COUNTY OF MONMOUTH v. RITE AID CORPORATION

Opinion

INTHEUNITEDSTATESDISTRICTCOURT FORTHEEASTERNDISTRICTOFPENNSYLVANIA

COUNTYOFMONMOUTHandDIANE SCAVELLO,IndividuallyandonBehalfof AllOthersSimilarlySituated, Plaintiffs, CivilAction v. No. 20-cv-2024 RITEAIDCORPORATION,etal., Defendants.

MEMORANDUMOPINION Goldberg,J. March31,2023 The County of Monmouth, New Jersey (“Monmouth”) and Diane Scavello have brought a

putativeclassactionforfraudandrelatedclaimsallegingthatDefendantRiteAidCorporationand associatedentities(collectively“RiteAid”)madefalserepresentationswhensubmittinginsurance claims for prescription drugs. Monmouth sponsors a health plan that allegedly covered drug pur- chases 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

hasalsomovedtocompelScavellotoarbitrateherclaims. Thisopinionaddressesonlythemotion todismiss. RiteAid’sprincipalargumentfordismissalisthatMonmouth’sfactualallegationsarecon- tradicted by the terms of two contracts between Monmouth and non-party Express Scripts, Inc., 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 implic-

itlyreliesonthemorbecauseMonmouth isapublicentityanditscontractsarepubliclyavailable. 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 Mon- mouth–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 denyRiteAid’smotiontodismiss. I. FACTSTAKENFROMTHECOMPLAINT A. AllegedMisrepresentations 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 “indicating whether the drugandconsumerarecoveredand,ifso,theamountthepharmacymustcollectfromtheconsumer asacopayment,coinsurance,ordeductibleamount.”(AmendedComplaint¶¶6-7,11,36.) According to Monmouth, Rite Aid uses an industry-wide standard form to transmit infor- mation to customers’ insurers. One of the fields in that standard form contains the pharmacy’s (in this case Rite Aid’s) “usual and customary” price for the drug being sold. Monmouth alleges that

“usualandcustomary”iswidelyunderstoodintheindustrytomean“thecashpricechargedtothe general public, exclusive of sales tax or other amounts claimed.” (Amended Complaint ¶¶ 35-36, 39-40.) ThegistofMonmouth’sfraudandothermisrepresentationclaimsisthatRiteAidsubmitted

“usualandcustomary”pricestoinsurersthatwerenotactuallythepricesRiteAidwouldchargethe generalpublicforthesamedrugs. AccordingtoMonmouth,RiteAidoffereduninsuredcustomers discountsonprescriptiondrugs,availabletoallcash-paying(i.e.uninsured)customers. (Amended Complaint ¶¶ 48-51, 54.) Monmouth refers to the category of drugs for which Rite Aid offered discountsas“RSPDrugs”(referringtoRiteAid’s“RxSavingsProgram”). Monmouthassertsthat theRSPDrugs’discountedprices—nottheirlistedprices—wereRiteAid’s“usualandcustomary”

pricesforthosedrugs. Butwhensubmittinginformationtoacustomer’sinsurer,RiteAidallegedly 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. MonmouthCounty’sHealthPlan “Monmouth ... operates a self-funded health insurance plan and workers’ compensation plan for its employees and retirees ... .” This plan covers a share of the cost of its insureds’ pre- scriptiondrugs,andsomeofthoseinsuredspurchasedRSPDrugsfromRiteAid—thatis,drugsfor which Rite Aid would offer cash discounts to uninsured customers. Monmouth alleges that Rite Aidmisrepresentedtheusualandcustomarypricesofthesedrugs. (AmendedComplaint¶¶17-18,

123, 125.) Monmouth further alleges that Rite Aid submitted claims for these purchases “to ... Monmouth,” that Rite Aid “charged” Monmouth for these drugs, and that Rite Aid “made such misrepresentations...toPlaintiffs,”thusincludingMonmouth,(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

cashdiscountpriceforthatdrug. Monmouthcharacterizesthedifferencebetweenthesetwoprices asan“overpayment.”(AmendedComplaint¶61.) According to Monmouth’s complaint, “[t]he facts that Rite Aid misrepresented ... were material to the decisions of ... Monmouth ... about whether to pay for Rite Aid’s RSP Drugs ... .” (Amended Complaint ¶ 312.) Specifically, “[h]ad Plaintiffs”—presumably including Monmouth—“known Rite Aid was reporting to and charging them inflated and false amounts,

they would not have proceeded with the transactions.” (Id. ¶ 124.) Thus, Monmouth alleges, it “paidmoreforRSPDrugsthanitwouldhaveabsentRiteAid’smisconduct.”(Id.¶18.) II. FACTSNOTINTHECOMPLAINT In support of its motion to dismiss, Rite Aid asks me to take judicial notice of five docu-

ments (Rite Aid’s Exhibits A through E). None of these documents nor the facts that follow are referencedinMonmouth’scomplaint. 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 “Monmouth County’s prescription drug plan is administered by Express Scripts.” 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 “may utilize the services of a pharmacy benefit manager(‘PBM’)”andthataPBM“serve[s]asanintermediarybetweenthird-partypayorsandthe restofthehealthcareindustry.”(AmendedComplaint¶36.) Monmouthdoesnotallegewhetherit utilized the services of a PBM with respect to the claims at issue in this case nor what effect the involvementofaPBMwouldhaveonthesubmissionofpricestoMonmouth. governing body of New Jersey counties) authorizing Monmouth to contract with Express Scripts to provide “pharmacy benefit management services,” with the first contract covering January 1, 2015throughDecember31,2017,andthesecondJanuary1,2018throughDecember31,2020.

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 pro- vision of pharmacy benefit management services. The contracts state that Express Scripts will be the “exclusive” provider of pharmacy benefit management services for Monmouth. (See Ex. D, “Recitals,”¶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 “network” of “participating” pharmacies. Monmouth, in turn, was to pay Express Scripts in amounts described as “reimbursement amounts” and “other administrative fees.” (Ex. D §§ 2.2(a), 3.1; Ex. E §§ 2.2, 3.1.) Although neither of the Mon- mouth–Express Scripts contracts mentions Rite Aid, Rite Aid asserts, without a supporting cita- tion,thatitwasoneofExpressScripts’“participatingpharmacies.”(RiteAid’sBriefat4n.3.)

The 2018 contract specifically (Rite Aid’s Exhibit E) provides that under certain circum- stances,Monmouthwouldbechargedaccordingtoaformula: 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 ap- plicableguaranteeassetforthherein. Thediscountedingredientcostwillbethe lesserof[maximumallowablecost](asapplicable),[usualandcustomary]orthe applicable[averagewholesaleprice]discount. (Ex.E,attachmentA-2(“ClaimsReimbursementRates”),§5.6.) RiteAidassertsthatthisformula didnotdependontheamountbilledbythepharmacy,butdoesnotexplainhowthequotedlanguage produces that result. Importantly, the truth of Rite Aid’s assertion is not readily apparent on the faceofthisdocument. Next,RiteAidnotesthattheMonmouth–ExpressScriptscontractsdefined“usualandcus-

tomary” prices as “the 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 Par- ticipating Pharmacy.” (Ex. D, Article I.) Rite Aid appears to interpret this definition as meaning that the pharmacy’s reported price would be deemed “usual and customary” even if it were not actually the price “charged ... in a cash transaction,” although Rite Aid does not cite authority for thisinterpretation.

Finally, Rite Aid points to a section of the 2015 contract (Rite Aid’s Exhibit D) titled “An- nualAverageIngredientCostDiscountGuarantees”toarguethat“the[usualandcustomary]price has no impact on the actual amount Monmouth paid [Express Scripts] for customers’ prescrip- tion drug purchases from Rite Aid pharmacies.” (Ex. D, attachment A-1, § I; Monmouth’s Brief at 5.) The cited section describes a complicated formula that relates amounts Monmouth is obli- gated to pay Express Scripts to variables such as ingredient costs, average wholesale prices, usual and customary prices, and “maximum reimbursement amounts,” 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,RiteAidprovidesnoexplanation. Based on these provisions, Rite Aid contends that the contracts demonstrate that Mon- mouth 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 of direct payments to Rite Aid.2 More generally, Rite Aid contends that “plan sponsors such as Monmouth typically do not interact with ... pharmacies,” which Rite Aid bases on Monmouth’s characterizationofapharmacybenefitsmanagerasan“intermediary.”

Relying principally on the Monmouth–Express Scripts contracts, Rite Aid now asks me to dismissMonmouth’scomplaint. III. LEGALSTANDARD To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “contain suf-

ficient factual matter, accepted as true, to ‘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)). Conclusoryallegationsdonotsuffice. Id.TwomblyandIqbal’splausibilitystan- dardrequiresmorethana“sheerpossibilitythatadefendanthasactedunlawfully.”Id.Plausibility requires “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessaryelementsofaclaim.”Phillipsv.Cty.OfAllegheny,515F.3d224,234(3dCir.2008).

To determine the sufficiency of a complaint under Twombly and Iqbal, a court must (1) “tak[e] note of the elements a plaintiff must plead to state a claim”; (2) identify the allegations that are not entitled to the assumption of truth because they are no more than conclusions; and (3)“wheretherearewell-pleadedfactualallegations,...assumetheirveracityandthendetermine whether they plausibly give rise to an entitlement for relief.” Burtch v. Millberg Factors, Inc., 662 F.3d212,221(3dCir.2011). Courtsmustconstruetheallegationsinacomplaint“inthelightmost favorabletotheplaintiff.”Id.at220.

2 RiteAidalsocitestofootnote13ofMonmouth’scomplaint,butfootnote13alsodoesnotallege alackofdirectpaymentstoRiteAid. When deciding a motion to dismiss, “courts generally consider only the allegations con- tained in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v.Skolas,770F.3d241,249(3dCir.2014).

IV. DISCUSSION A. JudicialNotice 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. “To decide a motion to dismiss, courts generally consider only the allega-

tions contained in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Other documents may be considered if they are “integral to or explicitly relied upon in the complaint.” Id. (emphasis deleted). But even when documentsoutsidethepleadingsareproperlyconsideredonamotiontodismiss,theymayonlybe used“toestablishthetruthoftheirexistence,notthetruthoftheircontents.”LupinAtlantisHold- ings v. Ranbaxy Labs., Ltd., No. 10-cv-3897, 2011 WL 1540199, at *3 (E.D. Pa. Apr. 21, 2011);

seealsoS.CrossOverseasAgencies,Inc.v.WahKwongShippingGrp.Ltd.,181F.3d410,426(3d Cir. 1999). And a court must not use judicially noticed documents to “draw[] inferences against the non-moving party so as to dismiss its well-pleaded claims.” See Victaulic Co. v. Tieman, 499 F.3d227,237(3dCir.2007)(emphasisinoriginal). Giventhisclearprecedent,IconcludethateveniftheMonmouth–ExpressScriptscontracts are properly before me, they may not be used to draw any of the factual inferences Rite Aid ad- vocates in support of its motion to dismiss. By way of example, the Monmouth–Express Scripts

contracts do not mention Rite Aid—yet Rite Aid asks me to infer that all transactions alleged in Monmouth’s complaint were subject to these contracts. Drawing such an inference would contra- venethewell-establishedrulethatthenon-movingpartyisentitledto“allreasonableinferencesin [its]favor”onamotiontodismiss. Genessv.Admin.Off.ofPennsylvaniaCts.,974F.3d263,269

(3dCir.2020). RiteAidpressesthatitonlyseekstousetheMonmouth–ExpressScriptscontractsfortheir “legal effect,” which it contends is different than using them for their truth. But “legal effect” is not a fair characterization of how Rite Aid suggests the Monmouth–Express Scripts contracts be considered. RiteAidemploysthecontractstocreateanarrativedetailinghowinsurers,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 “as substantive evidence that comprehensive regulations governing the pharmacy industry make pharmacy fraud categorically implausible”). It would be inappropriate to “foreclose all proof on ... [this] central question by looking outside the record at the motion-to-dismiss stage.” 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’scontentionsaboutthelegaleffectofthecontracts—suchasthatMonmouthagreedtoaccept

pharmacy-reported prices as “usual and customary”—are not readily apparent on the face of the documentsandwouldlikelybethesubjectoffactualdispute. Finally,judicialnoticeshouldbeused“sparinglyatthepleadingsstage”and“[o]nlyinthe clearest of cases.” 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’sallegations,butjudicialnoticeisnotanappropriateone. Forthesereasons,whetheranytransactionallegedinMonmouth’scomplaintwassubjectto theMonmouth–ExpressScriptscontractsisafactnotsusceptibletojudicialnoticeatthepleadings stage. Accordingly, I will consider the remainder of Rite Aid’s arguments for dismissal without

referencetothesecontracts. B. RiteAid’sSubstantiveArguments (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 “particularity.” Fed. R. Civ. P. 9(b). Rite

Aid contends that Monmouth’s claims should be dismissed because Monmouth has not detailed theparticularstatementsallegedtobefalse. MonmouthallegesgenerallythatRiteAidmadefalsestatementseverytimeitputitslisted retail prices as the “usual and customary” 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

trueandmisleadingpriceforthedrug. (Id.¶61.) I conclude that these allegations are sufficient. The particularity standard affords plaintiffs a degree of “flexibility” in the means by which they “inject[] precision and some measure of sub- stantiation into their allegations of fraud.” 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 datesandamountsissufficientlyparticular.

Rite Aid further objects that Monmouth does not allege that Rite Aid made false state- ments “to Monmouth,” which it characterizes as “not surprising considering that Monmouth does not interact with Rite Aid in any way.” (Rite Aid’s Brief at 12 (emphasis deleted).) However, Monmouth’scomplaintcontainsnumerousallegationsthatRiteAidreportedusualandcustomary

prices to Monmouth. (E.g., Amended Complaint ¶¶ 38, 78, 106, 125, 135, 309.) Rite Aid charac- terizes these allegations as “false[],” (Rite Aid’s Reply at 4 n.4,) but their truth or falsity is not for resolutiononamotiontodismiss. SeeConardv.PennsylvaniaStatePolice,902F.3d178,184(3d Cir.2018). RiteAidfurthercontendsthatMonmouthhasnotadequatelyexplainedwhyitwasfalseto report list prices as “usual and customary” prices. But Monmouth has alleged that the “usual and

customary” price field in the standard form Rite Aid used to submit insurance claims was widely understoodtomeanthepricethatacash-payingcustomerwouldbecharged. (AmendedComplaint ¶¶39-47.) Thetruthofthatallegationisafactualmatter. (2) Reliance Rite Aid next argues that Monmouth has not plausibly alleged that it relied on Rite Aid’s

representations about usual and customary prices—that is, that Monmouth would have acted dif- ferentlyhaditknownthedrugs’trueprices. Monmouthallegesthat,haditknownRiteAid’sreportedpriceswerenotthetrueusualand customary prices for the drugs, it “would not have proceeded with the transactions.” (Amended Complaint ¶ 124.) Although this allegation does not provide a great deal of specificity, it is plau- sible, at this early stage of the proceedings, that an insurer in Monmouth’s position would have

refusedtopayaclaimhaditknowntheinformationsubmittedwasfalse. (3) Monmouth’sStatusasa“Person”UnderPennsylvania’sUTPCPL 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]ny person who purchases or leases goods or services primarily for personal, family or house- hold purposes” to “bring a private action” for damages related to an unlawful trade practice. 73 Pa.Stat.§201-9.2(a). RiteAidarguesthatMonmouth,asapoliticalsubdivisionofNewJersey,is nota“person.” The UTPCPL defines “person” broadly to include, among other things, “any ... legal en- tit[y],” 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 “person” under the UTPCPL’s definition. Id. at 815. Technically, Meyer only addressed the classofpersonsthatcanbesuedratherthantheclassthatcansue. ButRiteAidarguesthatbecause the UTPCPL uses a common definition for the two classes, public entities must be excluded from both. FollowingMeyer,thePennsylvaniaSupremeCourtheldinCommonwealthexrel.Shapiro

v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010 (2018), that the Commonwealth of Penn- sylvania is a “person in interest” 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 “person in interest” from UTPCPL § 201-4.1, whereas Meyer dealt with just “person” from § 201-9.2(a). The Court reasoned that “person in interest,” which is not defined in the statute, must be analyzed “as a whole” and could therefore have a different meaning than “person.” Id. at 1034. Second,

Golden Gate noted that Meyer was “driven in large part by the College’s status as a defendant in the lawsuit,” thus implicating doctrines of “sovereign immunity” that have “no application” when the public entity is the plaintiff. Id. 1033. The Court in Golden Gate also characterized Meyer’s holdinginthatregardas“narrow.”Id.

In resolving this question of state law, the obligation of a federal court is to “predict how Pennsylvania’s highest court would decide this case.” 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 “narrow” and rested substantially on concerns of “sovereign immunity.” 194 A.3d at 1033. With those concerns gone, there is no other reason why the exceedingly broad term “any other legal entit[y]” would not include a county like Monmouth. And although it is potentially unusual to

give “person” two different meanings in UTPCPL § 201-9.2(a), it is not more unusual than giving “person in interest” a broader meaning than just “person.” See Golden Gate, 194 A.3d at 1034. I willthereforedenyRiteAid’smotionastothisground. (4) GistoftheActionDoctrine Rite Aid next argues that Monmouth’s tort claims should be dismissed under Pennsylva-

nia’s“gistoftheactiondoctrine”becausethedutiesinvolvedarecontractual. “UnderPennsylvania law, the gist of the action doctrine prevents a purely contractual duty from serving as the basis for a tort claim.” 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 “the nature of the duty alleged to havebeenbreached.”Id.at217. “Tortactionsarisefromthebreachofadutyowedtoanotherasa matterofsocialpolicy,whilebreach-of-contractactionsarisefromthebreachofadutycreatedby

contract.”Id.at216. RiteAidcontendsthatthegistoftheactiondoctrinebarsMonmouth’sclaimsbecauseRite Aid’sdutytoreportusualandcustomarypriceswascreatedbycontract. ItisunclearwhetherRite 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,

IhaveconcludedthatImaynotconsiderthefactualinferencethattheMonmouth–ExpressScripts contractsappliedtothetransactionsunderlyingMonmouth’sclaims. Forthatreason,Monmouth’s claimswillnotbedismissedunderthegistoftheactiondoctrine. (5) EconomicLossDoctrine Rite Aid argues that Monmouth’s fraud and negligent misrepresentation claims are barred

byPennsylvania’s“economicloss”doctrine,whichbarssome—butnotall—tortclaimsforpurely 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 Mon- mouth’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 barredeconomiclossclaimsasopposedtothecategoryofpermissibleeconomiclossclaims.

TheonlyexplanationRiteAidgivesistorepeatitscontentionthatanydutytoreportprices 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) UnjustEnrichment

Rite Aid argues that Monmouth’s unjust enrichment claim should be dismissed for two reasons. ThefirstisRiteAid’sassertionthatanexpresscontractgovernedtherelationshipbetween MonmouthandRiteAid,which,asstatedabove,Icannotconsideratthisstage. ThesecondisRite Aid’s additional assertion thatMonmouth paid nothing to Rite Aid directly. Because Monmouth’s complaintallegesthat“RiteAid...charged[Plaintiffs]”(thusincludingMonmouth)forthedrugs atissue,andbecauseImustacceptthisallegationastrue,IwilldenyRiteAid’smotiontodismiss

Monmouth’sunjustenrichmentclaims. (7) StatuteofLimitations Monmouth acknowledges that some of the conduct alleged in its complaint occurred out- side the statutes of limitations applicable to its various claims, but argues that the statutes are tolled because Rite Aid engaged in an “affirmative and independent act of concealment” to “pre-

vent[Monmouth]fromdiscoveringtheinjurydespitetheexerciseofreasonablediligence.”Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir. 1991). According to Monmouth, that “act of concealment” was submitting the same allegedly false pricing information that underlies Monmouth’s fraud and misrepresentationclaims. RiteAiddoesnotdisputethatsubmittingfalsepricinginformationisthetypeof“conceal- ment” 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 precluderesolutionofRiteAid’sargumentsatthistime. (8) InjunctiveRelief Finally,RiteAidarguesthatMonmouth’scountfor“injunctiverelief”shouldbedismissed

forthesolereasonthatinjunctivereliefisnotastandalonecauseofaction. RiteAiddoesnotcon- tendthatinjunctivereliefisunavailableasaremedyshouldMonmouthsucceedonitsotherclaims. Instead, Rite Aid’s sole objection is to the way Monmouth has drafted its complaint—putting in- junctive relief in its own count. (See Rite Aid’s Brief at 24 (“[A] separate claim for injunctive relief is unnecessary.” (emphasis added), citing Chruby v. Kowaleski, 534 F. App’x 156, 160 (3d Cir.2013)).) IconcludethatnousefulpurposewouldbeservedbyrestructuringMonmouth’scomplaint

at this time. Before Monmouth could be granted injunctive relief, Monmouth must “prove [a] clear entitlement” 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 ofShelby,Miss.,574U.S.10,11(2014)(percuriam)(“Federalpleadingrulescallfor‘ashortand plainstatementoftheclaimshowingthatthepleaderisentitledtorelief,’theydonotcountenance

dismissalofacomplaintforimperfectstatementofthelegaltheorysupportingtheclaimasserted.” (citationomitted)). IwillthereforedenyRiteAid’smotionastothisground. V. CONCLUSION Forthereasonssetoutabove,RiteAid’smotiontodismisswillbedenied.

Anappropriateorderfollows.