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Inspired Pharma Solutions, LLC v. 5MRX LLC

United States District Court, E.D. Missouri, Eastern Division

February 1, 2018

INSPIRED PHARMA SOLUTIONS, LLC, Plaintiff,
v.
5MRX LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants' motions to dismiss (#21, #28). The matters have been fully briefed and are ripe for disposition.

         I. Background

         According 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, pharmaceutical vial.

         In 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.

         Plaintiff 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.

         Negrini “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.

         Plaintiff 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.

         II. Legal Standard

         The 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.

         III. Discussion

         Each count is discussed in turn below.

         A. Count I - Breach of Contract

         Defendant 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 commercial ...


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