COUNTY OF MONMOUTH et al v. RITE AID CORPORATION et al, No. 2:2020cv02024 - Document 114 (E.D. Pa. 2023)
Court Description: MEMORANDUM OPINION ON 43 MOTION TO DISMISS. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 3/31/23. 3/31/23 ENTERED AND COPIES E-MAILED. (va) Modified on 3/31/2023 (va).
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COUNTY OF MONMOUTH et al v. RITE AID CORPORATION et al Doc. 114 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA COUNTY OF MONMOUTH and DIANE SCAVELLO, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, Civil Action v. No. 20-cv-2024 RITE AID CORPORATION, et al., Defendants. MEMORANDUM OPINION Goldberg, J. March 31, 2023 The County of Monmouth, New Jersey (ªMonmouthº) and Diane Scavello have brought a putative class action for fraud and related claims alleging that Defendant Rite Aid Corporation and associated entities (collectively ªRite Aidº) made false representations when submitting insurance claims for prescription drugs. Monmouth sponsors a health plan that allegedly covered drug purchases from Rite Aid pharmacies, and Scavello is a Rite Aid customer who is insured, but not by Monmouth. Rite Aid has moved to dismiss Monmouth’s claims only. In a separate motion, Rite Aid has also moved to compel Scavello to arbitrate her claims. This opinion addresses only the motion to dismiss. Rite Aid’s principal argument for dismissal is that Monmouth’s factual allegations are contradicted by the terms of two contracts between Monmouth and non-party Express Scripts, Inc., 1 Dockets.Justia.com who Rite Aid claims acted as an intermediary between Monmouth and Rite Aid. Although the Monmouth±Express Scripts contracts are not attached to or referenced anywhere in Monmouth’s complaint, Rite Aid argues that they are judicially noticeable either because the complaint implicitly relies on them or because Monmouth is a public entity and its contracts are publicly available. Monmouth opposes consideration of the Monmouth±Express Scripts contracts at this stage of the proceedings. For the reasons explained below, I find that even assuming the existence of the Monmouth±Express Scripts contracts is judicially noticeable, the factual inferences Rite Aid seeks to draw from them are not. I further conclude that Rite Aid’s remaining arguments for dismissal also implicate factual issues that cannot be resolved at this stage of the litigation. I will therefore deny Rite Aid’s motion to dismiss. I. FACTS TAKEN FROM THE COMPLAINT A. Alleged Misrepresentations Rite Aid is a pharmacy that sells prescription drugs. When an insured customer makes a purchase, Rite Aid transmits information about the purchase to the customer’s insurer or the insurer’s agent. The insurer (or its agent) will then send a message back ªindicating whether the drug and consumer are covered and, if so, the amount the pharmacy must collect from the consumer as a copayment, coinsurance, or deductible amount.º (Amended Complaint ¶¶ 6-7, 11, 36.) According to Monmouth, Rite Aid uses an industry-wide standard form to transmit information to customers’ insurers. One of the fields in that standard form contains the pharmacy’s (in this case Rite Aid’s) ªusual and customaryº price for the drug being sold. Monmouth alleges that ªusual and customaryº is widely understood in the industry to mean ªthe cash price charged to the 2 general public, exclusive of sales tax or other amounts claimed.º (Amended Complaint ¶¶ 35-36, 39-40.) The gist of Monmouth’s fraud and other misrepresentation claims is that Rite Aid submitted ªusual and customaryº prices to insurers that were not actually the prices Rite Aid would charge the general public for the same drugs. According to Monmouth, Rite Aid offered uninsured customers discounts on prescription drugs, available to all cash-paying (i.e. uninsured) customers. (Amended Complaint ¶¶ 48-51, 54.) Monmouth refers to the category of drugs for which Rite Aid offered discounts as ªRSP Drugsº (referring to Rite Aid’s ªRx Savings Programº). Monmouth asserts that the RSP Drugs’ discounted pricesÐnot their listed pricesÐwere Rite Aid’s ªusual and customaryº prices for those drugs. But when submitting information to a customer’s insurer, Rite Aid allegedly reported a price that was much higher than the discounted price a cash-paying customer would pay. According to Monmouth, this report was false, and, because Rite Aid was aware that the prices it reported were not accurate, Monmouth alleges that these misrepresentations were made fraudulently. (Id. ¶¶ 55, 60, 123-26.) B. Monmouth County’s Health Plan ªMonmouth . . . operates a self-funded health insurance plan and workers’ compensation plan for its employees and retirees . . . .º This plan covers a share of the cost of its insureds’ prescription drugs, and some of those insureds purchased RSP Drugs from Rite AidÐthat is, drugs for which Rite Aid would offer cash discounts to uninsured customers. Monmouth alleges that Rite Aid misrepresented the usual and customary prices of these drugs. (Amended Complaint ¶¶ 17-18, 123, 125.) Monmouth further alleges that Rite Aid submitted claims for these purchases ªto . . . Monmouth,º that Rite Aid ªchargedº Monmouth for these drugs, and that Rite Aid ªmade such 3 misrepresentations . . . to Plaintiffs,º thus including Monmouth, (Id. ¶ 38, 78, 106, 125, 135, 309.)1 Monmouth’s complaint lists fifteen examples of purchases of RSP Drugs by Monmouth’s insureds. For each purchase, Monmouth reports the price it paid for the drug alongside Rite Aid’s cash discount price for that drug. Monmouth characterizes the difference between these two prices as an ªoverpayment.º (Amended Complaint ¶ 61.) According to Monmouth’s complaint, ª[t]he facts that Rite Aid misrepresented . . . were material to the decisions of . . . Monmouth . . . about whether to pay for Rite Aid’s RSP Drugs . . . .º (Amended Complaint ¶ 312.) Specifically, ª[h]ad PlaintiffsºÐpresumably including MonmouthЪknown Rite Aid was reporting to and charging them inflated and false amounts, they would not have proceeded with the transactions.º (Id. ¶ 124.) Thus, Monmouth alleges, it ªpaid more for RSP Drugs than it would have absent Rite Aid’s misconduct.º (Id. ¶ 18.) II. FACTS NOT IN THE COMPLAINT In support of its motion to dismiss, Rite Aid asks me to take judicial notice of five documents (Rite Aid’s Exhibits A through E). None of these documents nor the facts that follow are referenced in Monmouth’s complaint. I initially note that Monmouth does not object to judicial notice of Rite Aid’s Exhibits A, B, and C. Exhibit A purports to be a news posting on Monmouth’s website informing employees that ªMonmouth County’s prescription drug plan is administered by Express Scripts.º Exhibits B and C purport to be resolutions by Monmouth’s Board of Chosen Freeholders (the term for the 1 In a footnote, Monmouth adds that an insurer ªmay utilize the services of a pharmacy benefit manager (‘PBM’)º and that a PBM ªserve[s] as an intermediary between third-party payors and the rest of the healthcare industry.º (Amended Complaint ¶ 36.) Monmouth does not allege whether it utilized the services of a PBM with respect to the claims at issue in this case nor what effect the involvement of a PBM would have on the submission of prices to Monmouth. 4 governing body of New Jersey counties) authorizing Monmouth to contract with Express Scripts to provide ªpharmacy benefit management services,º with the first contract covering January 1, 2015 through December 31, 2017, and the second January 1, 2018 through December 31, 2020. Monmouth does object to the Court taking judicial notice of Rite Aid’s Exhibits D and E, which Rite Aid certifies it obtained through a request under New Jersey’s Open Public Records Act. These exhibits purport to be contracts between Monmouth and Express Scripts for the provision of pharmacy benefit management services. The contracts state that Express Scripts will be the ªexclusiveº provider of pharmacy benefit management services for Monmouth. (See Ex. D, ªRecitals,º ¶ C; Ex. E, Preamble.) Rite Aid points to specific provisions of the Monmouth±Express Scripts contracts that it contends are relevant to the plausibility of Monmouth’s claims in this case. First, both contracts provide for Express Scripts to establish a ªnetworkº of ªparticipatingº pharmacies. Monmouth, in turn, was to pay Express Scripts in amounts described as ªreimbursement amountsº and ªother administrative fees.º (Ex. D §§ 2.2(a), 3.1; Ex. E §§ 2.2, 3.1.) Although neither of the Monmouth±Express Scripts contracts mentions Rite Aid, Rite Aid asserts, without a supporting citation, that it was one of Express Scripts’ ªparticipating pharmacies.º (Rite Aid’s Brief at 4 n.3.) The 2018 contract specifically (Rite Aid’s Exhibit E) provides that under certain circumstances, Monmouth would be charged according to a formula: If no adjudication rates are specified herein, each claim will be adjudicated to [Monmouth] at the applicable ingredient cost, and will be reconciled to the applicable guarantee as set forth herein. The discounted ingredient cost will be the lesser of [maximum allowable cost] (as applicable), [usual and customary] or the applicable [average wholesale price] discount. (Ex. E, attachment A-2 (ªClaims Reimbursement Ratesº), § 5.6.) Rite Aid asserts that this formula did not depend on the amount billed by the pharmacy, but does not explain how the quoted language 5 produces that result. Importantly, the truth of Rite Aid’s assertion is not readily apparent on the face of this document. Next, Rite Aid notes that the Monmouth±Express Scripts contracts defined ªusual and customaryº prices as ªthe retail price charged by a Participating Pharmacy for the particular drug in a cash transaction on the date the drug is dispensed as reported to [Express Scripts] by the Participating Pharmacy.º (Ex. D, Article I.) Rite Aid appears to interpret this definition as meaning that the pharmacy’s reported price would be deemed ªusual and customaryº even if it were not actually the price ªcharged . . . in a cash transaction,º although Rite Aid does not cite authority for this interpretation. Finally, Rite Aid points to a section of the 2015 contract (Rite Aid’s Exhibit D) titled ªAnnual Average Ingredient Cost Discount Guaranteesº to argue that ªthe [usual and customary] price has no impact on the actual amount Monmouth paid [Express Scripts] for customers’ prescription drug purchases from Rite Aid pharmacies.º (Ex. D, attachment A-1, § I; Monmouth’s Brief at 5.) The cited section describes a complicated formula that relates amounts Monmouth is obligated to pay Express Scripts to variables such as ingredient costs, average wholesale prices, usual and customary prices, and ªmaximum reimbursement amounts,º subject to numerous exceptions and exclusions. It is not at all clear how this formula demonstrates that Rite Aid’s reported usual and customary prices have no impact on Monmouth’s payment obligation under the contract, and, again, Rite Aid provides no explanation. Based on these provisions, Rite Aid contends that the contracts demonstrate that Monmouth would only make payments to Express Scripts and not to Rite Aid. (Rite Aid’s Brief at 3.) To support this assertion, Rite Aid cites generally to the contracts in Exhibits D and E (both in excess of 30 pages), without identifying the specific pages that purportedly demonstrate a lack 6 of direct payments to Rite Aid.2 More generally, Rite Aid contends that ªplan sponsors such as Monmouth typically do not interact with . . . pharmacies,º which Rite Aid bases on Monmouth’s characterization of a pharmacy benefits manager as an ªintermediary.º Relying principally on the Monmouth±Express Scripts contracts, Rite Aid now asks me to dismiss Monmouth’s complaint. III. LEGAL STANDARD To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must ªcontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ º Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory allegations do not suffice. Id. Twombly and Iqbal’s plausibility standard requires more than a ªsheer possibility that a defendant has acted unlawfully.º Id. Plausibility requires ªenough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements of a claim.º Phillips v. Cty. Of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). To determine the sufficiency of a complaint under Twombly and Iqbal, a court must (1) ªtak[e] note of the elements a plaintiff must plead to state a claimº; (2) identify the allegations that are not entitled to the assumption of truth because they are no more than conclusions; and (3) ªwhere there are well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.º Burtch v. Millberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). Courts must construe the allegations in a complaint ªin the light most favorable to the plaintiff.º Id. at 220. 2 Rite Aid also cites to footnote 13 of Monmouth’s complaint, but footnote 13 also does not allege a lack of direct payments to Rite Aid. 7 When deciding a motion to dismiss, ªcourts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.º Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). IV. DISCUSSION A. Judicial Notice I first conclude that I cannot take judicial notice of a factual inference that any insurance claim for which Monmouth seeks damages was submitted pursuant to the Monmouth±Express Scripts contracts. ªTo decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.º Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Other documents may be considered if they are ªintegral to or explicitly relied upon in the complaint.º Id. (emphasis deleted). But even when documents outside the pleadings are properly considered on a motion to dismiss, they may only be used ªto establish the truth of their existence, not the truth of their contents.º Lupin Atlantis Holdings v. Ranbaxy Labs., Ltd., No. 10-cv-3897, 2011 WL 1540199, at *3 (E.D. Pa. Apr. 21, 2011); see also S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999). And a court must not use judicially noticed documents to ªdraw[] inferences against the non-moving party so as to dismiss its well-pleaded claims.º See Victaulic Co. v. Tieman, 499 F.3d 227, 237 (3d Cir. 2007) (emphasis in original). Given this clear precedent, I conclude that even if the Monmouth±Express Scripts contracts are properly before me, they may not be used to draw any of the factual inferences Rite Aid advocates in support of its motion to dismiss. By way of example, the Monmouth±Express Scripts contracts do not mention Rite AidÐyet Rite Aid asks me to infer that all transactions alleged in 8 Monmouth’s complaint were subject to these contracts. Drawing such an inference would contravene the well-established rule that the non-moving party is entitled to ªall reasonable inferences in [its] favorº on a motion to dismiss. Geness v. Admin. Off. of Pennsylvania Cts., 974 F.3d 263, 269 (3d Cir. 2020). Rite Aid presses that it only seeks to use the Monmouth±Express Scripts contracts for their ªlegal effect,º which it contends is different than using them for their truth. But ªlegal effectº is not a fair characterization of how Rite Aid suggests the Monmouth±Express Scripts contracts be considered. Rite Aid employs the contracts to create a narrative detailing how insurers, PBMs, and pharmacies interact and manage prices. Cf. Sturgeon v. Pharmerica Corp., 438 F. Supp. 3d 246, 259 (E.D. Pa. 2020) (refusing to rely on judicially-noticed government manuals ªas substantive evidence that comprehensive regulations governing the pharmacy industry make pharmacy fraud categorically implausibleº). It would be inappropriate to ªforeclose all proof on . . . [this] central question by looking outside the record at the motion-to-dismiss stage.º Id. In fact, many of the inferences Rite Aid advocates are not even contained in the contracts’ terms, such as Rite Aid’s primary contention that Monmouth had no direct interaction with Rite Aid. And several of Rite Aid’s contentions about the legal effect of the contractsÐsuch as that Monmouth agreed to accept pharmacy-reported prices as ªusual and customaryºÐare not readily apparent on the face of the documents and would likely be the subject of factual dispute. Finally, judicial notice should be used ªsparingly at the pleadings stageº and ª[o]nly in the clearest of cases.º Victaulic, 499 F.3d at 236. The Monmouth±Express Scripts contracts and the significance of the inferences Rite Aid seeks to draw from them are complex and, at the pleadings stage, anything but clear. Rite Aid may have other procedural tools to challenge the truth of Monmouth’s allegations, but judicial notice is not an appropriate one. 9 For these reasons, whether any transaction alleged in Monmouth’s complaint was subject to the Monmouth±Express Scripts contracts is a fact not susceptible to judicial notice at the pleadings stage. Accordingly, I will consider the remainder of Rite Aid’s arguments for dismissal without reference to these contracts. B. Rite Aid’s Substantive Arguments (1) Falsity Several of Monmouth’s claims allege that Rite Aid made false statements, and, as such, Monmouth is obligated to make these allegations with ªparticularity.º Fed. R. Civ. P. 9(b). Rite Aid contends that Monmouth’s claims should be dismissed because Monmouth has not detailed the particular statements alleged to be false. Monmouth alleges generally that Rite Aid made false statements every time it put its listed retail prices as the ªusual and customaryº prices in a standard form when submitting claims for reimbursement to Monmouth. (Amended Complaint ¶¶ 35-40.) Monmouth also includes a table of fifteen examples of such reimbursement claims, along with what Monmouth contends were the true and misleading price for the drug. (Id. ¶ 61.) I conclude that these allegations are sufficient. The particularity standard affords plaintiffs a degree of ªflexibilityº in the means by which they ªinject[] precision and some measure of substantiation into their allegations of fraud.º Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). Given that Monmouth is alleging thousands of transactions, a general description of the alleged false transactions combined with a few specific examples of dates and amounts is sufficiently particular. Rite Aid further objects that Monmouth does not allege that Rite Aid made false state- 10 ments ªto Monmouth,º which it characterizes as ªnot surprising considering that Monmouth does not interact with Rite Aid in any way.º (Rite Aid’s Brief at 12 (emphasis deleted).) However, Monmouth’s complaint contains numerous allegations that Rite Aid reported usual and customary prices to Monmouth. (E.g., Amended Complaint ¶¶ 38, 78, 106, 125, 135, 309.) Rite Aid characterizes these allegations as ªfalse[],º (Rite Aid’s Reply at 4 n.4,) but their truth or falsity is not for resolution on a motion to dismiss. See Conard v. Pennsylvania State Police, 902 F.3d 178, 184 (3d Cir. 2018). Rite Aid further contends that Monmouth has not adequately explained why it was false to report list prices as ªusual and customaryº prices. But Monmouth has alleged that the ªusual and customaryº price field in the standard form Rite Aid used to submit insurance claims was widely understood to mean the price that a cash-paying customer would be charged. (Amended Complaint ¶¶ 39-47.) The truth of that allegation is a factual matter. (2) Reliance Rite Aid next argues that Monmouth has not plausibly alleged that it relied on Rite Aid’s representations about usual and customary pricesÐthat is, that Monmouth would have acted differently had it known the drugs’ true prices. Monmouth alleges that, had it known Rite Aid’s reported prices were not the true usual and customary prices for the drugs, it ªwould not have proceeded with the transactions.º (Amended Complaint ¶ 124.) Although this allegation does not provide a great deal of specificity, it is plausible, at this early stage of the proceedings, that an insurer in Monmouth’s position would have refused to pay a claim had it known the information submitted was false. 11 (3) Monmouth’s Status as a “Person” Under Pennsylvania’s UTPCPL Monmouth asserts a claim for Rite Aid’s alleged violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa. Stat., ch. 201. The UTPCPL permits ª[a]ny person who purchases or leases goods or services primarily for personal, family or household purposesº to ªbring a private actionº for damages related to an unlawful trade practice. 73 Pa. Stat. § 201-9.2(a). Rite Aid argues that Monmouth, as a political subdivision of New Jersey, is not a ªperson.º The UTPCPL defines ªpersonº broadly to include, among other things, ªany . . . legal entit[y],º a category that obviously includes Monmouth. § 201-2(2). But in Meyer v. Community College of Beaver County, 578, 93 A.3d 806 (Pa. 2014), the Pennsylvania Supreme Court held that a public community college could not be sued under the UTPCPL because a public entity is not a ªpersonº under the UTPCPL’s definition. Id. at 815. Technically, Meyer only addressed the class of persons that can be sued rather than the class that can sue. But Rite Aid argues that because the UTPCPL uses a common definition for the two classes, public entities must be excluded from both. Following Meyer, the Pennsylvania Supreme Court held in Commonwealth ex rel. Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010 (2018), that the Commonwealth of Pennsylvania is a ªperson in interestº entitled to seek restitution under UTPCPL § 201-4.1. 194 A.3d at 1034. Golden Gate distinguished Meyer in two ways: First, the term at issue was ªperson in interestº from UTPCPL § 201-4.1, whereas Meyer dealt with just ªpersonº from § 201-9.2(a). The Court reasoned that ªperson in interest,º which is not defined in the statute, must be analyzed ªas a wholeº and could therefore have a different meaning than ªperson.º Id. at 1034. Second, Golden Gate noted that Meyer was ªdriven in large part by the College’s status as a defendant in 12 the lawsuit,º thus implicating doctrines of ªsovereign immunityº that have ªno applicationº when the public entity is the plaintiff. Id. 1033. The Court in Golden Gate also characterized Meyer’s holding in that regard as ªnarrow.º Id. In resolving this question of state law, the obligation of a federal court is to ªpredict how Pennsylvania’s highest court would decide this case.º Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 45-46 (3d Cir. 2009). I am persuaded by Golden Gate’s statement that Meyer’s holding was ªnarrowº and rested substantially on concerns of ªsovereign immunity.º 194 A.3d at 1033. With those concerns gone, there is no other reason why the exceedingly broad term ªany other legal entit[y]º would not include a county like Monmouth. And although it is potentially unusual to give ªpersonº two different meanings in UTPCPL § 201-9.2(a), it is not more unusual than giving ªperson in interestº a broader meaning than just ªperson.º See Golden Gate, 194 A.3d at 1034. I will therefore deny Rite Aid’s motion as to this ground. (4) Gist of the Action Doctrine Rite Aid next argues that Monmouth’s tort claims should be dismissed under Pennsylvania’s ªgist of the action doctrineº because the duties involved are contractual. ªUnder Pennsylvania law, the gist of the action doctrine prevents a purely contractual duty from serving as the basis for a tort claim.º SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 216 (3d Cir. 2022). Whether a tort claim is barred under the gist of the action doctrine turns on ªthe nature of the duty alleged to have been breached.º Id. at 217. ªTort actions arise from the breach of a duty owed to another as a matter of social policy, while breach-of-contract actions arise from the breach of a duty created by contract.º Id. at 216. Rite Aid contends that the gist of the action doctrine bars Monmouth’s claims because Rite 13 Aid’s duty to report usual and customary prices was created by contract. It is unclear whether Rite Aid is referring to the Monmouth±Express Scripts contracts, as Rite Aid was not a party to these contracts and thus also unclear how such contracts could impose duties on Rite Aid. In any event, I have concluded that I may not consider the factual inference that the Monmouth±Express Scripts contracts applied to the transactions underlying Monmouth’s claims. For that reason, Monmouth’s claims will not be dismissed under the gist of the action doctrine. (5) Economic Loss Doctrine Rite Aid argues that Monmouth’s fraud and negligent misrepresentation claims are barred by Pennsylvania’s ªeconomic lossº doctrine, which bars someÐbut not allÐtort claims for purely economic loss. See Dittman v. UPMC, 196 A.3d 1036, 1054 (Pa. 2018). For example, Dittman itself allowed tort claims for economic loss to proceed. See id. Thus, the mere fact that Monmouth’s claims seek damages for economic loss does not mean they are barred by the economic loss doctrine. Instead, Rite Aid must explain why Monmouth’s claims belong to the category of barred economic loss claims as opposed to the category of permissible economic loss claims. The only explanation Rite Aid gives is to repeat its contention that any duty to report prices was governed by contract. As before, I have determined that I cannot consider the impact of the alleged contracts at this stage of the litigation. I will therefore deny Rite Aid’s motion as to this ground. (6) Unjust Enrichment Rite Aid argues that Monmouth’s unjust enrichment claim should be dismissed for two reasons. The first is Rite Aid’s assertion that an express contract governed the relationship between Monmouth and Rite Aid, which, as stated above, I cannot consider at this stage. The second is Rite 14 Aid’s additional assertion that Monmouth paid nothing to Rite Aid directly. Because Monmouth’s complaint alleges that ªRite Aid . . . charged [Plaintiffs]º (thus including Monmouth) for the drugs at issue, and because I must accept this allegation as true, I will deny Rite Aid’s motion to dismiss Monmouth’s unjust enrichment claims. (7) Statute of Limitations Monmouth acknowledges that some of the conduct alleged in its complaint occurred outside the statutes of limitations applicable to its various claims, but argues that the statutes are tolled because Rite Aid engaged in an ªaffirmative and independent act of concealmentº to ªprevent [Monmouth] from discovering the injury despite the exercise of reasonable diligence.º Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir. 1991). According to Monmouth, that ªact of concealmentº was submitting the same allegedly false pricing information that underlies Monmouth’s fraud and misrepresentation claims. Rite Aid does not dispute that submitting false pricing information is the type of ªconcealmentº that could toll a statute of limitations. Instead, Rite Aid’s sole argument is that it did not actually submit false pricing information. For the reasons discussed previously, factual disputes preclude resolution of Rite Aid’s arguments at this time. (8) Injunctive Relief Finally, Rite Aid argues that Monmouth’s count for ªinjunctive reliefº should be dismissed for the sole reason that injunctive relief is not a standalone cause of action. Rite Aid does not contend that injunctive relief is unavailable as a remedy should Monmouth succeed on its other claims. Instead, Rite Aid’s sole objection is to the way Monmouth has drafted its complaintÐputting injunctive relief in its own count. (See Rite Aid’s Brief at 24 (ª[A] separate claim for injunctive 15 relief is unnecessary.º (emphasis added), citing Chruby v. Kowaleski, 534 F. App’x 156, 160 (3d Cir. 2013)).) I conclude that no useful purpose would be served by restructuring Monmouth’s complaint at this time. Before Monmouth could be granted injunctive relief, Monmouth must ªprove [a] clear entitlementº to it under some theory. Hope v. Warden, York County Prison, 972 F.3d 310, 321 (3d Cir. 2020). Whether the allegations supporting injunctive relief are set out in a separate count of the complaint or repeated for each substantive count is immaterial. See Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam) (ªFederal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.º (citation omitted)). I will therefore deny Rite Aid’s motion as to this ground. V. CONCLUSION For the reasons set out above, Rite Aid’s motion to dismiss will be denied. An appropriate order follows. 16
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