HHCS Pharmacy, Inc. v. Express Scripts, Inc.

Filing 116

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motions of Defendant for summary judgment on Counts I and II [ECF No. 78 ] and for summary judgment on Counts III, V, and VII [ECF No. 97 ] are each GRANTED. IT IS FURTHER ORDERED that the motion of Defendant to exclude expert testimony [ECF No. 95 ] is DENIED as moot. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on December 15, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HHCS PHARMACY, INC., d/b/a
Freedom Pharmacy,
Plaintiff,
v.

EXPRESS SCRIPTS, INC.,
Defendant.

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Case No. 4:16-CV-1169 RLW

MEMORANDUM AND ORDER

This diversity case is before the Court on the motions of Express Scripts, Inc.
(Defendant) (1) for summary judgment on Counts I and II of the First Amended Complaint
(F AC) of HHCS Pharmacy, Inc., doing business as Freedom Pharmacy (Plaintiff); (2) to exclude
the expert testimony of Jed Grennan on the question of Plaintiffs damages; and (3) for summary
judgment on Counts III, V, and VII of the FAC. [ECF Nos. 78, 95, 97] Plaintiff opposes each
motion. 1
Background

Defendant is a pharmacy benefits manager.

(FAC

~8,

ECF No. 47.)

In this role,

Defendant contracts with insurance carriers, health plan administrators, and other third-party
payors "to facilitate delivery of prescription drugs to health plan members or other
beneficiaries." (Blaies Deel.

~6,

ECF No. 25.) This facilitation is effectuated, in part, by the

creation of networks established with various pharmacies that agree to fill prescriptions for the
members. (Id
1

~7.)

Plaintiff was one such pharmacy. (FAC Ex. 1, ECF No. 47 Ex. 1.)

Counts IV and VI of the FAC were earlier dismissed by the Honorable Carol E. Jackson, now
retired United States District Judge for the Eastern District of Missouri. (See Order of Dec. 16,
2016, ECF No. 57.)

In May 2014, Defendant entered into a Pharmacy Provider Agreement (the "Agreement")
with Plaintiff. (Id) This Agreement defined "Pharmacy" as one which met its definition of
"Retail Provider":

"[A] pharmacy that primarily fills and sells prescriptions via a retail,

storefront location ... " (Id at 1, 2.) A '"Retail Provider' [did] not include mail order ... " (Id at
2.) Also,
Provider shall, and shall cause its personnel to, be bound by and comply with the
provisions of this Agreement and all applicable laws, rules and regulations,
including ... applicable state boards of pharmacy's, other applicable governmental
bodies' laws, rules and regulations, and all required federal, state and local
licenses, certificates and permits that are necessary to allow the Provider, the
Pharmacy, and pharmacist (as applicable) to dispense Covered Medications to
Members ...
(Id at 4.) If the Provider "cease[d] to be licensed by the appropriate licensing authority" or if

Defendant "determine[d] that the Provider was dispensing Covered Medications in violation of
any applicable law, rule and/or regulation," the Agreement could be immediately terminated by
Defendant. (Id at 6.) Defendant's Provider Manual (the "Manual") is incorporated into the
Agreement and also requires the Provider to "maintain valid non-resident licenses in all states to
which it mails/ships/delivers Covered Medications." (Def.'s Stat. of Unconverted Material Facts
("SUMF'')

~~

4, 7; ECF No. 101.) If a Provider violates any terms of the Agreement, including

the Manual, the Provider is deemed noncompliant and is subject to further action, including
termination, at Defendant's sole discretion. (Manual at 34; ECF No. 25, Ex. 3.)
The Agreement authorized Defendant to audit a Provider and allowed for the Provider to
appeal any results. (FAC Ex. 1 at 4-15.) This audit could include reviewing documentation
verifying

that

the

Provider

licenses/permits/registrations

has

required

pharmacy
by

states

and
m

pharmacist
which

licenses,

legend

"including

prescriptions

are

shipped/mailed." (Manual at 34.) The initial audit report and a deadline for appeal of such are

2

given the Provider. (Lown Dep. at 11, ECF No. 100-9 at 4.) After review by the post-audit
team, a final report and deadline for grieving the report is given the Provider. (Id at 11-12.)
Any discrepancies identified are reviewed and any appropriate adjustments are then made. (Id
at 12.)
In November 2015, Jorge Miranda, an auditor for Defendant, conducted an audit of
Plaintiff. (Miranda Dep. at 28, 36, ECF No. 110-2.) "During an audit, [Defendant] typically
reviews a subset of prescription claims that the pharmacy submitted to [Defendant]." (Blaies
Deel.

~

19, ECF No. 25.) Of the claims selected for the audit of Plaintiff, Miranda checked

beforehand to determine whether Plaintiff had the appropriate active non-resident state licenses.
(Miranda Dep. at 48.) It did not. (Id) Specifically, Plaintiff did not have non-resident licenses
for Minnesota, North Carolina, New Jersey, Ohio, South Dakota, and Texas, but "mailed,
shipped, and/or delivered one or more prescriptions" to these six states. (SUMF ~~ 10-21.) Each
of these states require by regulation or statute that pharmacies shipping or mailing prescriptions
into that state have a permit or license to do so. (See Def.'s Mem. at 7, n.5; ECF No. 79 (listing
relevant provision for the six states)).
By letter dated December 3, 2015, Defendant forwarded to Plaintiff the results of the
audit. (Blaies Deel. Ex. 4; ECF No. 27-5.) The dates of the eighty-one prescriptions cited in the
Discrepancy Evaluation Report ranged from October 27, 2014 to October 9, 2015. (Id at 4-13.)
The discrepancy at issue for seventy-seven was "Unauthorized Mail [UM]"; for three was
"Overbilled Q[uantity] [OB]"; and for one was both UM and OB. (Id) Plaintiff appealed these
findings. (Blaies

Deel.~

24.) One finding relating to an OB discrepancy reduced the amount at

issue from $68.86 to $54.14, but the findings were unchanged that Plaintiff had mailed seventyeight prescriptions to states for which it did not have a non-resident license. (Blaies Deel. Exs.

3

27-5 at 4-13, 27-6 at 4-13.) Subsequently, Plaintiff was notified that the chargeback amount was
reduced to $126,441.04.

(Blaise Deel. Ex. 27-6 at 2.) Plaintiff was also notified that the

"[t]inalization of th[e] audit [did] not preclude further action on behalf of [Defendant's] clients."
(Id)

Defendant took further action, informing Plaintiff by letter of June 13, 2016 that
Defendant was terminating its Agreement with Plaintiff and, effective July 18, 2016, would no
longer consider Plaintiff to be a member of Defendant's provider network. (Blaise Deel. Ex. 10
at 3.) This letter cited two reasons for the termination. (Id) First, Plaintiff had failed to
maintain its required status as a "Retail Provider" and was instead primarily conducting a mailorder business.

(Id)

Second, Plaintiff was "regularly mailing drugs to members in states

without the appropriate licensure." (Id.)
Plaintiff does not dispute that it was mailing drugs to states for which it had no active
non-resident license or that those states require such. Rather, Plaintiff argues it was in the
process of applying for the needed licenses and it should have been, but was not, given an
opportunity to correct the lack of licenses. Plaintiff further argues that the real reason for its
termination from the network was Defendant's desire to gain market share by diverting highprice pharmaceuticals to a mail-order enterprise, Accredo Health Group, Inc. ("Accredo"), 2 that
is a wholly-owned subsidiary of Defendant. (See Blaise Dep. at 10, ECF No. 100-4.)
Plaintiff seeks redress for Defendant's alleged (1) breach of the Agreement by
terminating Plaintiff from the network of participating pharmacies (Count I); (2) breach of the
implied duty of good faith and fair dealing (Count II); (3) unjust enrichment (Count III); and (4)
2

On its website, Accredo describes itself as having been organized in 1996, becoming a
publicly-traded company in 1999, and becoming a wholly-owned subsidiary of Defendant in
2012. See About Accredo, http://www.accredo.com/about-accredo (last visited on Dec. 13,
2017).
4

breach of contract by failing to pay Plaintiff monies owed (Count VII). Plaintiff also seeks a
declaratory judgment defining the parties' rights and responsibilities under the Agreement
(Count V).
Defendant seeks summary judgment on these five remaining counts.
Summary Judgment Standard

The Court may grant a motion for summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P.
56(c), the predecessor to Rule 56(a)). "The movant 'bears the initial responsibility of informing
the ... [C]ourt of the basis for its motion,' and must identify 'those portions of [the record] ...
which it believes demonstrate the absence of a genuine issue of material fact."' Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en bane) (quoting Celotex Corp., 477

U.S. at 323) (last two alterations in original). "If the movant does so, the nonmovant must
respond by submitting evidentiary materials that set out 'specific facts showing a genuine issue
for trial."' Id (Celotex Corp., 477 U.S. at 324). The existence of a factual dispute is not enough
alone to avoid entry of summary judgment; "rather, the dispute must be outcome determinative
under the applicable law." Hammer v. City of Osage Beach, Mo., 318 F.3d 832, 837 (8th Cir.
2003). "To establish a genuine issue of material fact, [the movant] 'may not merely point to
unsupported self-serving allegations, but must substantiate allegations with sufficient probative
evidence that would permit a finding in [the movant's favor]."' Fatemi v. White, 775 F.3d 1022,
1040 (8th Cir. 2015) (quoting Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005)).

5

Discussion
Count I: Breach of Contract.

Defendant contends that it is undisputed that Plaintiff

breached their Agreement by failing to obtain and maintain valid non-resident licenses in all
states to which it shipped prescriptions. (Def. Mot. at 1, ECF No. 78.) Plaintiff counters that it
did not breach the Agreement as it was modified by the parties' course of dealing and course of
performance. (Pl. Resp. at 1., ECF No. 110.)
"'Under Missouri law,

3

[a] breach of contract action includes the following essential

elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the contract by the defendant; and (4)
damages suffered by the plaintiff."' Chavis Van & Storage of Myrtle Beach, Inc. v. United Van

Lines, LLC, 784 F.3d 1183, 1188 (8th Cir. 2015) (quoting Smith Flooring, Inc. v. Pa.
Lumbermens Mut. Ins. Co., 713 F.3d 933, 941 (8th Cir. 2013)) (alteration in original) (footnote
added). "'If the contract is unambiguous, then the intent of the parties is to be gathered from the
contract alone, and any extrinsic or parol[] evidence as to the intent and meaning of the contract
must be excluded from the court's review."' Id (quoting Lafarge N Am., Inc. v. Discovery Grp

LLC, 574 F.3d 973, 979 (8th Cir. 2009)) (alteration in original).

"'[S]ummary judgment is

appropriate [in a contract case] where the language of the contract is clear and unambiguous such
that the meaning of the portion of the contract in issue is so apparent that it may be determined
from the four comers of the document."' Id. (quoting Deal v. Consumer Programs, Inc., 4 70
F.3d 1225, 1229 (8th Cir. 2006)) (second alteration in original). "'The burden of proof rests with
the party claiming breach of contract."' Id. at 1189 (quoting Scheck Indus. Corp. v. Tarlton

Corp., 435 S.W.3d 705, 723 (Mo.Ct.App. 2014)).
3

Tue Agreement provides that it is to "be construed and governed in all respects according to the
internal laws in the State of Missouri .... " (Agreement at 10.)
6

The Agreement, including the incorporated Provider Manual, required Plaintiff to
maintain non-resident licenses in states to which it shipped prescriptions. Plaintiff did not do so.
"'[I]f a party, by contract, is obligated to a performance that is possible to be performed, the
party must make good unless performance is rendered impossible by an Act of God, the law, or
the other party."' Rohr v. Reliance Bank, 826 F.3d 1046, 1053 (8th Cir. 2016) (quoting Farmers'

Elec. Co-op, Inc. v. Missouri Dep't of Corr., 977 S.W.2d 266, 271(Mo.1998) (en bane)).
Plaintiff argues, however, that the parties' course of dealing and performance modified
their Agreement. As noted by Plaintiff, Mo.Rev.Stat. § 400.2-202(a) 4 allows an agreement to be
explained or supplemented by a course of dealing or a course of performance. Plaintiff alleges
that the course of dealing or performance by Defendant was to give a Provider an opportunity to
respond to problems identified in an audit and also to initiate a corrective action plan to help the
offending Provider succeed; Plaintiff was offered neither and was also not offered any education.
(Pl. Resp. at 4-5, 7.) Section 4.2.b of the Agreement does provide for a party to be given notice
of a default of its performance of any obligations under the Agreement and to be given an
opportunity to cure such default. Plaintiff, however, was terminated under section 4.2.c of the
Agreement, which specifically delineates rights Defendant has to immediately terminate a
Provider "[n]otwithstanding the provisions contained in Section 4.2.b." (Agreement at 6, ECF
No. 7.)
Plaintiff also argues that Defendant breached their Agreement because the behavior for
which it was allegedly terminated existed before the Agreement and continued after the
Agreement was executed. This argument is unavailing. The Agreement was entered into in May

4

This Section is part of the Uniform Commercial Code adopted by Missouri. Neither party
addresses the issue whether the Agreement is within the scope of the Code. Plaintiffs argument
being meritless, the Court declines to also.
7

2014; Plaintiff was audited in November 2015. The dates of the unauthorized mailings ranged
from October 2014 to October 2015. Moreover, where as in the instant case, the terms of the
contract are clear and unambiguous, proffered "extrinsic evidence of the parties' intentions and
past dealings is barred under Missouri law by the parol evidence rule." Union Elec. Co. v.

Consolidation Coal Co., 188 F.3d 998, 1002 (8th Cir. 1999)
The President and Chief Executive Officer of Plaintiff, N. Lois Adams, testified that she
believed she was in good standing based on a history of having done business with "Express
Scripts and its predecessors" since 1963. (Adams Dep. at 34-35, ECF No. 101-1 at 5.) Evidence
of a course of dealing or performance is admitted only "to explain or supplement the terms of an
agreement ... , but not to contradict the agreement terms." JR. Waymire Co. v. Antares Corp.,
975 S.W.2d 243, 247 (Mo.Ct.App. 1998) (excluding evidence of oral modification of written
agreement to exclude entity as potential buyer of property in action seeking payment of
commission after sale was made to that entity).
Allowing Adams' testimony about the parties' pnor dealings would contradict the
Agreement, not explain or supplement it. First, Adams did not differentiate between Defendant
and its predecessors. Second, her argument ignores the inclusion in the Agreement of a clause
providing that "[n]o waiver of a breach of any covenant or condition shall be construed to be a
waiver of any subsequent breach. No act, delay, or omission done, suffered, or permitted by the
parties shall be deemed to exhaust or impair any right, remedy, or power of the parties
hereunder." (Agreement at 11.) Cf Smith Flooring, 713 F.3d at 935-36, 940-41 (allowing
testimony about parties' prior insurance contracts when later ones did not exclude certain
buildings from coverage as had prior contracts and testimony established that parties meant to,
and thought they had, excluded buildings as previously). Third, her argument also ignores the

8

provision reading "[t]his Agreement, including its ... Provider Manual, ... constitutes the entire
agreement of the parties with respect to the subject matter herein and, upon execution by the
parties, supersedes all prior oral or written agreements between the parties with respect to the
subject matter hereof."

(Agreement at 10.)

In Missouri, "[t]he inclusion of a merger or

integration clause in the written contract makes '[t]he parol evidence rule ... particularly
applicable."' Smiley v. Gary Crossley Ford, Inc., 859 F.3d 545, 553 (8th Cir. 2017) (quoting

Rosenfield v. Boniske, 445 S.W.3d 81, 88 (Mo.Ct.App. 2014) (second and third alterations in
original). Such clauses '"are intended to prevent extrinsic evidence of other agreements from
influencing the interpretation of a final written contract, preserving the sanctity of written
contracts."' Id (quoting Rosenfield, 445 S.W.3d at 88). Moreover, an integration clause "is a
strong indication that the parties intended for the Agreement to be complete and final." PlaNet

Prods. Inc. v. Shank, 119 F.3d 729, 732 (8th Cir. 1997). Cf CL. Maddox, Inc. v. Benham Group,
Inc., 88 F .3d 592, 599 (8th Cir. 1996) (finding evidence of prior oral agreement was admissible
regardless of integration clause when oral agreement was wholly separate, fully-performed,
independent contract "that did not inherently conflict with the written agreement" and could be
characterized as "separate, stand-alone contract")
Plaintiffs position that the Agreement was supplemented or explained by the parties'
prior dealings is further defeated by the failure of Adams, the signor of the Agreement, to read it.
Asked if she knew the Agreement required Plaintiff to be licensed in states to which it shipped
prescriptions, Adams replied, "Now I do." (Adams Dep. at 35, ECF No. 101-1 at 5.) When
signing the Agreement, she did not realize she was agreeing to follow all state board of
pharmacies' rules and regulations. (Id at 35-36.) She had not reviewed or read the Agreement
before signing it, and had never talked about the Agreement to the administrative assistant who

9

had read it. (Id. at 35-37.) '"Missouri law presumes that a party had knowledge of the contract
he or she signed, and those who sign a contract have a duty to read it and may not avoid the
consequences of the agreement on the basis that they did not know what they were signing.'"
Bertocci v. Thoroughbred Ford, Inc., --- S,W,3d --- 2017 WL 4242018, *5 (Mo.Ct.App. 2017)

(quoting Grossman v. Thoroughbred Ford, Inc., 297 S.W.3d 918, 922 (Mo.Ct.App. 2009)).
Plaintiff contends that the presence of the waiver and integration clauses and Adams'
failure to read the Agreement is irrelevant because Defendant's true motivation was to divert the
mail-order pharmacy business to its wholly-owned subsidiary. (See Pl. Resp. at 2, 10.) Plaintiff
offers no evidence to support this position. "Conclusory affidavits do not provide a basis upon
which to deny motions for summary judgment." Armour and Co. v. Inver Grove Hts., 2 F.3d
276, 279 (8th Cir. 1993).
A primary consideration when construing the terms of a contract is whether its plain
language "clearly addresses the matter at issue."

TAP Pharm. Prods., Inc. v. State Bd. of

Pharmacy, 238 S.W.3d 140, 143 (Mo. 2007) (en bane). If so, "the inquiry ends." Id. For the

reasons set forth above, the Court's inquiry in Count I is at an end. Count I will be dismissed.
Count II: Breach of Implied Duty of Good Faith and Fair Dealing. Plaintiff alleges in
the FAC that Defendant is (a) "enforcing a termination against [Plaintiff] on inaccurate
conclusions and without full evaluation of all materials" and (b) is diverting Plaintiffs patients
and revenues to Accredo or another pharmacy "more economically advantageous" to Defendant.
(FAC

iii! 59, 61.) By doing so, Defendant is breaching its implied duty of good faith and fair

dealing.
"Under Missouri law . . . , a covenant of good faith and fair dealing is implied in every
contract, but 'there can be no breach of the implied ... covenant ... where the contract expressly

10

permits the actions being challenged, and the defendant acts in accordance with the express
terms of the contract."' CitiMortgage v. Chicago Bancorp, Inc., 808 F.3d 747, 751 (8th Cir.
2015) (quoting Arbors at Sugar Creek Homeowners Ass'n v. Jefferson Bank & Tr. Co., 464
S.W.3d 177, 183 (Mo. 2015) (en bane)) (second and third alterations in original). "It is not
enough 'to show that a party invested with discretion made an erroneous decision."' Id at 752
(quoting BJC Health Sys. v. Columbia Cas Co., 478 F.3d 908, 914 (8th Cir. 2007)). "Instead, the
plaintiff must show that the party exercised its discretion 'in such a manner as to evade the spirit
of the transaction or so as to deny [the other party] the expected benefit of the contract."' BJC
Health Sys., 478 F.3d at 914 (quoting Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81

S.W.3d 34, 45 (Mo.Ct.App. 2002) (alteration in original). The implied covenant of good faith
and fair dealing does not create "an everflowing cornucopia of wished-for legal duties" and
"cannot give rise to new obligations not otherwise contained in a contract's express terms."
Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir., 1996).

Plaintiffs first allegation in support of its Count II claim lacks factual support. Rather,
the undisputed evidence is that Plaintiff did not have the required non-resident licenses.
Although Plaintiff takes issue with Defendant "target[ing]" those prescriptions shipped to states
where Plaintiff did not have the appropriate licenses, there is no evidence to support that this was
selective enforcement of the Agreement's provision authorizing Defendant to conduct an audit to
verify that a Provider, e.g., Plaintiff, was complying with the Agreement and the Provider
Manual.
Plaintiffs second allegation - that Defendant breached its implied duty by acting in selfinterest - is also without merit. The only support for this claim is Adams' description of
Defendant's motivation. See Affordable Communities of Mo. V Federal Nat'! Mortg. Ass'n, 714

11

F.3d 1069, 1077 (8th Cir. 2014) (rejecting similar claim on grounds it lacked support of any
specific facts and was based only on conclusory statements). Moreover, "the implied duty of
good faith and fair dealing does not extend so far as to undermine a party's general right to act
on its own interests in a way that may incidentally lessen the other party's anticipated fruits from
the contract." Countrywide Servs. Corp. v. SIA Ins. Co., 235 F.3d 390, 393 (8th Cir. 2000)
(interim quotations omitted) (rejecting claim of breach of implied duty by defendant whose
pursuit of legal remedies against non-parties caused difficulties for plaintiff). Cf Slone v. Purina
Mills, Inc., 927 S.W.2d 358, 368 (Mo.Ct.App. 1996) (cited by Plaintiff and holding that
summary judgment was erroneously granted in case arising from direct competition of parent
company, defendant, with its dealer, plaintiff; agreement reserved right of defendant to directly
sell to '"very large operations" who would not buy from a dealer, but genuine issue of material
fact remained whether buyers at issue qualified as such and whether they had refused to buy
from dealer).

In the instant case, the record before the Court establishes that Defendant

terminated the Agreement with Plaintiff for its failure to comply with clearly-defined
requirements.
Count II will be dismissed.
Count III: Unjust Enrichment. Plaintiff alleges that Defendant terminated its Agreement
with Plaintiff in order to increase its own revenues by diverting patients to pharmacies with
which it has a more advantageous contract. By doing so, Defendant has been unjustly enriched.
"Under Missouri law, a plaintiff is entitled to restitution for unjust enrichment when (1)
the defendant was enriched by the receipt of a benefit; (2) the enrichment was at the expense of
the plaintiff; and (3) it would be unjust to allow the defendant to retain the benefit." PlaNet, 119
F.3d at 733. "The third element ... is considered the most significant and the most difficult of

12

the elements." Adams v. One Park Place Investors, LLC, 315 S.W.3d 742, 749 (Mo.Ct.App.
2010) (interim quotations omitted). Mere receipt of benefits does not establish the third element.
Miller v. Horn, 254 S.W.3d 920, 924 (Mo.Ct.App. 2008).

Plaintiff argues that summary judgment on its unjust enrichment is defeated by the
"material fact" that "Accredo, the wholly-owned subsidiary pharmacy of Defendant, has been
established and taken market share from Plaintiff; this retention of the market share and resulting
profits is unjust; and damages, in direct contradiction of Defendant's assertions, have been
provided and established." (Pl. Resp. at 4.) Plaintiffs argument is unavailing. First, Plaintiff
has failed to submit any admissible evidence in support. See_Crews v. Monarch Fire Prat. Dist.,
829 F.3d 661, 667 (8th Cir. 2016) ("At summary judgment, the requisite 'genuine dispute,'
Fed.R.Civ.P. 56(a), must appear in admissible evidence."). The affidavit of Adams describing
this alleged behavior cites no supporting evidence. Asked if she could name a patient of Plaintiff
who was diverted to Defendant, Adams replied she could not "at this time." (Adams Dep. at 68,
ECF No. 110-5 at 5.) She never did. Asked what Defendant received as a benefit, she replied,
"Dollars, money, greed,'' but did not know how much.

(Id. at 70.) In his deposition, Jed

Grennan, Plaintiffs proffered expert witness, described Defendant as a "bully,'' but declined to
identify any people who had helped him arrive to this conclusion. (Grennan Dep. at 80-81, ECF
No. 105-1at22.) Second, Adams replied "Yes" when asked if the damages sought by Plaintiff
were "solely related to the termination of the contract." (Adams Dep. at 68.) "Missouri law does
not allow a plaintiff to maintain an action [for unjust enrichment] when an express contract
governs the subject matter for which recovery is sought." 32nd Street Surgery Ctr., LLC v. Right
Choice Managed Care, 820 F.3d 950, 955-56 (8th Cir. 2016).

13

Count V: Declaratory Judgment. Plaintiff seeks a declaration that the parties "have a
valid Provider Agreement." (FAC

if 80.) See

Fed.R.Civ.P.57 (allowing action for declaratory

judgment regardless whether there is another adequate remedy). The Court having previously
determined that Plaintiff breached the Agreement, this Count will be dismissed. See Amerisure

Mut. Ins. Co. v. Maschmeyer Landscapers, Inc., 2007 WL 2811080, *2 (E.D. Mo. Sept. 24,
2007) ("Adjudication of the breach of contract claim . . . render[ s] the request for declaratory
judgment moot or redundant ... ").
Count VII: Breach of Contract. In this claim, Plaintiff seeks damages in the amount of
monies withheld by Defendant from remittance payments to Plaintiff. Grennan identified that
amount as $126,441.04. (Grennan Report at [3]; ECF No. 96-1 at 4.) This is the same amount as
identified in Defendant's final discrepancy report. The Provider Manual specifically authorizes
Defendant to reverse and recoup paid claims made in violation of its Agreement and the Manual.
(Manual at 37.)
Plaintiff argues this Count is not ripe for summary judgment for the same reasons it
advanced in support of Count I. As discussed above, Plaintiff has failed to show there is a
genuine issue of material fact as to whether Defendant improperly terminated the Agreement
after determining that Plaintiff was shipping prescriptions to states in which it not have the
required licenses in violation of the Agreement.
Count VII will also be dismissed.
Conclusion
The admissible evidence before the Court establishes that Defendant had a right under its
Agreement with Plaintiff to terminate that Agreement for Plaintiffs lack of required non-resident

14

licenses for states to which it shipped medications and to recoup monies paid for those
medications. Accordingly,
IT IS HEREBY ORDERED that the motions of Defendant for summary judgment on
Counts I and II [ECF No. 78] and for summary judgment on Counts III, V, and VII [ECF No. 97]
are each GRANTED.
IT IS FURTHER ORDERED that the motion of Defendant to exclude expert testimony
[ECF No. 95] is DENIED as moot.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.

Dated this /

s!

of December 2017.

~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

15