Gabriel v. Giant Eagle, Inc. (124 F. Supp. 3d 550, 2015)

MEMORANDUM OPINION

CONTI, Chief Judge.

This action was initially brought in the Court of Common Pleas of. Allegheny County on April 22, 2014, and was removed to this Court on July 21, 2014 pursuant to the Class Action Fairness Act of 2005, P.L. 109-2 as codified at 28 U.S.C. §§ 1332(d), 1453 (“CAFA”). The case was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the Local Rules of Court for Magistrate Judges. Plaintiff Andrew M. Gabriel (“plaintiff’) brings this action on behalf of himself and other individuals whose identity protected health information was used in a. fraudulent and unauthorized manner to create fraudulent,prescriptions in. order to obtain controlled substances at the pharmacies of defendants Giant Eagle, Inc., Marckisotto Markets, Inc., Shakespeare Street Associates GP LLC, and CVS Pharmacy, Inc. (collectively, “defendants”). Defendants filed motions to dismiss for failure to state a claim, (ECF Nos. 30, 34).

On July 9, 2015, the magistrate judge issued a report and recommendation (“R & R”) in which she recommended that defendants’ motions to dismiss the third amended complaint be granted in their entirety with prejudice. (ECF No. 44). On July 23, 2015, plaintiff filed timely objections to the R & R. (ECF No. 45). Defendants filed responses to plaintiffs objections on August 6, 2015. (ECF Nos. 46, 47). Accordingly, the matter is fully briefed and ripe for disposition. For the reasons that follow, the R & R will be adopted as the opinion of this court, and defendants’ motions to dismiss will be granted.

When objections to an R & R are filed under 28 U.S.C. § 636(b)(1), the court must make a de novo determination of those portions of the report to which objections are made. See Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989); Fed.R.Civ.P. 72(b)(3). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.G. § 636(b)(1).

The court carefully reviewed the R & R", applicable case law, the allegations as set forth in the third amended complaint, as well as the submissions of the parties. Plaintiffs objections reiterate his arguments made in connection with his original opposition to the motions to dismiss. The objections contain no additional substantive arguments that the R & R did not address. The magistrate judge considered all of plaintiffs arguments in. connection with his position, and correctly concluded that plaintiff failed to set forth factual allegations in the complaint sufficient for this court to infer that there is a plausible prima facie case with respect to the claims alleged, or lacked standing to do so. Pennsylvania law does not support any of the asserted claims,.- which plaintiff alleges would impose liability on a pharmacy for filling a prescription where a third party allegedly commits identity theft against a plaintiff.. Pennsylvania law does not impose a per se duty on pharmacists to have procedures in place to prevent third parties from obtaining prescription drugs by furnishing false information to the pharmacist. A pharmacist’s duties cannot be expanded beyond those imposed by the appropriate legislature and regulatory agencies. Plaintiff also failed to allege any compensable injury or damages, and the alleged harm, was neither compensable nor proximately caused by defendants.

The court will adopt the R & R as the opinion of this court.

An appropriate order follows.

ORDER

AND NOW, this 19th day of August, 2015, it is hereby ORDERED, ADJUDGED AND DECREED that for the reasons set forth in "the accompanying memorandum opinion, defendants’ motions to dismiss the Third Amended Complaint (ECF Nos. 30, 34) are GRANTED and plaintiffs objections to the report and recommendation (ECF No. 45) are OVERRULED. It is further ORDERED, ADJUDGED AND DECREED that the complaint filed' by Andrew M. Gabriel is dismissed with prejudice.

It is further ORDERED that, the report and recommendation (ECF No. 44) as supplemented by the accompanying memorandum opinion is ADOPTED as the opinion of the court.

It is further ORDERED that the Clerk of Court mark this case CLOSED; and

It is further ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure; Plaintiff - has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.

REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, United States Magistrate Judge.

I. RECOMMENDATION

For the reasons set forth below, it is respectfully recommended that the motion to dismiss filed on behalf of Defendant CVS. Pharmacy, Inc. (“CVS”) [ECF No. 30] be granted in full. It is further recommended that the motion to dismiss filed on behalf of Defendant Giant Eagle, Inc. (“Giant Eagle”) [ECF No..34] be granted in full.

II. REPORT

A. Background

This action was initially brought in the Court of Common Pleas of Allegheny County on April 22, 2014, and was removed to this Court on July 21, 2014 under the Class Action Fairness Act of 2005, P.L. 109-2 as. codified at 28 U.S.C. §§ 1332(d), 1453 (“CAFA”). The case was referred to this United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §. 636(b)(1) and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges. The Third Amended Complaint (“TAC”) was filed on June 20, 2014 [ECF No. 1-9], The Court denied Plaintiffs Motion to Remand on December 12, 2014 [ECF Nos. 27, 28].

This action involves a dispute over the use of Plaintiffs identity by an unnamed Perpetrator to create fraudulent prescriptions in order to obtain controlled substances at Defendants’ pharmacies located throughout the Pittsburgh area. Plaintiff brings this action on behalf of himself and other individuals whose identity and/or protected health information was used in a similarly fraudulent and unauthorized manner. [TAC at ¶¶ 8, 135]. Defendants have moved to dismiss the TAC, arguing as to certain claims that the Plaintiff does not have standing and therefore, the Court lacks subject-matter jurisdiction over those certain claims, or alternatively, that Plaintiff has failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

B. Allegations of the Complaint

Plaintiff is a resident of Allegheny County, Pennsylvania. [TAC at ¶ 124]. Defendant Giant Eagle is a Pennsylvania corporation that operates retail pharmacies in its grocery stores in Allegheny County. [TAC at ¶ 125]. Defendant CVS is a corporation incorporated under the laws of the state of Rhode Island and operates retail pharmacies in Allegheny County, Pennsylvania. [TAC at ¶ 127]. Plaintiff is an existing customer of CVS as well as Giant Eagle pharmacy. [TAC at ¶ 56].

Plaintiff alleges that an unidentified Perpetrator obtained from Defendants Plaintiffs private medical information without his -authorization. [TAC ¶ 49], The Perpetrator then allegedly used Plaintiffs identity to create fraudulent prescriptions, in order to obtain oxycodone and other controlled substances from Defendants’ pharmacies. [TAC at ¶¶ 1, 48].

Specifically, the Plaintiff alleges that on or about April 28, 2012, an unnamed individual provided two medical prescriptions for drugs at the Edgewood Giant Eagle pharmacy location, one of which was for 60 caplets of 10 mg Hydrocodone-acetaminophen. [TAC at ¶ 168]. The' Perpetrator presented the prescriptions—which named Plaintiff as the patient—“using Plaintiffs identity without .Plaintiffs permission or authorization.” [TAC at- ¶ 168]. An unnamed pharmacist at the Edgewood Giant Eagle pharmacy, believing the prescription to be valid, filled the prescriptions and thereafter submitted an insurance claim using Plaintiffs identity and health insurance information. [TAC at ¶ 168, 177]. According to the Plaintiff, it is Giant Eagle’s (as well as CVS’s) standard practice to dispense controlled substances, including narcotics, to third parties without validating that the purported prescriptions are legitimate. [TAC at ¶ 172,244],

On or about May 2, 2012, the Perpetrator presented a medical prescription— identifying Plaintiff as the patient—at the Shakespeare Street Giant Eagle pharmacy location using Plaintiffs personal identifying information. The prescription was for 60 tablets of 15 mg Oxycodone. [TAC at ¶ 184]. An unnamed pharmacist at the Shakespeare Street pharmacy location filled the prescription and submitted an insurance claim using Plaintiffs identity and health insurance information. [TAC at ¶¶ 178-79,183,187].

On or about May 12, 2012, the Perpetrator again entered the Shakespeare Street Giant Eagle pharmacy and presented a medical prescription naming Plaintiff as the patient for 75 tablets of 15 mg Oxycodone. The Perpetrator used Plaintiffs identifying information to obtain the drug. An unnamed pharmacist filled the prescription and Giant Eagle submitted an insurance claim using Plaintiffs identity and health insurance information. [TAC at ¶¶ 184-86,189].

Plaintiff contends that Giant Eagle should have discovered the fraud because “the amounts listed in the purported prescriptions and the timing thereof, both filled by Defendant Giant Eagle at the same pharmacy location, ie., 60 tablets of 15 mg Oxycodone and 75 tablets of 15 mg Oxycodone within 10 days, clearly indicated that the purported prescriptions were not for a legitimate medical purpose or at least required further inquiry.” [TAC