United States District Court, E.D. Missouri, Eastern Division
C.W., a Deceased Minor, by Nina Gray, Personal Representative, and NINA GRAY, Plaintiffs,
WALGREEN CO., Defendant.
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Walgreen Co.'s
(“Defendant Walgreen”) motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6), and
alternative motion to strike plaintiffs' prayers for
punitive damages and attorney's fees. Plaintiff C.W., a
deceased minor, by and through his personal representative
and natural mother, Nina Gray (“Plaintiff C.W.”),
and plaintiff Nina Gray, individually (“Plaintiff
Gray”), oppose the motion. The motions are fully
briefed and ripe for review. For the following reasons the
Court will dismiss Plaintiff C.W.'s claims and strike
Plaintiff Gray's prayer for attorney's fees.
fifteen-year-old African-American young man, was shopping at
a Walgreens store in December 2015. C.W. had recently under
gone heart transplant surgery. C.W. put his cell phone and
money in his pants pocket as he reached for an item on a
shelf with his other hand. C.W. was suddenly confronted by
four Walgreens employees who demanded to know what he had put
down his pants. The Walgreens employees marched C.W. to the
front of the store and searched him in front of other
shoppers putting their hands in his pockets and turning the
pockets inside out, as well as lifting his shirt, exposing
C.W.'s transplant scar. The employees found nothing on
C.W.'s person to suggest he was doing anything other than
shopping. C.W. passed away on July 4, 2016, allegedly as a
result of having suffered from heightened physical and mental
stress levels due to the incident at Walgreens.
March 14, 2017, plaintiff C.W., a deceased minor, by and
through his next friend, Nina Gray, C.W.'s natural
mother, filed this action in the Circuit Court of St. Louis
County, Missouri against Defendant Walgreen, seeking money
damages arising from the incident in Defendant Walgreen's
store. The Petition asserted state law claims for assault,
false imprisonment, and intentional infliction of emotional
distress. Defendant Walgreen removed this case pursuant to 28
U.S.C. §§ 1441 and 1446, and this Court has
original jurisdiction under 28 U.S.C. § 1332(a).
4, 2017, Plaintiff C.W., a deceased minor, by and through his
personal representative, Nina Gray, filed a First Amended
Complaint which added Count IV, alleging a state law claim
for wrongful death, and Count V, alleging violation of 42
U.S.C. § 1981. Defendant Walgreen filed a motion to
dismiss the First Amended Complaint for failure to state a
claim upon which relief can be granted. Plaintiff C.W. filed
a response to Defendant Walgreen's motion to dismiss and
also sought leave to amend the complaint a second time, which
this Court granted.
August 2, 2017, Plaintiff C.W. and Nina Gray, individually,
filed a Second Amended Complaint. Plaintiff C.W. alleged
violations of 42 U.S.C. § 1981 (Count I), 42 U.S.C.
§ 1985 (Count II), and § 213.065, Missouri Revised
Statutes (Count III), and Plaintiff Gray alleged wrongful
death (Count IV).
Walgreen filed a motion to dismiss Counts I, II, and III for
failure to state a claim and an alternative motion to strike
Plaintiff C.W.'s prayers for punitive damages and
attorney's fees. Defendant Walgreen additionally seeks to
strike Plaintiff Gray's prayer for attorney's fees in
must satisfy themselves that a plaintiff has standing to
bring a claim. “‘Where a plaintiff lacks
standing, the court has no subject matter
jurisdiction.'” Brooks v. City of Des Moines,
Ia., 844 F.3d 978, 979 (8th Cir. 2016) (quoting
Young America Corp. v. Affiliated Comput. Servs.,
Inc., 424 F.3d 840, 843 (8th Cir. 2005)).
purpose of a motion to dismiss for failure to state a claim
is to test the legal sufficiency of the complaint. To survive
a motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 667 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not
provide specific facts in support of its allegations,
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam), but “must include sufficient factual
information to provide the ‘grounds' on which the
claim rests, and to raise a right to relief above a
speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing
Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. A complaint “must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal
theory.” Id. at 562 (quoted case omitted).
This standard “simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of
[the claim or element].” Id. at 556.
motion to dismiss, the Court accepts as true all of the
factual allegations contained in the complaint, even if it
appears that “actual proof of those facts is
improbable, ” Twombly, 550 U.S. at 556, and
reviews the complaint to determine whether its allegations
show that the pleader is entitled to relief. Id.;
Fed.R.Civ.P. 8(a)(2). Materials attached to the complaint as
exhibits may be considered in construing the sufficiency of
the complaint. Morton v. Becker, 793 F.2d 185, 187
(8th Cir. 1986).
Count I, Plaintiff C.W.'s Claim Pursuant to 42 ...