United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Express Scripts,
Inc.'s Motion to Dismiss Plaintiff's Complaint and to
Strike Plaintiff's Prayer for an Award of Attorneys'
Fees . The Court grants the motion.
United/Xcel-RX, LLC (“XcelRx”) filed a complaint
in this Court on February 13, 2019, alleging Defendant
Express Scripts, Inc. (“Express Scripts”)
breached a contract with XcelRx when Express Scripts
improperly recouped $32, 186.36 from XcelRx and terminated
its relationship with XcelRx. The complaint alleges Express
Scripts administers prescription drug benefit plans of
insurance carriers and contracts with a network of retail
pharmacies to dispense prescriptions. XcelRx alleges it
entered into a contract with Express Scripts to provide and
dispense covered prescription services to members. XCelRx
asserts four claims against Express Scripts: (1) breach of
contract; (2) unjust enrichment; (3) breach of the implied
covenant of good faith and fair dealing; and (4) breach of
contract - violation of “Federal Medicare's Any
Willing Provider Law.” Express Scripts moves to dismiss
XCelRx's complaint asserting XcelRx lacks standing to
maintain this lawsuit.
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss an action based on lack of subject matter
jurisdiction. The Eighth Circuit has held that “[i]n
deciding a motion under Rule 12(b)(1), the district court
must distinguish between a facial attack-where it looks only
to the face of the pleadings-and a factual attack-where it
may consider matters outside the pleadings.” Croyle
v. United States, 908 F.3d 377, 380 (8th Cir. 2018)
(citing Osborn v. United States, 918 F.2d 724, 729
n. 6 (8th Cir. 1990)); see also Moss v. United
States, 895 F.3d 1091, 1097 (8th Cir. 2018); Titus
v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); C.S.
ex rel. Scott v. Mo. State Bd. of Educ., 656 F.Supp.2d
1007, 1011 (E.D. Mo. 2009). To survive a motion to dismiss
for lack of subject matter jurisdiction, the party asserting
jurisdiction has the burden of establishing that subject
matter jurisdiction exists. V S Ltd. P'ship v.
Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112
(8th Cir. 2000). Here, as XCelRx concedes, a factual attack
is alleged so the Court may consider matters outside the
Scripts asserts XCelRx does not have standing to maintain
this lawsuit because Express Scripts contracted with ABN
Healthcare, Inc. d/b/a XcelRx, not United/Xcel-Rx, LLC.
Because XcelRx is not a party to the contract, Express
Scripts argues it does not have standing to sue for an
alleged breach of the contract.
question of standing is “whether the litigant is
entitled to have the court decide the merits of the dispute
or of particular issues.” Glickert v. Loop Trolley
Transp. Dev. Dist., 792 F.3d 876, 880 (8th Cir. 2015).
Whether a plaintiff has standing to sue is the threshold
question in every federal case. McClain v. Am. Econ. Ins.
Co., 424 F.3d 728, 731 (8th Cir. 2005). To satisfy
Article III of the U.S. Constitution, a plaintiff must have
“(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). A plaintiff must assert its own legal
rights and interests and cannot assert the legal rights or
interests of third parties. Glickert, 792 F.3d at
Missouri, only parties to a contract and third-party
beneficiaries have standing to enforce the contract.
Verni v. Cleveland Chiropractic Coll., 212 S.W.3d
150, 153 (Mo. 2007); see also Martin v. Thomas, No.
4:17-CV-1000 CDP, 2018 WL 3994010 at *2 (E.D. Mo. Aug. 21,
2018). “To be bound as a third-party beneficiary, the
terms of the contract must clearly express intent to benefit
that party or an identifiable class of which the party is a
member.” Verni, 212 S.W.3d at 153. In the
absence of an express declaration of intent to benefit a
third party, there is a strong presumption the third party is
not a beneficiary. Seeck v. Geico Gen. Ins. Co., 212
S.W.3d 129, 135 (Mo. 2007).
it is clear Express Scripts, on behalf of itself and Medco
Health Solutions, Inc., contracted with ABN Healthcare Inc.
ECF No. 10-1 (“Express Scripts, Inc. Pharmacy Provider
Agreement”). The contract does not mention
United/Xcel-Rx, LLC. Therefore, it is not a party to the
contract or a third-party beneficiary.
asserts ABN Healthcare's assets were sold to
United/Xcel-Rx and consequently, ABN Healthcare underwent a
change of ownership. XcelRx claims it notified its Provider
Services Administration Organization of the change in
ownership, who then notified Express Scripts. After being
notified of the change of ownership, XcelRx states Express
Scripts continued to act as though it had a contractual
relationship and continued to accept claims processed by the
pharmacy. Thus, XcelRx argues it is the proper plaintiff with
adequate legal standing.
does not include any of these allegations in its complaint.
XCelRx cannot amend its complaint in its brief in opposition
to a motion to dismiss. Morgan Distributing Co., Inc. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989);
see also OS33 v. CenturyLink Commc'ns,
LLC, No. 4:17CV2603 CAS, 2018 WL 2267910 at *6 (E.D.
Mo. May 17, 2018). The complaint also does not include any
allegations of a valid assignment of the contract. The
Provider Manual, attached to the contract, states:
Any successor owner or operator (“Buyer”) must be
accepted to participate by [Express Scripts], execute a new
Provider Agreement (at the discretion of [Express Scripts];
alternatively [Express Scripts] may allow assignment of the
Provider Agreement to Buyer) and meet all of ...