United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motions to
dismiss (#21, #28). The matters have been fully briefed and
are ripe for disposition.
to the complaint, plaintiff Inspired Pharm Solutions, LLC
(“Inspired”) is in the business of providing a
number of pharmacy, medication, sterilization, packing, and
distribution solutions. Defendant William Negrini is
president of defendant 5mRx LLC (collectively,
“defendant”), which is in the business of
developing, manufacturing, and selling automation hardware,
software, and packaging products. Defendant 5mRx manufactures
the M-Pack pharmacy vial, which is a flat, rectangular,
December 2015, plaintiff and defendant entered into an
Agreement under which plaintiff was to provide repackaging,
fulfillment, and pack and ship services of pharmaceuticals
for defendant. Plaintiff was to repackage and ship
pharmaceuticals in M-Pack vials on behalf of defendant. The
parties agreed to volume-based pricing, and defendant agreed
to be billed a minimum amount each month regardless of volume
after the plaintiff had been operational for six months.
made significant preparations to becoming operational to
perform under the contract, including entering into a
12-month lease, engaging in demolition and construction,
establishing technology infrastructure, and purchasing of
furniture and equipment, among others. Plaintiff informed
defendant that it was operational on March 24, 2016.
“repeatedly told” plaintiff that fulfillment
orders and M-Packs would be forthcoming. On August 8, 2016,
plaintiff again informed defendant it was ready to perform.
In October 2016, plaintiff began to bill defendant for 50,
000 M-Packs pursuant to the terms of the agreement. Plaintiff
sent invoices to defendant in October 2016, November 2016,
December 2016, January 2017, and February 2017. Defendant did
not pay any amount on the invoices. Plaintiff never received
any work, orders, payment, or M-Packs from defendant.
filed this lawsuit on April 27, 2017 in the Circuit Court for
St. Louis County. It brings three counts. Count I is for
breach of contract against defendant 5mRx alone. Counts II
and III are for fraudulent and negligent misrepresentation
against both defendants. Defendants have moved to dismiss.
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a complaint
so as to eliminate those actions “which are fatally
flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and
trial activity.” Young v. City of St. Charles,
244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989)). “To
survive a motion to dismiss, a claim must be facially
plausible, meaning that the ‘factual content. . .
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'”
Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The Court must “accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” will not pass muster.
Iqbal, 556 U.S. at 678.
count is discussed in turn below.
Count I - Breach of Contract
insists that Count I should be dismissed because it is
excused from performance due to “economic or commercial
frustration.” Defendant does not suggest that plaintiff
failed to plead all the elements of a breach of contract
claim. Instead, defendant argues that the “doctrine of