3:25-cv-00995•Wilson v. Walgreen Co
Texte intégral
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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 1 of 13 PageID <pageID>
- 2 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 2 of 13 PageID <pageID>
- 3 - 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. Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 3 of 13 PageID <pageID>
- 4 - 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. Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 4 of 13 PageID <pageID>
- 5 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 5 of 13 PageID <pageID>
- 6 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 6 of 13 PageID <pageID>
- 7 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 7 of 13 PageID <pageID>
- 8 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 8 of 13 PageID <pageID>
- 9 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 9 of 13 PageID <pageID>
- 10 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 10 of 13 PageID <pageID>
- 11 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 11 of 13 PageID <pageID>
- 12 - (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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 12 of 13 PageID <pageID>
- 13 - 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 Case 3:25-cv-00995-N-BN Document 59 Filed 01/29/26 Page 13 of 13 PageID <pageID>
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.