United States District Court, S.D. Indiana, Indianapolis Division
ANTHONY MIMMS, M.D., and MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
CVS PHARMACY, INC., a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, Medicaid Fraud Control Unit, Interested Party.
ENTRY ON PENDING MOTIONS
WALTON PRATT, JUDGE.
matter is before the Court on the parties' Cross-Motions
for Summary Judgment. On May 20, 2015, Plaintiff Anthony
Mimms (“Dr. Mimms”) filed a Complaint alleging
defamation, tortious interference with contractual
relationships and tortious interference with a business
relationship against Defendant CVS Pharmacy, Inc.,
(“CVS”). On June 15, 2016, Dr. Mimms filed a
Motion for Partial Summary Judgment on behalf of himself and
his business, Mimms Functional Rehabilitation, P.C.,
(“MFR”) (Filing No. 71). On that same
date, CVS filed a Cross Motion for Summary Judgment
(Filing No. 74). Also pending is a Motion to Strike
Certain Defendant's Affirmative Defenses filed by Dr.
Mimms, (Filing No. 58), a Motion to Amend Witness
and Exhibit Lists filed by CVS (Filing No. 127), and
a Motion to Supplement Summary Judgment Record filed by CVS
(Filing No. 130). For the following reasons, the
Court denies in part and grants in part the parties'
Cross-Motions for Summary Judgment, denies Dr. Mimms'
Motion to Strike, grants CVS's Motion to Amend Witness
List, and denies CVS's Motion to Supplement Summary
dispute in this matter surrounds Dr. Mimms' claims that
CVS employees at numerous Indiana locations, uttered false
and defamatory statements to his patients, causing him to
suffer embarrassment, damage to himself and his practice and
loss of clients from his pain management practice. Dr. Mimms
is a physician who resides in Indianapolis, Indiana. In 2004,
Dr. Mimms was licensed with the Indiana Medical Licensing
Board. As such, he was licensed and registered to prescribe
drugs classified by the United States Drug Enforcement
Administration (“DEA”) as Schedule I, II, IID,
III, IIID, IV and V (“prescriptions”). In
November 2013, Dr. Mimms resigned from a practice with
Rehabilitation Associates of Indiana (“RAI”) and
started his own pain management practice, MFR. Thereafter,
employees at various CVS stores within the Southern District
of Indiana refused to fill prescriptions prescribed by Dr.
2013, Cynthia Miller, a patient of Dr. Mimms, traveled to CVS
Store #4633 located in Greenfield, Indiana to refill a
prescription written by Dr. Mimms. (Filing No.
73-10.) A CVS employee informed Miller that they were
not filling prescriptions written by Dr. Mimms because he was
under investigation by the DEA. Id. Later that same
day, Miller returned to the same CVS store with her husband
and talked to Richard, a CVS pharmacy manager. Id.
at 3. Richard repeated that CVS did not fill prescriptions
written by Dr. Mimms because he was under DEA investigation.
Id. at 4.
24, 2014, Terry McIntosh traveled to CVS Store #4633 to
gather information regarding narcotic pain medications he had
previously taken. (Filing No. 73-4 at 2.) While at
the CVS store, Anthony, a CVS pharmacist, stated that CVS
does not fill prescriptions for Dr. Mimms. Id.
Anthony then compared Dr. Mimms to a pill mill and explained
that pill mills are physicians “who just parade
patients one after another through their office writing
prescriptions. Some get kickbacks, some give them, they
over-write the prescriptions too because they get
October 2014, Judith Mason attempted to get a prescription
written by Dr. Mimms filled at CVS Store #4633, but a CVS
employee informed Mason that they refuse to fill any
prescription written by Dr. Mimms. (Filing No. 73-2 at
2.) Mason then traveled to CVS Store #0045 located on
Pendleton Pike in Indianapolis. Id. There, Alexis
Field (“Field”), a CVS pharmacy technician,
stated that Dr. Mimms was under investigation by the DEA and
that Mason should find another doctor. Id. Field
admits that she made the statement. (Filing No. 73-3 at
Petro (“Petro”) also informed Dr. Mimms that she
went to CVS Store #6645 located in Rushville, Indiana to
refill a prescription that he had written. (Filing No.
73-7 at 8.) Dana, a CVS technician, informed Petro that
they could not fill prescriptions written by Dr. Mimms
because he went to jail and is a bad doctor. Id. at
9. Another patient of Dr. Mimms, Jerame Smith
(“Smith”), traveled to a CVS store to fill a
prescription written by Dr. Mimms, and a CVS pharmacy
technician named Jason looked at the prescription, looked
over at something on the wall and then informed Smith that he
could not fill the prescription because Dr. Mimms was under
DEA investigation. (Filing No. 73-9 at 6.) Jason
further stated, “well, either they think your doctor is
a pill pusher or he doesn't care about his clients or
he's a shady doctor.” Id.
recently, Dr. Mimms' patient Deborah Doyle-Blanton
(“Blanton”) informed Dr. Mimms that, on March 4,
2015, a Caucasian CVS employee with dark hair and a lean
build at CVS Store #7541 located in McCordsville, Indiana,
stated that Dr. Mimms had been under investigation and
arrested for controlled substances, and if he was not
arrested then Dr. Mimms would soon be arrested. The employee
suggested that Blanton find a new doctor. (Filing No.
73-1 at 2.) Blanton's brother, David Seeman, who is
not Dr. Mimms' patient, also informed Dr. Mimms that a
CVS employee at Store #6594 refused to fill a prescription
written by Dr. Mimms for Blanton. (Filing No. 73-5 at
2.) The employee stated that Dr. Mimms' license was
revoked and that it was best that Blanton go to another
doctor. Id. Seeman described the CVS employee as a
young Caucasian woman. Id. at 6.
February 10, 2014, Dr. Mimms filed a Consumer Complaint
against CVS with the Indiana Attorney General's Office,
complaining that CVS stores across Indiana were refusing to
fill his patients prescriptions. (Filing No. 73-11 at
2-3.) On May 23, 2014, the Indiana Attorney
General's Office sent Dr. Mimms a letter stating that it
was closing his Complaint against CVS, but provided no other
information. Id. at 6. On November 17, 2014, DEA
agent Madeline Kuzma and Amy Andercyk from the Indiana
Attorney General's Office visited CVS regarding CVS's
refusal to fill Dr. Mimms' prescriptions. (Filing No.
73-13 at 2.) The agents asked whether there were other
doctors that concerned CVS. Id. Thereafter, on May
20, 2015, Dr. Mimms filed this action against CVS in Marion
Superior Court on behalf of himself and MFR, asserting
defamation, tortious interference with contractual
relationships, and tortious interference with a business
relationship. (Filing No. 1-2.) On June 19, 2015,
CVS removed the case to federal court. CVS disputes that its
employees made any actionable defamatory statements, and
contends that if the employees did make defamatory
statements, they are protected by a qualified privilege. Both
parties move for summary judgment.
purpose of summary judgment is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine
need for trial.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 587106 S.Ct. 1348
(1986). Under Federal Rule of Civil Procedure 56, summary
judgment is appropriate only where there exists “no
genuine issue as to any material facts and . . . the moving
party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. In ruling on a motion for summary judgment,
the court reviews “the record in the light most
favorable to the non-moving party and draw[s] all reasonable
inferences in that party's favor.” Zerante v.
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation
omitted). “However, inferences that are supported by
only speculation or conjecture will not defeat a summary
judgment motion.” Dorsey v. Morgan Stanley,
507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation
marks omitted). Additionally, “[a] party who bears the
burden of proof on a particular issue may not rest on its
pleadings, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of
material fact that requires trial.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir.
2007) (citation omitted). “The opposing party cannot
meet this burden with conclusory statements or speculation
but only with appropriate citations to relevant admissible
evidence.” Sink v. Knox County Hosp., 900
F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
same standards apply even when each side files a motion for
summary judgment. The existence of cross-motions for summary
judgment does not imply that there are no genuine issues of
material fact. R.J. Corman Derailment Serv., LLC v.
Int'l Union of Operating Eng'rs., 335 F.3d 643,
647 (7th Cir. 2003). The process of taking the facts in the
light most favorable to the non-moving party, first for one
side and then for the other, may reveal that neither side has
enough to prevail without a trial. Id. at 648.
“With cross-motions, [the Court's] review of the
record requires that [the Court] construe all inferences in
favor of the party against whom the motion under
consideration is made.” O'Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001)
(citation and quotation marks omitted).
Mimms moves this Court for partial summary judgment on the
defamation claim only, arguing that the statements made by
CVS are defamatory per se. CVS cross motions for
summary judgment, contending that the statements are
inactionable opinions, true statements or protected by
qualified privilege. CVS also seeks summary judgement on the
tortious interference claims, arguing they fail as a matter
Motion to Strike (Filing No. 58)
initial matter, Dr. Mimms asks the Court to strike certain
affirmative defenses filed by CVS. Federal Rule of Civil
Procedure 12(f) allows the Court to “strike from a
pleading an insufficient defense or redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
The Court may, (1) act on its own, or (2) on a motion made by
a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served
with the pleading. Id. Motions to strike are
generally disfavored; however, “where . . . motions to
strike remove unnecessary clutter from the case, they serve
to expedite, not delay.” Heller Fin., Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir.
5, 2016, in reply to Dr. Mimms' Complaint, CVS filed an
Amended Answer asserting thirteen affirmative
defenses. Dr. Mimms argues that defenses four
through eleven are legal conclusions and CVS failed to plead
any short and plain statements of facts as required under
Indiana law. Affirmative defenses that are “nothing but
bare bones conclusory allegations”, that “omit
any short and plain statement of facts and fail … to
allege the necessary elements of the alleged claims”
should be stricken. Id.
response, CVS argues that the Court should deny the Motion to
Strike because it is untimely. CVS filed its original Answer
and affirmative defenses on November 5, 2015, which included
defenses one through eleven, and also filed a Motion for
Leave to File an Amended Answer on April 15, 2016. Dr. Mimms
filed his Motion to Strike on May 10, 2016, five days after
CVS filed its Amended Answer. CVS asserts that Dr. Mimms
should have filed his Motion within 21 days after the
original Answer, or prior to the Court granting CVS's
Motion for Leave on May 5, 2016. Under Rule 12(f), a party
may move to strike within 21 days after being served with the
pleading if no response is required. Fed.R.Civ.P. 12(f)(2).
operative pleading in this case is the Amended Answer.
See Heckler & Koch, Inc. v. German Sport Guns
GmbH, 71 F.Supp.3d 866, 878 (S.D. Ind. 2014) (holding
defendants' motion to strike plaintiffs' answer was
moot where plaintiffs filed an amended answer because
“amended answers, like amended complaints, supersede a
previous pleading”). Accordingly, Dr. Mimms Motion to
Strike is timely, because it was filed five days after
service of CVS's Amended Answer, well within the 21 day
argues that the Motion to Strike fails on the merits, and
should be denied because CVS satisfied the “short and
plain” statement requirement and Dr. Mimms was
sufficiently notified of the defenses. “A pleading that
states a claim for relief must contain… a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Defenses
four through eleven are as follows:
Fourth Affirmative Defense: Plaintiffs'
claims are barred because truth is a complete defense to
defamation claims. Any statement of fact made by CVS
Pharmacy's employees, alleged to be false but true, is
Fifth Affirmative Defense: Plaintiffs'
claims are barred by the innocent construction rule.
Accordingly, if any alleged defamatory words are susceptible
to two meanings, one defamatory and one innocent, the
defamatory meaning must be rejected and the innocent meaning
Sixth Affirmative Defense: Plaintiffs'
claims are barred by the doctrine of unclean hands.
Seventh Affirmative Defense: Plaintiffs'
claims involve alleged statements about a matter of public
concern. Therefore, Plaintiffs may not recover presumed
damages in the absence of a showing by Plaintiffs by clear
and convincing evidence that a statement was published with
actual malice as defined in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974).
Eighth Affirmative Defense: To the extent
Plaintiffs have failed to mitigate, minimize, or otherwise
avoid any alleged losses or damages, Plaintiffs' damages
claim must be reduced accordingly.
Ninth Affirmative Defense: Plaintiffs'
claims are barred by the doctrine of comparative fault.
Tenth Affirmative Defense: Plaintiffs'
claims are barred by the doctrine of waiver.
Eleventh Affirmative Defense:
Plaintiffs' claims are barred by their lack of ...