IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Med World Acquisition Corp. d/b/a
Omnicare of Plainview and Shore
Pharmaceutical Providers, LLC d/b/a/

Omnicare of Plainview, C.A. No. N19C-06-028 FWW

Plaintiff/Counterclaim Defendant,

Friedwald Center for Rehabilitation
And Nursing, LLC d/b/a/
Friedwald Center

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Defendant/Counterclaim Plaintiff.

Submitted: January 31, 2020
Decided: June 22, 2020
Upon Plaintiff/Counterclaim Defendant’s Motion to Dismiss
GRANTED.
ORDER

James W. Semple, Esquire, R. Grant Dick IV, Esquire, Cooch and Taylor, P.A., The
Brandywine Building, 1000 West Street, 10" Floor, Wilmington, DE, 19801;
Attorney for Plaintiff/Counterclaim Defendant.

Kevin M. Capuzzi, Esquire, Benesch, Friedlander, Coplan & Aronoff, LLP, 222
Delaware Avenue, Suite 801, Wilmington, DE 19801; Theresa Concepcion,
Esquire,’ Nathan & Kamionski LLP, 201 North Charles Street, Suite 1202,
Baltimore, MD 21201; Attorneys for Defendant/Counterclaim Plaintiff.

WHARRTON, J.

 

' Prior counsel for Defendant/Counterclaim Plaintiff moved the admission of Ms.
Concepcion pro hac vice. The Court directs substitute counsel Mr. Capuzzi to
confirm the certifications of prior counsel and that Ms. Concepcion remains counsel
for Defendant/Counterclaim Plaintiff, if that remains the case.
This 22nd day of June, 2020, upon consideration of Plaintiff/Counterclaim
Defendant Med World Acquisition Corp. d/b/a Omnicare of Plainview and Shore
Pharmaceutical Providers, LLC d/b/a/ Omnicare of Plainview’s (“Omnicare”)
Motion to Dismiss Fraud Counterclaim,’ and Defendant/Counterclaim Plaintiff
Friedwald Center for Rehabilitation and Nursing, LLC d/b/a/ Friedwald Center’s

(“Friedwald”), Response,* it appears to the Court that:

1. Before the Court is Friedwald’s second attempt to counterclaim against
Omnicare. Friedwald has amended its original counterclaim after this Court issued
an Order on November 25, 2019 granting Omnicare’s first motion to dismiss, but
granting Friedwald leave to amend.’ In its amended counterclaim, Friedwald alleges
single counts of common law fraud, breach of contract, and unjust enrichment.>
Omnicare moves to dismiss the amended common law fraud count, arguing that: (1)

the claim sounds in contract and Friedwald has failed to allege separate tort damages;

 

*D. 1. 11.

3D. 15.

* Med World Acquisition Corp. v. Friedwald Ctr. for Rehab. & Nursing, LLC, 2019
WL 6353345, at *2 (Del. Super. Ct. Nov. 25, 2019).

>D.I. 10. It appears that Friedwald has recast the now dismissed claim for common
law fraud in its original counterclaim as a breach of contract claim in the amended
counterclaim, implicitly validating Omnicare’s contention in its initial motion to
dismiss that it was a contract claim all along, and not a tort claim.

2
(2) the fraud counterclaim constitutes impermissible “bootstrapping”; and (3) the
amended fraud claim fails to plead with the requisite particularity.®

Dm The amended fraud claim asserts that in the months leading up to the
execution of the Agreement between the parties, Omnicare engaged in deceptive
negotiation tactics with the purpose of inducing Friedwald to enter into the contract.”
Specifically, it alleges that a Michael A. Rosenblum (“Rosenblum”), and other
representatives of Ommicare, made false “warranties, representations and
assurances” regarding specific pricing mechanisms to convince Friedwald that it
would save $5,000 per month in pharmaceutical costs by contracting with
Omnicare.* Friedwald also claims Omnicare engaged in fraud when, during
negotiations in the months leading up to the execution of the contract, it proposed
rates of per diem charges for IV equipment and administration which it never
intended to honor.?

3, Under Superior Court Civil Rule 12(b)(6), dismissal is warranted only
if it appears with reasonable certainty that the nonmoving party would not be entitled

to recover under any reasonably conceivable set of circumstances.'° In ruling on a

 

‘DI. 11.

7D. I. 10, at 13-15.

8 Td. at 14.

° Id.

'° Greenfield for Ford v. Budget of Delaware, Inc., 2017 WL 729769, at *2 (Del.
Super. Ct. Feb. 22, 2017).
12(b)(6) motion, the Court draws all reasonable factual inferences in the light most
favorable to the opposing party,'' and assumes that all well-pleaded facts in a
complaint are true.'? Allegations are well-pleaded if they place the defendant on
notice of the claim.'? Although the pleading threshold in Delaware is low,
“[a]llegations that are merely conclusory and lacking factual basis, however, will not
survive a motion to dismiss.”'* Superior Court Civil Rule 9(b) requires that “{iJn all
averments of fraud or mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.”'> The particularity pleading standard requires a party
to plead “the time, place and contents of the false representations.”'® However,
“[m|Jalice, intent, knowledge, and other condition of mind of a person may be averred
generally.”!7

4. Friedwald has not alleged that it sustained damages from tortious

conduct by Omnicare separate and apart from the damages it suffered under its

breach of contract claims, nor has it plead with particularity a claim for common law

 

' Td.

'* Brevet Capital Special Opportunities Fund, LP v. Fourth Third, LLC, 2011 WL
3452821, at *6 (Del. Super.).

°° Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403, 406
(Del.1995).

'* Brevet Capital, 2011 WL 3452821 at *6.

'S Super. Ct. Civ. R. 9(b).

'S ITW Glob. Investments Inc. v. Am. Indus. Partners Capital Fund IV, L.P., 2015
WL 3970908, at *5 (Del. Super. Ct. June 24, 2015).

'7 Super. Ct. Civ. R. 9(b).
fraud. The crux of Friedwald’s fraud counterclaim is still that Omnicare knowingly
engaged in deceptive overbilling practices. Friedwald relies on statements which
occurred in the months leading up to the contract to support its contention that
Omnicare purposely intended to defraud it. However, Friedwald fails to allege any
damages separate and apart from damages resulting from the billing dispute due to
pre-contract representations. Even if Friedwald’s allegations are true, the fact is that
the parties entered into contract and Friedwald’s claims are based on the terms of
that agreement. Friedwald alleges that Omnicare misrepresented what the terms of
the agreement would be before it entered into the contract, but multiple
considerations contribute to the actual terms of an agreement. Moreover, an actual
agreement may differ from individual terms discussed during the negotiations
leading up to the execution of a contract. Whatever terms were discussed prior to
the parties entering into the contract, the contract itself constitutes the agreement
between the parties. Omnicare either breached that agreement or it did not.

5. The common law fraud claim falls short of Rule 9(b)’s particularity
requirement by failing to plead with particularity the time, place and contents of the
false representations, as well as the identity of the person making the false statements

and the benefit to be obtained by making them.'® A parsing of the counterclaim

 

18 Nutt v. A.C. & S., Inc., 466 A.2d 18 (Del. Super. Ct. 1983), aff'd sub nom.
Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647 (Del. 1984).
exposes its deficiencies. Paragraph 4 alleges that in early February 2012, Rosenblum
sent an email stating that, by executing the contract, Friedwald would be saving an
average of over $5,000 per month in pharmaceutical costs, but Friedwald fails to
allege any facts would put the lie to that representation. Paragraph 5 is not a
complete sentence, and, for that reason, is incomprehensible. Paragraph 6 lacks
specificity as to who made any statements regarding pricing, and what those
statements were. Paragraph 11 alleges that during the course of the contractual
relationship, Omnicare made numerous demands for payment that were fraudulently
determined. The lack of specificity here is obvious — there is simply none. The same
deficiency is present in Paragraph 13. No other paragraph in the amended complaint

even nods in the direction of the particularity required by Rule 9(b).

THEREFORE, for the foregoing reasons, Omnicare’s Motion to Dismiss

Fraud Counterclaim is GRANTED.

IT IS SO ORDERED.

 

F eftis W. Wharton, J.
