Alternative Medicine and Pharmacy, Inc. v. Express Scripts, Inc. et al

Filing 84

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to dismiss #80 is denied. Signed by District Judge Catherine D. Perry on 07/06/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALTERNATIVE MEDICINE
AND PHARMACY, INC., d/b/a
OMNIPLUS PHARMACY,
Plaintiff,
vs.
EXPRESS SCRIPTS, INC., and
MEDCO HEALTH SERVICES, INC.,
Defendants.

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Case No. 4:14 CV 1469 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s motion to dismiss defendants’
counterclaim for failure to state a claim. In my October 7, 2014, Memorandum and
Order [59] denying preliminary injunctive relief, I set out the relevant background
facts underlying this dispute and will not do so again. In brief, however, OmniPlus
is a community and compounding pharmacy with a mail order business. Express
Scripts and Medco (“Express Scripts”) are pharmacy benefits managers.
OmniPlus had a contract with Express Scripts to provide pharmacy services to
members of health plans managed by Express Scripts (“Provider Agreement”).
The parties’ relationship is also governed by a Provider Manual. In this action,
OmniPlus alleges that its termination as a member in Express Scripts’ pharmacy
network breached the Provider Agreement and violated Texas law. Express

Scripts has now filed a one-count breach of contract counterclaim against
OmniPlus, asserting that OmniPlus’s alleged failure to collect copayments amounts
to a breach of the Provider Agreement and Provider Manual. OmniPlus moves to
dismiss the counterclaim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim.
To survive a motion to dismiss under Rule 12(b)(6), the factual allegations
in the complaint must “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)); Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th
Cir. 2009). A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
556); Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011). The
plausibility standard is not akin to a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550
U.S. at 570). When considering a motion to dismiss under Rule 12(b)(6), the court
must accept as true all of the factual allegations contained in the complaint and all
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reasonable inferences from the complaint must be drawn in favor of the
nonmoving party. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Young v. City
of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). The court reads the
complaint as a whole, not parsed piece by piece to determine whether each
allegation, in isolation, is plausible. Braden, 588 F.3d at 594.
Having reviewed the counterclaim in light of the relevant standards, the
motion to dismiss must be denied as Express Scripts has stated a breach of contract
claim against OmniPlus. Whether OmniPlus may have certain defenses to the
breach of contract claim or whether Express Scripts may ultimately recover on its
claim are not issues that are properly before me at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to dismiss [80] is
denied.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 6th day of July, 2015.

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