,

444-45 (1962).
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SO ORDERED.

/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

January 7, 2025
Brooklyn, New York

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