Pearson's Pharmacy, Inc. v. Express Scripts, Inc.
MEMORANDUM OPINION AND ORDER that: (1) plaintiffs' 67 motion to strike is denied as moot; (2) plaintiffs' 57 motion for partial summary judgment is denied; and (3) ESI's 62 motion for summary judgment is granted. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 10/29/09. (sl, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION P E A R S O N 'S PHARMACY, INC., et al., P la in tif f s , v. E X P R E S S SCRIPTS, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )
C A S E NO. 3:06-CV-73-WKW [WO]
M E M O R A N D U M OPINION AND ORDER P l a in tif f s Pearson's Pharmacy, Inc., and CAM Enterprises, Inc. (d/b/a Altadena P h a rm a c y) filed this class action, alleging that Defendant Express Scripts, Inc., a pharmacy b e n e f it manager, failed to reimburse them for brand name prescription drugs in accordance w ith their contracts based upon the drug's average wholesale price as updated on a daily b a s is .1 Pending are Plaintiffs' motion for partial summary judgment (Doc. # 57) and ESI's m o tio n for summary judgment (Doc. # 62). The motions, which are accompanied by e v id e n tia ry submissions and briefs, focus on the remaining claims for breach of contract and in ju n c tiv e relief.2 Responses also have been filed.3 (Docs. # 66, 69, 73.) Based upon careful c o n s id e ra tio n of the arguments of counsel, the relevant law, and the record as a whole, the
Plaintiffs are referred to individually as "Pearson's" and "Altadena," and Defendant is referred to as "ESI." At the joint request of the parties, the substantive issues are being decided prior to any resolution of the class certification question. For ease of reference, the parties' summary judgment briefs and responses are referred to by their assigned docket number.
court finds that Plaintiffs' motion for summary judgment is due to be denied and that ESI's m o tio n for summary judgment is due to be granted.4 I . JURISDICTION AND VENUE S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. § 1332. The parties do n o t contest personal jurisdiction or venue, and the court finds that there are allegations s u f f ic ie n t to support both. I I . FACTUAL AND PROCEDURAL BACKGROUND 5 A. P a r tie s
P e a rs o n 's and Altadena owned and operated retail pharmacies in Dadeville, Alabama, a n d in the Birmingham, Alabama area, respectively. Plaintiffs are Alabama corporations and m a in ta in their principal places of business in Alabama. E S I, a Delaware corporation with its principal place of business in Maryland Heights, M is s o u ri, is a pharmacy benefit manager ("PBM"). PBMs contract with third-party payors o r health-plan administrators, such as insurers, HMOs, and employers, to facilitate delivery o f prescription drugs to the health-plan members or other individuals to whom the third-party p a yo rs provide prescription drug benefits. PBMs assist third-party payors and health-plan a d m inistrato rs by adjudicating claims for prescription drug benefits submitted by pharmacies,
Also pending is Plaintiffs' motion to strike certain evidence submitted by ESI in support of its summary judgment motion (Doc. # 67), which ESI has opposed (Doc. # 71). The motion to strike is due to be denied as moot because the court has not considered the challenged evidence in ruling on ESI's summary judgment motion.
The majority of the salient facts are not in contention.
thereby acting as intermediaries between the third-party payors and pharmacies in providing p h a rm a c y benefits. PMBs create pharmacy networks by negotiating with retail pharmacies th a t agree to accept defined reimbursement rates when they fill prescriptions for health-plan m e m b e r s .6 P e a rs o n 's entered into an agreement with ESI in 1995 to be a participant in various p h a rm a c y networks. (Pearson's Pharmacy Agreement (Ex. 3 to Doc. # 57); see also Chris M a c in s k i Dep. 112-24 (discussing pharmacy networks) (Ex. 1 to Doc. # 69); Luft Dep. 160 (te stif yin g that ESI has "about 300 networks").) Also, since at least 1999, Altadena has b e lo n g e d to networks adjudicated by ESI. Written contracts govern ESI's relationships with P e a rs o n 's and Altadena and encompass multiple documents, including a Pharmacy Provider A g re e m e n t ("Pharmacy Agreement") and Pharmacy Network Manual ("Provider Manual").7 T h e material terms of the Pharmacy Agreements and Provider Manuals at issue in this la w s u it are the same as to Pearson's and Altadena.8 It, therefore, is unnecessary to
This description of PBMs is taken from ESI's introductory statement (Doc. # 62, at 4) and has not been disputed by Plaintiffs. ESI is the third largest PBM in the industry. (Luft Dep. 210.) Francis Kannady, ESI's senior director of corporate financial systems within IT, testified that ESI adjudicates "in excess of a million claims a day." (Kannady Dep. 8, 22 (Ex. 14 to Doc. # 57).) "Adjudicate" is a term of art used by ESI's representatives. Prescription drug claims are "adjudicated" on ESI's various computer systems, such as the Anchor system, discussed infra. (Macinski Dep. 77.) The parties refer to these documents as the Pharmacy Agreement and the Provider Manual. The court does the same. An executed contract between Altadena and ESI has not been located, and each party blames the other for the loss of the contract. (See, e.g., Attorney Email Exchange (Ex. 4 to Doc. # 57).) For purposes of the cross-motions for summary judgment, the parties have stipulated that an unexecuted Pharmacy Agreement submitted by Altadena is the operative agreement between the parties. (See Pharmacy Agreement (Ex. 7 to Doc. # 57).)
differentiate between the Pharmacy Agreements and Provider Manuals when addressing the b re a c h of contract claim. B. P h a r m a c y Agreement 1. A v e r a g e Wholesale Price
T h e Pharmacy Agreement provides that Pearson's and Altadena, as participating p h a rm a c ie s , will be paid for pharmacy services in accordance with a "net payment schedule," le s s applicable copayments received by the pharmacy. (Pharmacy Agreement § 3A.) Typically, and in this case, a component of PBM pricing and reimbursement is Average W h o le s a le Price ("AWP"). AWP is not defined in the Pharmacy Agreement. Nor is AWP d e f in e d in the Provider Manual. The Provider Manual merely explains that one of two m e th o d s (AWP being a component of one method), whichever is "lower," is used to calculate re im b u rs e m e n ts . (See, e.g., 2002 Provider Manual 10 (Ex. A5 to Doc. # 62).) According to th e Amended Complaint, however, "AWP is the average of the prices charged by national d ru g wholesalers for a given prescription drug."9 (Am. Compl. ¶ 9; see also Macinski Dep. 1 3 2 (AWP "is a price that is provided by a number of pricing services that is supposed to be re f le c tiv e of what the average wholesale price is. However, no one actually pays that price. They pay something less than that price.").) Changes in AWP for brand name prescription drugs are compiled by pricing services, s u c h as First DataBank, which provide the pricing information to subscribers on a periodic
ESI has not disputed the Amended Complaint's definition.
basis. ESI subscribes to daily, weekly and monthly AWP updating services from First D a ta B a n k . (Macinski Dep. 143-44, 159-60, 162; Luft Dep. 181; Francis Kannady Dep. 118 (E x . 14 to Doc. # 57).) 2. M e rg e r Clause
T h e Pharmacy Agreement includes a merger clause. It provides that the "Agreement, in c lu d in g . . . the Provider Manual, constitutes the entire understanding of the parties hereto w ith respect to the subject matter hereof and, upon execution by the parties supersedes all p rio r oral or written agreements between the parties with respect to the subject matter h e re o f ." (Pharmacy Agreement § 9C.) 3. A m e n d m e n ts
T h e Pharmacy Agreement also contains a provision governing the procedures for a m e n d in g its terms. Amendments to the Pharmacy Agreement must be in writing and agreed to by both parties, with the following exception: P ro v i d e r and ESI agree that ESI may amend this Agreement to comply with a n y changes required or suggested by the appropriate regulatory authorities in th e course of discharging their responsibilities under applicable law and r e g u la tio n s. ESI shall furnish Provider with written notice of such a m e n d m e n ts. In the event any such amendment constitutes a material change in the terms of the Agreement that is unacceptable to Provider, Provider may e le c t to terminate this Agreement by giving written notice of such election to te rm in a te to ESI within 20 days of receipt of amendment, and such termination s h a ll be effective no earlier than 60 days after receipt of written notice by ESI. (P h a rm a c y Agreement § 9C.) As set out below, the same is not true as to amendments to the P ro v id e r Manual.
The Pharmacy Agreement describes the Provider Manual as "a written description of p ra c tic e s , policies, rules and procedures provided by ESI for Pharmacies dispensing Covered M e d ic a tio n s to Members." (Pharmacy Agreement § 1.) It also provides that "ESI may a m e n d the Provider Manual and all policies and procedures of ESI, in its sole discretion, and s u c h amendment shall not require consent of Provider or a Pharmacy." (Pharmacy
A g re e m e n t § 9C; see also Pharmacy Agreement § 1 ("The Provider Manual may be revised f ro m time to time by ESI in its sole discretion.").) The Pharmacy Agreement also contains a Missouri choice-of-law provision. (Pharmacy Agreement § 9F.) C. P r o v id e r Manual
B e tw e e n 1997 and 2001, the Provider Manuals in place pursuant to ESI's contracts w ith Pearson's and Altadena set out that ESI would update "drug information" on at least a " w e e k l y basis." (Macinski Dep. 193.) In 2001, ESI began receiving daily AWP update in f o rm a tio n from First DataBank. At the latest, in 2002, ESI amended the Provider Manual to reflect the change to daily AWP updating.1 0 In particular, the 2002 Provider Manual p ro v id e d the following as to "online reimbursement calculation": [ E S I] online claims processing system audits every claim. You may be paid a n amount other than what you submit as your ingredient cost, dispensing fee, o r your Usual & Customary retail price. [ESI's] reimbursement is based on the lo w e r of:
The 2002 Provider Manual, titled "Guidelines, Policies and Procedures for [ESI] Participating Pharmacies," says on the cover page that the Provider Manual "is subject to the terms and conditions of the Pharmacy . . . Agreement. Revisions, amendments and program updates will be periodically distributed to the Pharmacy Network." (2002 Provider Manual (cover page)). ESI periodically amended the Provider Manuals to replace previous Provider Manuals.
A v e ra g e Wholesale Price (AWP) less the contracted discount baseline p ric e (as calculated by First DataBank) less the contracted discount for th e specific network; M A C or submitted cost plus the contracted dispensing fee for that n e tw o rk or U&C, whichever is lowest.
[ E S I] will utilize First DataBank, or other comparably reliable sources as d e te r m in e d by [ESI], and will update drug information on a daily basis. (2 0 0 2 Provider Manual 10 (emphasis added).) The 2004 and 2005 Provider Manuals contain id e n tic a l provisions. (2004/2005 Provider Manuals § 2.3 (Exs. 11, 13 to Doc. # 57).) As d is c u s se d infra, the above italicized language forms the basis of Plaintiffs' breach of contract c la im . D. C la im s Adjudication Procedures
W ith respect to AWP calculations, reimbursement for brand name prescription drug c la im s from pharmacies is calculated based upon the AWP that is in ESI's computer system o n the date a prescription is filled. (Macinski Dep. 236-37; see also Macinksi Dep. 76-84.) ESI has various computer systems it uses to adjudicate prescription drug claims. The Stratus s ys te m is used to adjudicate workers' compensation prescription drug claims (Thomas Luft D e p . 181 (Ex. 5 to Doc. # 67)); the Anchor system is used to adjudicate commercial p re s c rip tio n drug claims (Kannady Dep. 106; Macinski Dep. 76-77); and the Mini-Anchor s ys te m is used to process U.S. Department of Defense ("DOD") prescription drug claims (M a c in s k i Dep. 78). (See also Kannady Dep. 146 (confirming that ESI's computerized p h a rm a c y reimbursement systems are Stratus, Anchor and Mini-Anchor).)
As to the latter, in 2004, ESI developed a pharmacy network for the DOD and began p ro c e s s in g claims for its TRICARE Retail Pharmacy Program ("TRRx"). Claims are re im b u rs e d based upon weekly AWP updates. (Luft Dep. 181, 183.) As explained by Mr. L u f t, ESI's vice president of client support and network operations (Luft Dep. 143), ESI has a relationship with "another vendor . . . called Emdeon," which is the DOD's "central source f o r benefits and co-pay calculation[s]," (Luft Dep. 181). (See also Kannady Dep. 54, 61 (e x p la in in g that during the DOD claims adjudication process, Emdeon provides a Drug U tiliz a tio n Review and verifies claim eligibility).) Emdeon conducts only "weekly updates o n [its] system," and, thus, for compatibility purposes, DOD required ESI to reimburse p h a rm a c ie s based upon weekly AWP updates. (Luft Dep. 181-82.) With respect to non-DOD claims,1 1 ESI receives daily AWP updates from First D a ta B a n k , but there can be a delay of approximately thirty hours between the time when ESI re c e iv e s the AWP updates and when those updates are uploaded to the computer system. (See Luft Dep. 48, 181-83; Doc. # 57 ¶ 25.) Additionally, because "daily updates" are re c e iv e d from First DataBank Monday through Friday, and not on the weekend (Macinski D e p . 146-47), there is, as pointed out by Plaintiffs (Doc. # 69, at 16), a longer delay for AWP in f o rm a tio n received on Friday (Macinski Dep. 16 (Ex. 8 to Doc. # 62)).
Mr. Luft testified that to his knowledge weekly updates are used to reimburse pharmacies only as to DOD name brand prescription drug claims. (Luft Dep. 183.) As to all other claims (i.e., "non-DOD claims"), daily updates are used.
The following is a basic overview of ESI's daily updating schedule: ESI typically re c e iv e s First DataBank files each business day between 7:00 p.m. and 2:00 a.m. (Demetrius S a n d e rs Dep. 57, 82 (Ex. F to Doc. # 62).) The received file is "unzipped" by 7:00 a.m. the n e x t morning. Any errors are resolved with First DataBank, and the file loading processes b e g in at 8:00 p.m. (Sanders Dep. 47-48, 85.) The drug information is updated to ESI's s ys te m s by midnight each business day, unless it is "future dated." (Sanders Dep. 166-67.) The "majority" of AWP information loaded in the systems is postdated, and does not become e f f e c tiv e for reimbursement until a later date. (See Sanders Dep. 166-67 ("One little caveat . . . is that the majority of the drugs within the system are future dated. So they won't have a date that's effective at midnight. It would be effective at some future date.").) E. P r o c e d u r a l History
O n February 15, 2006, Plaintiffs filed an Amended and Restated Class Action C o m p la in t ("Amended Complaint"), alleging that ESI breached its contracts with Plaintiffs b y failing to "fully reimburse" them based on a daily AWP updating schedule.1 2 (Am. C o m p l. ¶ 9 (Doc. # 8).) Because brand name drug prices typically trend upward (Macinski D e p . 161-62), Plaintiffs allege that ESI's failure to make reimbursements based upon daily A W P updates have caused them to "lose money" and concomitantly have "increased [ESI's] p ro f its ." (Am. Compl. ¶¶ 11, 23.) In addition to the breach of contract claim (Count II), the A m e n d e d Complaint contains claims for misrepresentation and suppression (Count I), and
The Amended Complaint is the operative complaint. The lawsuit was filed on January 26,
unjust enrichment and constructive trust (Count III). Count IV, labeled "injunctive relief," re q u e s ts the court to "require [ESI] to fully, properly and timely reimburse Plaintiffs" and to r e q u ire ESI "to properly reimburse Plaintiffs . . . using the `real time' Average Wholesale P ric e ." (Am. Compl. ¶ 30.) O n June 7, 2007, the court granted ESI's Rule 12(b)(6) motion to dismiss Count I (f ra u d u le n t misrepresentation and suppression) and Count III (unjust enrichment and c o n s tru c tiv e trust) of the Amended Complaint.13 (2007 Mem. Op. & Order (Doc. # 27).) O n ly Counts II and IV remain. Count II is a breach of contract claim, and Count IV e m b o d ie s a request for injunctive relief. S u b s e q u e n tly, the parties jointly moved for a stay on the ground that "[a]n identical n a tio n a l class action asserting the same claims [against ESI was] . . . pending in the United
Plaintiffs alleged that, contrary to the terms of the Pharmacy Agreement, ESI misrepresented and suppressed the "true nature" of the reimbursement program. (Am. Compl. ¶ 14.) Dismissing the misrepresentation claim with prejudice, the court found that the alleged written misrepresentation in the Pharmacy Agreement i.e., an allegedly ambiguous meaning of the term AWP could not, without more, give rise to fraud under Alabama law. Because Plaintiffs had not alleged a written or an oral misrepresentation extraneous to or independent of the contract, the fraud claim was an impermissible attempt by Plaintiffs to convert a breach of contract claim into a fraud action. (2007 Mem. Op. & Order 4-7 (Doc. # 27).) The portion of Plaintiffs' misrepresentation claim based upon an extraneous oral or written misrepresentation was dismissed without prejudice for failure of Plaintiffs to plead with specificity. (2007 Mem. Op. & Order 7-8.) Notably, no amendment to revive this misrepresentation claim has been sought. The court also dismissed with prejudice the fraudulent suppression claim, which was based on allegations that ESI did not disclose that it would not reimburse Plaintiffs based upon the daily AWP. (Am. Compl. ¶ 16e.) The court found that Plaintiffs had failed to allege facts revealing a confidential or special relationship between the parties and demonstrating that Plaintiffs directly requested from ESI information pertaining to the reimbursement method. (2007 Mem. Op. & Order 8-9.) The Amended Complaint, therefore, contained no facts alleging that ESI had a duty to make the complained-of disclosure. As to Count III, the court concluded that Plaintiffs had a valid remedy at law for any alleged breach of contract, requiring dismissal of Plaintiffs' unjust enrichment and constructive trust claim.
States District Court for the Northern District of Oklahoma."1 4 (Mot. to Stay 1 (Doc. # 38) (c itin g Inola Drug, Inc. v. Express Scripts, Inc., No. 4:06cv117 (N.D. Okla. Feb. 22, 2006).) In their motion, the parties stipulated that the purpose for the stay was to avoid the "risk of in c o n s is te n t rulings among the two cases" and to "promote judicial economy and efficiency." (Mot. to Stay ¶¶ 5-6.) Based upon the parties' representations, the court stayed this action p e n d in g a decision in Inola Drug, and required the parties to submit periodic joint reports as to the status of that litigation. (Order Staying Case (Doc. # 39).) Approximately thirteen m o n th s after the stay in this case went into effect, the court in the Northern District of O k la h o m a denied the plaintiff's motion for class certification, and denied the plaintiff's m o t io n for partial summary judgment on the breach of contract claim, but granted ESI's m o tio n for summary judgment on the claims for breach of contract and injunctive relief. See In o la Drug v. Express Scripts, Inc., No. 06-cv-117, 2009 WL 801838 (N.D. Okla. March 25, 2 0 0 9 ). As to the plaintiff's motion for class certification, made pursuant to Rule 23(b)(3) of th e Federal Rules of Civil Procedure, the court found that, "[t]o the extent plaintiff seeks c e rtif ic a tio n of a class and subclass to pursue breach of contract claims, entry of summary ju d g m e n t against plaintiff on those claims precludes class certification." Inola Drug, 2009 W L 801838, at *7.
Neither Pearson's nor Altadena was a plaintiff in that action. The plaintiff was Inola Drug, Inc., which operated a pharmacy in Rogers County, Oklahoma (see Inola Drug Compl. (Ex. 2 to Doc. # 69)), and had entered into a contract with ESI, "pursuant to which it participated in various pharmacy networks," Inola Drug, Inc. v. Express Scripts, Inc., No. 06-cv-117, 2009 WL 801838, at *1 (N.D. Okla. March 25, 2009).
Based upon the decision in Inola Drug, the stay in this case was lifted, and pursuant to a court directive, the parties submitted an amended discovery plan, in compliance with R u le 26(f) of the Federal Rules of Civil Procedure. (Order Lifting Stay (Doc. # 52); Rule 2 6 (f ) Plan (Doc. # 53).) The parties "stipulate[d] that any discovery in Inola Drug [could] b e used in briefing the issues in this case, subject to all other evidentiary objections and s u b je c t to the same terms of confidentially agreed to under the Protective Order in Inola D r u g ." (Rule 26(f) Plan 3.) Citing judicial economy, the parties also requested that the court e n te r a briefing schedule "to resolve whether the threshold contract issues would moot any n e e d to address the issue of class certification[.]" (Rule 26(f) Plan 3.) The court granted the re q u e s t and set a briefing schedule for the submission of summary judgment motions on the b re a c h of contract claim. (Briefing Order (Doc. # 54).) Motions for summary judgment f o llo w e d and are ripe for consideration. III. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam); Fed. R. Civ. P. 56(c) (Summary judgment "should be rendered if the p le a d in g s, the discovery and disclosure materials on file, and any affidavits show that there i s no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law."). The party moving for summary judgment "always bears the initial re s p o n s ib ility of informing the district court of the basis for its motion, and identifying those p o rtio n s of [the record, including pleadings, discovery materials and affidavits], which it b e lie v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence in d ic a tin g there is no dispute of material fact or by showing that the nonmoving party has f a ile d to present evidence in support of some element of its case on which it bears the u ltim a te burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see a ls o Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(e)(2) ("When a motion for summary j u d g m e n t is properly made and supported, an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must . . . set out specific facts s h o w in g a genuine issue for trial."). What is material is determined by the substantive law a p p lic a b le to the case. Celotex, 477 U.S. at 248; see also Lofton v. Sec'y of the Dep't of C h ild r e n & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that a re material under the substantive law governing the case will preclude entry of summary ju d g m e n t." ). Furthermore, "[t]he mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome
of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (p e r curiam) (internal quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable factfinder to return a verdict in its favor. Greenberg, 498 F.3d a t 1263; see also Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2 0 0 1 ) (To establish a genuine issue of material fact, the nonmoving party must produce e v id e n c e such that a reasonable trier of fact could return a verdict in his favor.). Only if the f a c t u a l dispute is "genuine," however, must the court view the facts in the light most f a v o ra b le to the non-movant. Scott v. Harris, 550 U.S. 372, 380 (2007); see also Estate of G a r c zy n sk i v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) ("The requirement to view th e facts in the nonmoving party's favor extends only to `genuine' disputes over material f a c ts ." ) . If the evidence on which the nonmoving party relies "is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted." Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 249-50 (1986). "A mere `scintilla' of evidence supporting the
[ n o n m o v a n t's ] position will not suffice; there must be enough of a showing that the [trier of f a c t] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1 9 9 0 ) (citation omitted), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs
are likewise insufficient to create a genuine issue of material fact and do not suffice to o p p o se a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th C ir. 1997) (per curiam) (The plaintiff's "conclusory assertions . . . in the absence of s u p p o rt i n g evidence, are insufficient to withstand summary judgment."). Hence, when a p la in tif f fails to set forth specific facts supported by appropriate evidence sufficient to e s ta b lis h the existence of an element essential to his case and on which the plaintiff will bear th e burden of proof at trial, summary judgment may be granted in favor of the moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an essential element of the n o n m o v in g party's case necessarily renders all other facts immaterial."). Thus, in cases where the evidence before the court is admissible on its face or can be re d u c e d to admissible form and indicates there is no genuine issue of material fact, and where th e party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex, 477 U.S. at 323-24 (summary judgment appropriate where p le a d in g s, evidentiary materials and affidavits before the court show there is no genuine issue a s to a requisite material fact). I V . DISCUSSION A. B r e a c h of Contract 1. G e n e r a l Principles of Contract Law
" `[ A ] federal district court sitting in diversity must apply the choice of law rules of the f o ru m state.'" Rando v. Gov't Employees Ins. Co., 556 F.3d 1173, 1176 (11th Cir. 2009)
(quoting McGow v. McCurry, 412 F.3d 1207, 1217 (11th Cir. 2005)).
c o n tra c tu a l choice-of-law provisions generally are honored, see Ex parte HealthSouth Corp., 9 7 4 So. 2d 288 (Ala. 2007), and here, the Pharmacy Agreement specifies that Missouri law g o v e rn s the interpretation of the contract (Pharmacy Agreement § 9F). Neither party has a rg u e d the applicability of a different state's law. The court, therefore, applies Missouri law to resolve the parties' disagreements. T o establish a breach of contract claim under Missouri law, a party must show "(1) th e existence of a contract or agreement and the terms of that agreement; (2) that plaintiff p e rf o rm e d or tendered performance; (3) that defendant did not perform; and (4) that d e f e n d a n t's failure to perform caused plaintiff damage." Venable v. Hickerson, Phelps, K ir tle y & Assocs., Inc., 903 S.W.2d 659, 664 (Mo. Ct. App. 1995). "`The cardinal rule of c o n tra c t interpretation is to ascertain the parties' intention and to give effect to that in te n tio n .'" Newco Atlas, Inc. v. Park Range Constr., Inc., 272 S.W.3d 886, 891 (Mo. Ct. A p p . 2008) (quoting Sonoma Mgmt. Co. v. Boessen, 70 S.W.3d 475, 479 (Mo. Ct. App. 2 0 0 2 )). If a contract contains unambiguous terms, "the intent of the parties will be
a s c e rta in e d from the language of the contract alone and not from extrinsic or parol evidence o f intent." Id. "`A contract is ambiguous only if its terms are reasonably open to more than o n e meaning, or the meaning of the language used is uncertain.'" Id. (quoting Sonoma M g m t. Co., 70 S.W.3d at 479). However, "[a] contract is not rendered ambiguous simply b e c a u s e the parties disagree as to its construction." Id.
Missouri law also permits contractual "sole discretion" clauses, as long as they are u n d e rta k e n in good faith. Cordry v. Vanderbilt Mortgage & Finance, Inc., a diversity action, is illustrative. See 370 F. Supp. 2d 923 (W.D. Mo. 2005), aff'd, 445 F.3d 1106 (8th Cir. 2 0 0 6 ). There, the plaintiff was a retail seller of manufactured homes and entered into an a g re e m e n t with a financial institution for "floorplan refinancing." Id. The financing a g re e m e n t provided that the lender could, in its "sole discretion," loan up to 65 percent of the v a lu e of used manufactured homes that were no more than five model years old and up to 60 p e r c e n t for those that were between six and ten model years old. See id. By virtue of the " s o le discretion" clause, the lender also could deny financing altogether. Id. at 927. It was a rg u e d , and accepted by the court, that the lender always provided financing at the maximum p e rc e n ta g e s provided in the agreement. See id. at 927-28. However, when a second lender a s s u m e d the financing agreement, see id. at 926, it offered financing on four manufactured h o m e s of only 35 percent of their value, and the plaintiff sued for breach of contract, see id. a t 927. Applying Missouri law, the court found that the word "discretion" in the agreement w a s "not ambiguous and [had to be] enforced for its obvious meaning." Id. at 928 (citing M o . Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 48 (Mo. Ct. App. 2002)). It further opined that the second lender's business decision to offer financing at a percentage le s s than the contractual maximum cutoff was "expressly permissible" under the "sole d is c re t i o n " clause, and could not amount to a breach of contract "so long as [the second
lender] acted in good faith and fair dealing . . . ." Id. at 927; see also Cordry, 445 F.3d a t 1112 ("When a decision is left to the discretion of one party, the question is not whether th e party made an erroneous decision but whether the decision was made in bad faith or was a rb itra ry or capricious so as to amount to an abuse of discretion." (quoting Mo. Consol. H e a lth Care Plan, 81 S.W.3d at 48)). The good-faith requirement ensured that the party in w h o m sole discretion was placed would not have "wholly unfettered, unreviewable d e c is io n m a k in g ." Cordry, 370 F. Supp. 2d at 931. Arguing bad faith, the plaintiff pointed to evidence that the second lender did not inquire of the first lender how the financing typ ic a lly was arranged under the agreement. At most, the court concluded that the plaintiff's a rg u m e n t equated a lack of diligence on the part of the second lender, but that "a mere lack o f diligence [was] not the same as demonstrating `bad faith.'" Id. In the end, the court e n te re d summary judgment on the breach of contract claim in favor of the second lender. See id . at 928-29. The Eighth Circuit affirmed. See Cordry, 445 F.3d at 1106. 2. A r g u m e n ts
Plaintiffs have moved for partial summary judgment on their claim for breach of c o n tra c t regarding reimbursement of DOD brand name prescription drug claims.1 5 (Doc.
Plaintiffs' breach of contract claim can be categorized as containing two theories. First, as stated above, the weekly updates used to reimburse pharmacies for filling DOD brand name prescription drugs breached their contracts, and, second, as to non-DOD claims, the thirty-hour lag time in uploading the daily AWP updates into the system breached the contract. Plaintiffs have not moved for summary judgment as to the latter theory. Plaintiffs, however, have moved for summary judgment on two of ESI's affirmative defenses to the breach of contract claim (waiver and statute of limitations). (Doc. # 57, at 12-13.) Given the court's finding that ESI is entitled to summary judgment on the merits of the breach of contract claim, the court need not address Plaintiffs' summary judgment arguments pertaining to these affirmative defenses.
# 57, at 9.) Citing the Provider Manual's provision that ESI "will update drug information o n a daily basis" (see, e.g., 2002 Provider Manual 10), Plaintiffs contend that ESI is c o n tra c tu a lly obligated to reimburse them based upon a brand name prescription drug's AWP a s updated on a daily basis. Plaintiffs argue that, with respect to DOD claims, ESI breached th e terms of their contracts by using weekly AWP updates to calculate reimbursements for b ra n d name prescription drugs. (Doc. # 57, at 10.) It is undisputed that ESI did not update AWP on a daily basis as to DOD brand name p re s c rip tio n drug claims processed through the Mini-Anchor system. (Luft Dep. 181-83.) Even with that concession, however, ESI contends that it is entitled to summary judgment n o t only on the breach of contract claim regarding the DOD prescription drug reimbursement m e th o d , but as to all Plaintiffs' breach of contract theories. ESI specifically argues that the P h a rm a c y Agreements it entered into with Pearson's and Altadena "clearly and u n a m b ig u o u s ly" gave ESI the "sole discretion" to "amend the Provider Manual and all p o lic ie s and procedures of ESI" (Pharmacy Agreement § 9C), and that absent evidence (of w h ic h it says there is none) that ESI exercised its discretion in bad faith, or acted arbitrarily o r capriciously, it is entitled to summary judgment on the breach of contract claim in its e n t i r e t y. E S I relies primarily on Inola Drug. Not surprisingly, Plaintiffs argue that Inola Drug w a s "wrongly decided" and emphasize that the judgment is on appeal. (Doc. # 69, at 3 n.3.)
A n a ly s is
I n Inola Drug, summary judgment was entered in favor of ESI on the plaintiff's c la im s for breach of contract and injunctive relief. See 2009 WL 801838. The plaintiff's b re a c h of contract claim, which was twofold, was premised on the statement in the Provider M a n u a l that "`drug information will be updated on a daily basis.'" Id. at *5 (quoting P ro v id e r Manual § 2.3). First, as to the Mini-Anchor system used to process DOD claims, th e plaintiff argued that ESI breached the Pharmacy Agreement based upon its "practice of u p d a tin g the AWPs weekly rather than daily[.]" Id. With respect to claims adjudicated under th e Anchor and Stratus systems (i.e., non-DOD claims), the court interpreted the complaint1 6 a s alleging that ESI breached the Pharmacy Agreement (1) because it failed to update AWPs o n a "real time" basis and (2) because "the lag time of approximately 30 hours between ESI's re c e ip t of daily updates from First DataBank and its `loading' of the updates onto its own s ys te m violate[d] the terms of the Provider Manual." Id. at *6. The Pharmacy Agreement in Inola Drug was "silent on the question of AWP u p d a te s [ ,]" but the Provider Manual indicated, as stated, that "drug information w[ould] be u p d a te d on a daily basis." Id. at *5 (internal quotation marks omitted). The Pharmacy A g re e m e n t vested in ESI the "sole discretion" to amend the Provider Manual, without having to obtain the pharmacy's consent or provide it notice. Id.
See infra for a discussion of the Inola Drug plaintiff's argument raised in its post-judgment motion that the court had misinterpreted the nature of its claim.
Applying Missouri law in accordance with the Pharmacy Agreement's choice-of-law p ro v is io n , see id. at *4, the court explained that contractual "sole discretion" clauses were " v a lid and enforceable, provided the party with discretion acts in good faith," id. (citing C o r d ry , 370 F. Supp. 2d at 927). With respect to the Mini-Anchor system used to adjudicate D O D claims, the court found that ESI was entitled to summary judgment because the e v id e n c e was uncontested that "weekly updating was implemented [by ESI] to accommodate D O D ' s vendor." Id. No evidence was submitted "of bad faith or abuse of discretion in c o n n e c tio n with this practice." Id. With respect to the Anchor and Stratus systems, the court o b s e rv e d that neither the Pharmacy Agreement nor the Provider Manual required ESI to u p d a te AWPs on a "real time" basis. Id. at *6. It found that "ESI in fact updates the drug c o s t information daily, albeit not instantaneously with its receipt of updates from First D a ta B a n k ." Id. It also found that the evidence was undisputed that the "30-hour lag time b e tw e e n receipt, verification and loading of First DataBank updates [was] customary and o rd in a ry in the industry."1 7 Id. Additionally, the court reiterated that the Pharmacy
A g re e m e n t gave ESI the unfettered "right to revise policies and procedures in the Provider M a n u a l and ESI's internal policies and procedures at its sole discretion with plaintiff's c o n s e n t or notice to plaintiff." Id. For these reasons, ESI was entitled to summary judgment
On the plaintiff's motion for reconsideration, the court retracted its reliance on an "industry standard," agreeing with the plaintiff that the evidence was insufficient to support that finding. Inola Drug, Inc. v. Express Scripts, Inc., No. 06-cv-117, 2009 WL 2175624, at *2 (N.D. Okla. July 14, 2009). It, however, found that this retraction did "not affect the [c]ourt's conclusion that ESI updates drug information on the commercial pharmacy claims on a daily basis." Id.
on the breach of contract claim. Id. Finally, the court found that the request for injunctive re lie f , "[t]o the extent . . . based on alleged breach of contract," could not survive summary ju d g m e n t. Id. Here, Plaintiffs do not dispute that the Inola Drug court correctly recited the a p p lic a b le law as articulated by the Missouri courts. They also agree that under Missouri la w , "sole discretion" clauses "may be enforced if exercised in good faith[.]" (Doc. # 69, a t 13; Doc. # 73, at 3 n.1.) Plaintiffs, however, argue that Inola Drug is distinguishable on its facts. (Doc. # 69 at 3 n.3.) They say that "unlike the present case," the complaint in Inola D r u g did contend that [ESI] had breached its contract by not updating in `real time.'" (Doc. # 69, at 3 n.3 (citing Inola Drug Compl (Ex. 2 to Doc. # 69)).) They say, however, that in th is case, the breach of contract claim is premised solely upon ESI's "`practice of failing to p ro p e rly reimburse Plaintiffs based upon daily AWP updates for brand name prescription d ru g s [ .]'" (Doc. # 69 at 3 n.3 (quoting Am. Compl. ¶ 23; emphasis added).) Hence, P la in tif f s argue that the Inola Drug decision was premised upon an allegation that ESI v io la te d "real time," not daily, updating requirements, and, thus "has no application" here. (Doc. # 73, at 3 n.1; see also Doc. # 69, at 3 n.3.) Plaintiffs' argument is a bit of a stretch. In Inola Drug, the plaintiff filed a motion to alter or amend the opinion, pursuant to R u le 59(e) of the Federal Rules of Civil Procedure. See Inola Drug, Inc. v. Express Scripts, In c ., No. 06-CV-117, 2009 WL 2175624, at *1 (N.D. Okla. July 14, 2009). As one ground f o r its motion, the plaintiff argued that "the court erroneously characterized the focus of [the
plaintiff's] breach of contract claim on the Anchor and Stratus systems as `failure to update A W P s on a `real time' basis.'" Id. at *2. Addressing the argument, the court explained that it merely had borrowed the phrase "real time" from the plaintiff's complaint. Id.
Notwithstanding the complaint's references to "real time" updating, the court elucidated that it "did not misapprehend" the crux of the plaintiff's argument made in response to the s u m m a ry judgment motion. Id. That argument was: " D e f e n d a n t admits it does not update its AWP drug information on the same d a y the information is received. There is a delay. In the case of commercial p h a r m a c y claims, non DOD claims, AWP drug information is not used to re im b u rs e pharmacies until at least two days after it is received. For instance, A W P drug information received on Monday is not used to reimburse p h a rm a c ie s until Wednesday." Id . (quoting the plaintiff's brief). The court emphasized that it had expressly rejected the c la im that the delays in uploading the daily AWP updates in the Anchor and Stratus systems d id not breach the contract. That rejection occurred when the court found that "the lag time b e tw e e n ESI's receipt of daily updates from First DataBank and its loading of the updates o n to its own system is not a breach of the Agreement." Id. The dialogue between the Inola D r u g court and the plaintiff on reconsideration deflates Plaintiffs' argument that Inola Drug is "factually distinguishable." (Doc. # 69, at 3 n.3.) P l a i n t i f f s ' attempt to factually distance the claims in this case from those in Inola D r u g also ignores the virtual identity of the breach of contract claims filed in each action. A comparison of the complaints reveals that both are predicated upon allegations that ESI e n g a g e d in a practice of failing to reimburse pharmacies based upon daily AWP updates and, 23
therefore, breached its contracts with the plaintiffs. (Compare Am. Compl. ¶ 23 (ESI's " p ra c tic e of failing to properly reimburse Plaintiffs based upon daily AWP updates for brand n a m e prescription drugs . . . constitutes a breach of contract for which Plaintiffs have been d a m a g e [ d ]." ), with Inola Drug Compl. ¶ 43 (ESI's "practice of failing to properly reimburse th e Plaintiff based upon daily AWP updates for prescription drugs . . . constitutes a breach o f contract for which the Plaintiff has been damaged." (Ex. 2 to Doc. # 69)).)18 Additionally, a s made clear from the summary judgment arguments (Doc. # 57, at 9-11), Plaintiffs' claim is based upon an alleged breach of the same provision in the Provider Manual upon which th e Inola Drug plaintiff predicated its breach of contract claim. Namely, Plaintiffs and the In o la Drug plaintiff cite the provision in the 2002 and subsequent Provider Manuals p ro v id in g that ESI "will update drug information on a daily basis." (See, e.g., 2002 Provider M a n u a l 10; Doc. # 57 ¶ 18); Inola Drug, see 2009 WL 801838, at *5 (explaining that the p la in tif f 's breach of contract claim was based upon § 2.3 of the Provider Manual that "`drug in f o rm a tio n will be updated on a daily basis.'"); see also Inola Drug, 2009 WL 801838, at *4 (re c itin g that ESI's "online reimbursement calculation" provided that ESI "w[ould] update d ru g information on a daily basis"). Also, as in Inola Drug, see 2009 WL 801838, at *3, the P h a rm a c y Agreement here does not address ESI's updating obligations and gives ESI "sole
The similarities between the two actions also are reflected in the claims for injunctive relief. (Compare Am. Compl. ¶ 30 ("Plaintiffs respectfully request that this Honorable Court require [ESI] to fully and timely reimburse Plaintiffs . . . and that [ESI] be required to properly reimburse Plaintiffs . . . using the `real time' Average Wholesale Price."), with Inola Drug Compl.¶ 59 ("The Plaintiff further requests this Court to require [ESI] to fully, properly, and timely reimburse the Plaintiff . . . and that [ESI] be required to properly reimburse the Plaintiff . . . using the `real time' AWP.'").)
discretion" to "amend the Provider Manual and all policies and procedures of ESI," without h a v in g to obtain consent from Plaintiffs. (Pharmacy Agreement § 9C; see also Pharmacy A g re e m e n t § 1 ("The Provider Manual may be revised from time to time by ESI in its sole d is c re tio n ." ).) In sum, the court finds that there are no material factual distinctions between th is case and Inola Drug. The court also finds the reasoning of Inola Drug persuasive. Here, as in Inola Drug, s e e 2009 WL 2175624, at *5, ESI has submitted evidence that the reason ESI updates drug in f o rm a tio n on a weekly basis for DOD claims was to ensure that updates were compatible w ith the practice of DOD's vendor, which followed an industry standard of weekly updates. ESI also has submitted evidence that, with respect to non-DOD claims, the reason for the lag tim e in updating ESI's systems with the daily drug information was to permit ESI to unzip f ile s , correct errors, and complete a loading process. Similar evidence was submitted in Inola D r u g . See Inola Drug, 2009 WL 2175624, at *4. The Inola Drug court rejected the p la in tif f 's claims and arguments. It found ESI's evidence undisputed, the "sole discretion" c la u s e valid, and an absence of evidence of bad faith or abuse of discretion by ESI in the e x e rc ise of its sole discretion. Here, however, Plaintiffs argue that there is "factual question" as to whether ESI s a tis f ie s the "good faith" standard. Plaintiffs contend that ESI has the capability "to update its system much sooner than it does, but refuses to do so in order to create greater profit for
itself and its clients." (Doc. # 69, at 16.) As evidentiary support for the argument, Plaintiffs p o in t to Ms. Macinski's deposition testimony, in particular, the following: Q. A n d if there is a lag in updating the AWP on brand name drugs, would that b e n e f it the pharmacists more or would that benefit your customers more? ... [ W ]e ll, . . . if the price is going up, obviously, it's going to benefit the client. If the price is going down, it's going to benefit the pharmacy.
(M a c in k s i Dep. 162.) Ms. Macinski clearly recites the "obvious" as to the relationship b e tw e e n a price increase and an uploading delay i.e., ESI gets the benefit. Ms. Macinski's te s tim o n y, however, does not speak to the capabilities of the technology used to upload daily A W P updates into the systems, touch upon ESI's reasoning for the "lag" time, or suggest that a n y delay was intended to increase profits at Plaintiffs' expense. To the contrary, as to DOD c la im s , the evidence is undisputed that DOD protocol required ESI to adopt DOD's vendor's p ra c tic e of updating drug information on a weekly, rather than a daily, basis, and that ESI did " n o t have control over" that requirement. (Lisa Howard Dep. 186 (Ex. # E to Doc. # 62).) Bad faith simply cannot be gleaned from Ms. Macinski's testimony; at best, her testimony p re s e n ts but "[a] mere `scintilla' of evidence." Walker, 911 F.2d at 1577 ("A mere `scintilla' o f evidence supporting the [nonmovant's] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party."). No other evidentiary b a s is for finding a material factual dispute with respect to ESI's bad faith has been advanced b y Plaintiffs. Moreover, the sole case upon which Plaintiffs rely (Doc. # 69, at 16) is cited n o t for its factual similarities indeed, it is factually inapposite but only for the general
proposition of law that the implied covenant of good faith and fair dealing prevents a party to a contract from "exercis[ing] a judgment conferred by the express terms of the agreement in such a manner that . . . denies the other party the expected benefit of the contract." Acetylene Gas Co. v. Oliver, 939 S.W.2d 404, 410 (Mo. Ct. App. 1996). P la in tif f s ' other arguments are equally unpersuasive. Plaintiffs contend that ESI's " e n tire defense" i.e., its reliance on the "sole discretion" clause is "absurd" because it re s ts on a theory that ESI could "do whatever it wanted" under the contract; thus, according to Plaintiffs, if it chose, ESI could "refuse to reimburse Plaintiffs at all and still require them to fill prescriptions." (Doc. # 69, at 11.) Plaintiffs argue that the potential for ESI to apply its discretion in this manner renders the Pharmacy Agreement illusory. (Doc. # 69, at 13.) The court disagrees. O n appeal, the plaintiff in Cordry unsuccessfully raised a similar protestation. The p la in tif f argued that a contractual "sole discretion" clause was illusory because it permitted th e lender to lend any percentage less than 60 or 65 percent for any used manufactured home, " in c lu d in g lending nothing." Cordry, 445 F.3d at 1110. The Eighth Circuit rejected the a rg u m e n t. As explained by the Cordry court: "The phrase `illusory promise' means `words in promissory form that promise n o th in g .' An illusory promise is not a promise at all and cannot act as c o n s id e ra tio n ; therefore no contract is formed." Magruder Quarry & Co. v. B ris c o e , 83 S.W.3d 647, 650 (Mo. Ct. App. 2002) (quoting Corbin on C o n tra c ts § 5.28). However, it is well-settled that "an implied obligation to u s e good faith is enough to avoid finding a contract null and void due to an illu s o ry promise." Id. at 650-51. For example, Magruder Quarry held that a q u a rry lease was not void as illusory, even though the lessees had the 27
discretion not to mine any rock at all, because the lessees were under an im p lie d covenant of good faith and fair dealing to use reasonable efforts to m in e rock. Id. at 650-52. Similarly, in the instant case [the lender] was bound b y the implied covenant of good faith and fair dealing to use reasonable efforts to finance used homes for [the plaintiff], as the covenant is implied in all c o n tra c ts in Missouri. Id. at 651. Therefore, the discretion granted by [the f in a n c in g agreement] does not render the agreement illusory. Id . at 1110. Here, contrary to Plaintiffs' arguments, under Missouri law the sole discretion clause d o e s not give ESI unbridled leeway to amend the Provider Manual in absolutely any manner it wants. Rather, ESI's discretion is tempered by the requirement that it act in good faith and f a irn e s s . The inclusion of the sole discretion clause in the Pharmacy Agreement, therefore, d o e s not make the contract illusory. Next, Plaintiffs argue that ESI only had "sole discretion" to amend its "policies and p ro c e d u re s ," not the "material terms" of the contract. (Doc. # 69, at 11.) Plaintiffs contend th a t the "formula for reimbursement" based upon AWP is not a "policy" or "procedure"; ra th e r, it "substantially affects how much Plaintiffs . . . will be reimbursed" and, thus, is "one o f the most important of all the material terms." (Doc. # 69, at 12.) Plaintiffs cite no a u th o rity, other than a Merriam-Webster online dictionary definition of "policy" and " p ro c e d u re " (Doc. # 69, at 11-12), that supports their assertion. These definitions provide n o basis for supplanting one of the key terms of the "sole discretion" clause. That term, w h ic h Plaintiffs' argument overlooks, provides that ESI in "its sole discretion," and without th e consent of the pharmacy, can amend not only its "policies and procedures," but also "the
Provider Manual." (See Pharmacy Agreement § 9C ("ESI may amend the Provider Manual a n d all policies and procedures of ESI, in its sole discretion, and such amendment shall not re q u ire consent of Provider or a Pharmacy." (emphasis added)); see also Pharmacy A g re e m e n t § 1 (describing the Provider Manual as "a written description of practices, p o lic ie s , rules and procedures").) As in Inola Drug, 2009 WL 801838, at *5, the Provider M a n u a l, not the Provider Agreement, was the document that governed how ESI updated the A W P , and, by its plain language, the Pharmacy Agreement gave ESI the sole discretion to a m e n d the Provider Manual any part of it which necessarily includes the AWP updating p ro c e d u re s set out in that manual. Moreover, Plaintiffs agreed to these terms, and under M is s o u ri law, "`[p]arties are generally free to contract as they wish, and courts will enforce c o n tra c ts according to their plain meaning, unless induced by fraud, duress, or undue in f lu e n c e .'" Cordry, 445 F.3d at 1110 (quoting Util. Serv. & Maint., Inc. v. Noranda A lu m in u m , Inc., 163 S.W.3d 910, 913 (Mo. 2005) (en banc)). Plaintiffs have not submitted e v id e n c e of, or argued, fraud, duress, or undue influence. Finally, Plaintiffs argue that, even assuming arguendo that ESI could amend the AWP u p d a tin g procedures without their consent and at their sole discretion, amendments to the P ro v id e r Manual by ESI, resulting in it no longer reimbursing pharmacies based upon daily A W P updates, had to be "formal" and "written" and "distribute[d]" to the pharmacies in the f o rm of an updated Provider Manual. (Doc. # 69, at 14-15.) Plaintiffs argue that there is "no f a c tu a l support for the contention that [ESI] actually made such an amendment." (Doc. # 69,
at 15.) Hence, according to Plaintiffs, ESI's alleged "failure to use daily AWP updates is not a n `amendment' to the contract; it is a breach of the contract." (Doc. # 69, at 15.) As support for their argument, Plaintiffs cite the cover page of the Provider Manual, w h ic h provides that the "[r]evisions, amendments and program updates [of the Provider M a n u a l] will be periodically distributed to the Pharmacy Network. (See, e.g., 2002 Provider M a n u a l (cover page).) This language does not establish any mandatory time intervals or p e rio d s for distribution of amended Provider Manuals. Significantly, it also does not, as a s t u t e l y recognized in Inola Drug, "limit or delay until distribution the effective date of a m e n d m e n ts which the contract grants ESI sole discretion to make." 2009 WL 2175624, a t *1. The language from the cover page of the Provider Manual simply does not support P la in tif f s ' position. In sum, based upon the summary judgment record, the court finds that there is no g e n u in e issue of material fact as to whether ESI is liable for breach of contract. C o n s e q u e n tly, ESI's motion for summary judgment on the breach of contract claim is due to be granted,1 9 and Plaintiffs' motion for partial summary judgment on the breach of contract c la im is due to be denied. B. I n ju n c tiv e Relief
C o u n t IV of the Amended Complaint, labeled "injunctive relief," requests the court to "require [ESI] to fully, properly and timely reimburse Plaintiffs" and to require ESI "to
It, therefore, is not necessary to address ESI's argument that Plaintiffs failed to present any evidence that they suffered damages.
properly reimburse Plaintiffs . . . using the `real time' Average Wholesale Price." (Am. C o m p l. ¶ 30.) The sole remaining substantive claim for breach of contract, however, cannot s u rv iv e Rule 56 scrutiny; thus, neither can the request for injunctive relief. Accordingly, E S I's motion for summary judgment on Count IV is due to be granted. V . CONCLUSION S u m m a ry judgment is appropriate on the breach of contract claim in Count II. ESI h a d a contractual right, valid under Missouri law, to exercise sole discretion over a m e n d m e n ts to the Provider Manual, the document governing ESI's AWP updating methods. In response to ESI's properly supported motion for summary judgment, Plaintiffs have failed to create a genuine issue of material fact that ESI exercised its discretion in bad faith, or a rb itra rily or capriciously. Because the breach of contract claim fails and no other
s u b s ta n tiv e claim remains, it necessarily follows that Plaintiffs are not entitled to the in ju n c tiv e relief sought in Count IV. Summary judgment, therefore, is due to be entered a g a in s t Plaintiffs on that count as well. Furthermore, as stated, see supra note 4, the court h a s not relied upon the evidence that is the subject of the motion to strike; the motion to s trik e , therefore, is moot. Accordingly, it is ORDERED that: (1) (2 ) (3 ) P la in tif f s ' motion to strike (Doc. # 67) is DENIED as moot; P la in tif f s ' motion for partial summary judgment (Doc. # 57) is DENIED; and E S I's motion for summary judgment (Doc. # 62) is GRANTED.
An appropriate judgment will be entered. DONE this 29th day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE
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