The opinion of the court was delivered by: Curtin, District Judge.
This case arises from an agreement between defendant Healthnow
New York, Inc., d/b/a Blue Cross of Western New York ("Blue
Cross"), and defendants Rite Aid Corporation ("Rite Aid") and
Tops Markets Corporation ("Tops") to create an exclusive pharmacy
network for Blue Cross insureds. Upon learning that its Vix
drugstores ("Vix") were excluded from the network, plaintiff Drug
Emporium, Inc. ("Drug Emporium") filed the present action,
alleging that the exclusive pharmacy
network violated federal and state antitrust and tort laws.
Currently before this court is defendants' motion to dismiss
plaintiff's first four causes of action pursuant to Fed. R.Civ.P.
12(b)(6). Items 17, 33. Plaintiff responds in opposition. Item
For the purposes of this motion, the following facts pled in
plaintiff's complaint are deemed true. Defendant Blue Cross is a
health insurance company that sells Health Maintenance
Organization ("HMO") indemnity and Preferred Provider
Organization ("PPO") insurance. Historically, plaintiff Drug
Emporium enjoyed a good business relationship with Blue
Although the contract between Drug Emporium and Blue Cross
permitted either party to terminate the relationship on thirty
days' written notice, plaintiff claims it reasonably expected
that its business relationship with Blue Cross would continue.
Item1, ¶ 26. On June 30, 1999, however, Blue Cross exercised its
right to terminate its relationship with plaintiff when Blue
Cross announced that it was forming an exclusive pharmacy network
("the network") with Rite Aid, Tops, and the independently owned
pharmacies in the Western New York region. Previously, Blue Cross
insureds with pharmacy benefits received coverage for purchases
of prescription drugs at any pharmacy in "the Buffalo area,"
including plaintiff's Vix drugstores. Item 1, ¶ 17. Under the
exclusive pharmacy agreement, Blue Cross's pharmacy coverage
would be limited to prescription drugs purchased at Rite Aid,
Tops, and independently owned pharmacies. Item 1, ¶ 20.
Shortly after the June 30, 1999 announcement, Blue Cross
directed those insureds affected by the network to transfer their
prescriptions to Rite Aid or another store within the exclusive
network.*fn2 Id. Initially, Blue Cross intended for the
network to go into effect on August 1, 1999 with a 30-day grace
period; however, the company later decided to delay the effective
date of the network until October 1, 1999. Item 1, ¶ 2.
Plaintiff claims that it contacted Blue Cross and expressed a
desire to be included in the network but was denied the
opportunity to submit a bid regarding the prices of its
prescription drugs. Item 1, ¶ 24. Wegman's Pharmacy, however, was
allowed to submit a bid and was then added to the network
sometime between the announcement of the delay and the filing of
this lawsuit. Id. ¶ 21.
Plaintiff's complaint filed on August 19, 1999 alleges six
causes of action. Count One alleges that the exclusive pharmacy
network is a per se violation of the Sherman Act,
15 U.S.C. § 1, and the Donnelly Act, N.Y. General Business Law § 340, et
seq. Count Two claims that the network violates the rule of
reason. Plaintiff's third claim generally asserts that defendants
tortiously interfered with plaintiff's relationships with its
customers, while Count Four specifically alleges that Tops and
Rite Aid interfered with plaintiff's business relations with
defendant Blue Cross.*fn3
On September 10, 1999, defendants filed the present motion to
dismiss under Fed. R.Civ.P. 12(b)(6). Items 17 and 33. Before the
court could consider the motion, on September 17, 1999, plaintiff
filed a motion to enjoin the implementation of the exclusive
pharmacy network based on plaintiff's tort law claims. Item 22.
Oral argument on plaintiff's application for an injunction was
heard on September 30, 1999. At the conclusion of oral argument,
the court denied plaintiff's motion, holding that plaintiff
failed to demonstrate that it was likely to succeed on the merits
of its tort law claims. The court then directed plaintiff to
respond to defendants' motion to dismiss.
I. Fed.R.Civ.P. 12(b)(6) Standard
"On a motion to dismiss, the court looks to the four corners of
the complaint and is required to accept a plaintiff's allegations
as true and to construe those allegations in the light most
favorable to plaintiff." Daniel v. American Bd. of Emergency
Medicine, 988 F. Supp. 112, 118 (Arcara, J) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974));
(Dacey v. New York Lawyers' Association, 423 F.2d 188, 191 (2d
Cir. 1969)). "A dismissal is warranted under Rule 12(b)(6) only
if `it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.'" Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton
College, 128 F.3d 59, 62-63 (2d Cir. 1997) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Notably, "[t]he ...