Precision Rx Compounding, LLC et al v Express Scripts Holding Company et al

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Precision Plaintiffs Motion to Join Cases For Pretrial Purposes is DENIED. Signed by District Judge John A. Ross on 3/16/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HM COMPOUNDING SERVICES, LLC
and HMX SERVICES, LLC,

)
)
)
Plaintiffs,
)
)
v.
) No. 4:14-CV-1858-JAR
)
EXPRESS SCRIPTS, INC.,
)
)
Defendant.
)
__________________________________________________________________________
PRECISION RX COMPOUNDING, LLC,
et al.,
Plaintiffs,
v.
EXPRESS SCRIPTS HOLDING CO., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:16-CV-0069-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Precision Rx Compounding, LLC, C&M
Health Pro, LLC, Northern VA Compounders, PLLC, TOTH Enterprises II, P.A., The Daily
Dose, LP, and CPRx Pharmacy, LP (“Precision Plaintiffs”)’s Motion to Join Cases For Pretrial
Purposes.1 (Doc. No. 241) Precision Plaintiffs contend that the above-captioned matter,
Precision Rx Compounding, et al. v. Express Scripts Holding Company and Express Scripts,
Inc., Case No. 4:16-cv-0069-CEJ (the “Precision Case”), pending before the Honorable Carol E.
Jackson, involves common questions of law and fact with the earlier filed action, HM
Compounding Services, LLC v. Express Scripts, Inc., Case No. 4:14-cv-01858-JAR (the “HM
1

While titled “Motion to Join Cases,” the Court construes Precision Plaintiffs’ motion as one for
consolidation under Fed. R. Civ. P. 42(a).

Compounding Case”), pending in this Court. (Doc. No. 242 at 1-2) Precision Plaintiffs seek to
consolidate the Precision Case with the HM Compounding Case for pretrial coordination
purposes. Express Scripts opposes the motion, arguing that the cases involve different parties and
different claims and are at substantially different procedural stages. (Doc. No. 251 at 2) No reply
has been filed and the time to do so has passed. For the following reasons, the motion will be
denied.
Legal standard
Federal Rule of Civil Procedure 42(a) provides that this Court may consolidate separate
actions when those “actions involv[e] a common question of law or fact.” Fed. R. Civ. P. 42(a).
The Court has broad discretion in ruling on a motion to consolidate. Environmental Protection
Agency v. City of Green Forest, Arkansas, 921 F.2d 1394, 1402 (8th Cir. 1990). The party
moving for consolidation bears the burden “to establish that consolidation would promote trial
convenience and economy in administration.” S.E.C. v. Gerhardt, 2007 WL 3144990, at *3 (E.D.
Mo. Oct. 24, 2007) (quoting Criswell v. City of O'Fallon, MO, 2007 WL 2669114 at *1 (E.D.
Mo. Sept. 6, 2007)). The fact that a common question of law or fact exists does not alone justify
consolidation in the absence of other factors which would promote trial convenience and
economy in administration. See Equal Employment Opportunity Commission v. HBE Corp., 135
F.3d 543, 551 (8th Cir. 1998) (“Consolidation is inappropriate … if it leads to inefficiency,
inconvenience, or unfair prejudice to a party.”).
Discussion
In support of its motion, Precision Plaintiffs contend that both the Precision Case and the
HM Compounding Case focus on the same or similar alleged anticompetitive actions by
Defendant Express Scripts and other pharmacy benefit managers to boycott and eliminate

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compounding pharmacies from the prescription drug market. Both cases involve compounded
medications and pharmaceuticals covered by health plans and seek redress for the same or
similar injuries to competition and to the Plaintiffs. (Doc. No. 242 at 3-4)
Express Scripts responds that consolidation would undermine rather than promote
judicial efficiency because the cases involve different parties and claims and are at different
procedural stages. (Doc. No. 251 at 4-5) The HM Compounding Case asserts six claims,
including breach of contract, alleged violations of state statutes, and tort claims, as well as
antitrust claims. The Case has been pending in this District since November 4, 2014. Express
Scripts filed a motion for partial summary judgment on August 18, 2015. (Doc. No. 192) The
Court stayed briefing on Express Scripts’ motion and granted the parties 90 days to conduct
phased discovery on the issues raised in the motion. (Doc. No. 208) The Court stayed discovery
and all pending deadlines in the case from November 18, 2015 to December 8, 2015 while new
counsel entered on behalf of Plaintiffs. (Doc. Nos. 215, 224) Thereafter the Court extended the
initial discovery deadline until February 26, 2016 and the stay on briefing on Express Scripts’
pending motion until March 28, 2016. (Doc. No. 227) According to Express Scripts, substantial
discovery has occurred, including the production of tens of thousands of documents and seven
depositions. Initial phased discovery is now closed. Express Scripts’ dispositive motion is the
current focus of the HM Compounding Case. By contrast, the Precision Case was only recently
filed on January 15, 2016. A Rule 16 Conference has not been set and no scheduling order has
been issued. An amended complaint2 was filed on March 7, 2016 and the time for Express
Scripts to file an answer or otherwise respond has not passed.

2

Express Scripts acknowledges that some of the antitrust allegations asserted in the Precision Case are
identical to those in the HM Compounding Case, but took issue with the fact that the Precision Plaintiffs
had not alleged any state statute, contract, or tort claims at issue in the HM Compounding Case. (Doc. No.

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There is substantial case authority for the proposition that consolidation may properly be
denied in instances where the cases are at completely different stages of pretrial litigation. See
Northstar Marine, Inc. v. Huffman, No. CIV.A. 13-0037-WS-C, 2014 WL 4167019, at *3 n.5
(S.D. Ala. Aug. 21, 2014) (citing cases). The HM Compounding Case has been pending since
November 4, 2014 and substantial discovery has already occurred. Express Script’s motion for
partial summary judgment will be fully briefed and ready for disposition on March 28, 2016.
Consolidating the Precision Case with the HM Compounding Case would necessarily slow down
the HM Compounding Case, while the Precision Plaintiffs “catch up” in the consolidated
litigation. The result would either prejudice Express Scripts or would be confusing and would
not enhance efficiency. PB & J Software, LLC v. Acronis, Inc., No. 4:12-CV-690 SNLJ, 2012
WL 4815132, at *2 (E.D. Mo. Oct. 10, 2012). Because Precision Plaintiffs have failed to
demonstrate that consolidation is appropriate, their motion will be denied.
Accordingly,
IT IS HEREBY ORDERED that the Precision Plaintiffs’ Motion to Join Cases For
Pretrial Purposes [241] is DENIED.

Dated this 16th day of March, 2016.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

251 at 2) In their amended complaint, Precision Plaintiffs have now added claims for violation of state
statutes as well as tort claims under Virginia, Texas, Florida and Missouri law.

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