United States District Court, N.D. Alabama, Northeastern Division
LONNIE E. BROWN, Plaintiff,
EXPRESS SCRIPTS HOLDING COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
E. Brown filed his complaint against Express Scripts Holding
Company and fictitious parties in the Circuit Court for
Jackson County, Alabama, alleging state law claims for
negligence, willful misconduct, and/or carelessness arising
out of the mail order pharmacy's alleged failure to
timely dispense his medication. Doc. 1-2. Express Scripts later
removed the action to this court under 28 U.S.C. § 1332.
Doc. 1. Presently before this court and ripe for review is
Express Scripts' motion for summary judgment, docs. 20,
24, 26, which is due to be granted.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “Rule
56 mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(alteration in original). The moving party bears the initial
burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine
issue for trial.” Id. at 324 (citation and
internal quotation marks omitted). A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002)
(a court is not required to resolve disputes in the
non-moving party's favor when that party's version of
events is supported by insufficient evidence). However,
“mere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment
motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam) (citing Bald Mountain Park,
Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla' of evidence
supporting the opposing party's position will not
suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252)).
suffers from seizures for which he takes the prescription
medication Dilantin. Doc. 20-3 at 7. Brown's daughter,
Julie Potter, helps him, at times, with his prescription
medication. Doc. 20-4. On July 2, 2013, Brown began filling
his seizure prescriptions with ESI Mail Pharmacy, Inc., a
subsidiary of Express Scripts. Doc. 20-1 at 14. Approximately
six months later, ESI identified that Brown's medication
was out of stock. Doc. 20-2 at 2. Around the same time,
Potter noticed that Brown's medication was running low.
On January 17, 2014 someone called ESI and unsuccessfully
attempted to re-fill Brown's medication. Docs. 20-2 at 3,
20-4 at 29. Two weeks later, Potter called to refill
Brown's prescription and learned that ESI had received a
new prescription from Brown's doctor that it could not
process until the next day. Doc. 20-4 at 23. Potter called
ESI on February 5, 2014 to inquire again about the
medication, and learned that ESI had not yet processed the
prescription and that Brown needed to visit his physician to
obtain another prescription in the interim. Doc. 20-4 at 21.
Indeed, that same day, Brown obtained a new prescription for
a different dosage of his medication and filled it at a local
pharmacy in his hometown. Doc. 20-1 at 8. Four days later,
Brown suffered a seizure and hospital tests revealed no trace
of Dilantin in his system. Doc. 20-3 at 28. He subsequently
filed this lawsuit against Express Scripts for the failure to
timely dispense his prescription.
Scripts argues that it is not a proper party to this action
and that Brown has failed to plead the necessary elements of
his negligence claim. The court agrees.
Express Scripts is not a proper party to the action
on its status as the holding company of ESI, Express Scripts
argues that it is not a pharmacy and that it is not a proper
defendant because it was not the dispensing pharmacy. Docs.
20 at 8, 20-1. Brown has offered no evidence to refute
Express Scripts' contentions or to establish that Express
Scripts has control over its subsidiary's business
practices. Doc. 24 at 4. Instead, Brown asks the court to
“leave the Express Scripts Holding Company as a
Defendant until it is shown by the Defendants that it is not
merely another name for essentially the same people, places,
and things as the subsidiary defendants.” Id.
at 4. The court disagrees because Brown has the burden of
proving his claims, including that this defendant is liable
for the conduct Brown challenges. Moreover, in essence, Brown
wants to obtain discovery outside of the allotted period in
order to attempt to pierce the corporate veil. The request
runs afoul of the court's power to control its docket and
to ensure that cases are disposed of in a timely manner.
See Equity Lifestyle Properties, Inc. v. Florida Mowing
and Landscape Service, Inc., 556 F.3d 1232, 1240 (11th
Cir. 2009). Critically, no basis exists for an extension at
this juncture because Brown has known since Express Scripts
answered this lawsuit that it contends that it does not
dispense medications and is not a proper party to Brown's
claims against its subsidiary, ESI. See doc. 4. To
the extent that Brown disagreed with Express Scripts'
position, he had ample opportunity to engage in discovery to
obtain facts, if any, to establish Express Scripts'
liability. See doc. 18.
under Alabama law, “a corporation is a distinct entity,
to be considered separate and apart from the individuals who
compose it.” Messick v. Moring, 514 So.2d 892,
894 (Ala. 1987) (internal quotations omitted). As such, a
plaintiff must “first pierce the corporate veil before
a parent company's liability may be established.”
In re Birmingham Asbestos Litigation, 997 F.2d 827,
830 (11th Cir. 1993). “Majority stock ownership, alone
[ . . . ] is not sufficient for piercing the corporate veil,
” Simmons v. Clark Equipment Credit Corp., 554
So.2d 398, 400 (Ala. 1989), and “[p]iercing the
corporate veil is not a power that is exercised
lightly.” First Health, Inc. v. Blanton, 585
So.2d 1331, 1334 (Ala. 1991). Rather, at the very least,
Brown must “show fraud in asserting the corporate
existence or must show that recognition of the corporate
existence will result in injustice or inequitable
consequences.” Simmons v. Clark Equipment Credit
Corp., 554 So.2d 398, 400 (Ala. 1989). Brown has not
made that argument nor has he made a sufficient showing to
induce the court to pierce the corporate veil. Brown simply
cannot defeat a motion for summary judgment with speculation
after failing to engage in relevant discovery. Cohen v.
United American Bank of Cent. Fla., 83 F.3d 1347, 1349
(11th Cir. 1996) (“There is no genuine issue for trial
unless the non-moving party establishes, through the record
presented to the court, that it is able to prove evidence
sufficient for a jury to return a verdict in its
favor.”). As such, summary judgment is due to be
granted on this ground alone.
Brown has failed to carry his burden under the Alabama
Medical Services Liability Act
Brown's claims also fail on the merits. As pleaded, Brown
has made a generalized claim for negligence and wantonness
arising out of ESI's purported failure to fill his
prescription medication in a timely manner. Doc. 1-2 at 6. A
pharmacy is an “other healthcare provider” under
the Alabama Medical Liability Act (AMLA). See Ex parte
Rite Aid of Alabama, Inc.,768 So.2d 960 (Ala. 2000);
Cackowski v. Wal-Mart Stores, Inc.,767 So.2d 319
(Ala. 2000); Ala. Code §§ 6-5-481(8) and 34-23-1.
As such, Brown's claims against Express Scripts for
ESI's conduct are governed by the AMLA, which applies
“[i]n any action for injury or damages or wrongful
death, whether in contract or in tort, against a health care
provider for breach of the standard of care.” Ala. Code
§ 6-5-548(a). See also Ex parte Addiction &
Mental Health Services,948 So.2d 533, 535 (Ala. 2006)
(“the purpose of the AMLA is to regulate actions for
alleged medical injury””) (internal quotations
omitted); Allred v. Shirley, 598 So.2d 1347 (Ala.
1992); Benefield v. F. Hood Craddock Clinic, 456
So.2d 52, 54 (Ala. 1984). Under the AMLA, Brown has the
burden of “proving by substantial evidence that the
healthcare provider failed to exercise such reasonable care,
skill, and diligence as other similarly situated health-care
providers in the same general line of practice ordinarily
have and ...