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Stone v. Walgreen Co.

United States District Court, S.D. California

March 26, 2014

KERRY STONE, Plaintiff,
WALGREEN CO., et al., Defendants.


THOMAS J. WHELAN, District Judge.

On September 27, 2013, Plaintiff Kerry Stone commenced this action against Defendants Walgreen Co. ("Walgreens") and Option Care Enterprises Inc. d/b/a Walgreens Infusion Services, LLC ("Option Care") in the San Diego Superior Court. Thereafter, Defendants timely removed the action to this Court. Defendants now move to dismiss Plaintiff's complaint in its entirety. Plaintiff opposes.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES Defendants' motion to dismiss.


On December 10, 2009, Plaintiff was hired as the Regional Nutrition Specialist for Option Care. (Compl. ¶ 6.) At the time of her hiring, Plaintiff was promised exclusive territories in Arizona, California, Nevada, and New Mexico. (Id. ¶ 7.) In reality, Plaintiff was only given limited California territories in Carlsbad and Santa Fe Springs, and was given the duties of a Branch Dietician rather than a Regional Nutrition Specialist. (Id. ¶ 8.)

On or about February 7, 2012, Plaintiff contacted the California Division of Occupational Safety and Health ("CALOSHA") and reported "hazardous conditions" present at Walgreens Infusion Services in Carlsbad, CA ("Walgreens Carlsbad"). (Compl. ¶ 9.) Specifically, she complained that: (1) "the building smells and it is unhealthy"; (2) "there are leaking ceilings on both levels of the building"; and (3) "the parking lot is not kept up, and there are rocks everywhere." (Id.)

Two days later, on February 9, 2012, senior management announced that Option Care had purchased Crescent Healthcare. (Compl. ¶ 10.) Plaintiff alleges that although present Option Care's staff were "supposed to be interviewed for positions for Crescent, Plaintiff [] was never interviewed." (Id.)

On or about February 27, 2012, Plaintiff received orders from a doctor regarding "enteral feeding for a patient." (Compl. ¶ 12.) After several interactions with the patient, Plaintiff eventually prepared an order that included her assessment indicating that the patient had dysphagia-the inability to swallow-as a diagnosis "because it was true and it was necessary for the patient to qualify for Medicare coverage." (Id. ¶ 19.) Plaintiff faxed the order, and then doctor signed it. (Id.) Plaintiff later discovered that a Crescent Healthcare dietician "conducted a nutritional assessment on March 30, 2012, because she was no longer allowed to care for this patient." (Id. ¶ 20.)

On April 5, 2012, Plaintiff received a letter from CALOSHA, dated March 30, 2012, telling her that it "investigated her items in her complaint [regarding Walgreens Carlsbad] and although it did not find violations regarding those items, it did cite the employer for violation of Title 8 of the California Code of Regulations on the date of inspection." (Compl. ¶ 11.) Neither party provides any of the details from the citation that CALOSHA issued.

Around the same time, Plaintiff was notified by Defendants' Loss Prevention Department that she was being investigated for fraud. (Compl. ¶ 21.) Shortly thereafter, on or about April 16, 2012, Plaintiff was directed to "come into the office, " where she was told that she was "terminated for falsifying records." (Id. ¶ 23.) Plaintiff alleges that she "believes that the reasons given for her termination are pretextual and the actual reason was retaliation for reporting the defendants to CALOSHA[.]" (Id. ¶ 24.) Plaintiff maintains that she "did not commit any fraudulent act by adding the word dysphagia' as the patient did in fact have dysphagia and the word was added PRIOR to the time the doctor signed the order." (Id. (emphasis in original).)

On September 27, 2013, Plaintiff commenced this action, asserting claims for: (1) violation of California Labor Code § 1102.5 et seq.; and (2) wrongful termination in violation of public policy. Defendants now move to dismiss Plaintiff's complaint under Rules 12(b)(1) and 12(b)(6). Plaintiff opposes.


Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss based on the court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). In such a motion, the plaintiff bears the burden of establishing the court's subject matter jurisdiction. "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes , 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000).

In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming that all of the allegations are true and construing the complaint in light most favorable to the plaintiff. See Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Thus, a motion to dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to allege sufficient ...

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