Wilson v. Walgreen Co

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARQUETH WILSON, 	§
TDCJ No. 02480239, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-995-N-BN
§
WALGREENS, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Marqueth Wilson, a Texas prisoner, at least then incarcerated at
TDCJ’s Estelle Unit, a prison in Walker County, Texas, within the Houston Division
of the Southern District of Texas, see 28 U.S.C. § 124(b)(2), filed a pro se lawsuit
against Defendant Walgreens in a state court in Lake County, Illinois, based on his
alleged purchase and use of eye drops he purchased from Walgreens, which he
claims were later recalled and which he alleges damaged his vision, see Dkt. No. 1-1.
In this initial complaint, Wilson averred, without much detail, that the events
underlying his lawsuit occurred in Cook County, Illinois. See id. at 1. But, without
identifying either venue’s connection to his lawsuit, Wilson also mentioned in that
filing that “this case may be suitable for removal to the United States District Court
for the Northern District of Texas at Dallas or the Federal Courthouse of Smith
County, Tyler, Texas.” Id. at 2; see also 28 U.S.C. § 124(c)(1) (Smith County is within
the Tyler Division of the Eastern District of Texas).
Walgreens removed Wilson’s lawsuit to the Eastern Division of the Northern
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District of Illinois. See Dkt. No. 1; 28 U.S.C. §§ 93(a)(1) & 1441(a).
Walgreens then moved to dismiss the complaint or, in the alternative, transfer
the case under 28 U.S.C. § 1404(a) and forum non conveniens. See Dkt. No. 8.
And, observing that neither side objected to – but rather both sides essentially
consented to – transferring this lawsuit to a federal court in Texas, the federal court
in Chicago ordered this case transferred to the Dallas Division of the Northern
District of Texas “for the reasons stated in Defendant’s motion” and in the “interest
of justice” under Section 1404(a). Dkt. No. 24; see Haughton v. Plan Adm’r of Xerox
Corp. 	Ret. 	Income 	Guarantee 	Plan, 	2 	F. 	Supp. 	3d 	928, 	936 	(W.D. 	La. 	2014)
(“Historically, the threshold inquiry under § 1404(a) was whether a civil action ‘might
have been brought’ in the destination venue. In re Volkswagen of America, Inc., 545
F.3d 304, 312–313 (5th Cir.2008) (en banc). After the 2011 amendment, however,
transfer is authorized to any district to which all parties have consented.”); AHP
Servicing, LLC v. MetaSource, LLC, No. 3:24-cv-787-L, 2024 WL 5055553, at *1 (N.D.
Tex. May 21, 2024) (transferring under Section 1404(a) based on a stipulation
“indicat[ing] that the parties consent to transferring this action to the United States
District Court for the Southern District of New York”).
After this lawsuit was transferred to this district, it was referred to the
undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference. And, after considering the parties’
amended joint submission under Federal Rule of Civil Procedure 26(f), see Dkt. No.
37, the Court entered an initial scheduling order under the Civil Justice Expense and
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Delay Reduction Plan for the Northern District of Texas and Federal Rule of Civil
Procedure 16(b) that in part observed:
Walgreens relates through the Rule 26(f) report that it “re-urges
its Motion to Dismiss filed in the Northern District of Illinois,” asserting
that it was not mooted, while Wilson asserts “that the prior court has
ruled on the Motion to Dismiss, when this case was transferred.” Dkt.
No. 37 at 3.
The Northern District of Illinois granted Walgreens’s alternative
request for a Section 1404(a) transfer. So that ruling and the transfer of
the case mooted the motion. But Walgreens still may re-urge the
substance of the motion filed in the Northern District of Illinois and
should do so in this action by filing a new motion.
Dkt. No. 40, ¶ 2 (citation omitted).
Walgreens then moved to dismiss Wilson’s complaint under Federal Rules of
Civil Procedure 12(b)(5) (for improper service) and 12(b)(6) (for failure to state a claim
on which relief can be granted). See Dkt. Nos. 45-47.
Wilson responded and moved for leave to file an amended complaint. See Dkt.
Nos. 49, 53, & 54.
And Walgreens responded to Wilson’s motion and replied in support of its
motion. See Dkt. Nos. 56 & 58.
For the reasons and to the extent set out below, the Court should grant the
motion to dismiss the complaint, deny leave to file an amended complaint, and
dismiss this lawsuit.
Legal Standards
While Walgreens moves for dismissal based on improper service and for failure
to state a claim, the undersigned will not address the improper service arguments, as
Wilson’s claims, even as amended, fail to state a claim on which relief can be granted.
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A motion under Rule 12(b)(6) is “not meant to resolve disputed facts or test the
merits of a lawsuit” but “instead must show that, even in the plaintiff’s best-case
scenario, the complaint does not state a plausible case for relief.” Sewell v. Monroe
City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020).
Considering such a motion, the Court “accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).
But a plaintiff still must plead “enough facts to state a claim to relief that is
plausible on its face” and must plead those facts with enough specificity “to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 555 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
So a court’s “obligation [is] to accept [the] complaint’s factual allegations as
true and assess whether those facts permit a reasonable inference that [a defendant]
is liable.” Sewell, 974 F.3d at 581; cf. Bryant v. Ditech Fin., L.L.C., No. 23-10416, 2024
WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as plaintiffs cannot state a claim
using speculation, defendants cannot defeat plausible inferences using speculation.”).
This “plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678.
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So, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,
Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random
puffs of smoke but nothing resembling real signs of fire, the plausibility standard is
not satisfied.”).
And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed
factual allegations, it does require that a plaintiff allege more than labels and
conclusions. So, while a court must accept a plaintiff’s factual allegations as true, it
is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Consequently, a threadbare or formulaic recitation of the elements of a cause
of 	action, 	supported 	by 	mere 	conclusory 	statements, 	will 	not 	suffice. 	See 	id.;
Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume
true a number of categories of statements, including legal conclusions; mere labels;
threadbare recitals of the elements of a cause of action; conclusory statements; and
naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of
Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).
Summed up, “to survive” dismissal under Twombly and Iqbal, plaintiffs must
“plead 	facts 	sufficient 	to 	show” 	that 	the 	claims 	asserted 	have 	“substantive
plausibility” by stating “simply, concisely, and directly events” that they contend
entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per
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curiam) (citing FED . R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); cf. Brown v. Tarrant Cnty., Tex.,
985 F.3d 489, 494 (5th Cir. 2021) (While “[p]ro se complaints receive a ‘liberal
construction,’” “mere conclusory allegations on a critical issue are insufficient.”
(cleaned up)).
Federal Rule of Civil Procedure 15 requires that leave to amend be granted
freely “when justice so requires.” FED . R. CIV. P. 15(a)(2).
Because this rule provides a “strong presumption in favor of granting leave to
amend,” Fin. Acquisition Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006),
the Court must do so “unless there is a substantial reason to deny leave to amend,”
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. Nov. 1981).
One such reason is futility. That is, “[i]f the complaint, as amended, would be
subject to dismissal, then amendment is futile and the district court [is] within its
discretion to deny leave to amend.” Martinez v. Nueces Cnty., Tex., 71 F.4th 385, 391
(5th Cir. 2023) (quoting Ariyan, Inc. v. Sewage & Water Bd. of New Orleans, 29 F.4th
226, 229 (5th Cir. 2022)).
In this regard, the Court must “ask whether, in his proposed amended
complaint, [a plaintiff] has pleaded ‘factual content that allows the court to draw the
reasonable inference that [a] defendant is liable for the misconduct alleged.’” Id.
(quoting Iqbal, 556 U.S. at 678); cf. Peña v. City of Rio Grande City, 879 F.3d 613, 618
(5th Cir. 2018) (“Where the district court’s denial of leave to amend was based solely
on futility, [the United States Court of Appeals for the Fifth Circuit] applies a de novo
standard of review identical, in practice, to the standard used for reviewing a
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dismissal under Rule 12(b)(6).” (cleaned up)).
Analysis
As set out in the proposed amended complaint, based on his use of eye drops
that he purchased from Walgreens located in Dallas and Tyler, Texas in 2022 and
2023, Wilson alleges claims (or proposes amended claims) under Texas law for strict
product liability (under theories of failure to warn, design and manufacturing defects,
and breach of warranty) and negligence and alleges that Walgreens violated the
Texas Deceptive Trade Practices Act (“DTPA”).
As Wilson explains, he used these “products from December of 2022 through
approximately May of 2023 to help alleviate discomfort resulting from a laser surgery
in or about 2022,” a surgery that was related to the detachment of his retina “due to
a high number of pinholes in both eyes or floaters.” Dkt. No. 49-1 at 3 (cleaned up).
Wilson further explains that following his arrest in June 2023, he became
concerned about his remaining vision and begin to investigate his past use of eye care
products, and he alleges that he learned that the products he purchased from
Walgreens “began to be identified as products that were recalled for contamination
or some other detrimental problems.” Id. at 4.
He then filed this lawsuit.
Starting with Wilson’s strict product liability claims
“[t]o make out a strict liability cause of action, a party must establish
that: (1) a product is defective; (2) the defect rendered the product
unreasonably dangerous; (3) the product reached the consumer without
substantial change in its condition from the time of original sale; and (4)
the defective product was the producing cause of the injury to the user.”
Syrie v. Knoll Int’l, 748 F.2d 304, 306 (5th Cir. 1984). A product may be
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unreasonably dangerous because of a defect in marketing, design, or
manufacturing. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d
420, 426 (Tex. 1997).
Elmazouni v. Mylan, Inc., 220 F. Supp. 3d 736, 741 (N.D. Tex. 2016).
“So long as those elements are established, a seller will be liable regardless of
any level of care exercised in the preparation and sale of the product.” Albaugh v.
Wind Access Eng’g, No. 1:23-cv-00146, 2025 WL 1699195, at *5 (S.D. Tex. May 16,
2025) (citing R ESTATEMENT (SECOND) OF T ORTS § 402A(2)(a)), rec. adopted, 2025 WL
1682890 (S.D. Tex. June 16, 2025).
When a warning is required, a defendant’s failure to warn of a
product’s potential risks is considered a “marketing defect” under Texas
law. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995); Lucas
v. Tex. Indus., Inc., 696 S.W.2d 372, 377 (Tex. 1984). The existence of a
duty to warn is a question of law. Gen. Motors Corp. v. Saenz, 873 S.W.2d
353, 356 (Tex. 1993). In circumstances where a warning is required but
not given, or given inadequately, a “plaintiff must show both that the
warning was defective and that it was the producing cause of the
plaintiff's injury.” Wyeth-Ayerst Labs. Co. v. Medrano, 28 S.W.3d 87, 94
(Tex. App. – Texarkana 2000, no pet.) (citation omitted).
Erwin v. Metalcraft of Mayville, No. 3:23-cv-1561-K, 2025 WL 1146639, at *7-*8 (N.D.
Tex. Mar. 20, 2025), rec. accepted, 2025 WL 1334064 (N.D. Tex. May 7, 2025).
Neither Wilson’s current nor his proposed amended allegations present factual
content from which the Court could reasonably infer either that the products in
question were defective or that any required warning was defective. So Wilson’s strict
product liability claims should be dismissed with prejudice.
Wilson’s negligence claim based on the products and/or any required warning
is equally implausibly pleaded and should also be dismissed under Rule 12(b)(6). See
Elmazouni, 220 F. Supp. 3d at 743 (“Whether [p]laintiffs seek recovery based on a
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negligence theory or a strict liability theory, they must establish that [their] injury
resulted from a defect in the [product].” (citing Toshiba Int’l Corp. v. Henry, 152
S.W.3d 774, 784-85 & n.3 (Tex. App. – Texarkana 2004, no pet.) (“When a plaintiff
seeks recovery because of negligence or a theory of strict liability in tort, the burden
is on the plaintiff to prove that the injury resulted from a defect in the product.”
(collecting cases, including Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409,
413-14 (5th Cir. 1987) (“Although conceptually different, the two theories of liability
each present the essential question whether an inadequate warning caused the
plaintiff’s injuries.” (cleaned up)))))).
Turning to the DTPA claim, that statute “provides consumers with a cause of
action for false, misleading, or deceptive acts or practices.” Hunter v. Navy Fed. Credit
Union, 749 F. Supp. 3d 743, 754-55 (N.D. Tex. 2024) (citing TEX. BUS . & COM. C ODE
ANN . § 17.50(a); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996)).
The elements of a DTPA claim are: (1) the plaintiff was a consumer; (2)
the defendant either engaged in false, misleading or deceptive acts (i.e.,
violated a specific laundry-list provision of the DTPA) or engaged in an
unconscionable action or course of action; and (3) the DTPA laundry-list
violation 	or 	unconscionable 	action 	was 	a 	producing 	cause 	of 	the
plaintiff’s injury.
Windle v. Synthes USA Prods., LLC, No. 3:11-cv-2591-D, 2012 WL 1252550, at *4
(N.D. Tex. Apr. 13, 2012) (citing Amstadt, 919 S.W.2d at 649; Doe v. Boys Clubs of
Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995)).
And, “[i]n federal court, a complaint alleging violations of the DTPA is subject
to the requirements of Federal Rule of Civil Procedure 9(b), which requires that fraud
be pleaded ‘with particularity.’” Kumar v. Panera Bread Co., No. 23-20178, 2024 WL
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1216562, at *4 (5th Cir. Mar. 21, 2024) (per curiam) (citing Lone Star Ladies Inv.
Club v. Schlotzsky’s, Inc., 238 F.3d 363, 368 (5th Cir. 2001); Berry v. Indianapolis Life
Ins. Co., 608 F. Supp. 2d 785, 800 (N.D. Tex. 2009)).
“A pleading satisfies ‘particularity’ when it alleges the ‘time, place, and
contents of the false representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby.’” Id. (quoting Wallace v. Tesoro
Corp., 796 F.3d 468, 480 (5th Cir. 2015)).
But, as “Rule 9(b) must be read in conjunction with Rule 8 which requires only
a short and plain statement of the claim showing that the pleader is entitled to relief,
punctilious pleading detail is not required.” Choe v. Bank of Am., N.A., No. 3:13-cv-
120-D, 2013 WL 6159308, at *4 (N.D. Tex. Nov. 25, 2013) (cleaned up). Which means
that “Rule 9(b)’s ultimate meaning is context-specific,” and thus there is
no 	single 	construction 	of 	Rule 	9(b) 	that 	applies 	in 	all 	contexts.
Depending 	on 	the 	claim, 	a 	plaintiff 	may 	sufficiently 	“state 	with
particularity the circumstances constituting fraud or mistake” without
including all the details of any single court-articulated standard – it
depends on the elements of the claim at hand.
United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 188 (5th Cir. 2009) (quoting
Williams, 112 F.3d at 178). So a “court’s key concern in assessing a complaint under
Rule 9(b) is to determine whether the plaintiff seeks to redress specific wrongs or
whether the plaintiff instead seeks the opportunity to search out actionable wrongs.”
Choe, 2013 WL 6159308, at *4 (cleaned up).
Here, Wilson’s DTPA allegations, even those in his proposed amendment, fail
to 	afford 	notice 	under 	Rule 	8(a) 	and 	therefore 	fall 	well 	short 	of 	Rule 	9(b)’s
particularity requirement where Wilson’s conclusory assertions lack factual content
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that could notify Walgreens (or the Court) of why the circumstances alleged constitute
either fraud or mistake. See Dkt. No. 49-1 at 4-6. And, so, the DTPA claim too should
be dismissed under Rule 12(b)(6).
In sum, as to all of Wilson’s theories, all he alleges is that he had preexisting
eye problems and that the eye drops he purchased at Walgreens failed to help. He
may believe that the eye drops made his existing eye problems worse. But he has not
plausibly pleaded so where no facts he has provided allow for that reasonable
inference. And, so, he has not done enough to plead either that the eye drops were
defective (which is fatal to his strict liability and negligence theories) or that
Walgreens, by fraud or mistake, violated the DTPA.
And because the proposed amended allegations that Wilson offers in response
to Walgreen’s motion to dismiss are still not plausibly pleaded, it’s likely that he has
now alleged his “best case” and further leave to amend need not be granted. See, e.g.,
Allen v. Navy Fed. Credit Union, No. 3:24-cv-949-L-BN, 2025 WL 484818, at *13 (N.D.
Tex. Feb. 13, 2025) (“Granting leave to amend … is not necessary when the plaintiff
has pleaded his or her ‘best case’ after being apprised of pleading deficiencies.
Likewise, a district court need not grant a motion to amend if doing so would be an
exercise in futility.” (citations omitted)).
That said, the opportunity file objections to these findings, conclusions, and
recommendation (as further explained below) allows Wilson another opportunity to
show that this case should not be dismissed with prejudice and that the Court should
instead grant leave to amend. See Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209
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(5th Cir. 2021) (per curiam) (“A court should freely give leave to amend when justice
so requires, but a movant must give the court at least some notice of what his or her
amendments would be and how those amendments would cure the initial complaint’s
defects. If the plaintiff does not provide a copy of the amended complaint nor explain
how the defects could be cured, a district court may deny leave.” (citations omitted)).
Recommendation
The Court should grant Defendant Walgreens’s motion to dismiss [Dkt. No. 45]
under Federal Rule of Civil Procedure 12(b)(6), deny Plaintiff Marqueth Wilson’s
motion for leave to file an amended complaint [Dkt. No. 49], and, unless Wilson
through timely objections to these recommendations shows a basis to amend to allege
a plausible claim, the Court should dismiss this lawsuit with prejudice for failure to
state a claim on which relief may be granted.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
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factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: January 29, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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