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 Amended
Complaint . The Court grants, in part, and denies, in
part, the Motion.
Express Scripts, Inc. filed a prior Motion to Dismiss
Plaintiff United/Xcel-RX, LLC's (“XcelRx”)
Complaint, which the Court granted due to a lack of subject
matter jurisdiction. The Court granted XcelRx leave to amend
and XcelRx filed an Amended Complaint. Express Scripts filed
the pending Motion to Dismiss reasserting the arguments
raised in its original Motion to Dismiss and asserting
XcelRx's Amended Complaint does not cure the fatal
pleading defects related to assignment of the
Rule 12(b)(1) Standard
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, XCelRx concedes that Express Scripts
makes a factual attack, so the Court may consider matters
outside the pleadings.
Rule 12(b)(6) Standard
Federal Rule of Civil Procedure (“FRCP”)
12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be
granted.” The notice pleading standard of FRCP 8(a)(2)
requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to
relief.” To meet this standard and to survive a FRCP
12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
and citation omitted). This requirement of facial
plausibility means the factual content of the plaintiff's
allegations must “allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Park Irmat Drug Corp. v.
Express Scripts Holding Co., 911 F.3d 505, 512 (8th Cir.
2018) (quoting Iqbal, 556 U.S. at 678). The Court
must grant all reasonable inferences in favor of the
nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867,
872-73 (8th Cir. 2010). Ordinarily, only the facts alleged in
the complaint are considered for purposes of a motion to
dismiss; however, materials attached to the complaint may
also be considered in construing its sufficiency.
Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir.
ruling on a motion to dismiss, a court “must liberally
construe a complaint in favor of the plaintiff[.]”
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 862 (8th Cir. 2010). However, if a claim fails to allege
one of the elements necessary to recover on a legal theory,
the Court must dismiss that claim for failure to state a
claim upon which relief can be granted. Crest Constr. II,
Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011).
Threadbare recitals of a cause of action, supported by mere
conclusory statements, do not suffice. Iqbal, 556
U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544,
555 (2007). Although courts must accept all factual
allegations as true, they are not bound to take as true a
legal conclusion couched as a factual allegation.
Twombly, 550 U.S. at 555 (internal quotations and
citation omitted); Iqbal, 556 U.S. at 677-78.
first Motion to Dismiss, Express Scripts argued XCelRx did
not have standing to maintain this lawsuit because Express
Scripts contracted with ABN Healthcare, Inc., not XCelRx. The
Court held XCelRx was not a party to the contract and did not
include any allegations of a valid assignment of the
contract; thus, it did not adequately plead it was a party to
the contract and did not establish it had standing to sue.
XCelRx amended its Complaint to include allegations of the
purchase of the pharmacy, and all its assets and contracts,
by XCelRx from ABN Healthcare. Express Scripts argues the new
allegations still do not establish a valid assignment of the
contract and XCelRx continues to lack standing to sue. In
addition, Express Scripts asserts the Court must dismiss
Count II for unjust enrichment because XCelRx fails to allege
sufficient factual matter to establish that Express Scripts
unjustly retained a benefit conferred by XCelRx, and the
Court must dismiss Count IV for a violation of Medicare's
Any Willing Provider (“AWP”) law because the law
does not provide for a private right of action.
Scripts asserts pleading a change of ownership is not enough
and XCelRx must plead allegations of a valid assignment of
the contract. According to Express Scripts, the contract
requires four steps to validly assign the contract: (1) the
contracted party must immediately notify Express Scripts of
the change of ownership or control; (2) the notice must be
given in writing; (3) Express Scripts must decide whether to
accept the new owner as a network provider; and (4) Express
Scripts must provide prior written consent for the assignment
to be valid. Express Scripts argues XCelRx has not adequately
pleaded a valid assignment of the contract, and more
importantly, it has ...