Grider Drugs, LLC, et al v. Express Scripts, Inc., et al
OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Karen Nelson Moore, Circuit Judge and Gregory F. Van Tatenhove, U.S. District Judge EDKY, Authoring.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1002n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GRIDER DRUGS, LLC, et al.,
EXPRESS SCRIPTS, INC., KELLY
HENSLEY, and JOHN DUDINSKIE,
Sep 13, 2012
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
Before: SILER and MOORE, Circuit Judges; and VAN TATENHOVE, District Judge.*
VAN TATENHOVE, District Judge. Grider Drugs is a pharmacy located in Russell
County, Kentucky. It asks us to reinstate a lawsuit brought in an effort to maintain a business
relationship with a pharmacy benefit manager, Express Scripts, Inc. For important jurisprudential
reasons we require that the arguments made in this court are first brought to the attention of the
district judge. Grider Drugs failed to do that. For that reason, we will AFFIRM the district court
dismissal and deny Grider Drugs’ request for relief.
At one point, Grider Drugs had a contract with Express Scripts under which, Express Scripts
was required to supply pharmaceutical drugs to Grider for the benefit of its clients. These clients
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting
included insurance companies and, importantly in this case, the Department of Defense. Under the
arrangement, individuals who had benefits through the Department of Defense could fill their
prescriptions at network pharmacies, including Grider. The contract between Grider and Express
Scripts allowed either party to terminate the contract for any reason upon ninety days’ notice to the
other party. Express Scripts exercised this right after two of Grider’s principals were investigated
for crimes relating to illegal drug distribution and Medicaid fraud.
Grider responded by bringing a state law cause of action for perjury and tortious interference
with a contract in Kentucky state court against both Express Scripts and two agents in the Kentucky
Attorney General’s office, Kelly Hensley and John Dudinskie. The Hensley and Dudinskie
allegations resulted from their roles in investigating the criminal charges and subsequent
communication with Express Scripts about their findings. The action was properly removed to
federal court by Express Scripts. Shortly after removal, Express Scripts moved for dismissal and
Grider moved for remand. The district court considered both matters in the same opinion, denying
remand and dismissing the case based on the state court complaint.
Grider then moved under Federal Rule of Civil Procedure 60(b) for relief from the judgment,
arguing that there was a vast conspiracy to “get” the company and its leadership, and that it should
be allowed to amend its complaint based on the nature of said conspiracy. The district court denied
the Rule 60(b) motion and stated that, as a result, it was unable to reach the issue of whether
amending the complaint was appropriate. Grider appeals the decision denying relief under Rule
60(b), but does so raising new arguments not brought before the district court.
In addition, Grider argues here, for the first time, that Judge Russell should have recused
himself from the proceedings based on his financial interest in a company that conducted business
with the Defendant Express Scripts. Further, Grider argues that it is entitled to relief from judgment
as a result of Judge Russell’s failure to recuse sua sponte.1
The district court denied relief under Rule 60(b).2 Grider asserts that it is entitled to relief
under the catch-all provision of the rule, “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). Essentially, Grider argues that dismissal was a miscarriage of justice and patently unfair
because the district court dismissed its suit based on a complaint that was filed under the less
stringent pleading standards of Kentucky. The district court did this at the same time as it ruled on
a pending motion to remand. As a result, it argues, the entire suit was in a sort of limbo, where it
was unclear whether the suit would remain in federal court. Grider argues that the district court
should have denied its motion to remand in order to allow it an opportunity to amend its complaint
to meet the federal pleading standard before dismissing it.
Whatever the relative merits of this argument may be, it would be inappropriate for this court
to consider them. Grider makes this argument for the first time before this court. While Grider did
file a 60(b) motion before the district court, it completely failed to argue or even suggest that relief
was warranted because of the difference in the pleading standards between Kentucky’s standard and
the United States’ standard. Instead, in a disjointed motion considered by the district court, Grider
pointed to numerous alleged conspiratorial acts of various Kentucky and Federal officials and
concluded that relief under Rule 60(b) must be warranted. It argued that, “[w]hat is actually taking
Grider also appealed the district court’s imposition of sanctions, but the parties who won sanctions were dismissed
from the appeal after filing notice that they would not oppose the reversal of the sanction award and that they would not
seek its collection. As those parties are no longer before the court, it would be improper for us to consider the issue.
Grider moved for relief under Rule 60(b) and Rule 59 (allows alteration or amendment of judgment). However, its
motion was not timely under Rule 59 so the district court considered it only under Rule 60(b).
place and easily proven in light of the new evidence is that the Defendants have been engaging in
a scheme for some time to interfere with the 6th amendment rights of the employees of Plaintiff
Grider Drug, Leon and Eric Grider.” [district court docket entry (“R.”) 34 at 5].
In addition, Grider only referred to the rule itself in the opening sentence and failed to tie any
of its conspiratorial accusations to any of the specific prongs or grounds in the rule. While some of
the arguments in the motion reference new evidence so that the motion could be fairly read to rely
on Rule 60(b)(2),3 Grider fails to assert that argument to this court. Indeed, Grider made plain in
its appellate Reply that it is arguing for relief only under Rule 60(b)(6):
[t]he dismissal of the unamended state court complaint for failure to comply with
federal pleading requirements is a ‘reason that justifies relief’ in the form of reopening the case to allow the plaintiffs to amend once their state court complaint.
Fed. R. Civ. P. 60(b)(6) states that, ‘[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order, or proceeding for . .
. any other reason that justifies relief.’
[Grider Reply at 7] (emphasis added by Grider).
The confusion over exactly what was being appealed is further evidenced by Hensley and
Dudinskie’s brief which argues exclusively that relief is not warranted based on Rule 60(b)(2), while
failing to address Grider’s pleading standards argument. [See Hensley and Dudinskie Response at
17-21]. In its Reply, Grider argues that the Hensley-Dudinskie “brief did not address the issue
raised on appeal by Grider, but instead analyzed whether the plaintiffs below had produced
sufficient ‘new’ evidence to garner relief under Fed. R. Civ. P. 60(b)(2).” [Grider Reply at 9-10].
Under 60(b)(2), a court may grant a movant relief because of “newly discovered evidence, that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Grider’s 60(b) motion
states, “[s]ince the pleadings, leading up to the dismissal of the instant action, the Plaintiffs have obtained information
and proof of a well defined conspiracy, revolving around a false belief that ‘Grider must be guilty of something so let’s
go out and prove it.’” [R. 34 at 9]. In addition, Grider states that it “has discovered a plethora of new material and
evidence which greatly support their claims as well as additional claims.” [Id. at 8].
Based not only on these statements, but also on review of Grider’s briefs as a whole, which
fail to reference the “new evidence” basis of 60(b)(2), we must conclude that the only argument
Grider is making before this court is the pleading standards argument. This is problematic for
Grider because this issue was not raised before the district court in any of its filings before that
court. The Sixth Circuit has previously stated that, “[w]hile we have never articulated precisely
what constitutes raising an issue with the district court, we have found issues to be waived when
they are raised for the first time in motions requesting reconsideration or in replies to responses.”
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008). Here, Grider did not even raise
the issue in reply or in a response. It never raised the issue at all. It was not properly before the
district court at any point.
The consequence of this is significant. “[A]n argument not raised before the district court
is waived on appeal to this Court.” Id. at 552 (citations omitted). This rule is justified by three main
concerns. “First, the rule eases appellate review by having the district court first consider the issue.
Second, the rule ensures fairness to litigants by preventing surprise issues from appearing on
appeal.” Id. (internal quotations and citations omitted). Third, the rule “promote[s] ‘judicial
economy and the finality of judgments.’” Fairlane Car Wash, Inc. v. Knight Enterprises, Inc., 396
Fed. Appx. 281 286 (6th Cir. 2010) (quoting Taft Broad. Co. v. United States, 929 F.2d 240, 244
(6th Cir. 1991)).
Because Grider did not properly preserve its pleading standards argument for appeal, we hold
that it waived the argument. Relief cannot now be granted relying on such a theory at the appellate
Grider makes another argument to this court not raised below. According to Grider, it was
plain error for Judge Russell not to recuse himself sua sponte based on his financial interests in a
non-party, and this error should result in reversal of his order and disqualification in any future
litigation in this matter. This argument is another whose merits should not be considered because
it was not preserved for appeal.
To briefly outline the nature of Judge Russell’s challenged financial interest4 and the basis
of Grider’s challenge: during the district court litigation, Judge Russell owned a modest amount of
stock (less than $15,000) in the company, Allscripts. In 2000, Express Scripts, a defendant to this
action, announced via a press release, that it was entering into a “strategic alliance” with Allscripts,
and that “[a]s a major component of the strategic alliance, Express Scripts will provide marketing
support and clinical assistance to Allscripts, in addition to service fees based on the number of highprescribing physicians who use the Personal Prescriber for the majority of prescriptions written for
Express Scripts’ patients.” [Grider brief at 45].5 In short, Allscripts hired Express Scripts to provide
certain services to it. Allegedly, this “strategic alliance” continues today. Grider argues that the
above factual circumstance mandates recusal under 28 U.S.C. § 455(a), which states, in its entirety,
that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.”
Much like the different pleading standards argument discussed above, this argument was not
raised before the district court; Grider never moved for recusal. It argues that this court should
Grider asks us to take judicial notice of three facts which form the basis of this outline. W e grant Grider’s request
pursuant to Federal Rule of Evidence 201(b)(2) and 201(d).
The website Grider Drugs cites and which it quotes in its brief does not produce the press release. Instead, only an
“error” page is viewable.
review Judge Russell’s failure to recuse himself sua sponte under a “plain error” standard. As
support for this argument, Grider directs the court to Eighth Circuit precedent which states,
“[o]rdinarily, we review a judge’s refusal to recuse for an abuse of discretion. However, when a
recusal claim is not raised below, we apply a lower standard of appellate review and review only for
plain error.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 663 (8th Cir. 2003) (internal citations
Whatever the status of the law may be in the Eighth Circuit, it is not the same here. Recusal
arguments such as this one, based on 28 U.S.C. § 455(a), which are not brought before the district
court, are deemed waived. There is Sixth Circuit precedent directly on point addressing this issue.
“Unless exceptional circumstances exist, this Court normally will decline to address an issue not
raised in the district court. This general rule bars an appellate court from considering a recusal issue
that was not initially raised in the trial court.” Callihan v. Kentucky, 36 Fed. Appx. 551, 552 (6th
Cir. 2002) (internal citation omitted); see also In re Eagle-Picher Industries, Inc., 963 F.2d 855, 863
(6th Cir. 1992) (relying on the “general rule . . . that appellate courts are not to address issues not
raised for the first time in the trial court” to conclude that it was appropriate to “decline to consider
the issue of recusal because it was not raised in the bankruptcy court”); Cook v. Cleveland State
University, 13 Fed. Appx. 320, 322 (6th Cir. 2001) (“Th[e] general rule bars an appellate court from
considering a recusal issue that was not initially raised in the trial court.”).
Grider fails to address the Sixth Circuit rule or argue why it should be overturned in favor
of the Eighth Circuit rule. It mistakenly assumes that the Eighth Circuit rule applies. We will not
oblige such an assumption and, instead, simply apply the existing Sixth Circuit rule and find the
issue waived. Because Grider failed to raise the recusal issue before the district court, we hold that
it was waived and not properly preserved for appeal.6
For the reasons stated above, we affirm the district court and find that none of the bases
relied upon by Grider for appeal were properly preserved at the district court.7
Even if the court were to entertain the merits of Grider’s argument, Judge Russell’s interest would not qualify as one
which would cause his impartiality to reasonably be questioned. Grider urges the court to find plain error based on the
assertion that whenever companies have gone through the trouble of announcing a business relationship through a press
release, they have such a close relationship that a judge’s interest in one must preclude him from presiding over a case
involving the other. Adoption of such a rule would lead to preposterous results. A judge with stock in Bank of America
or W al-Mart would be precluded from hearing innumerable cases simply because a corporate party may obtain financing
through Bank of America or deliver dog food to W al-Mart. There was no plain error here.
Express Scripts seeks sanctions against Grider pursuant to Federal Rule of Appellate Procedure 38, alleging Grider
filed a frivolous appeal. W e deny Express Scripts’ motion. “Sanctions are not appropriate simply because an appellant’s
case ‘may indeed be quite weak.’” B & H Medical, L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 271 (6th Cir. 2008)
(quoting Uhl v. Komatsu Forklift Co., 512 F.3d 294, 308 (6th Cir. 2008)). It is only the rare case where sanctions are
appropriate, and typically when the appeal involves an improper purpose or entirely baseless arguments. Id. (“[W ]e
generally impose sanctions only in the rare case when an appeal involves an improper purpose, such as harassment or
delay”). This is not that case and we will not impose sanctions.
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