Lackie Drug Store Inc v. Arkansas CVS Pharmacy LLC et al

Filing 106

ORDER: For the reasons stated, granting in part and denying in part 35 ESI's Motion to Dismiss; severing Lackie's claims against Express Scripts, ESI Mail Processing, Inc., ESI Mail Pharmacy Service, Inc, and Express Scripts Pharmacy and transferring these claims to the Eastern District of Missouri; granting in part and denying in part 39 and 104 Optum's Motions to Dismiss; and granting in part and denying in part 37 Joint Motion to Dismiss filed by all Defendants. Lackie's claims are dismissed with the exception of the ADTPA, UPA, and declaratory judgment claims against Defendant OptumRx. The claims against Defendant OptumRx Pharmacy are dismissed. Signed by Judge James M. Moody Jr. on 11/02/2022. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
LACKIE DRUG STORE, INC.,
V.

PLAINTIFF
4:20CV1515 JM

ARKANSAS CVS PHARMACY, LLC, et al,

DEFENDANTS

ORDER
Pending are the Joint Motion to Dismiss filed by all Defendants, the Motion to Dismiss
filed by ESI,1 the Motion to Dismiss filed by Optum,2 and Optum’s Supplemental Motion to
Dismiss. The motions have been fully briefed and are ripe for consideration.
Lackie filed suit against thirteen defendants. Defendants MedImpact Healthcare Systems,
Inc and MedImpact Direct, LLC were voluntarily dismissed. The Court granted Pharmaceutical
Care Management Association’s motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim. The Court granted the motion to compel arbitration and dismissed Arkansas CVS
Pharmacy LLC, CVS Health Corporation, Caremark LLC, and CaremarkPCS LLC. Six
defendants remain: Express Scripts, ESI Mail Processing, Inc., ESI Mail Pharmacy Service, Inc,
and Express Scripts Pharmacy (referred to collectively as ESI), OptumRx, Inc. and OptumRx
Pharmacy, Inc. (referred to collectively as Optum).
In separate motions to dismiss, ESI and Optum seek dismissal of Lackie’s claims against
them based upon Lackie’s failure to follow the dispute resolution clauses in their respective
pharmacy provider agreements. ESI also contends that its pharmacy provider agreement contains
a forum selection clause which requires all litigation arising under the agreement to be brought in

1

Express Scripts, ESI Mail Processing, Inc., ESI Mail Pharmacy Service, Inc, and Express Scripts Pharmacy are
referred to collectively as ESI.
2
OptumRX, Inc. and OptumRX Pharmacy, Inc. are referred to collectively as Optum.

the Eastern District of Missouri. ESI asserts that the Court should sever the claims against it and
transfer the claims to the proper court. In the joint motion to dismiss, Defendants argue that the
Second Amended Complaint (the “Complaint”) does not satisfy Rule 8 and that Lackie failed to
exhaust administrative remedies as stated in Ark. Code Ann.§ 17-92-507(c)(4)(A). In addition,
Defendants argue specific reasons that each claim in the Complaint should be dismissed.
Although the parties disagree, the Court will consider the individual motions to dismiss
before analyzing the joint motion. If the individual arguments made by ESI and Optum, that the
Complaint should be dismissed based upon a failure to follow the dispute resolution process or
that the case should have been brought in a different jurisdiction, have merit it would be
improper for the Court to rule on the remaining arguments.
I.

Rule 12(b)(6) Standard

Each of these motions is brought pursuant to Rule 12(b)(6). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citing
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“Rule 12(b)(6)
does not countenance ... dismissals based on a judge's disbelief of a complaint's factual
allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a
well-pleaded complaint may proceed even if it appears “that a recovery is very remote and
unlikely”)). Although “[g]reat precision is not required of the pleadings,” the complaint should
state how, when, and where the cause of action occurred. Gregory v. Dillard’s Inc., 494 F.3d

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694, 710 (8th Cir. 2007). “So, when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of
minimum expenditure of time and money by the parties and the court.” Bell Atlantic, 127 S.Ct. at
1966 (internal citations omitted).
II.

Analysis

A. ESI
ESI asks the Court to dismiss Lackie’s claims against it because Lackie failed to follow
the dispute resolution process provided in the Express Scripts Inc. Pharmacy Provider
Agreement (the “ESI Agreement”). There is no dispute that Lackie and ESI executed the ESI
Agreement on July 15, 2016. A redacted copy of the ESI Agreement with signatures by a
representative of Lackie and Express Scripts Inc. is attached to the motion.3 (ECF No. 36-1). If
dismissal is not warranted based upon the dispute resolution clause, ESI asks the Court to
enforce the forum selection clause contained in the ESI Agreement which states, “[a]ll litigation
between the parties arising out of or related in any way to the interpretation or performance of
the Agreement shall be litigated in the U.S. District Court for the Eastern District of Missouri.
…” (ECF No. 36-1 at p. 7-8). Although ESI asks the Court to sever and transfer its portion of the
case only in the alternative to dismissal, the Court finds that enforceability of the forum selection
clause should be the first consideration here.
“The Eighth Circuit Court of Appeals ‘has expressed its inclination to find that federal
law governs resolution of [the enforceability of a forum selection clause] in diversity cases.’”
Doshier v. Twitter, Inc., 417 F. Supp. 3d 1171, 1179 (E.D. Ark. 2019) (quoting U.S. Bank Nat'l

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“In a case involving a contract,” like this one, “the court may examine the contract documents in deciding a motion
to dismiss.” Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (quoting Stahl v. U.S. Dep’t of Agric., 327
F.3d 697, 700 (8th Cir. 2003)).

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Ass'n v. San Bernardino Pub. Emps.' Ass'n, No. 13-2476, 2013 WL 6243946, at *2 (D. Minn.
Dec. 3, 2013) (citing Rainforest Café, Inc. v. EklecCo, L.L.C., 340 F.3d 544, 546 (8th Cir.
2003)); see also Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 59-61
(2013). “Forum selection clauses are prima facie valid and are enforced unless they are unjust or
unreasonable or invalid for reasons such as fraud or overreaching.” Doshier, 417 F. Supp.3d at
1180 (quoting M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 (8th Cir. 1999) (citing M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). “When
the parties have agreed to a valid forum-selection clause, a district court should ordinarily
transfer the case to the forum specified in that clause. Only under extraordinary circumstances
unrelated to the convenience of the parties should a § 1404(a) motion be denied.” Atl. Marine,
571 U.S. at 62. “[T]he plaintiff’s choice of forum merits no weight.” Id. at 63. When the contract
contains a forum selection clause, the Court considers only the "public interests" concerning
transfer, "which will rarely defeat a transfer motion." Id. at 64. The party acting in violation of
the forum selection clause “must bear the burden of proving that public interest factors
overwhelmingly disfavor a transfer.” Id. at 67.
Section 7.12 of the ESI Agreement provides in pertinent part:
All litigation between the parties arising out of or related in any way to the interpretation
or performance of the Agreement shall be litigated in the U.S. District Court for the
Eastern District of Missouri or, as to those lawsuits to which the Federal Court lacks
jurisdiction, before a court located in St. Louis County, Missouri.
(ECF No. 70 at p. 25).
Lackie argues that public interest dictates against transfer of the case based upon judicial
economy and Arkansas’ interest in applying Arkansas Code Annotated § 17-92-507 (“Section
507”). Lackie points out that its conspiracy claim encompasses multiple defendants, not just ESI
Defendants. Lackie contends that severing and transferring the claims against ESI would require
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multiplicity of litigation against co-conspirators in separate district courts on the same issues,
claims, and facts. However, judicial economy is not a significant factor because litigation of the
case has only progressed to the motion to dismiss stage. Discovery has not commenced. As for
the application of Arkansas’s unique statute regulating the actions of PBMs, it is for the Eastern
District of Missouri to determine whether Arkansas law applies and its interpretation. Further, it
is for the Missouri court to interpret the dispute resolution clause in the ESI Agreement. The
Court finds that this is not the rare case where public interest defeats the forum selection clause
bargained for between the parties. Lackie’s claims against ESI are, therefore, severed and
transferred to the Eastern District of Missouri. ESI’s motion is granted.
B. Optum
Optum contends that AmerisourceBergen Drug Corporation (“ABDC”), a Pharmacy
Services Administrative Organization (“PSAO”), entered into the Pharmacy Network Agreement
(“Optum Agreement”) as the authorized contracting agent for Lackie. Optum has provided a
redacted copy of the Optum Agreement. (ECF Nos. 39-1). The signature page is attached as a
supplement to Optum’s motion to dismiss. (ECF No. 104-1). Section 10 of the Optum
Agreement sets out the dispute resolution process which requires the aggrieved party to provide
written notice to the other party identifying the nature and scope of the dispute. If after thirty
days the parties cannot resolve the dispute, they may request in writing a meeting where each
party will have an officer present. If the parties do not resolve the dispute, either party may
request mediation. (ECF No. 39-1 at p. 19).
In response, Lackie disputes that it has a contract with Optum. See ECF No. 67 at p. 2 (“if
there is a contract, which there is not . . .”); id. at p. 4 (“no supporting proof to show a contract
existed between the parties”). Lackie goes on to argue that, if there is a contract, Optum has

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failed to prove that the terms in the Agreement were “effectively communicated” to Lackie. In
Plaintiff’s First Supplement, Lackie appears to abandon the “no contract” argument and focuses
solely on the second argument: “The only proof OptumRx submitted was an affidavit of a vice
president describing a provider agreement, but OptumRx failed to demonstrate that its provider
agreement was ‘effectively communicated’ to the Plaintiff.” (ECF No. 78 at p. 2). However, later
in the Second Supplement, Lackie argues that “these two defendants [OptumRx and OptumRx
Pharmacy] failed to prove the existence of a contract between them and Lackie.” (ECF No. 83 at
p. 2). Finally, in the latest response, Lackie states that “[t]he motion must fail because it has no
supporting proof to show a contract existed between the parties here.” (ECF No. 105 at p. 2).
Optum has provided a redacted copy of the Agreement signed by Cassie Tichey, SVP of
Network Relations for OptumRx on December 9, 2014, and Peter J. Kounelis, Sr. Director of
Provider Network Business Development for ABDC on September 22, 2014. (ECF No. 104-1).
Without explanation, Lackie states that the signature page of the Agreement is not signed or
dated by any party. (ECF No. 105 at p. 2).
Optum contends that Lackie appointed ABDC as its agent to contract with OptumRx. In
response to the “no contract” argument, Optum asserts that without a contractual relationship
with Optum, there would be no basis for Lackie’s claims. Lackie, however, contends that there is
no proof of an agency relationship between itself and the ABDC signatory on the Optum
Agreement because it was signed “two years before there was even a possibility of an agency.”
Id. at p. 3.
Although Optum’s arguments are well taken, the Court finds that there is insufficient
evidence of a contract between ABDC and Lackie at this point in the litigation.4 Lackie’s alleged

4

The Court finds the declaration of Joshua Van Ginkel of OptumRx, Inc. insufficient to prove a contract between
ABDC and Lackie.

6

failure to abide by the terms of a negotiated contract may be determinative of its claims against
Optum. However, the agreement between Lackie and ABDC is not in the record and there is no
evidence to support Optum’s argument that Lackie knew or should have known about the dispute
resolution requirements. Optum’s motion to dismiss is denied.
C. Joint Motion to Dismiss
In the joint motion to dismiss, Defendants argue that the Complaint contains conclusory,
group-based allegations that are insufficient to satisfy Rule 8. The Court disagrees. Lackie’s
allegations provide sufficient notice to OptumRx and OptumRx Pharmacy, the only remaining
defendants.
Defendants argue that the Complaint should be dismissed because Lackie did not utilize
the administrative appeal procedures established by Arkansas Code Annotated Section 17-92507(c)(4). As Defendants note, the Arkansas Commissioner of Insurance requires a pharmacy
provider, or a pharmacy services administrative organization (“PSAO”), to make reasonable
efforts to exhaust any internal appeal requirements of the PBM prior to filing a complaint with
the Arkansas Insurance Department (“AID”). See Ark. ADC 54.00.118-9(B)(2) now Ark. ADC
003.22.118-9 (2022). The AID regulation further states that the “AID shall additionally
coordinate with the Arkansas Attorney General's Office for referral to that Office of complaint
cases which reasonably appear to show a pattern or practice of violations by a PBM.” AR ADC
003.22.118-9(B)(4).
Defendants contend that the Complaint should be dismissed because Lackie did not plead
exhaustion or an exception to the exhaustion requirement in the Complaint. In response, Lackie
argues that the Defendants do not offer the required appeals process, that the allegations in the

7

Complaint are not subject to administrative remedies, that seeking an administrative remedy for
these claims is futile, and that Defendants should be judicially estopped from arguing this point.
The burden to prove an affirmative defense is, in general, on the defendant and a plaintiff
is not required to plead exhaustion in the complaint. See, e.g., Jones v. Bock, 549 U.S. 199, 216,
127 S. Ct. 910, 921, 166 L. Ed. 2d 798 (2007). (“We conclude that failure to exhaust is an
affirmative defense under the PLRA, and that inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”); Weatherly v. Ford Motor Co., 994 F.3d 940, 943
(8th Cir. 2021) (“[I]n general, a defendant cannot render a complaint defective by pleading an
affirmative defense, and so the possible existence of a limitations defense is not ordinarily a
ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense”).
Dismissal based upon an affirmative defense is appropriate “only when the complaint itself
admits all the elements of the affirmative defense by alleging the factual basis for those
elements.” Id. (quoting Fernandez v. Clean House, LLC, 883 F.3d 1296, 1298-99 (10th Cir.
2018).
Lackie has not included any factual statement in the Complaint regarding exhaustion of
the administrative remedy contemplated by Section 507. Therefore, the Court cannot dismiss the
Complaint based upon this affirmative defense. The issue may be properly brought before the
Court in a motion for summary judgment. Defendants’ motion to dismiss is denied on this point.
a. ADTPA
Defendants argue that Lackie’s Arkansas Deceptive Trade Practices Act (“ADTPA”)
claim must be dismissed because it is not plead with particularity and Lackie does not have
standing under the ADTPA. The Court finds this argument to be without merit. Courts in this
circuit have held that plaintiffs alleging a violation of the ADTPA must plead the claim with

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particularly, identifying the “who, what, where, when, and how” of the claim. Streambend Props.
II, LLC v. Ivy tower Minneapolis, LLC, 781 F.3d 1003, 1013 (8th Cir. 2015). Lackie alleged that
the Defendants violated “specific Arkansas laws that, under the law, constitute actionable
conduct under the ADTPA.” Allcare Specialty Pharmacy, LLC v. OptumRX, Inc., 2017 WL
5571356, at *5 (E.D. Ark. Apr. 6, 2017). Lackie claims that Defendants failed to provide a MAC
list as required by Ark. Code Ann. § 17-92-507(c)(1). Section 507(g)(1) states that a PBM’s
failure to follow the law is a deceptive and unconscionable trade practice under the ADTPA.
Defendants also argue that, even if the claim is sufficiently plead, the allegations in the
Complaint do not state a claim under the ADTPA. The elements of an ADTPA claim are “(1) a
deceptive consumer-oriented act or practice which is misleading in a material respect, and (2)
injury resulting from such act.” Skalla v. Canepari, 430 S.W. 3d 72, 82 (Ark. 2013). “A private
cause of action does not arise absent a showing of both a violation and resultant damages.”
Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005).
Defendants argue there is nothing in the Complaint about a consumer-oriented act or
practice causing damage to Lackie. They argue that ADTPA claims are not available to resolve
disputes between market competitors as is alleged by Lackie. In fact, Lackie’s claims do not
involve the consumer paying too much, but instead that health care plans are not paying enough.
They also argue that Lackie fails to explain how Defendants’ conduct proximately caused any
loss. Defendants further contend that if the Court finds that Lackie has stated a claim under the
ADTPA the claim can only be brought against PBMs under the statute, not PBM affiliates.
The question of whether the conduct alleged in the Complaint is a consumer-oriented act
or practice has been considered in this district. Judge Miller explained in Allcare, “[S]ome courts
have questioned whether business-to-business activity can be a deceptive and unconscionable

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trade practice under the ADTPA. See, e.g., Stonebridge Collection, Inc. v. Carmichael, 791 F.3d
811, 822 (8th Cir. 2015). That issue need not be addressed here because Arkansas law already
declares that violating section 17-92-507 . . . is a deceptive and unconscionable trade practice as
a matter of law.” Allcare, 2017 WL 5571356, at *5 (citing Ark. Code Ann. § 17-92507(c)(4)(g)).
As for allegations of proximate cause, Lackie adequately alleges that Defendant PBMs’
actions proximately caused damage. Specifically, Lackie alleges that Defendant PBMs’
reimbursement system (1) forces Lackie Drug and the other Class members to fill prescriptions
without the benefit of the current MAC and often times upon outdated information with full
knowledge and with the purpose of causing Lackie Drug and Class members to lose money in
the transaction because their cost for the particular drug is higher than what they PBM will
provide them as an insurance reimbursement; (2) reimburses Lackie Drug and members of the
Class less money for its prescription fills than what Arkansas CVS Pharmacy and other
Defendant PBM affiliates are provided for the same prescription drugs; and (3) through
Defendants’ forced sale of prescription drugs to consumers without fair and proper, but instead
anticompetitive insurance reimbursements, Plaintiff and the Class have been and continue to be
compelled to habitually and routinely sell prescriptions to a consumer at an actual financial loss.
(Complaint, ECF No. 18 at ¶¶ 33, 39, 61). The Court finds Lackie has sufficiently plead a
plausible ADTPA claim. Accordingly, Defendants’ motion to dismiss the ADTPA claim is
denied as to OptumRx.
The Court agrees that an ADTPA claim can only be brought against a PBM defendant,
and therefore, the motion to dismiss the ADTPA claim against OptumRx Pharmacy is granted.

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b. Trade Practices Act
Defendants contend that Lackie’s Trade Practices Act claim must be dismissed because
there is no private right of action to enforce that statute. The Court agrees. While the TPA “gives
the state authority to establish rules of conduct and to punish offenders, it provides no private
right of action to [private parties] for violations of the Act or of regulations promulgated under
the Act’s authority.” Design Prof’ls Ins. Co. v. Chicago Ins. Co., 454 F.3d 906, 911-912 (8th Cir.
2006); Southeastern Emergency Physicians LLC v. Ark. Health & Wellness Health Plan, Inc,
2019 WL 13193960, at *13 (E.D. Ark. Dec. 9, 2019) (“[N]o private right of action exists under
the [Arkansas Insurance Trade Practices Act]).” Defendants’ motion to dismiss the Trade
Practices Act claim is granted.
c. Unfair Practices Act
Section 208(a) of the UPA provides:
The secret payment or allowance of rebates, refunds, commissions, or unearned discounts is
an unfair trade practice, whether in the form of money or otherwise or secretly extending to
certain purchasers special services or privileges not extended to all purchasers purchasing
upon like terms and conditions to the injury of a competitor and where the payment or
allowance tends to destroy competition.
Ark. Code Ann. § 4-75-208 (West). Lackie contends that it has satisfied the pleading
requirements for a UPA claim by alleging that PBMs deny it access to the MAC list and provide
“higher payments to its affiliates” in an effort to destroy competition by independent pharmacies.
The Court agrees. Lackie has stated that PBMs extend a special service or privilege to affiliates
by granting them access to the MAC list, that Lackie is not granted access, and that the privilege
is given in order to destroy competition. Defendants’ motion to dismiss the UPA claim is denied
as to OptumRx.

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The motion is granted as to OptumRx Pharmacy because there is no indication in the
Complaint that OptumRx Pharmacy controls access to Optum’s MAC list or Optum’s
reimbursement payments to Lackie.
d. Conspiracy
To prove conspiracy, Lackie must show “a combination of two or more persons to
accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in and
of itself unlawful, oppressive or immoral, by unlawful, oppressive or immoral means, to the
injury of another.” Wallace v. XTO Energy, Inc., 2014 WL 4202536, at *4 (E.D. Ark. Aug. 22,
2014) (quoting Born v. Hosto & Buchan, PLLC, 372 S.W.3d 324, 331 (Ark.2010)). Because all
the claims against OptumRx Pharmacy have been dismissed, Lackie cannot prove that two or
more persons conspired against it. Moreover, the Complaint lacks any specific allegation of
conspiratorial activity by OptumRx Pharmacy because there is no indication that OptumRx
Pharmacy controls access to Optum’s MAC list or Optum’s reimbursement payments to Lackie.
For these reasons, the conspiracy clam is dismissed.
e. Declaratory Judgment
Pursuant to Ark. Code Ann. § 16-111-101.et. seq, Lackie seeks a declaration that
defendants have violated Section 507. The Declaratory Judgment Act, Ark. Code Ann. § 16–
111–101 et. seq. (1997) is remedial, and its purpose is to afford relief from uncertainty and
insecurity by declaring “rights, status, and other legal relationships whether or not further relief
is or could be claimed.” Hardy v. United Servs. Auto. Ass'n, 233 S.W.3d 165, 167 (Ark. App.
2006) Ark. Code Ann. §§ 16–111–102 and 103. The act is to be liberally construed and
administered. Ark. Code Ann. § 16–111–102(c). In addition, when declaratory relief is sought,
“all persons shall be made parties who have or claim any interest that would be affected by the

12

declaration.” Ark. Code Ann. § 16–111–106(a). A party seeking declaratory relief must plead the
following facts for the claim to survive a motion to dismiss: “(1) there must be a justiciable
controversy (a controversy in which a claim or right is asserted against one who has an interest in
contesting it); (2) the controversy must be between parties with adverse interests; (3) the party
seeking declaratory relief must have a legally protectable interest in the controversy; and (4) the
issue must be ripe for judicial determination.” Bradley v. XTO Energy, Inc., No. 3:21-CV-00079BSM, 2021 WL 3040758, at *3 (E.D. Ark. July 19, 2021) “‘[a] declaratory-relief action is not a
substitute for an ordinary cause of action. Rather it is dependent on and not available in the
absence of a justiciable controversy.’” Id. (quoting Martin v. Equitable Life Assur. Soc’y of the
U.S., 40 S.W. 3d 733, 736 (Ark. 2001)) “A declaratory judgment declares rights, status, and
other legal relationships whether or not further relief is or could be claimed.” McDougal v.
Sabine River Land Co., 461 S.W.3d 359, 363.
Lackie has stated a justiciable controversy against OptumRx under the ADTPA and the
UPA. The interests of Lackie and OptumRx appear to be adverse. Lackie’s interest in the
controversy appears to be legally protectable. OptumRx has failed to show that the declaratory
relief sought is not ripe for judicial review. This claim for declaratory judgment will be allowed
to proceed. While it may be duplicative of Lackie’s ADTPA and UPA claims, that is an
insufficient reason alone to dismiss it. Bradley v. XTO Energy, Inc., No. 3:21-CV-00079-BSM,
2021 WL 3040758, at *3 (E.D. Ark. July 19, 2021) (citing Collins v. SEECO, Inc, 2012 WL
2309080 at *2 (E.D. Ark. 2012) (“The request for a declaratory judgment is probably suspenders
over the belt of the contract claim. But there is no harm in leaving this request for relief in.”)).
As stated above, all claims against OptumRx Pharmacy have been dismissed. Therefore,
no declaratory relief against it is available.

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f. Preemption
Defendants have failed to establish that Lackie’s claims are preempted by the Medicare
statute. See PCMA v. Rutledge, 140 S. Ct. 812 (2020).
III.

Conclusion

For the reasons stated, ESI’s Motion to Dismiss (ECF No. 35) is GRANTED in part and
DENIED in part. Lackie’s claims against the Express Scripts, ESI Mail Processing, Inc., ESI
Mail Pharmacy Service, Inc, and Express Scripts Pharmacy are severed. The Clerk is directed to
transfer these claims to the Eastern District of Missouri.
Optum’s Motions to Dismiss (ECF No. 39 and 104) is GRANTED in part and DENIED
in part. The Joint Motion to Dismiss filed by all Defendants (ECF No. 37) is GRANTED in part
and DENIED in part. Lackie’s claims are dismissed with the exception of the ADTPA, UPA, and
declaratory judgment claims against Defendant OptumRx. The claims against Defendant
OptumRx Pharmacy are dismissed.
IT IS SO ORDERED this 2nd day of November, 2022.

_______________________________
James M. Moody Jr.
United States District Judge

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