United States District Court, D. Maryland
AMENDED MEMORANDUM OPINION 
Stephanie A. Gallagher United States District Judge
Chemist Corner, Inc. d/b/a Medex Medicine Express
(“MedEx”), Monsey Family Drug Store, LLC d/b/a
Maple Pharmacy (“Maple”), Maple Rx, LLC d/b/a
Westgate Pharmacy (“Westgate”), Madison Rx LLC
d/b/a Madison Pharmacy (“Madison”), and Refuah Rx
LLC d/b/a Refuah Pharmacy (“Refuah”)
(collectively “Plaintiffs”) filed a First Amended
Complaint against Defendant Epic Pharmacy Network Inc.
(“Epic”), alleging six claims including
conversion, negligent breach of fiduciary duty, breach of
contract, and violations of the Maryland and New York
consumer protection statutes. ECF 17. Epic has filed a Motion
to Dismiss Counts Five and Six, ECF 20, along with a
supporting memorandum of law (collectively, the
“Motion”). ECF 20-1. Plaintiffs filed an
opposition (“Opposition”), ECF 26, and Epic filed
a reply (“Reply”), ECF 31. I have considered all
of the filings, and find that no hearing is necessary.
See Local Rule 105.6 (D. Md. 2018). For the reasons
set forth below, Epic's Motion will be granted.
are independent community retail pharmacies located in New
York and New Jersey. ECF 17, ¶¶ 17-26. As a
Pharmacy Services Administration Organization
(“PSAO”), Epic enrolls independent pharmacies
into its pharmacy network. Id. ¶¶ 27-28.
The members of Epic's network are permitted to
participate in various pharmacy benefit plans offered by
health insurers and sometimes managed by pharmacy benefit
managers (“PBMs”). Id. ¶ 28. The
members register with Epic, or other PSAOs, to gain access to
participation with the PBMs and to streamline the application
process to participate in the PBMs' networks.
Id. ¶ 35. Epic enters into contracts with the
PBMs, on behalf of all of the pharmacies in its network, to
allow the pharmacies to serve individuals whose pharmacy
benefits are administered by the PBMs. Id. ¶
29. The PBMs pay Epic directly for the pharmacy services
rendered by its members, and Epic remits the payments to its
members. Id. ¶ 30. Each of the Plaintiffs
signed contracts to become members of Epic's network.
Id. ¶ 33. Those contracts describe Epic as
Plaintiffs' “Attorney-in-Fact, ” meaning that
Epic serves as Plaintiffs' fiduciary when it contracts
with PBMs and third-party payors. Id. ¶¶
instant dispute centers around a January 1, 2018 contract,
and a May 10, 2018 addendum to the contract (“the
Addendum”), between Epic and Caremark, one of the
nation's largest PBMs. Id. ¶¶ 32, 36,
39. Essentially, Plaintiffs allege that Epic breached its
fiduciary duty to them, and its contracts with them, by
entering into the Addendum, which contained terms unfavorable
to Plaintiffs, and by withholding payments due and owing to
Plaintiffs. ECF 17.
Motion, Epic seeks dismissal of Counts Five (Violation of
Maryland Consumer Protection Act) and Six (Violation of New
York Consumer Protection Law). Under Rule 12(b)(6), a
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss. See In re Birmingham,
846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley
Cmty. Servs. Bd., 822 F.3d 159, 165-66
(4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d
393, 408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . .
.”); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). However, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Further, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 135 S.Ct. 346, 346
(2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). However, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
attempt to employ consumer protection laws in this dispute
tries to fit a square peg into a round hole. Initially,
Plaintiffs fail to allege the elements of either state
consumer protection statute. As to Count Five and the
Maryland Consumer Protection Act (“MCPA”),
Plaintiffs allege the following:
115. Maryland's Consumer Protection Act contains a
prohibition on certain unfair or deceptive practices, which