United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to
dismiss three counts of plaintiff's first amended
complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has
filed a response in opposition and the issues are fully
Prime Aid Pharmacy Corp. has operated in New Jersey as a
licensed pharmacy providing retail and specialty
medications since 2006. Defendant Express Scripts,
Inc., is a pharmacy benefits manager that provides services
to insurance companies in the processing and payment of
prescription drug claims. Defendant also provides mail order
delivery of drugs through its own specialty pharmacy, Accredo
Health Group, Inc. Plaintiff has been a member of
defendant's network since 2006 and has filled tens of
thousands of specialty medications for patients insured
through plans managed by defendant. On July 25, 2011, the
parties entered into the Provider Agreement that is at issue
in this case.
December 2013, new drugs for the treatment of Hepatitis C
were introduced, to great patient demand. Plaintiff alleges
that the introduction of these high-cost, high-profit-margin
drugs “altered the relationship” between
defendant and specialty pharmacies like plaintiff that were
in competition with defendant's specialty pharmacy,
Accredo. In April 2014, defendant audited plaintiff's
records for the period between March 20, 2013 and April 1,
2014. Plaintiff produced its records for approximately 30,
000 prescriptions filled during the audit period. On July 31,
2014, defendant issued a discrepancy report, based on a
finding that plaintiff had submitted reimbursement claims for
more syringe kits than it had received from its supplier,
resulting to $142, 845.72 in overpayments to plaintiff. At
plaintiff's request, the supplier provided defendant with
documentation supporting plaintiff's reimbursement
August 8, 2014, defendant notified plaintiff that it was
being terminated from the provider network, effective August
22, 2014, pursuant to the Provider Agreement's
“immediate termination” provision, §
4.2.c. According to the notice, the termination
was warranted by “serious violations” of the
provider agreement, including the $142, 845.72 discrepancy
for syringe kits; plaintiff's failure to timely reverse
seven reimbursement claims after patients failed to pick up
prescriptions; and plaintiff's failure to notify
defendant that it paid a $750 fine to the State of New Jersey
August 13, 2014, plaintiff responded to the termination
notice and refuted each of the alleged
violations. Plaintiff stated that defendant's
attempt to immediately terminate it from the network violated
New Jersey law and demanded a hearing and a stay of
termination for 90 days. In addition, plaintiff demanded
immediate payment of over $8 million in funds due and owing
letter dated September 12, 2014, counsel for defendant
rejected plaintiff's assertion that it had not violated
the provider agreement and denied plaintiff's request for
a hearing and stay of termination. Furthermore, counsel
stated that “[t]here are no additional monies being
withheld by Express Scripts.” [Doc. # 33-5]. Based on
defendant's representation that it did not owe plaintiff
any additional funds, plaintiff downsized its operations and
laid off pharmacists, nurses, and salespersons.
December 21, 2015, defendant forwarded plaintiff a check for
$845, 002.04, “representing the balance due to”
plaintiff on claims dating back to 2013. The letter
accompanying the check stated that defendant was continuing
to withhold $968, 233.56. [Doc. # 33 at ¶¶65-66,
¶68; Doc. # 35-3]. Defendant has refused plaintiff's
request for an accounting of the funds.
first amended complaint, plaintiff asserts the following
claims: fraudulent misrepresentation (Count I); breach of
contract (Count II); breach of covenant of good faith and
fair dealing (Count III); violation of the Missouri Prompt
Pay Act (Count IV); unjust enrichment (Count V); promissory
estoppel (Count VI); and equitable accounting (Count VII).
Plaintiff seeks an award of compensatory damages and punitive
moves to dismiss Counts I, IV, and VII.
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. Fed.R.Civ.P.
12(b)(6). The factual allegations of a complaint are assumed
true and construed in favor of the plaintiff, “even if
it strikes a savvy judge that actual proof of those facts is
improbable.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge's
disbelief of a complaint's factual allegations.”);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating
that a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
The issue is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present
evidence in support of his claim. Scheuer, 416 U.S.
at 236. A viable complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see
id. at 563 (stating that the “no set of
facts” language in Conley v. Gibson, 355 U.S.
41, 45-46 (1957), “has earned its retirement”);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678-84
(2009) (holding that the pleading standard set forth in
Twombly applies to all civil actions).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555.
Count I - Fraudulent misrepresentation
claims that, in the September 12, 2014 letter, defendant
fraudulently misrepresented that it was not withholding any
additional monies that belonged to plaintiff. In reliance on
the misrepresentation, plaintiff laid off several employees.
Plaintiff alleges that defendant “had knowledge of, or
was recklessly indifferent to, the falsity of” this
statement when it was made. [Doc. # 33 at ¶75].
prevail on a fraudulent misrepresentation claim under
Missouri law, a plaintiff must prove: (1) a representation;
(2) its falsity; (3) its materiality; (4) the speaker's
knowledge of its falsity or ignorance of its truth; (5) the
speaker's intent that it should be acted on by the person
in the manner reasonably contemplated; (6) the hearer's
ignorance of the falsity of the representation; (7) the
hearer's reliance on the representation being true; (8)
the hearer's right to rely thereon; and (9) the
hearer's consequent and proximately caused injury.
Stevens v. Markirk Constr., Inc., 454
S.W.3d 875, 880 (Mo. 2015).
9(b) of the Federal Rules of Civil Procedure requires that a
party alleging fraud “must state with particularity the
circumstances constituting the fraud . . . Malice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.” ...