ROCHE DIAGNOSTICS CORP. et al v. BINSON'S HOSPITAL SUPPLIES, INC. et al

Filing 96

ORDER ON MOTIONS TO DIMSISS - the Court GRANTS in part and DENIES in part theMotions to Dismiss filed by Defendants Binson's Hospital Supplies, Inc., Northwood, Inc., Kenneth G. Fasse, Donnie E. Dickstein, James E. Binson, James E. Binson II, and Robert A. Binson and Defendants J&B Medical Supply Co., Fawzi B. Shaya, and Mary E. Shaya, without prejudice. Dkt. No. 60; Dkt. No. 62. The Court GRANTS Defendant Jeremiah Mankopf's Motion to Dismiss, Dkt. No. 63, and GRANTS Defendants', Olympus Global, LLC, Delta Global, LLC, Alpha XE LLC, Christopher F. Shaya, and Daniel Gladys, Motion to Dismiss, without prejudice. Dkt. No. 56. Furthermore, the Court DENIES the Motion for Sanctions under Rule 11 filed by Defendants, Binson's Hospital Supplies, Inc., Northwood, Inc., Kenneth G. Fasse, Donnie E. Dickstein, James E. Binson, James E. Binson II, and Robert A. Binson, as premature. Dkt. No. 58. The Court GRANTS Roche leave to amend its Amended Complaint within 21 days days from the date of this Order. Additionally, the Court sua sponte DISMISSES this action as to Pharmacy John Does 1-50 for failure to state a claim upon which relief may be granted. If through discovery, the plaintiffs are able to learn the name of the unknown defendants, they may seek leave to add a claim against those individuals. Signed by Judge Larry J. McKinney on 9/18/2017. (REO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROCHE DIAGNOSTICS CORP., and
ROCHE DIABETES CARE, INC.,
Plaintiffs,
vs.
BINSON’S HOSPITAL SUPPLIES, INC.,
NORTHWOOD, INC.,
OLYMPUS GLOBAL, LLC,
DELTA GLOBAL, LLC,
ALPHA XE LLC,
J&B MEDICAL SUPPLY CO., INC.,
KENNETH G. FASSE,
DONNIE E. DICKSTEIN,
JAMES E. BINSON,
JAMES E. BINSON II,
NICHOLAS B. BINSON,
ROBERT A. BINSON,
CHRISTOPHER F. SHAYA,
FAWZI B. SHAYA,
MARY E. SHAYA,
DANIEL GLADYS,
JEREMIAH MANKOPF, and
PHARMACY JOHN DOES 1-50,
Defendants.

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No. 1:17-cv-00949-LJM-DML

ORDER ON MOTIONS TO DISMISS
This matter comes before the Court on four distinct Motions to Dismiss filed by the
defendants in this action. In their motions, Defendants Binson’s Hospital Supplies, Inc.
(“Binson’s”), Northwood, Inc. (“Northwood”), Kenneth G. Fasse (“Fasse”), Donnie E.
Dickstein (“Dickstein”), James E. Binson, James E. Binson II, Nicholas B. Binson, and
Robert Binson (collectively, the “Binson’s Defendants”), and Defendant Jeremiah
Mankopf (“Mankopf”), seek to dismiss Plaintiffs’, Roche Diagnostics Corp. and Roche

Diabetes Care, Inc. (collectively, “Roche’s”), Amended Complaint, pursuant to Federal
Rules of Civil Procedure 12(b)(2) (“Rule 12(b)(2)”) and 12(b)(6) (“Rule 12(b)(6)”). Dkt.
No. 61; Dkt. No. 66. Defendants Olympus Global, LLC (“Olympus”), Delta Global, LLC
(“Delta”), Alpha XE LLC (“Alpha”), Christopher F. Shaya (“Christopher”), and Daniel
Gladys (“Gladys,” and together with Olympus, Delta, Alpha, and Christopher, the
“Olympus-Delta Defendants”), however, move to dismiss Roche’s Amended Complaint
as it relates to them only under Rule 12(b)(2) by asserting that this Court lacks personal
jurisdiction over them. Dkt. No. 57. Furthermore, Defendants’, J&B Medical Supply Co.
(“J&B”), Fawzi B. Shaya, and Mary E. Shaya (collectively, the “J&B Defendants”), motion
to dismiss only seeks to dismiss Roche’s Amended Complaint as it relates to them
pursuant to Rule 12(b)(6), by arguing that Roche has not pleaded with sufficient
particularity to state a claim against them. Dkt. No. 64.
For the reasons stated herein, the Court GRANTS in part and DENIES in part
the Binson’s Defendants’ and the J&B Defendants’ motions to dismiss. The Court also
GRANTS the Olympus-Delta Defendants’ and Mankopf’s motions to dismiss.
I. BACKGROUND
Roche is a leading manufacturer of blood glucose test strips used by diabetes
patients. Dkt. No. 12 (“Am. Compl.”), ¶ 37. Roche sells its test strips in two ways to
provide them to patients with different kinds of insurance plans: (1) for sale at retail
pharmacies (“Retail Strips”); and (2) for sale by durable medical equipment (DME)
providers (“DME Strips”). Id. at ¶ 38. Whenever patients purchase any of Roche’s test
strips through their insurance providers, the sellers of those test strips obtain payment

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from the insurers, rather than the individual patients, and must submit reimbursement
claims to the insurers to receive payment. Id. at ¶ 44.
Roche’s Retail Strips may be sold to anyone at retail pharmacies; however, more
than 90% of Retail Strips are purchased by patients with insurance plans that reimburse
the pharmacies. Id. at ¶ 38. Roche sells its Retail Strips directly to wholesalers for about
$71 per 50-strip vial, who then sell the Retail Strips to retail pharmacies for about $75 per
50-strip vial. Id. at ¶ 39. When Retail Strips are purchased by a patient with a Pharmacy
Plan insurance policy, the patient’s insurer reimburses the retail pharmacy at a rate of
about $78 per 50-strip vial. Id. at ¶ 39. After the insurer reimburses the retail pharmacy,
Roche then pays the insurer rebates of about $50 per 50-strip vial. Id.; Dkt. No. 83 at 4.
As a result, Roche obtains a net revenue of about $21 per 50-strip vial for the sale of its
Retail Strips. Am. Compl., ¶ 39.
In contrast, Roche sells its DME Strips directly and exclusively to mail-order DME
distributors (“DME Distributors”) for less than $20 per 50-strip vial. Id. at 40. Based on
their contractual agreements with Roche, the DME Distributors purchasing the DME
Strips may only sell the DME Strips to patients benefitting from DME insurance plans,
including Medicare and other commercial insurers, or to other DME Distributors. Id. DME
Distributors are contractually prohibited from selling their DME Strips to any patients
benefitting from Pharmacy Plans or those without insurance, which allows Roche to sell
the DME Strips to DME Distributors at a substantially lower price than its Retail Strips.
Id. at ¶ 41. If a patient with a commercial DME insurance plan purchases DME Strips
from a DME Distributor, the commercial DME insurer reimburses the DME Distributor at

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a rate of about $30 per 50-strip vial. Id. at ¶ 40. However, Roche does not pay any
rebates to any insurers following the sale of DME Strips. Id.
A. ROCHE’S AGREEMENTS WITH BINSON’S AND NORTHWOOD
On February 10, 2011, Roche entered into an agreement (the “Agreement”) with
Binson’s and its subsidiary, Northwood, whereby Roche would sell its DME Strips to
Binson’s, and Binson’s and Northwood would distribute Roche’s DME Strips to DME
insurance plan beneficiaries. Id. at ¶ 51. Binson’s and Northwood are both Michigan
corporations with principal places of business in Michigan. Id. at ¶¶ 14-15. In the
Agreement, Roche agreed to sell DME Strips to Binson’s and Northwood at net rates
between $5 and $17 per 50-strip vial, based on Binson’s and Northwood’s prospective
volume commitments and Roche’s market share of DME Distributors’ total sales. Id. at
¶¶ 52-53. However, the Agreement required that Binson’s and Northwood sell the DME
Strips exclusively to patients benefitting from DME insurance plans. Id. at ¶ 52. Binson’s
and Northwood were also required to provide Roche with quarterly or monthly Market
Share Reports and Utilization Reports in order to receive their rebates. Id. at ¶ 54. Market
Share Reports indicate Roche’s market share of the total sales made by Binson’s and
Northwood over a given period of time. Id. In contrast, Utilization Reports track the
prescription numbers and sale dates for each individual sale of DME Strips made by
Binson’s and Northwood to ensure that sales of DME Strips are made only to DME
insurance plan beneficiaries or other appropriate DME Distributors. Id.
On July 21, 2014, Binson’s and Northwood negotiated with Roche to amend the
Agreement (the “Amended Agreement”), through which Roche agreed to sell its DME
Strips directly to Northwood, rather than Binson’s, at a flat, discounted rate of $10.67 per

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50-strip vial and without any need to make rebate claims. Id. at ¶¶ 57, 61-62. While
negotiating the Amended Agreement, Fasse, the Executive Vice President and Chief
Operating Officer for Binson’s and Northwood, and Dickstein, the Director of Northwood,
told Roche that Northwood had a large number of customers that were covered by
commercial DME insurance plans, in addition to its customer base covered by Medicare.
Id. at ¶¶ 58-60. Fasse and Dickstein further assured Roche that Northwood would only
sell Roche’s DME Strips to individual DME insurance plan beneficiaries. Id. at ¶ 98.
Dickstein also provided Roche a list of DME insurance plans that would be covered when
selling the DME Strips. Id. at ¶ 99.
After the Amended Agreement went into effect, Northwood saw a dramatic spike
in its sales of Roche’s DME Strips. Id. at ¶ 63. However, despite this intense sales
increase, Northwood stopped providing its Utilization Reports to Roche after the
Amended Agreement went into effect. Id. at ¶ 64.

Fasse and Dickstein explained

Northwood’s rapidly growing sales by telling Roche that Northwood was selling Roche’s
DME Strips to its large base of patients benefitting from commercial DME insurance plans
who had previously used different test strip brands. Id. at ¶¶ 65-66.
In light of Northwood’s uncharacteristic and dramatic increase in sales, Roche
grew suspicious. Id. at ¶ 68. In the spring of 2015, Roche hired private investigators to
go to Binson’s brick-and-mortar locations in Michigan and Florida and attempt to purchase
Roche’s DME Strips with cash, rather than through a DME insurance plan. Id. at ¶ 69.
Upon their arrival to Binson’s stores, the private investigators easily purchased DME
Strips in cash without insurance. Id. at ¶¶ 70-71. Based on the private investigators’
findings, Roche repeatedly requested that Binson’s and Northwood provide Roche with

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Utilization Reports between June and September 2015. Id. at ¶ 71. Although Binson’s
provided its Utilization Report to Roche on September 11, 2015, Northwood failed to
provide any such report before September 24, 2015. Id. at ¶ 73. As a result, Roche
contacted Northwood on the same day and informed Fasse and Dickstein that Roche was
stopping all shipments to Northwood until it provided Roche with its Utilization Reports
and told them that Roche knew Binson’s had been selling the DME Strips for cash. Id. at
¶ 74. Dickstein claimed that Northwood was selling Roche’s DME Strips to several
companies in Florida, rather than to individual DME insurance plan beneficiaries as was
required by the Amended Agreement. Id. at ¶ 75.
On September 28, 2015, Roche’s Senior Counsel, Julie Dilts (“Dilts”), sent a letter
to Fasse, indicating that Binson’s and Northwood were in breach of the Amended
Agreement. Id. at ¶ 78. Dilts’ letter further demanded that Binson’s and Northwood
provide to Roche their 2015 Utilization Reports, a list of the individuals and other entities
that purchased Roche’s DME Strips from Binson’s and Northwood in breach of the
Amended Agreement, and an explanation for Northwood’s dramatic sales growth. Id.
On October 6, 2015, Fasse responded via email to Dilts’ letter by stating that
Binson’s had sold Roche’s DME Strips for cash at its retail locations but that
“management was unaware of this problem prior to receiving your letter.” Id. at ¶¶ 79,
101-102.

Fasse further indicated that such cash sales at their retail facilities were

discontinued. Id. Fasse also attached a “complete list of all retail cash sales of [Roche]
Products sold for the period of February 2011-present” with his response. Id. at ¶ 80. On
October 7, 2015, Fasse sent another email to Dilts, in which Fasse admitted that
Northwood had been selling Roche’s DME Strips to third parties since July 2014, and the

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third parties then sold the DME Strips to various other DME Distributors. Id. at ¶ 82.
Fasse also attached Binson’s Utilization Reports to this October 7 email but explained
that similar Utilization Reports for Northwood were unavailable. Id. at ¶ 81.
B. THE DIVERSION SCHEME
In May 2014, Fasse and Dickstein began discussing a plan to divert the sales of
Roche’s DME Strips with Christopher and Mankopf, who were employees of J&B. Id. at
¶¶ 84-85. J&B is a Michigan corporation that is owned and operated by Fawzi B. Shaya
and Mary E. Shaya. Id. at ¶¶ 19, 120. J&B previously contracted with Roche in 2008 to
sell Roche’s DME Strips exclusively to patients insured by Blue Cross Network of
Michigan until the agreement was terminated in 2010. Id. at ¶ 86. Roche believes that
J&B has sought ways to purchase Roche’s DME Strips ever since the termination of its
agreement with Roche. Id. at ¶ 87.
Christopher, the son of Fawzi B. Shaya and Mary E. Shaya, and Mankopf formed
Olympus as a shell company for J&B. Id. at ¶¶ 87, 124. Olympus was established as a
Michigan limited liability company on March 12, 2013. Id. at ¶ 124. Christopher and
Mankopf explained to Fasse and Dickstein that Northwood could sell Roche’s DME Strips
to Olympus, and that Olympus could then resell the DME Strips to a Florida company,
Medical Supply Solutions, Inc. (“MSSI”). Id. at ¶¶ 88, 90. MSSI would then sell the DME
Strips to retail pharmacies. Id. at ¶ 91.
All of the parties involved recognized that their scheme would work better if
Northwood could purchase the DME Strips at a flat, discounted rate. Id. at ¶¶ 89-90.
Therefore, based on their discussions with Christopher and Mankopf, Fasse and
Dickstein negotiated with Roche to form the Amended Agreement so that Roche would

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make all of its sales to Northwood. Id. at ¶¶ 89-90, 94. After the Amended Agreement
when into effect, Northwood began selling Roche’s DME Strips to Olympus, with the
intention of Olympus selling the DME Strips to MSSI. Id. at ¶¶ 90, 93-94.
Olympus was the sole purchaser of Northwood’s DME Strips between July 2014,
and January 2015. Id. at ¶ 124. On January 16, 2015, Christopher and Gladys, another
J&B employee, formed Delta 1 as a Michigan limited liability company to replace Olympus
as the sole purchaser of Roche’s DME Strips from Northwood. Id. at ¶¶ 119, 125. Roche
believes Olympus was later dissolved in order to cut Mankopf out of this scheme to divert
the sales of Roche’s DME Strips. Id. at ¶126. Between July 21, 2014, and September
24, 2015, Northwood sold approximately 1,526,688, 50-strip vials of Roche’s DME Strips
to Olympus and Delta. Id. at ¶¶ 93-94. After either Olympus or Delta purchased DME
Strips from Northwood, Alpha, a Wyoming limited liability company formed by
Christopher, would then make the sales of those DME Strips directly to MSSI. Id. at ¶ 94.
C. PENDING ACTION
Roche filed its initial Complaint on March 28, 2017, Dkt. No. 1, and filed its
Amended Complaint on April 5, 2017. See generally, Amend. Compl. Roche alleged that
the Binson’s Defendants defrauded it by indicating that Northwood would sell Roche’s
DME Strips exclusively to DME insurance beneficiaries while negotiating the Amended
Agreement and by providing Roche with fraudulent information relating to Northwood’s
DME Strips sales, despite having already devised its diversion scheme with J&B and the
Olympus-Delta Defendants. Id. at ¶¶ 98-100. Roche also asserts that the Binson’s
Defendants falsely claimed that Binson’s management was unaware of the cash sales at

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Delta was originally registered under the name Invicta LLC. Am. Compl., ¶ 125.
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the Binson’s retail locations. Id. at ¶¶ 101-02. Roche contends that it relied on the
Binson’s Defendants’ false statements when it provided its DME Strips to Binson’s and
Northwood at discounted rates and by paying rebates for their DME Strips. Id. at ¶ 103.
Roche further alleges that Binson’s and Northwood breached the Amended Agreement
by selling Roche’s DME Strips to Olympus and Delta, as well as directly to individuals in
their retail stores. Id. at ¶¶ 134-37. Moreover, Roche contends that Fasse, Dickstein,
James E. Binson, James E. Binson II, Nicholas B. Binson, and Robert A. Binson (the
“Individual Binson’s Defendants”) “must have known” about the diversion scheme formed
between Binson’s, Northwood, J&B, and the Olympus-Delta Defendants in light of their
close involvement in Binson’s and Northwood’s business operations and the importance
of the scheme to their businesses. Id. at ¶ 116.
Roche further alleges that the J&B Defendants, the Olympus-Delta Defendants,
and Mankopf participated in the Binson’s Defendants’ fraudulent conduct, encouraged
Binson’s and Northwood to breach the Amended Agreement, and were unjustly enriched
by the diversion scheme with the Binson’s Defendants. Id. at ¶¶ 84, 88, 93-94, 117, 121.
In relation to Fawzi Shaya and Mary Shaya, Roche claims that these defendants
facilitated the conduct of the Olympus-Delta Defendants and Mankopf by providing them
with necessary financial resources and assistance. Id. at ¶¶ 120, 128-32.
As a result of these allegations, Roche asserts claims for fraud, aiding and abetting
fraud, criminal deception, unjust enrichment, and civil conspiracy against all defendants.
Id. at ¶¶ 151-78, 190-95, 204-07.

Roche also alleges fraudulent inducement and

negligent misrepresentation against the Binson’s Defendants and a claim of breach of
contract against Binson’s and Northwood. Id. at ¶¶ 142-50, 179-89. Furthermore, Roche

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asserts a claim of tortious interference with a contractual relationship against the J&B
Defendants, the Olympus-Delta Defendants, and Mankopf. Id. at ¶¶ 196-203.
On May 26, 2017, the Binson’s Defendants, J&B Defendants, Olympus-Delta
Defendants, and Mankopf each filed their respective motions to dismiss. Dkt. No. 57;
Dkt. No. 60; Dkt. No. 63; Dkt. No. 65. In their motion to dismiss, the Binson’s Defendants
assert that this Court lacks personal jurisdiction over the Individual Binson’s Defendants,
who are all citizens of Michigan. Dkt. No. 61 at 7-12. Similarly, Mankopf and the
Olympus-Delta Defendants also contend that they lack sufficient contacts with Indiana to
support this Court’s personal jurisdiction over them. Dkt. No. 66 at 7-9; Dkt. No. 57. The
Binson’s Defendants, the J&B Defendants, and Mankopf each also argue that Roche’s
claims sounding in fraud were not pled with sufficient particularity. Dkt. No. 61 at 16-26,
31-32; Dkt. No. 64 at 12-33; Dkt. No. 66 at 9-11. Moreover, the Binson’s Defendants and
Mankopf contend that Roche failed to plausibly plead its remaining claims against them.
Dkt. No. 61 at 26-30, 32-34; Dkt. No. 66 at 11-15.
On June 23, 2017, Roche filed its unified Response in Opposition to the
defendants’ motions to dismiss. Dkt. No. 83. In its Response in Opposition, Roche
argues that this Court has personal jurisdiction over all of the defendants because each
of the defendants subjected themselves to personal jurisdiction in Indiana by defrauding
and harming an Indiana company. Id. at 29-33. Roche further contends that this Court
has personal jurisdiction over the Individual Binson’s Defendants because this Court
undeniably has personal jurisdiction over Binson’s and Northwood. Id. at 27-29. Roche
also argues that its allegations sounding in fraud met the particularity standard set forth
in Federal Rule of Civil Procedure 9(b) (“Rule 9(b)”) because it pled all the necessary

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elements of its fraud claims. Id. at 3, 6-18. Additionally, even if more specific factual
allegations are necessary, Roche contends that it may be excused from this heightened
pleading standard if it does not have access to such facts. Id. Moreover, Roche asserts
that its claims for breach of contract, tortious interference with a contractual relationship,
unjust enrichment, civil conspiracy, and negligent misrepresentation are all plausible
based on the factual allegations in the Amended Compliant. Id. at 4-6, 18-26.
II. PERSONAL JURISDICTION
When considering a motion advanced under Rule 12(b), the Court examines the
sufficiency of the plaintiff’s complaint as opposed to the merits of the lawsuit, and directs
dismissal only if it appears to a certainty that the plaintiff can establish no basis for
asserting personal jurisdiction. Rule 12(b)(2) permits the dismissal of a claim for lack of
jurisdiction over a person or entity. In considering a Rule 12(b)(2) motion to dismiss, the
Court reviews any affidavits and other documentary evidence that have been filed, as
long as factual disputes are resolved in favor of the non-movant – in this case Roche.
See Gibson v. City of Chicago, 910 F.2d 1510, 1520-21 (7th Cir. 1990).
A federal district court exercising diversity jurisdiction over the subject matter of an
action has personal jurisdiction only if a court of the state in which it sits would have such
jurisdiction. See RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997).
As the Individual Binson’s Defendants, Olympus-Delta Defendants, and Mankopf have all
asserted a lack personal jurisdiction here, it then becomes Roche’s burden to
demonstrate the existence of jurisdiction.

See Purdue Research Found. v. Sanofi-

Synthelabo, S.A., 338 F.3d 773, 782-83 (7th Cir. 2003) (hereinafter, (“Purdue Research”).
Because no evidentiary hearing was held and the parties are solely relying on written

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materials, Roche need only make a prima facie showing of personal jurisdiction. Id. at
782.
A determination of personal jurisdiction involves two steps. First, the Court must
determine whether the state’s “long-arm” statute allows jurisdiction and, second, decide
whether the exercise of jurisdiction comports with due process. See NUCOR Corp. v.
Aceros Y Maquilas de Occidente, S.A., 28 F.3d 572, 580 (7th Cir. 1994). Indiana’s
jurisdiction statute is Indiana Trial Rule 4.4(A). Trial Rule 4.4(A) states as follows: “[A]
court of this state may exercise jurisdiction on any basis not inconsistent with the
Constitutions of this state or the United States.” Accordingly, this Court has personal
jurisdiction to the extent allowed by the Due Process Clause of the Fourteenth
Amendment.
The Due Process Clause requires that a non-resident defendant have “certain
minimum contacts with [the forum state] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’”

Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). Personal jurisdiction under Trial Rule 4.4(A) may be either general or specific.
See Alpha Tau Omega v. Pure Country, Inc., 185 F. Supp. 2d 951, 956 (S.D. Ind. 2002).
General jurisdiction makes a non-resident defendant amenable to suit within a particular
forum regardless of the subject matter of the suit, based on a defendant’s continuous and
systematic contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414-16 (1984).
In contrast, specific jurisdiction makes a non-resident defendant amenable only to
suits arising out of or related to its contacts with the particular forum. Id. at 414. Specific

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jurisdiction may be based on relatively modest contacts with the forum if they have a
substantial connection to the plaintiff’s action. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474-76 (1985). “[E]ach defendant’s contacts with the forum State must be
assessed individually.” Purdue Research, 338 F.3d at 784.
For specific jurisdiction, due process requires that a non-resident defendant must
have established his contacts with the forum state by purposefully availing himself of the
privilege of conducting business there. See Asahi Metal Indus. Co. v. Superior Ct. of Cal.,
480 U.S. 102, 112 (1987). “This ‘purposeful availment’ requirement ensures that a
defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or
‘attenuated’ contacts.” Burger King, 471 U.S. at 475 (quoting Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 774 (1984)). In other words, the defendant’s conduct and connection
with the forum state should be such that he should reasonably anticipate being haled into
court in that state. Id. at 474. To determine whether personal jurisdiction may be
exercised, the Court engages in a three step analysis: (1) identify the contacts the
defendant has with the forum; (2) analyze whether these contacts meet constitutional
minimums and whether jurisdiction on the basis of these minimum contacts sufficiently
comports with fairness and justice; and (3) determine whether the sufficient minimum
contacts, if any, arise out of or are related to the causes of action involved in the suit.
GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009).
The Olympus-Delta Defendants and Mankopf argue that they do not have sufficient
contacts with Indiana to support this Court having personal jurisdiction over them. Dkt.
No. 57 at 3-11; Dkt. No. 66 at 7-9. The Court agrees. None of these defendants are
citizens of Indiana. Olympus and Delta are Michigan limited liability companies with their

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principal places of business located in Michigan, and Alpha is a Wyoming limited liability
company with its principal place of business in Wyoming.
Christopher, Gladys, and Mankopf all reside in Michigan.

Am. Compl., ¶¶ 16-18.
Id. at ¶¶ 26, 29-30.

Furthermore, the Amended Complaint alleges that these defendants worked only with
Michigan corporations, Binson’s and Northwood, to create the diversion scheme for
Roche’s DME Strips. Id. at ¶¶ 84-94, 124-128. Therefore, none of these defendants are
alleged to have any direct contacts with Indiana.
Although Roche argues that the Olympus-Delta Defendants and Mankopf had
sufficient contacts with Indiana because they participated in a fraudulent scheme to harm
an Indiana company, Dkt. No. 83 at 29-33, “[t]he ‘mere fact that [a] defendant’s conduct
affected plaintiffs with connection to the forum State does not suffice to authorize
jurisdiction.’” Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751
F.3d 796, 802 (7th Cir. 2014) (quoting Walden v. Fiore, 134 S. Ct. 1115, 1126 (2014)).
Rather, “[t]he relation between the defendant and the forum must arise out of contacts
that the defendant himself creates with the forum State.” Id. at 1118 (internal citations
omitted) (emphasis in original).
While Roche cites Commissioning Agents, Inc. v. Long, 143 F. Supp. 3d 775 (S.D.
Ind. 2015), to argue that this Court has personal jurisdiction over the Olympus-Delta
Defendants and Mankopf based on the harm they allegedly caused Roche as an Indiana
company, this case does not support such a conclusion here. The court in Long stated
that whether an out-of-state defendant accused of tortious conduct is subject to a court’s
personal jurisdiction largely depends on “the type of claim alleged and the extent of the
defendants’ activities in furtherance of the wrongful actions.” Id. at 792. Although the

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Long court determined that cases involving fraud-based claims more often determined
that the court has personal jurisdiction over an out-of-state defendant, the court also
stated that “where the defendants’ forum state contacts, made in relation to the tortious
actions, were minimal, courts did not find personal jurisdiction.” Id. Instead, a finding of
personal jurisdiction is more likely to be proper where the defendant frequently and
aggressively pursued their wrongful actions with the intent of directing those actions at
the forum state. See id. Because the defendant in Long was allegedly involved in fraudbased claims and participated in conduct that the court found “to be particularly
aggressive” in light of his employment with the plaintiff company, the court concluded that
it had personal jurisdiction over the defendant. Id.
Here, the Olympus-Delta Defendants and Mankopf were not alleged to have
participated in similarly aggressive conduct to harm Roche in Indiana. Roche alleged
only that the Olympus-Delta Defendants and Mankopf worked directly with the Binson’s
Defendants, all of which are Michigan entities, to create a scheme to divert the sales of
Roche’s DME Strips. Amended Complaint, ¶¶ 14-30, 84-94, 106-109, 117-126. Roche
did not allege that it had any direct contact with the Olympus-Delta Defendants or
Mankopf and did not allege that any of these defendants had any other contacts with
Indiana beyond the harm they ostensibly caused Roche. Therefore, in light of these
minimal contacts with Indiana, this Court lacks personal jurisdiction over the OlympusDelta Defendants and Mankopf. 2

2

The J&B Defendants have not sought to dismiss Roche’s Amended Complaint pursuant
to Rule 12(b)(2) for lack of personal jurisdiction.
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Furthermore, Roche has similarly not alleged sufficient contacts to support
personal jurisdiction in this Court for the Individual Binson’s Defendants. “[P]ersonal
jurisdiction cannot be premised on corporate affiliation or stock ownership alone where
corporate formalities are substantially observed.”

Cent. States, Se. and Sw. Areas

Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 943 (7th Cir. 2000).
Moreover, “the primary purpose of the corporate form is to prevent a company’s owners
… from being liable for the activities of the company. Where corporate formalities have
been observed, a company’s owners reasonably expect that they cannot be held liable
for the faults of the company” and would “not reasonably anticipate being hailed into a
foreign forum to defend against liability for the errors of the corporation.” Id. at 944.
Therefore, the Individual Binson’s Defendants would need to have sufficient contacts with
Indiana in their personal capacities for this Court to have personal jurisdiction over them.
Although Roche claims that this Court has personal jurisdiction over the Individual
Binson’s Defendants because they entered into a contractual agreement with Roche, Dkt.
No. 83 at 27, only Binson’s and Northwood, not the Individual Binson’s Defendants
personally, contracted with Roche. Am. Compl., ¶¶ 51, 57. Roche’s only allegations
regarding James E. Binson, James E. Binson II, Nicholas B. Binson, or Robert A. Binson,
assert that these defendants own and run Binson’s and Northwood, and that they,
therefore, “must have known” about Northwood’s diversion of Roche’s DME Strips. Id. at
¶¶ 113, 116. Additionally, Roche identifies Fasse and Dickstein, its main contacts with
Binson’s and Northwood, as the individuals that directly deceived it while negotiating the
Amended Agreement, and as the individuals that participated in the development and
execution of the scheme to divert the sales of Roche’s DME Strips. Id. at ¶¶ 58-61, 65-

16

67, 74-82, 84, 88, 90, 111-12. However, all of these allegations involving Fasse and
Dickstein appear to relate to their actions on behalf of Binson’s and Northwood in their
official capacities; Roche fails to make any allegations that clearly allege any wrongful
conduct by Fasse or Dickstein in their personal capacities. As such, Roche has not made
a prima facie showing that this Court has personal jurisdiction over any of the Individual
Binson’s Defendants. See Purdue Research, 338 F.3d at 782.
III. FAILURE TO PROPERLY STATE A CLAIM
Even if this Court were to have personal jurisdiction over all of the defendants in
this action, many of the defendants also assert that Roche failed to sufficiently plead its
claims against them.

Specifically, the Binson’s Defendants, J&B Defendants, and

Mankopf each contend that Roche failed to plead their claims sounding in fraud with
sufficient particularity. Dkt. No. 61 at 16-26, 31-32; Dkt. No. 64 at 12-33; Dkt. No. 66 at
9-11. The Binson’s Defendants and Mankopf further argue that Roche did not sufficiently
plead its remaining claims to make them plausible. Dkt. No. 61 at 26-30, 32-34; Dkt. No.
66 at 11-15.
Under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all
well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.
See Esekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). Documents central to the
complaint and referred to in it, as well as information that is properly the subject of judicial
notice may also be considered. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.
2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (further
citation omitted)).

17

Under the Supreme Court’s directive in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), to survive a defendant’s motion to dismiss for failure to state a claim upon
which relief may be granted, a plaintiff must provide the grounds for its entitlement to relief
with more than mere labels, conclusions, or a formulaic recitation of the elements of a
cause of action. Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The
“allegations must be enough to raise a right to relief above the speculative level.”

Id.

The touchstone is whether the complaint gives the defendant “fair notice of what the …
claim is and the grounds upon which it rests.” Id. (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Legal conclusions or conclusory allegations are insufficient to state a claim
for relief. McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011).
In accordance with Rule 9(b), a party alleging fraud or mistake “must state with
particularity the circumstances constituting fraud or mistake.” To meet the particularity
standard, a party claiming fraud “must do more pre-complaint investigation to assure that
the claim is responsible and supported,” and “must provide ‘the who, what, when, where,
and how’” of the allegedly fraudulent activity. Borsellino v. Goldman Sachs Grp., Inc.,
477 F.3d 502, 507 (7th Cir. 2007) (citing U.S. ex rel. Gross v. AIDS Research AllianceChi., 415 F.3d 601, 605 (7th Cir. 2005)). Stated otherwise, a party alleging fraud must
“identify the person making the misrepresentation, the time, place, and content of the
misrepresentation, and the method by which the misrepresentation was communicated.”
Wine & Canvas Dev., LLC v. Weisser, 886 F. Supp. 2d 903, 944 (S.D. Ind. 2012) (internal
quotations omitted).

18

A. PARTICULARITY PLEADING FOR CLAIMS SOUNDING IN FRAUD
As required by Rule 9(b), claims “sounding in fraud” must be plead with
particularity. Fed. R. Civ. P. 9(b); see also, Borsellino, 477 F.3d at 507. In other words,
any claim “that is premised upon a course of fraudulent conduct … can implicate Rule
9(b)’s heightened pleading requirements.”

Borsellino, 477 F.3d at 507.

Therefore,

Roche’s claims for fraud, fraudulent inducement, and aiding and abetting fraud, which
indisputably sound in fraud, must be plead with particularity. Furthermore, because
Roche’s claims for criminal deception, civil conspiracy, and unjust enrichment are based
upon the defendants’ allegedly fraudulent conduct, these claims must also meet the
heightened particularity standard set forth in Rule 9(b). See id. (applying Rule 9(b) to a
claim for civil conspiracy based on fraud); see also, Pirelli Armstrong Tire Corp. Retiree
Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011) (dismissing an unjust
enrichment claim that “was hitched to [a] fraud claim” ); ABN Amro Mortg. Grp., Inc. v.
Maximum Mortg. Inc., 429 F. Supp. 2d 1031, 1042 (N.D. Ind. 2006) (determining that
claims under Indiana’s deception statute, including Ind. Code §§ 34-24-3-1 and 35-43-53, “are subject to the particularity requirements of Rule 9(b)” because such claims “are,
on their face, anti-fraud statutes”); Cincinnati Life Ins. v. Grottenhuis, No. 2:10-cv-00205LJM-WGH, 2011 WL 1107114, at *8 (S.D. Ind. Mar. 23, 2011) (applying Rule 9(b) to
claims for fraud, unjust enrichment, and civil conspiracy).
Roche fails to plead any of these claims with sufficient particularity. Roche’s
allegations of fraudulent conduct in the Amended Complaint consistently group multiple
defendants together by saying that either all of the defendants or a subgroup of
defendants made false statements to Roche or caused such false statements to be made.

19

Am. Compl., ¶¶ 58-61, 66-67, 98, 106-09, 143-48, 152-57, 162-63, 168-75, 191, 205-06.
However, “[i]t is not sufficient to ‘lump together’ all the [d]efendants; instead the
[Amended] Complaint must ‘specify who was involved in what activity.’” ABN, 429 F.
Supp. 2d at 1037 (quoting Vicom, Inc. v. Harbridge Merchant Serv., Inc., 20 F.3d 771,
778 (7th Cir. 1994)). As such, Roche failed to sufficiently state who made each allegedly
fraudulent misrepresentation.

Moreover, many of Roche’s allegations also failed to

identify the time, place, content, or method of communication used for the defendants’
allegedly fraudulent misrepresentations. Am. Compl., ¶¶ 58, 60, 65-66, 75, 99-100, 10609. See also, Weisser, 886 F. Supp. 2d at 944.
While Rule 9(b)’s requirements may be relaxed if the plaintiff lacks access to all of
the facts necessary to properly plead with particularity, the plaintiff must still demonstrate
that “(1) the facts constituting the fraud are not accessible to the plaintiff and (2) the
plaintiff provides ‘the grounds for his suspicions.’” Pirelli, 631 F.3d at 442-43 (quoting
Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 924 (7th Cir. 1992); Bankers Tr. Co. v.
Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992)). Furthermore, “[t]he grounds
for the plaintiff’s suspicions must make the allegations plausible.” Pirelli, 631 F.3d at 443
(emphasis in original). Because Roche has not provided any reasons why it did not have
access to facts constituting fraud or any grounds supporting their suspicions of fraudulent
conduct, it is not excused from meeting the heightened particularity standard of Rule 9(b).
Therefore, the Court DISMISSES Roche’s claims for fraudulent inducement, fraud, aiding

20

and abetting fraud, criminal deception, unjust enrichment 3, and civil conspiracy without
prejudice. 4
B. PLAUSIBILTY PLEADING FOR NON-FRAUD CLAIMS
While Roche must plead with particularity its claims sounding in fraud, Roche’s
remaining claims for breach of contract against Binson’s and Northwood; negligent
misrepresentation against the Binson’s Defendants; and tortious interference with a
contractual relationship against the J&B Defendants, Olympus-Delta Defendants, and
Mankopf must only meet the general plausibility standard set forth in Rule 8.
“Under Indiana law, the elements of a breach of contract actions are [1] the
existence of a contract, [2] the defendant’s breach thereof, and [3] damages.” Bible v.
United Student Aid Funds, Inc., 799 F.3d 633, 644 (7th Cir. 2015) (internal quotations
omitted). Although the Binson’s Defendants contend that Roche failed to allege any
damages resulting from Binson’s and Northwood’s purported breach of contract, Dkt. No.
61 at 29-30, the Court disagrees. Roche alleged that Binson’s and Northwood breached
their contract by selling Roche’s DME Strips to the Olympus-Delta Defendants, which
later led to their DME Strips being sold at retail pharmacies through the defendants’
diversion scheme. Am. Compl., ¶¶ 134-37. Roche further claimed that if its DME Strips,

3

Even if Roche’s claim for unjust enrichment was not subject to the particularity standard
set forth in Rule 9(b), this claim would still be subject to dismissal as to Binson’s and
Northwood because Roche did not plead its unjust enrichment claim in the alternative to
the existence of a valid contract. See CoMentis, Inc. v. Purdue Research Found., 765 F.
Supp.2d 1092, 1102 (N.D. Ind. 2011) (“where an express contract governs the parties’
behavior, a claim for unjust enrichment is not cognizable”).
4 Because the Court dismisses Roche’s claims sounding in fraud without prejudice and
allows Roche the opportunity to amend their Amended Complaint, the Binson’s
Defendants’ pending Motion for Sanctions under Rule 11 is DENIED as premature. Dkt.
No. 58.
21

which were sold to Northwood at a discounted price, had not been available at retail
pharmacies as a result of the diversion scheme, patients purchasing these DME Strips
would have otherwise purchased Roche’s Retail Strips, entitling Roche to substantially
higher profits. Id. at ¶¶ 138-41. Based on these allegations, Roche sufficiently alleged
that it suffered significant financial harm as a result of Binson’s and Northwood’s breach
of contract. Therefore, the Court cannot dismiss Roche’s breach of contract claim against
Binson’s and Northwood.
Roche further asserts a claim for negligent misrepresentation against the Binson’s
Defedants. Id. at ¶¶ 179-86. Indiana law recognizes “liability for the tort of negligent
misrepresentation, where there is a direct relationship between the plaintiff and
defendant.” Passmore v. Multi-Management Serv., Inc., 810 N.E.2d 1022, 1025 (Ind.
2004) (citing Darst v. Ill. Farmers Ins. Co., 716 N.E.2d 579 (Ind. Ct. App. 1999); Eby v.
York-Division, Borg Warner, 455 N.E.2d 623 (Ind. Ct. App. 1983)). A defendant may be
held liable for negligent misrepresentation in Indiana if the following four elements are
met:
(1) the defendant, in the course of his business, profession, or employment,
or in any other transaction in which he has a pecuniary interest, supplies
false information for the guidance of others in their business transactions;
(2) the defendant fails to exercise reasonable care or competence in
obtaining or communicating the information; (3) the plaintiff justifiably relies
upon the information supplied by the defendant; and (4) the plaintiff suffers
pecuniary loss as a result.
Harrison Mfg., LLC v. Bienias, No. 4:11-cv-00065-TWP-WGH, 2013 WL 6486668, at *6
(S.D. Ind. Dec. 10, 2013) (citing U.S. Bank, N.A. v. Integrity Land Title Corp., 929 N.E.2d
742, 747 (Ind. 2010); Restatement (Second) of Torts § 552). No intent to deceive is

22

necessary to establish a claim for negligent misrepresentation. See Bienias, 2013 WL
6486668 at *6.
Although the Binson’s Defendants argue that a valid claim for negligent
misrepresentation can only exist in the narrow context of an employer-employee
relationship, Dkt. No. 61 at 26-27, the Indiana Supreme Court has determined that the
tort of negligent misrepresentation can apply in a broader context. See U.S. Bank, 929
N.E.2d at 747. “A professional may owe a duty to a third party with whom the professional
has no contractual relationship, but the professional must have actual knowledge that
such third persons will rely on his professional opinion.” Id. Furthermore, the Indiana
Court of Appeals indicated that the tort of negligent misrepresentation may apply to
“professionals” including, but not limited to, brokers, attorneys, abstractors, and
surveyors. See Jeffrey v. Methodist Hosp., 956 N.E.2d 151, 156, n.7 (Ind. Ct. App. 2011);
see also, Bienias, 2013 WL 6486668 at *5. Therefore, because the tort of negligent
misrepresentation does not apply only in the limited context of an employer-employee
relationship, and because Roche has sufficiently plead the elements for negligent
misrepresentation in the Amended Complaint, the Court DENIES the Binson’s
Defendants’ motion to dismiss Roche’s negligent misrepresentation claim pursuant to
Rule 12(b)(6). 5
In addition to its claims for breach of contract and negligent misrepresentation,
Roche also brought a claim for tortious interference with a contractual relationship against

5

Although Roche’s claim for negligent misrepresentation was sufficiently pled under Rule
8, this claim is still dismissed as to the Individual Binson’s Defendants, pursuant to Rule
12(b)(2), because this Court lacks personal jurisdiction over these defendants. See supra
Part II.
23

the J&B Defendants, the Olympus-Delta Defendants, and Mankopf. Am. Compl., ¶¶ 196203. To properly bring a claim for tortious interference with a contractual relationship, a
plaintiff must allege “(1) the existence of a valid and enforceable contract; (2) the
defendants’ knowledge of the existence of the contract; (3) the defendants’ intentional
inducement of breach of the contract; (4) the absence of justification; and (5) resultant
damages.” Sheets v. Birkey, 54 N.E.3d 1064, 1072 (Ind. Ct. App. 2016). See also,
Craftsman Chemical Corp. v. IVC Indust. Coatings, Inc., No. 2:15-cv-00425-LJM-MJD,
2017 WL 365815, at *6 (S.D. Ind. Jan. 25, 2017). In the Amended Complaint, Roche
clearly alleges that it had a valid contract with Binson’s and Northwood, in which it agreed
to sell Binson’s and Northwood its DME Strips so that they could distribute the DME Strips
to DME insurance plan beneficiaries. Am. Compl., ¶¶ 51-55, 197. Roche also claims that
the J&B Defendants, the Olympus-Delta Defendants, and Mankopf knew about Roche’s
agreements with Binson’s and Northwood and that they sought to interfere with the
agreements by devising the diversion scheme and by urging Binson’s and Northwood to
amend the Agreement and sell Roche’s DME Strips through Olympus, Delta, and Alpha.
Id. at ¶¶ 84, 87-91, 94, 198-99, 201. Roche further asserts that the J&B Defendants, the
Olympus-Delta Defendants, and Mankopf acted without justification and that it suffered
$89 million in damages as a result of their interference. Id. at ¶¶ 202-03. Therefore, in
light of these allegations within the Amended Complaint, Roche’s claim for tortious
interference with a contractual relationship was sufficiently plead under Rule 8. 6

6

Even though Roche’s claim for tortious interference with a contractual relationship meets
the pleading standard in Rule 8, this claim is still dismissed as to the Olympus-Delta
Defendants and Mankopf, pursuant to Rule 12(b)(2), because this Court lacks personal
jurisdiction over these defendants. See supra Part II.
24

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part the
Motions to Dismiss filed by Defendants Binson’s Hospital Supplies, Inc., Northwood, Inc.,
Kenneth G. Fasse, Donnie E. Dickstein, James E. Binson, James E. Binson II, and Robert
A. Binson and Defendants J&B Medical Supply Co., Fawzi B. Shaya, and Mary E. Shaya,
without prejudice. Dkt. No. 60; Dkt. No. 62. The Court GRANTS Defendant Jeremiah
Mankopf’s Motion to Dismiss, Dkt. No. 63, and GRANTS Defendants’, Olympus Global,
LLC, Delta Global, LLC, Alpha XE LLC, Christopher F. Shaya, and Daniel Gladys, Motion
to Dismiss, without prejudice. Dkt. No. 56. Furthermore, the Court DENIES the Motion
for Sanctions under Rule 11 filed by Defendants, Binson’s Hospital Supplies, Inc.,
Northwood, Inc., Kenneth G. Fasse, Donnie E. Dickstein, James E. Binson, James E.
Binson II, and Robert A. Binson, as premature. Dkt. No. 58. The Court GRANTS Roche
leave to amend its Amended Complaint within 21 days days from the date of this Order.
Additionally, the Court sua sponte DISMISSES this action as to Pharmacy John
Does 1-50 for failure to state a claim upon which relief may be granted. See Wudtke v.
Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (“it is pointless to include lists of anonymous
defendants in federal court; this type of placeholder does not open the door to relation
back under Fed.R.Civ.P 15, nor can it otherwise help the plaintiff”) (internal citations
omitted). If through discovery, the plaintiffs are able to learn the name of the unknown
defendants, they may seek leave to add a claim against those individuals.
IT IS SO ORDERED this 18th day of September, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution attached.
25

Distribution:
David O. Tittle
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

Aron R Fischer
PATTERSON BELKNAP WEBB & TYLER
LLP
[e-mail]

Jessica Whelan
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

Joseph R. Richie
PATTERSON BELKNAP WEBB & TYLER
LLP
[e-mail]

Andrew W. Hull
HOOVER HULL TURNER LLP
[e-mail]

Geoffrey Potter
PATTERSON BELKNAP WEBB &TYLER LLP
[e-mail]

Jason L. Fulk
HOOVER HULL TURNER LLP
[e-mail]

Tracy Nicole Betz
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Wayne C. Turner
HOOVER HULL TURNER LLP
[e-mail]

Danila V. Artaev
THE MIKE COX LAW FIRM
[e-mail]

Jennifer Van Dame
KIGHTLINGER & GRAY LLP
[e-mail]

Donna A. Heiser
THE MIKE COX LAW FIRM
[e-mail]

Robert M. Kelso
KIGHTLINGER & GRAY LLP
[e-mail]

Michael Anthony Cox
THE MIKE COX LAW FIRM, PLLC
[e-mail]

Carina M. Kraatz
KITCH DRUTCHAS WAGNER VALITUTTI &
SHERBROOK
[e-mail]

Ernest J. Essad
WILLIAMS, WILLIAMS, RATTNER &
PLUNKETT, PC
[e-mail]

John M. Sier
KITCH DRUTCHAS WAGNER VALITUTTI &
SHERBROOK
[e-mail]

Mark R. James
WILLIAMS, WILLIAMS, RATTNER &
PLUNKETT, PC
[e-mail]

26