The opinion of the court was delivered by: Cooper, District Judge.
This matter comes before the Court on the motion of defendant to
dismiss Counts I and II of plaintiffs Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the reasons stated in this Memorandum
and Order, the Court will grant the motion to dismiss.
Plaintiff Bracco Diagnostics Inc. ("Bracco") develops and markets a
variety of health care products, including diagnostic imaging agents and
diagnostic pharmaceutical products. (Compl. ¶ 6.) Defendant Bergen
Brunswig Drug Co. ("Bergen") is a wholesaler of pharmaceuticals and other
health care products. To distribute its products to end-users, Bracco
sells its products to wholesalers, such as Bergen, which have warehouse
and distribution facilities across the United States. The wholesalers
then sell and distribute Bracco's products to customers, including
hospitals and physicians. (Compl. ¶¶ 1, 2, 6.) Since 1994, Bergen has
been one of Bracco's wholesalers. (Id. ¶ 2, 6.)
The terms governing Bracco's sales to wholesalers are set forth in
"Wholesale Distribution Agreements." (Id. ¶ 9.) In 1995, Bracco and
Bergen entered into such a Wholesale Distribution Agreement. Bracco and
Bergen are parties to certain other agreements that include substantially
similar terms, referred to collectively in the Complaint as "Wholesale
Distribution Agreements." (Id. ¶ 9.) The terms of the Wholesale
Distribution Agreements require, among other things, that (1) Bergen
purchase Bracco products exclusively from Bracco; (2) Bergen maintain
accurate records of sales and returns of Bracco products; (3) Bergen
report to Bracco on a monthly basis information on sales and returns of
Bracco product; and (4) Bergen allow audit of its records from time to
time, at Bracco's expense, by Bracco or by a public accounting firm
selected by Bracco. (Id. ¶ 10.)
According to the Complaint, Bergen began using the chargeback system in
a "scheme to cheat" Bracco, involving two types of transactions. (Id.
¶ 14.) Bracco alleges that in the first type of transaction, Bergen
failed to submit a negative chargeback when required and thus kept many
unearned chargebacks. (Id. ¶ 15.) Bergen often would re-sell the
returned product and submit a report to Bracco claiming a second
reimbursement for the same item while failing to disclose that it
(Bergen) had already received reimbursement. (Id.) That "double dipping"
would result in Bergen obtaining two chargeback reimbursements for the
same product. (Id.) Bracco alleges that in the second type of
transaction, Bergen purchased Bracco products from sources other than
Bracco in violation of the Wholesale Distribution Agreements. (Id.
¶ 16.) According the Complaint, Bergen then sold such "secondary
source" goods to contract customers, and Bracco subsequently paid
chargebacks to Bergen on those sales. (Id.)
Bracco filed a six-count Complaint on December 12, 2001. In addition to
claims for breach of contract, Bracco asserts claims for common-law fraud
(Count I) and violation of the New Jersey Consumer Fraud Act (Count II).
Bergen now moves for dismissal of the fraud and statutory claims
contained in Counts I and II of the Complaint pursuant to Rule 12(b)(6).
I. Standard Under Rule 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted does not attack
the merits of the case, but merely tests the legal sufficiency of the
complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). When
considering such a motion, the reviewing court must accept as true all
well-pleaded allegations in the complaint and view them in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Wisniewski v. Johns-Manville Co.,
759 F.2d 271, 273 (3d Cir. 1985); Rogin v. Bensalem Township, 616 F.2d 680,
685 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68
L.Ed.2d 223 (1981). A court may not dismiss the complaint "unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In considering the motion, a district court must accept as true the
facts pleaded in the complaint and any and all reasonable inferences
derived from those facts. Unger v. Nat'l Residents Matching Program,
928 F.2d 1392, 1400 (3d Cir. 1991); Glenside West Corp. v. Exxon Co.,
761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank,
748 F. Supp. 254, 260 (D.N.J. 1990). Moreover, it is not necessary for
the plaintiff to plead evidence, and it is not necessary to plead the
facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp.,
561 F.2d 434, 446 (3d Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct.
1280, 55 L.Ed.2d 791 (1978); In re
Midlantic Corp. S'holder Litig., 758 F. Supp. 226, 230 (D.N.J. 1990).
Legal conclusions offered in the guise of factual allegations, however,
are given no presumption of truthfulness. Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
The question before the court is not whether the plaintiff will
ultimately prevail; rather, it is whether the plaintiff can prove any set
of facts in support of the asserted claims that would entitle the
plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 81 L.Ed.2d 59 (1984). However, although the Federal Rules of
Civil Procedure do not dictate that a "claimant set forth an intricately
detailed description of the asserted basis for relief, they do require
that the pleadings give the defendant fair notice of what the plaintiffs
claim is and the grounds upon which it rests." ...