United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff's motion to
dismiss defendant's counterclaims, pursuant to
Fed.R.Civ.P. 12(b)(6). Defendant has filed a response in
opposition and the issues are fully briefed.
Prime Aid Pharmacy Corp. (Prime Aid) is a licensed pharmacy
located in New Jersey that provides retail and specialty
medications. Defendant Express Scripts, Inc., (ESI) is a
pharmacy benefits manager that contracts with insurers and
health plan administrators to facilitate the delivery of
prescription drugs to health plan members. On June 25, 2011,
parties executed the provider agreement that is the subject
of this dispute. The agreement had an initial term of three
years, after which it was automatically renewed for
successive one-year terms unless either party provided
written notice of its intent not to renew. First Am.
Counterclaim at ¶ 19 [Doc. # 85].
amended counterclaims, ESI alleges that Prime Aid failed to
timely reverse claims for reimbursement when prescriptions
were not delivered to patients. According to the
counterclaim, after filling a prescription, Prime Aid
submitted an electronic claim for reimbursement. Within
seconds, ESI responded with a message stating whether the
submitted claim was approved and setting forth the amount of
the copayment that Prime Aid was required to collect from the
member. If the prescription was not picked up within ten days
after Prime Aid submitted the claim, Prime Aid had an
additional three days to reverse the claim. Every two weeks,
ESI paid Prime Aid and provided a statement that identified
the prescription number, the date of service, the drug, and
the amount paid for each claim. Id. at ¶¶
alleges that, in 2014, Prime Aid's claims submissions
began to display unusual patterns. Id. at ¶ 43.
After investigating, ESI determined that Prime Aid submitted
claims for seven prescriptions that were never provided to
the ESI member. Id. at ¶¶ 49-72. For
example, in May 2014, Prime Aid submitted a claim for
prescription # 687335 for ESI member SK. Two weeks later, ESI
paid Prime Aid $1, 132.17 for this claim. In June 2014, Prime
Aid submitted a claim for refilling the prescription, which
ESI again paid. On July 21, 2014, SK's health plan
contacted Prime Aid after it submitted a claim for another
refill. At that point, Prime Aid acknowledged that the
prescriptions had never been dispensed and, on July 22, 2014,
it reversed the three claims for prescription # 687335.
Id. at ¶ 50. Similarly, in June 2014, Prime Aid
submitted claims for prescriptions # 704126 and # 704127 for
ESI member JM. ESI timely paid Prime Aid $46, 692.30 for the
two claims. In July 2014, Prime Aid submitted claims for
refilling the prescriptions, which ESI again timely paid.
Once again, the medications were not actually dispensed to
the patient. After ESI asked for confirmation that the
prescriptions were delivered, Prime Aid reversed the
claims. Id. at ¶ 70. On August 22,
2014, ESI terminated Prime Aid from the network, citing
violations of the provider agreement, including its failure
to timely reverse the seven reimbursement claims detailed in
asserts counterclaims for fraudulent inducement, breach of
contract, and unjust enrichment, based on allegations that
Prime Aid accepted payment for prescriptions that were not
actually dispensed to patients. Prime Aid moves to dismiss
all three counterclaims for failure to state a claim upon
which relief can be granted.
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.
fraudulent inducement counterclaim is also subject to the
requirements of Rule 9(b), which 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.” The Eighth Circuit has held that
the requirements of Rule 9(b) must be interpreted
in harmony with the principles of notice pleading. The
special nature of fraud does not necessitate anything other
than notice of the claim; it simply necessitates a higher
degree of notice, enabling the defendant to respond
specifically, at an early stage of the case, to potentially
damaging allegations of immoral and criminal conduct. Thus, a
plaintiff must specifically allege the circumstances
constituting fraud, including such matters as the time, place
and contents of false representations, as well as the
identity of the person making the misrepresentation and what
was obtained or given up thereby.
Abels v. Farmers Commodities Corp., 259 F.3d 910,
920 (8th Cir. 2001) (quotations and citations omitted).
“In other words, Rule 9(b) requires plaintiffs to plead
the who, what, when, where, and how: the first paragraph of
any newspaper story.” Summerhill v. Terminix,
Inc., 637 F.3d 877, 880 (8th Cir. 2011). However,
“[s]cienter . . . may be pleaded in conclusory fashion
with the caveat that the party pleading fraud must set forth
specific facts that make it reasonable to believe that
defendant knew that a statement was materially false or
misleading.” Nuss v. Cent. Iowa Binding Corp.,
284 F.Supp.2d 1187, 1194 (S.D. Iowa 2003) (citations
Count I - Fraudulent inducement
Aid argues that the fraudulent inducement counterclaim must
be dismissed because ESI has failed to plead that it acted
with the requisite intent. Prime Aid additionally argues ...