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The Complaint also includes nine “Does” as defendants in thecause. Upon plaintiff’s motion, these Doe defendants weredismissed from the case without prejudice in accordance with Fed.R. Civ. P. 41(a)(1)(A)(i). (See Order entered Oct. 13, 2009/Doc.#49.)
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The matter of class certification has not yet been determinedin this cause.UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MISSOURIEASTERN DIVISIONJOHN AMBURGY, ))Plaintiff, ))v.)No. 4:09CV705 FRB)EXPRESS SCRIPTS, INC.,
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))Defendant. )
MEMORANDUM AND ORDER
Presently pending before the Court is defendant ExpressScripts, Inc.’s Motion to Dismiss (Doc. #12). All matters arepending before the undersigned United States Magistrate Judge, withconsent of the parties, pursuant to 28 U.S.C. § 636(c).Plaintiff John Amburgy brings this action on behalf ofhimself, and all others similarly situated,
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alleging thatdefendant Express Scripts, Inc.’s (Express Scripts’) inadequatesecurity measures in relation to its computerized database systemallowed unauthorized persons to gain access to confidentialinformation of Express Scripts members contained in the database,with such information including names, dates of birth, SocialSecurity numbers, and prescription information. Plaintiff claimsthat the unauthorized persons who committed the act informed
Case 4:09-cv-00705-FRB Document 53 Filed 11/23/2009 Page 1 of 22
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Plaintiff avers that in the extortion letter, theextortionists included information pertaining to approximatelyseventy-five individuals, but also claimed that they had similarinformation on millions of Express Scripts members.
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Express Scripts in October 2008 of their breach of the system andthreatened that they would make public the confidential informationobtained through the breach if Express Scripts did not pay acertain amount of money to them. Plaintiff claims that ExpressScripts notified its members of this security breach in November2008 with a notice posted on its website, and that Express Scriptsnotified by personal letter those persons whose confidentialinformation had been identified in the extortion letter.
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Plaintiff claims that as a result of Express Scripts’ failure tomaintain adequate security measures to protect against the theft ofsuch confidential information, plaintiff and other Express Scriptsmembers have been placed “at an increased risk of becoming victimsof identity theft crimes, fraud, abuse, and extortion.” (Pltf.’sCompl. at para. 3.) Plaintiff also claims that he and othermembers “have spent (or will need to spend) considerable time andmoney to protect themselves” as a result of Express Scripts’conduct. (Id.) Finally, plaintiff contends that millions ofExpress Scripts members, including plaintiff,have had their Confidential Informationcompromised, their privacy invaded, have beendeprived of the exclusive use and control oftheir proprietary prescription information,have incurred costs of time and money toconsistently monitor their credit cardaccounts, credit reports, prescription
Case 4:09-cv-00705-FRB Document 53 Filed 11/23/2009 Page 2 of 22
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accounts, and other financial information inorder to protect their ConfidentialInformation, and have otherwise sufferedeconomic damages.(Id. at para. 4.)In his five-count Complaint brought under the Class Action FairnessAct of 2005, 28 U.S.C. § 1332(d), plaintiff claims Express Scripts’actions constituted negligence, breach of contract with respect tothird-party beneficiaries, breach of implied contract, violationsof “data breach notification laws” of various States, andviolations of Missouri’s Merchandising Practices Act.Defendant Express Scripts seeks to dismiss plaintiff’saction, arguing that this Court lacks subject matter jurisdictionover the cause inasmuch as plaintiff does not have standing topursue the claims, and, further, that the Complaint fails to statea claim upon which relief can be granted. Plaintiff has respondedto the motion to which defendant has replied. The Court willaddress each of defendant’s arguments in turn.A.Subject Matter JurisdictionArticle III, § 2 of the United States Constitution limitsfederal jurisdiction to actual cases and controversies. The“threshold requirement” imposed by Article III is that those whoseek to invoke the power of federal courts must allege an actualcase or controversy. O’Shea v. Littleton, 414 U.S. 488, 494 (1974)(citing Flast v. Cohen, 392 U.S. 83, 94-101 (1968); Jenkins v.McKeithen, 395 U.S. 411, 421-425 (1969) (opinion of Marshall, J.)).
Case 4:09-cv-00705-FRB Document 53 Filed 11/23/2009 Page 3 of 22
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Ambrugy v. Express Scripts, Inc. (E.D. Mo.)
This is a data breach class action where plaintiff sought to hold Express Scripts liable for a breach of consumer information. The court dismissed the case for lack of standing - finding that the harm suffered by plaintiffs was too speculative.
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