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14-9039 - Gubala v. CVS Pharmacy, Inc


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14-9039 - Gubala v. CVS Pharmacy, Inc
June 16, 2015
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MEMORANDUM Opinion and Order: Defendant's motion to dismiss is granted. 16 Because Plaintiffs consumer fraud claims are expressly preempted by the NLEA and fail to state a claim, it is unnecessary to address CVSs additional defense of the primary jurisdiction doctrine at this time. In the event Plaintiff is able to amend his complaint in such a way that it avoids preemption, the Court will consider CVSs additional defenses if and when they are raised. For the foregoing reasons, CVSs Motion to Dismiss is granted and the complaint is dismissed without prejudice. Plaintiff is allowed until July 16, 2015 to file an amended complaint. The Court notes that Plaintiff filed other non-Illinois state law claims on behalf of a class of consumers. R. 1. Those claims are dismissed without prejudice, as well. See, e.g., Wiesmueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008) (If... the named plaintiffs claim becomes moot before the class is certified, the suit must be dismissed because no one besides the plaintiff has a legally protected interest in the litigation). However, the Court will allow amendment of the complaint by July 16, 2015 to include a named plaintiff who can prosecute those claims. See, e.g., Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) ([S]ubstitution for the named plaintiffs is allowed, because courts disregard the jurisdictional void that is created when the named plaintiffs claims are dismissed and, shortly afterwards, surrogates step forward to replace the named plaintiffs). Signed by the Honorable Thomas M. Durkin on 6/16/2015:Mailed notice(srn, )
March 15, 2016
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MEMORANDUM Opinion and Order: Defendant's motion to dismiss the First Amended Class Action Complaint 40 is denied. Status hearing set for 3/22/2016 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 3/15/2016:Mailed notice(srn, )