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United/Xcel-Rx, LLC v. Express Scripts, Inc.

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

October 25, 2019

UNITED/XCEL-RX, LLC, Plaintiffs,
v.
EXPRESS SCRIPTS, INC., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Express Scripts, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint [30]. The Court grants, in part, and denies, in part, the Motion.

         I. BACKGROUND

         Defendant 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 contract.[1]

         II. STANDARD

         A. Rule 12(b)(1) Standard

         Under 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.

         B. Rule 12(b)(6) Standard

         Under 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. 2011).

         When 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.

         III. DISCUSSION

         In its 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.

         A. Standing

         Express 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 ...


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