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govinfo:USCOURTS-wvnd-1_25-cv-00029-0
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WATERFRONT FAMILY PHARMACY LLC,
Plaintiff,
v. CIVIL NO. 1:25-CV-29
(KLEEH)
OPTUMRX, INC.,
EXPRESS SCRIPTS, INC., and
CAREMARK PHC, LLC d/b/a
CVS Caremark,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS
TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
Pending before the Court are several motions. For the reasons
discussed below, the Court GRANTS the motions to compel
arbitration, GRANTS the motion to sever and transfer, and DISMISSES
this action.
I. BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff, Waterfront Family Pharmacy LLC (“Waterfront”),
brought this action against the Defendants, Optumrx, Inc.
(“Optumrx”), Express Scripts, Inc. (“Express Scripts”), Caremark
PHC, LLC d/b/a CVS Caremark (“Caremark”), and Humana Pharmacy
Solutions, Inc. (“Humana”) (together, “Defendants”). Humana was
dismissed from the case on May 13, 2025.
Waterfront alleges that Defendants violated the West Virginia
Pharmacy Audit Integrity Act (the “Act”), W. Va. Code § 33-51-
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AND TRANSFER, AND DISMISSING CASE
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9(f). Defendants are pharmacy benefits managers (“PBMs”).
Waterfront alleges that Defendants refused to reimburse Waterfront
at the required rate, fraudulently concealed their actions, and
entered into unconscionable arbitration and choice-of-law
provisions to avoid complying with the Act.
On March 31, 2025, Waterfront filed a complaint. See ECF No.
1. On June 4, 2025, it filed an amended complaint to substitute
and name the correct Caremark entities. See ECF No. 76. The
following motions are pending and fully briefed:
(1) Waterfront’s motion for preliminary
injunction [ECF No. 31];
(2) Caremark’s motion to compel arbitration
[ECF No. 39];
(3) Optumrx’s motion to compel arbitration
[ECF No. 45];
(4) Express Scripts’s motion to dismiss [ECF
No. 50];
(5) Express Scripts’s motion to sever and
transfer claims or, in the alternative,
to dismiss [ECF No. 80];
(6) Optumrx’s renewed motion to compel
arbitration [ECF No. 89]; and
(7) Caremark’s renewed motion to compel
arbitration [ECF No. 90].
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II. ALLEGATIONS IN THE AMENDED COMPLAINT
The Act became effective on June 4, 2018. Am. Compl., ECF
No. 76, at ¶ 8. It regulates the conduct of PBMs and has been
amended from time to time. Id. ¶ 9. In 2021, the West Virginia
Legislature (the “Legislature”) passed an amendment to the Act,
codified at W. Va. Code § 33-51-9(f). I d. ¶ 10. The amendment
makes it illegal for a PBM to “reimburse a pharmacy or pharmacist
for a prescription drug or pharmacy service in an amount less than
the amount the [PBM] reimburses itself or an affiliate for the
same prescription drug or pharmacy service.” Id. ¶ 11. Waterfront
alleges that since 2021, Defendants have “intentionally,
willfully, systematically, and with fraudulent intent engaged in
an illegal scheme” to violate the Act “by reimbursing their own
affiliated pharmacies for prescription drugs and pharmacy services
at rates much higher than the rates at which they have
reimbursed . . . [Waterfront] for the same prescription drugs and
pharmacy services.” Id. ¶ 12. Waterfront alleges that Defendants
have acted to cover up and fraudulently conceal their illegal
activities. Id. ¶ 14.
Waterfront alleges that the Act requires Defendants to post
on their websites significant quarterly reporting of their
activities, and since 2021, Defendants have refused to do so in an
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effort to hide unlawful activity. Id. ¶¶ 15-17. Waterfront also
alleges that Defendants have each imposed unconscionable adhesive
contracts, which they have utilized to violate the Act and conceal
violations from Waterfront. Id. ¶ 18. Waterfront further alleges
that Defendants have refused to make copies of the contracts
available to Waterfront, and the purpose of this was to
fraudulently conceal their illegal scheme. Id. ¶¶ 19-20. The
adhesive contracts, as Waterfront alleges, contain “broad and
onerous choice of law provision and arbitration clauses,” which
force Waterfront to adjudicate disputes under non-West Virginia
law and participate in arbitration in another state. Id. ¶ 21.
Waterfront brings the following causes of action:
x Count One: Violation of the Act, W. Va. Code
§ 33-51-9(f) (against all Defendants); and
x Count Two: Declaratory Judgment, 28 U.S.C.
§ 2201 (against all Defendants).
Waterfront requests the following relief:
x Injunctive relief enjoining Defendants from
continually and prospectively violating the
Act by entering an order requiring Defendants
to comply with the Act in its entirety;
x Injunctive relief ordering Defendants to
adhere to the requirements of the Act by
publishing their required reports on the
publicly available websites for a period of at
least 24 months;
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x Declaratory relief;
x Compensatory damages;
x Punitive damages;
x Pre-judgment and post-judgment interest;
x Attorney’s fees costs, and expenses; and
x Any other relief deemed appropriate by the
Court.
III. STANDARD OF REVIEW
Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows
the Court to dismiss an action for lack of jurisdiction over the
subject matter. “The plaintiff bears the burden of proving that
subject matter jurisdiction exists.” Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999) (citation omitted). In
considering a motion to dismiss pursuant to Rule 12(b)(1), the
court should “regard the pleadings as mere evidence on the issue,
and may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment.” Id. (citation
omitted). The court should grant the motion “only if the material
jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.” Id. (citation omitted).
When a defendant asserts multiple defenses, “questions of subject
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matter jurisdiction must be decided first, because they concern
the court’s very power to hear the case.” Owens-Illinois, Inc. v.
Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (citations and
internal quotation marks omitted).
Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does not “state a claim upon which relief can be granted.” In
ruling on a 12(b)(6) motion to dismiss, a court “must accept as
true all of the factual allegations contained in the complaint.”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)
(citations omitted). A court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986) (citations omitted).
A court should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Factual allegations must “raise a right to relief above the
speculative level on the assumption that all of the complaint’s
allegations are true.” Id. at 545. Plausibility exists “when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). A motion to dismiss “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (citation omitted).
IV. MOTIONS TO COMPEL ARBITRATION
The Federal Arbitration Act (“FAA”) governs written
agreements to arbitrate a controversy arising out of a contract.
An arbitration agreement “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract . . . .” 9 U.S.C. § 2. There
is a “strong federal policy in favor of enforcing arbitration
agreements.” Hayes v. Delbert Servs. Corp. , 811 F.3d 666, 671
(4th Cir. 2016) (citation omitted).
Of course, “[a] party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.”
Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d
88, 92 (4th Cir. 1996) (citation omitted). When parties disagree
about whether they formed an agreement to arbitrate at all, “the
dispute is generally for courts to decide.” Granite Rock Co. v.
Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010) (citation
omitted). “Although federal law governs the arbitrability of
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disputes, ordinary state-law principles resolve issues regarding
the formation of contracts.” May v. Nationstar Mortg., LLC, No.
3:12-CV-43, 2012 WL 3028467, at *4 (N.D.W. Va. July 25, 2012)
(citations omitted). As such, “the district court must
determine — as a condition precedent to the entry of any § 3 stay
or § 4 order compelling arbitration — whether that party is
entitled to enforce the arbitration agreement under state contract
law.” Rogers v. Tug Hill Operating, LLC, 76 F.4th 279, 287 (4th
Cir. 2023).
The United States Supreme Court has “repeatedly interpreted
the FAA to require questions about the validity of an arbitration
provision to be severed and adjudicated separately from any other
contractual question.” Schumacher Homes of Circleville, Inc. v.
Spencer, 787 S.E.2d 650, 659 (W. Va. 2016). The arbitration
provision in the larger contract must be “carved out, severed from
the larger contract, and . . . tested separately under state
contract law for validity and enforceability.” Id. at 658–59.
Accordingly, the Court should examine only the validity of the
arbitration provisions themselves, not the other provisions in the
contracts.
In the United States Court of Appeals for the Fourth Circuit,
a litigant can compel arbitration under the
FAA if he can demonstrate “(1) the existence
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of a dispute between the parties, (2) a
written agreement that includes an arbitration
provision which purports to cover the dispute,
(3) the relationship of the transaction, which
is evidenced by the agreement, to interstate
or foreign commerce, and (4) the failure,
neglect or refusal of the defendant to
arbitrate the dispute.” Whiteside v. Teltech
Corp., 940 F.2d 99, 102 (4th Cir. 1991).
Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500–01 (4th Cir. 2002)
(citation omitted).
“[P]arties can agree to arbitrate gateway questions of
arbitrability, such as whether the parties have agreed to arbitrate
or whether their agreement covers a particular controversy[.]”
Galloway v. Priority Imps. Richmond, LLC, No. 20-1020, 2023 WL
1858387, at *1 (4th Cir. Feb. 9, 2023) (citation omitted). “When
the parties’ contract delegates the arbitrability question to an
arbitrator, the courts must respect the parties’ decision as
embodied in the contract.” Id. at *2 (citation omitted). The
agreement “must clearly and unmistakably provide that the
arbitrator shall determine what disputes the parties agree to
arbitrate.” Id. at *1 (citation omitted). “Incorporation by
reference of an arbitration body’s rules for arbitration that
include a rule that the arbitrator will determine gateway
arbitrability issues is considered a clear and unmistakable intent
by the parties to commit determinations of the arbitrator’s
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jurisdiction to the arbitrator.” Ashworth v. Five Guys Ops., LLC,
No. 3:16-06646, 2016 WL 7422679, at *2 (S.D.W. Va. Dec. 22, 2016)
(citation omitted).
A. Caremark’s Motions [ECF Nos. 39, 90]
The “Provider Agreement” between Waterfront and Caremark
contains an arbitration provision that requires arbitration of
“[a]ny dispute, claim or controversy between [Waterfront] and
Caremark . . . including Caremark’s current, future, or former
employees, parents, subsidiaries, affiliates, agents, and
assignees . . . including, but not limited to, disputes in
connection with, arising out of, or relating in any way to, the
Provider Agreement or to [Waterfront’s] participation in one of
more Caremark networks . . . .” See Petersen Decl., ECF No. 39-
1, at ¶ 10; 2024 Provider Manual, ECF No. 39-4, at 95. The
arbitration provision also requires the arbitrator, rather than a
Court, to resolve any threshold challenges to the scope and
enforceability of the arbitration provision. Id.
Caremark argues that the Supreme Court of Appeals of West
Virginia (“SCAWV”) has reviewed the same agreement between
Waterfront and Caremark and determined (1) that the Provider
Agreement is governed by Arizona law; (2) that the Provider
Agreement incorporates the terms of the Provider Manual, including
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the Provider Manual’s arbitration provision; and (3) that the
provision allowing Caremark to amend the Provider Manual upon
notice to Waterfront is enforceable under Arizona law. See W. Va.
CVS Pharm., LLC v. McDowell Pharm., Inc., 796 S.E.2d 574 (W. Va.
2017). In response, Waterfront argues (1) that Caremark’s motion
invokes “illegal and unenforceable arbitration provisions,” (2)
that the contracts at issue are for an illegal purpose, and (3)
that the arbitration provisions are both procedurally and
substantively unconscionable.
Here, applying the Adkins factors, they are all satisfied,
and arbitration is appropriate. The first factor is satisfied
because a dispute exists between the parties. This is evidenced
by Waterfront’s filing of the amended complaint. See May, 2012 WL
3028467, at *8. The third factor is also satisfied because the
parties are citizens of different states. The fourth factor is
satisfied because Waterfront has refused to arbitrate, which,
again, is evidenced by the filing of the amended complaint. See
id. The only remaining requirement — a written agreement that
includes an arbitration provision that purports to cover the
dispute — is also satisfied for the reasons discussed herein.
“Whether the parties have in fact executed an enforceable
agreement to arbitrate is a matter of contract interpretation
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governed by state law[.]” Meadows v. Cebridge Acquisition, LLC,
132 F.4th 716, 726 (4th Cir. 2025) (citations omitted). Because
the Provider Agreement executed by Waterfront in 2007 contains an
Arizona choice-of-law provision,
1 Arizona law governs its
interpretation, including whether it contains a valid and
enforceable arbitration provision. See Provider Agreement, ECF
No. 44, at ¶ 13. “In Arizona, for a valid contract to exist, the
contract must manifest mutual assent, i.e., the parties’ intent to
be bound.” Myers v. Experian Info. Sols. Inc., 734 F. Supp. 3d
912, 919 (D. Ariz. 2024) (citations and internal quotation marks
omitted).
1. The Provider Agreement incorporates the Provider
Manual.
The Provider Agreement expressly incorporates the Provider
Manual. As discussed above, the SCAWV “conclude[d] that, pursuant
to Arizona law, the arbitration agreements were successfully
incorporated by reference into the provider agreements executed
between the Direct Contract Pharmacies and Caremark.” McDowell,
796 S.E.2d at 585. Regardless of whether Waterfront is
1 Under West Virginia law, “a choice-of-law provision will be upheld unless the
chosen state has no substantial relationship to the parties to the transaction
or unless the application of the law of the chosen state would be contrary to
the fundamental public policy of this state.” Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Coe, 313 F. Supp. 2d 603, 609 (S.D. W. Va. 2004) (citation and
internal quotation marks omitted).
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collaterally estopped from arguing otherwise, the SCAWV’s
interpretation is correct. To incorporate a document by reference
into a contract under Arizona law, the contract’s reference to the
document “must be clear and unequivocal and must be called to the
attention of the other party, he must consent thereto, and the
terms of the incorporated document must be known or easily
available to the contracting parties.” Weatherguard Roofing Co.,
Inc. v. D.R. Ward Constr. Co., Inc., 152 P.3d 1227, 1229 (Ariz.
Ct. App. 2007) (emphasis and citations omitted). The Provider
Agreement’s reference to the Provider Manual meets these
requirements. The Provider Agreement clearly and unequivocally
references the Provider Manual by stating, “This Agreement, the
Provider Manual, and all other Caremark Documents constitute the
entire agreement between Provider and Caremark, all of which are
incorporated by this reference as if fully set forth herein and
referred to collectively as the ‘Provider Agreement’ or
‘Agreement.’” Provider Agreement, ECF No. 44, at ¶ 11. By
executing the Provider Agreement, Waterfront expressly
acknowledged receipt of the Provider Manual and agreed to be bound
by its terms: “By signing below, Provider agrees to the terms set
forth above and acknowledges receipt of the Provider Manual.” Id.
at 3. The Provider Agreement thus incorporates the terms of the
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Provider Manual, and Waterfront manifested its assent to those
terms when it executed the Provider Agreement.
2. Caremark amended the Provider Manual in accordance
with the process set forth therein.
Caremark has amended the Provider Manual from time to time
since 2007, including most recently in 2024. See Petersen Decl.,
ECF No. 39-1, at ¶¶ 8-14. The SCAWV has determined that the
process for amendments set forth in the Provider Manual is
enforceable under Arizona law. See McDowell, 796 S.E.2d at 583–
84. The version of the Provider Manual in effect when Waterfront
executed the Provider Agreement contained a provision allowing
Caremark to amend the Provider Manual “by giving notice to
[Waterfront] of the terms of the amendment and specifying the date
the amendment becomes effective.” 2004 Provider Manual, ECF No.
39-3, at 47. The Provider Manual further stated that “[i]f
[Waterfront] submits claims to Caremark after the effective date
of any notice or amendment, the terms of the notice or amendment
will be deemed accepted by Provider and will be considered part of
the Caremark Provider Agreement.” Id. Every version of the
Provider Manual since 2007 has contained a substantially similar
provision allowing amendments. See Petersen Decl., ECF No. 39-1,
at ¶ 9.
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Regardless of whether Waterfront is collaterally estopped
from challenging the enforceability of the Provider Manual’s
amendment provision, the SCAWV’s determination was correct as a
matter of Arizona law. “[T]o effectively modify a contract, there
must be: (1) an offer to modify the contract, (2) assent to or
acceptance of that offer, and (3) consideration.” Cap. One Bank
(USA), N.A. v. Davey, No. 1 CA-CV 13-0109, 2013 WL 6729261, at *5
(Ariz. Ct. App. Dec. 19, 2013) (citations and internal quotation
marks omitted). Under the process set forth in the Provider
Manual, Caremark offers to modify the Provider Manual by providing
notice of the proposed amendments and their effective date, and
Waterfront manifests its acceptance of the modifications, in
consideration of continued participation in Caremark’s pharmacy
networks, by continuing to submit claims after the amendments’
effective date. See id. (“Conduct, such as . . . continued
use . . . following the notifications, can be sufficient to
manifest acceptance of an offer or acquiescence in a
modification.”).
In accordance with the Provider Manual’s amendment provision,
Caremark provided notice of the most recent amendments to the
Provider Manual by delivering a copy of the 2024 Provider Manual
to Waterfront on October 2, 2023, and by informing Waterfront that
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the 2024 Provider Manual would be effective on January 1, 2024.
Petersen Decl., ECF No. 39-1, at ¶ 15. Waterfront manifested its
assent to the amended terms by submitting numerous claims to
Caremark since the amended terms became effective on January 1,
2024. See id. Waterfront is thus bound by the current version of
the Provider Manual, including the Arbitration Agreement, which
requires “[a]ny dispute, claim or controversy between [Waterfront]
and Caremark . . . including . . . disputes in connection with,
arising out of, or relating in any way to, the Provider Agreement
or to [Waterfront’s] participation in one or more Caremark
networks,” to be resolved through arbitration. 2024 Provider
Manual, ECF No. 39-4, at 95. The arbitration agreement purports
to cover Waterfront’s claims, so arbitration is compelled. For
all of these reasons, the second Adkins factor is satisfied.
3. The arbitrator must decide other threshold issues
of arbitrability, including scope and
unconscionability.
As discussed above, “parties can agree to arbitrate gateway
questions of arbitrability, such as whether the parties have agreed
to arbitrate or whether their agreement covers a particular
controversy[.]” Galloway, 2023 WL 1858387, at *1. The parties
did so here. The arbitration agreement delegates threshold issues
of arbitrability to the arbitrator in two ways: (1) through an
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express delegation clause, and (2) through incorporation of JAMS
Comprehensive Arbitration Rules and Procedures (“JAMS Rules”).
First, the arbitration agreement contains the following
delegation clause that constitutes clear and unmistakable evidence
of the parties’ intent to arbitrate arbitrability: “The
arbitrator(s) shall have exclusive authority to resolve any
dispute relating to the interpretation, applicability,
enforceability, or formation of the agreement to arbitrate
including, but not limited to, any claim that all or part of the
agreement to arbitrate is void or voidable for any reason.” 2024
Provider Manual, ECF No. 39-4, at 95. The 2024 Provider Manual
also states that “any disputes regarding the interpretation,
validity, scope, or applicability of this agreement to arbitrate,
will be exclusively settled by arbitration.” Id. Both the Supreme
Court and the Fourth Circuit have held that substantially similar
language is sufficient to delegate issues of arbitrability to the
arbitrator. See Rent-A-Ctr., West, Inc. v. Jackson, 561 U.S. 63,
66 (2010) (enforcing delegation clause providing that “[t]he
Arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to
the interpretation, applicability, enforceability or formation of
this Agreement including, but not limited to any claim that all or
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any part of this Agreement is void or voidable”); Modern
Perfection, LLC v. Bank of Am., N.A., 126 F.4th 235, 238 (4th Cir.
2025) (enforcing delegation clause providing that “[t]he
arbitrator . . . will decide questions of law and
fact[,] . . . includ[ing] the applicability of this Resolving
Claims Section and the validity of the deposit agreement”); Novic
v. Credit One Bank, Nat’l Ass’n, 757 F. App’x 235, 238–39 (4th
Cir. 2019) (enforcing delegation clause providing that “[c]laims
subject to arbitration include . . . the application,
enforceability or interpretation of [the cardholder agreement],
including this arbitration provision”). The same is true here:
the delegation clause requires the arbitrator, rather than this
Court, to determine whether Waterfront’s claims fall within the
scope of the arbitration agreement.
Second, the arbitration agreement also incorporates JAMS
Rules. See 2024 Provider Manual, ECF No. 39-4, at 95 (“Unless
otherwise agreed to in writing by the parties, the arbitration
shall be administered by JAMS pursuant to its then applicable
Comprehensive Arbitration Rules and Procedures (‘JAMS Rules’)
including the rule governing Emergency Relief Procedures
(available from JAMS)”). In the Fourth Circuit, “the explicit
incorporation of JAMS Rules serves as ‘clear and unmistakable’
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evidence of the parties’ intent to arbitrate arbitrability.”
Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F.3d 522, 528 (4th
Cir. 2017) (abrogated on other grounds). Thus, the incorporation
of JAMS Rules provides an additional basis for referring any issues
of arbitrability to the arbitrator.
In addition, as explained above, the delegation clause
requires the arbitrator to resolve “any dispute relating to the
interpretation, applicability, enforceability, or formation of the
agreement to arbitrate including, but not limited to, any claim
that all or part of the agreement to arbitrate is void or voidable
for any reason.” 2024 Provider Manual, ECF No. 39-4, at 95. Under
Arizona law, a claim of unconscionability is a challenge to the
contract’s enforceability. See, e.g., Rizzio v. Surpass Senior
Living LLC, 492 P.3d 1031, 1034 (Ariz. 2021). Thus, the delegation
clause mandates that the arbitrator, rather than this Court, must
resolve any claim that the arbitration agreement is
unconscionable.
Waterfront argues that the delegation clause is
“unenforceable for the same reasons as the arbitration provisions
and choice of law provisions are unenforceable”: because they
“operate in tandem with choice of law provisions as an
unenforceable prospective waiver of Waterfront’s . . . rights”;
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because they “fundamentally violate West Virginia public policy”;
and because they are “procedurally and substantively
unconscionable.” Omnibus Resp., ECF No. 57, at 16. The Supreme
Court has explained that a party challenging a delegation clause
on the same ground as other provisions of an arbitration agreement
must explain how those other provisions “as applied to the
delegation provision render[] that provision unconscionable[.]”
Rent-A-Ctr., 561 U.S. at 74 (emphasis removed); see also Modern
Perfection, 126 F.4th at 243 (“[A] party seeking to evade a
delegation clause’s application must assert — and ultimately
prove — that there is some defect that ‘render[s] that provision’
illegal or otherwise unenforceable.”) (citations and emphasis
omitted). Here, the Court finds that, like the plaintiff in Rent-
A-Center, Waterfront does not explain how its prospective waiver
argument or other arguments apply to the delegation clause itself.
Waterfront raises no specific, substantive challenge to the
delegation clause, so the Court must compel arbitration, leaving
any arbitrability issues to the arbitrator. See Harris v. Equifax
Info. Servs., No. 2:18-cv-00558, 2019 WL 1714218, at *4 (S.D. W.
Va. Apr. 17, 2019) (stating that a challenge to a delegation
provision “must be to the delegation provision specifically and
not the arbitration agreement as a whole”) (citation omitted).
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For all of these reasons, the arbitrator must determine
questions of arbitrability, including whether Waterfront’s claims
fall within the scope of the arbitration agreement and any question
of unconscionability.
B. Optumrx’s Motions [ECF Nos. 45, 89]
Optumrx and Waterfront are parties to two contracts with
arbitration provisions: the “Manual” and the “Elevate PNA.” The
“Manual” contains a section entitled “Alternative Dispute
Resolution and Arbitration” that requires arbitration of “any and
all Disputes,” which are defined as “any and all issues, disputes,
and/or controversies between the parties, including, but not
limited to all disputes relating in any way to the parties’
relationship, the terms of the Provider Network
Agreement . . . and/or or this [Manual], and the Pharmacy
Provider’s status in the Administrator’s network.” See 2025
Pharmacy Provider Manual, ECF No. 46-20, at 126. The Manual
continues, “For further avoidance of doubt, all
Disputes — including Disputes regarding termination hereof or
nonrenewal hereof . . . — are subject to the arbitration process
described herein.” Id. at 127. The Manual’s arbitration agreement
also contains a delegation clause. Under that clause, “the
arbitrator(s) shall decide any and all questions regarding
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arbitrability or the formation, scope, validity, and/or
interpretation of the parties’ agreement to arbitrate.” Id.
The Elevate PNA was amended, effective April 1, 2025. See
2025 Amendment to PNA, ECF No. 46-22. As amended, the Elevate PNA
contains a provision, found in the section entitled “Dispute
Resolution,” requiring the binding arbitration of “Disputes,”
which are defined as “any and all issues, disputes, and/or
controversies between the parties, including, but not limited to,
all disputes relating to the parties’ relationship, the terms of
this Agreement and/or Pharmacy Manual, and the Pharmacy’s status
in the Administrator’s network.” Id. § 10.1. This arbitration
agreement is applicable “to any and all Disputes whenever they
arise or arose, including, past, present and future Disputes except
for any Disputes for which either party has already provided
notice.” Id. The Elevate PNA also has a delegation clause
stating, in bold print, “For the avoidance of doubt, the
arbitrator(s) shall decide questions regarding arbitrability or
the scope, enforceability and/or interpretation of the parties’
agreement to arbitrate . . . .” Id. § 10.2. The Elevate PNA has
a California choice-of-law provision. See Elevate PNA, ECF No.
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46-21, at § 11.11. Accordingly, California law applies to the
determination of whether Waterfront’s claims must be arbitrated.2
The arbitration provision has on e carveout to its
retroactivity: where notice was provided before the amendment went
into effect. Waterfront argues that it notified Optumrx that it
intended to file a claim before the arbitration clause was
implemented. Optumrx argus that Waterfront did not give notice
before that time. Optumrx contends that Waterfront sent notice to
Elevate, not to Optumrx. Elevate is a PSAO for Optumrx. The PNA
includes a notice provision:
All notices, requests, consents, demands and
other communications hereunder (collectively,
“Notices”) shall be in writing, addressed to
the receiving party’s address (or, at
Administrator’s sole option and solely for
Notices sent by Administrator, Company’s
facsimile number or email address) as set
forth below or to such other address (or, at
Administrator’s sole option and solely for
Notices sent by Administrator, Company’s
facsimile number or email address) as a party
may designate by providing notice pursuant to
this section, and either (i) delivered by
hand, (ii) went by a national recognized
overnight courier, (iii) sent by registered or
certified mail, return receipt requested,
postage prepaid, (iv) solely with respect to
Notices sent by Administrator, sent by
facsimile transmission or (v) solely with
respect to Notice sent by Administrator, sent
by email.
2 See note 1, supra.
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Elevate PNA, ECF No. 46-21, at § 11.4. The filing of this lawsuit
does not comply with it. It appears undisputed that Optumrx was
not served until April 3 or 4 with the required notice, so the
carveout to retroactivity does not apply to Waterfront.
Here, applying the Adkins factors, they are all satisfied,
and arbitration is appropriate. The first factor is satisfied
because a dispute exists between the parties. This is, again,
evidenced by Waterfront’s filing of the amended complaint. See
May, 2012 WL 3028467, at *8. The third factor is also satisfied
because the parties are citizens of different states. The fourth
factor is satisfied because Waterfront has refused to arbitrate,
which, again, is evidenced by the filing of the amended complaint.
See id. The only remaining requirement — a written agreement that
includes an arbitration provision that purports to cover the
dispute — is also satisfied for the reasons discussed herein.
1. The Manual is binding on Waterfront.
The Manual and its arbitration agreement are binding on
Waterfront for three reasons. First, the Manual is incorporated
into the Elevate PNA, of which Waterfront knowingly availed itself
when it joined Elevate. See Jones Decl., ECF No. 46-1, at ¶ 11.
The original and amended Elevate PNA provide that the PNA governs
if there is a conflict with the Manual. See Elevate PNA, ECF No.
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46-21, at § 11.1; 2025 Amendment to PNA, ECF No. 46-22, at § 11.1.
There is no conflict, however, between the Elevate PNA and the
Manual pertinent to the issues raised by Optumrx’s motion. As
shown above, as in the Manual, the in-force Elevate PNA Amendment
also broadly requires arbitration of disputes arising from the
parties’ relationship.
Second, Waterfront is bound to the Manual’s arbitration
agreement under the “direct benefits estoppel” doctrine. Bayles
v. Evans, 842 S.E.2d 235, 245–46 (W. Va. 2020) (“Courts often say
that a nonsignatory is estopped from refusing to comply with an
arbitration clause when it receives a direct benefit from a
contract containing an arbitration clause.”) (citations omitted).
Direct benefits estoppel applies to “non-signatories who, during
the life of the contract, have embraced the contract despite their
non-signatory status but then, during litigation, attempt to
repudiate the arbitration clause in the contract.” Id. (citation
omitted).
Here, Waterfront knowingly sought and obtained direct
benefits from the Manual. For years, including after receipt of
notices of Manual updates informing Waterfront of the Manual’s
arbitration agreement, Waterfront filled thousands of
prescriptions for patients in Optumrx’s network and submitted
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related claims for reimbursement for which Optumrx paid Waterfront
hundreds of thousands of dollars. Jones Decl., ECF No. 46-1, at
¶ 15. Waterfront was able to do so only as a result of agreeing
to participate in Optumrx’s network pursuant to the Manual. Id.
¶ 10. Waterfront cannot benefit from the terms of the Manual for
all this time, while simultaneously avoiding arbitration under the
terms of the very same Manual. See, e.g., HealthPro Pharm. &
Wellness Ctr. v. OptumRx Inc., No. 3:24-cv-01878-N, 2025 WL 307696,
at *2 (N.D. Tex. Jan. 27, 2025) (applying direct benefits estoppel
under California law to a network pharmacy’s claims against Optumrx
to compel arbitration of pharmacy’s claims).
Third, the doctrine of ratification mandates the same result.
See Hammerl v. Acer Europe, S.A., No. C 08-4754 JF (RS), 2009 WL
30130, at *9 (N.D. Cal. Jan. 5, 2009) (per California law,
ratification mandates that “a corporation is estopped from denying
the validity or enforceability of a contract, after accepting
performance and making payment on account thereof”). Waterfront
received multiple notices of updates to the Manual, specifically
notifying it of the Manual’s arbitration agreement, yet continued
to submit claims, receiving the benefit of participating in
Optumrx’s network, subject to the terms of the Manual. Jones
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Decl., ECF No. 46-1, at ¶¶ 14, 19. Waterfront has ratified the
Manual and its arbitration agreement.
2. The PNA’s broad arbitration agreement is also
binding on Waterfront.
By affiliating with the Elevate PSAO to join the Optumrx
network, Waterfront availed itself of the contracts Elevate has
negotiated and will negotiate with PBMs on behalf of itself and
its constituent pharmacies. Id. ¶¶ 8, 10. Appointment of a PSAO
as a pharmacy’s contracting agent is standard in the industry, id.
¶ 8, and courts regularly enforce against pharmacy-PSAO-members
contracts entered into by the PSAOs representing those pharmacies.
See, e.g., Mabe v. OptumRx, No. 3:17-CV-01102, 2024 WL 3498353, at
*10 (M.D. Pa. July 22, 2024) (applying California law and holding
that the “arbitration provisions in the Provider Agreements
entered into by PSAOs are enforceable against each Plaintiff
contracted with a PSAO”); AAMH Pharm. Inc. v. OptumRx Inc., No.
56-2018-00515296-CU-AT-VTA, 2019 WL 13152208, at *5 (Cal. Super.
Ct. Apr. 22, 2019) (“each of the Pharmacy Plaintiffs is bound by
the respective [Provider] Agreements, including the binding
arbitration provisions contained therein,” because PSAOs “entered
into [Provider] Agreements on behalf of their respective Pharmacy
Plaintiff principals”). One of the contracts that Elevate
negotiated with Optumrx on behalf of Waterfront was the Elevate
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PNA and its Amendment. Jones Decl., ECF No. 46-1, at ¶ 11.
Waterfront submitted claims and received reimbursement from
Optumrx under the terms of the Elevate PNA and Amendment. Id. ¶
15). Moreover, the PNA was executed “on behalf of” Elevate and
each of its member pharmacies. Elevate PNA, ECF No. 46-21, at 1.
Thus, when Waterfront joined Elevate, it became one of the
pharmacies for whose benefit and on whose behalf the PNA was
executed. Elevate represented in its PNA that it “has the
authority” to enter into the PNA as Waterfront’s agent, and that
Waterfront agreed to be bound by and comply with the Elevate PNA
and Manual. Id. at Recital D. Accordingly, Waterfront is bound
by the Elevate PNA.
As of April 1, 2025, the Elevate PNA has had a broad and
retroactive arbitration agreement. The arbitration agreement is
applicable to “any and all Disputes whenever they arise or arose,
including past, present, and future Disputes except for any
Disputes for which either party has already provided notice,” and
it requires arbitration of “any and all issues, disputes, and/or
controversies between the parties, including, but not limited to,
all disputes relating to the parties’ relationship[.]” 2025
Amendment to PNA, ECF No. 46-22, at § 10.1. That arbitration
agreement purports to cover Waterfront’s claims, so arbitration is
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compelled. For all of these reasons, the second Adkins factor is
satisfied.
3. The arbitrator must decide other threshold issues
of arbitrability, including scope and
unconscionability.
As discussed above, “parties can agree to arbitrate gateway
questions of arbitrability, such as whether the parties have agreed
to arbitrate or whether their agreement covers a particular
controversy[.]” Galloway, 2023 WL 1858387, at *1. The parties
did so here. The Manual’s delegation clause expressly provides
that “the arbitrator(s) shall decide any and all questions
regarding arbitrability or the formation, scope, validity, and/or
interpretation of the parties’ agreement to arbitrate.” Pharmacy
Provider Manual, ECF No. 46-20, at 127. The Elevate PNA Amendment
has a similar delegation clause. 2025 Amendment to PNA, ECF No.
46-22, at § 10.2. These clauses supply clear and unmistakable
evidence of the parties’ intent to delegate threshold decisions
about arbitrability of Waterfront’s claims to arbitrators. Both
the Supreme Court and the Fourth Circuit have held that
substantially similar language is sufficient to delegate issues of
arbitrability to the arbitrator. See Rent-A-Ctr., 561 U.S. at 66
(enforcing delegation clause providing that “[t]he Arbitrator, and
not any federal, state, or local court or agency, shall have
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exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this
Agreement including, but not limited to any claim that all or any
part of this Agreement is void or voidable”); Modern Perfection,
126 F.4th at 238 (enforcing delegation clause providing that “[t]he
arbitrator . . . will decide questions of law and
fact[,] . . . includ[ing] the applicability of this Resolving
Claims Section and the validity of the deposit agreement”); Novic,
757 F. App’x at 238–39 (enforcing delegation clause providing that
“[c]laims subject to arbitration include . . . the application,
enforceability or interpretation of [the cardholder agreement],
including this arbitration provision”). The same is true here:
the delegation clause requires the arbitrator, rather than this
Court, to determine whether Waterfront’s claims fall within the
scope of the arbitration agreement.
The Manual’s (and Elevate PNA Amendment’s) incorporation of
the AAA Rules is additional clear and unmistakable evidence of
intent to delegate threshold issues of arbitrability. See Pharmacy
Provider Manual, ECF No. 46-20, at 127 (“Any such arbitration shall
be administered exclusively by the American Arbitration
Association in accordance with its Commercial Arbitration Rules
and Mediation Procedures, as they may be amended from time-to-
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time.”); 2025 Amendment to PNA, ECF No. 46-22, at § 10.2 (same).
Under those Rules, “[t]he arbitrator shall have the power to rule
on his or her own jurisdiction, including any objections with
respect to the existence, scope, or validity of the arbitration
agreement or to the arbitrability of any claim.” See AAA Rule R-
7(a). Reference to AAA rules “satisfies the clear and unmistakable
test.” House v. Rent-A-Ctr. Franchising Int’l, Inc., No. 3:16-
06654, 2016 WL 7394552, at *6 (S.D.W. Va. Dec. 21, 2016) (citation
omitted).
As discussed above, the Supreme Court has explained that a
party challenging a delegation clause on the same ground as other
provisions of an arbitration agreement must explain how those other
provisions “as applied to the delegation provision render[] that
provision unconscionable[.]” Rent-A-Ctr., 561 U.S. at 74
(emphasis removed); see also Modern Perfection, 126 F.4th at 243
(“[A] party seeking to evade a delegation clause’s application
must assert — and ultimately prove — that there is some defect
that ‘render[s] that provision’ illegal or otherwise
unenforceable.”) (citations and emphasis omitted). Waterfront has
not done so here. For the same reasons as discussed above with
respect to the Caremark delegation clause, the Court finds that,
like the plaintiff in Rent-A-Center, Waterfront raises no
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specific, substantive challenge to the Optumrx delegation clause,
so the Court must compel arbitration, leaving any arbitrability
issues to the arbitrator. See Harris, 2019 WL 1714218, at *4
(stating that a challenge to a delegation provision “must be to
the delegation provision specifically and not the arbitration
agreement as a whole”) (citation omitted).
For all of these reasons, the arbitrator must determine
questions of arbitrability, including whether Waterfront’s claims
fall within the scope of the arbitration agreement and any question
of unconscionability.
V. MOTION TO SEVER AND TRANSFER
Relying on two forum selection clauses, Express Scripts has
moved to sever the claims against it and transfer them to the
United States District Court for the Eastern District of Missouri.
See ECF No. 80. In the alternative, Express Scripts moves the
Court to dismiss Waterfront’s complaint because there is no private
right of action.3
Waterfront and Express Scripts are parties to a “Provider
Agreement.” The Provider Agreement includes a forum selection
clause:
3 Express Scripts previously filed a motion to dismiss for the same reason,
before raising the issue of the forum selection clauses. See ECF No. 50.
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All litigation between the parties arising out
of or related in any way to the interpretation
or performance of the Agreement shall be
litigated in the U.S. District Court for the
Eastern District of Missouri, or, as to those
lawsuits to which the Federal Court lacks
jurisdiction, before a court located in St.
Louis County, Missouri. The parties agree
that Claims shall not be consolidated or
coordinated in any action with the Claim of
any other individual or entity . . . .
Provider Agreement, ECF No. 81-1, at § 7.12. The Provider
Agreement incorporates the Express Scripts Provider Manual. See
id. § 7.3 (stating that “[t]his Agreement, including
its . . . Provider Manual, . . . constitutes the entire agreement
of the parties with respect to the subject matter herein”). The
Provider Agreement instructs Waterfront as to where the Provider
Manual is accessible to it online. See id. § 1.7. The Provider
Manual likewise contains a forum selection clause:
All litigation between the parties arising out
of or related in any way to the interpretation
or performance of the Provider Agreement shall
be litigated in the U.S. District Court for
the Eastern District of Missouri, or, as to
those lawsuits to which the Federal Court
lacks jurisdiction, before a court located in
St. Louis County, Missouri. The parties agree
that Claims shall not be consolidated or
coordinated in any action with the Claim of
any other individual or entity.
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See Provider Manual, ECF No. 81-1, at 133. The Court will refer
to the Provider Agreement and Provider Manual together as the
“Contract.”
Under 28 U.S.C. § 1404(a), “For the convenience of parties
and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where
it might have been brought or to any district or division to which
all parties have consented.” “When the parties have agreed to a
valid forum selection clause, a district court should ordinarily
transfer the case to the forum specified in that clause,” and
“[o]nly under extraordinary circumstances unrelated to the
convenience of the parties should a § 1404(a) motion be denied.”
Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Ct. for Western
Dist. of Texas, 571 U.S. 49, 62 (2013). The Supreme Court
explained,
The enforcement of valid forum-selection
clauses, bargained for by the parties,
protects their legitimate expectations and
furthers vital interests of the justice
system. . . . For that reason, and because
the overarching consideration under § 1404(a)
is whether transfer would promote the interest
of justice, a valid forum-selection clause
[should be] given controlling weight in all
but the most exceptional cases.
Id. at 63 (citation and internal quotation marks omitted).
Waterfront challenges the forum-selection clauses by arguing that
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Express Scripts has dominant bargaining power over Waterfront,
that they deprive Waterfront of its day in Court, and that they
are overwhelmingly unfair. These arguments have no merit.
A. The forum selection clauses apply to this dispute.
The forum selection clauses apply to “[a]ll litigation
between the parties arising out of or related in any way to the
interpretation or performance of the” respective agreement.
Provider Agreement, ECF No. 81-1, at § 7.12; Provider Manual, ECF
No. 81-1, at 133. Waterfront’s entire relationship with Express
Scripts arises from the Contract, pursuant to which Waterfront
agreed to participate in Express Scripts’s pharmacy network under
specific payment terms and other terms and conditions. Waterfront
acknowledges that its claims are related to the performance of the
Contract, as it alleges that Express Scripts uses its Contract to
pay Waterfront less than required under West Virginia law. Because
the Contract governs the terms of payment between Waterfront and
Express Scripts, Waterfront’s claim — that the Act requires it to
be paid more — is related to that Contract.
B. The forum selection clauses are dispositive under 28
U.S.C. § 1404(a).
A forum selection clause adjusts this Court’s analysis on a
motion to transfer under § 1404(a). Though in “the typical case
not involving a forum-selection clause, a district court
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considering a § 1404(a) motion” evaluates the convenience of the
parties and other “private interest” factors, the “calculus
changes” in the face of a forum selection clause in several ways.
Atlantic Marine, 571 U.S. at 62–63. “First, the plaintiff’s choice
of forum merits no weight.” Id. “Second, a court evaluating a
defendant’s § 1404(a) motion to transfer based on a forum-selection
clause should not consider arguments about the parties’ private
interests. . . . A court accordingly must deem the private-
interest factors to weigh entirely in favor of the preselected
forum.” Id. at 64.
Mandatory forum selection clauses have a “presumption of
enforceability.” BAE Sys. Tech. Sol. & Servs., Inc. v. Republic
of Korea’s Def. Acquisition Program Admin., 884 F.3d 463, 470 (4th
Cir. 2018). “A mandatory forum selection clause is ‘prima facie
valid and should be enforced unless enforcement is shown by the
resisting party to be “unreasonable” under the circumstances.’”
Sauvageot v. State Farm Mut. Auto. Ins. Co., No. 5:11cv13, 2011 WL
2680508, at *2 (N.D.W. Va. July 8, 2011) (citing M/S Bremen v.
Zapata Off–Shore Co., 407 U.S. 1, 10 (1972)). “In order to avoid
enforcement of a forum-selection clause, the challenging party
must make ‘a strong showing that the clause should be set aside.’”
Adkins v. Deangelo Brothers, LLC, No. 3:15-13151, 2016 WL 3982529,
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at *3 (S.D.W. Va. July 22, 2016) (citing M/S Bremen, 407 U.S. at
15).
Waterfront and Express Scripts contractually agreed that they
would litigate their disputes in the Eastern District of Missouri.
This forum selection must be given “controlling weight in all but
the most exceptional circumstances.” Atlantic Marine, 571 U.S. at
51 (citation omitted). Here, Waterfront does not establish that
“exceptional” circumstances preclude enforcement of the agreement.
C. Waterfront cannot meet its burden to overcome the
presumption that the forum selection clauses are valid
and should be enforced.
“[A]s the party defying the forum-selection clause,”
Waterfront bears the burden of “establishing that transfer to the
forum for which the parties bargained is unwarranted.” Id. at 63.
This requires that “the party acting in violation of the forum
selection clause . . . show[] that public-interest factors
overwhelmingly disfavor a transfer.” Id. at 67. Forum selection
clauses are only unreasonable if a plaintiff establishes the
following:
(1) their formation was induced by fraud or
overreaching; (2) the complaining party “will
for all practical purposes be deprived of his
day in court” because of the grave
inconvenience or unfairness of the selected
forum; (3) the fundamental unfairness of the
chosen law may deprive the plaintiff of a
remedy; or (4) their enforcement would
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contravene a strong public policy of the forum
state.
Sauvageot, 2011 WL 2680508, at *2 (citations omitted).
First, there is no indication that the forum selection clauses
were induced by fraud or overreaching. Waterfront’s allegation
that the contract itself is “adhesive” is insufficient. See
Turfworthy, LLC v. Dr. Karl Wetekam & Co. KG, 26 F. Supp. 3d 496,
508 (M.D.N.C. 2014) (“[A]n inability or failure to negotiate
concerning the disputed clause does not establish ‘overreaching’
by the drafter.”) (citations omitted).
Second, Waterfront cannot show that it will be deprived of
its day in court. To satisfy this factor, “the inquiry is not
whether [plaintiff] will be deprived of [its] day in [its]
preferred forum, but whether [it] will be deprived of [its] day in
any forum because of inconvenience or unfairness.” Brooks-
Williams v. Keybank, No. WDQ-15-559, 2015 WL 9255327, at *6 (D.
Md. Dec. 17, 2015) (emphasis and citation omitted). The Eastern
District of Missouri is not an unreasonable or illogical forum,
especially given that Express Scripts has its principal place of
business in Missouri. See Am. Compl., ECF No. 76, at ¶ 3; see
also Sheldon v. Hart, No. 5:09cv51, 2010 WL 114007, at *6 (N.D.W.
Va. Jan. 8, 2010) (noting that forum selection clause in Germany
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was not unreasonable where contracting party’s principal place of
business is in Germany).
Third, Waterfront cannot show that the Missouri forum will
deprive Waterfront of a remedy, to the extent it is entitled to
one. Federal courts sitting in diversity regularly apply other
states’ laws, and there is no reason that a federal court sitting
in Missouri cannot do so. See Sharpe v. Ally Fin., Inc., No.
3:17cv189-GCM, 2017 WL 5078900, at *3 (W.D.N.C. Nov. 3, 2017)
(enforcing forum selection clause where “Plaintiff has not shown
how prosecuting this case in [selected forum] would deprive her of
a remedy”); Brooks-Williams, 2015 WL 9255327, at *6 (enforcing
forum selection clause where plaintiff “provides no authority for
her apparent proposition that an Ohio court would decline to hear
her Maryland claims”).
Fourth, the enforcement of the forum selection clauses would
not contravene a strong public policy of the forum state. “In
West Virginia, forum selection clauses are not contrary to public
policy.” Sauvageot, 2011 WL 2680508, at *3 (citation and internal
quotation marks omitted). Rather, “[i]n all but the most unusual
cases, . . . the interest of justice is served by holding the
parties to their bargain.” Greenbrier Hotel Corp. v. Carter Bank
& Trust, No. 5:23-cv-00731, 2024 WL 1766653, at *6 (S.D.W. Va.
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Apr. 24, 2024) (citation and internal quotation marks omitted).
Further, Missouri “has an interest in deciding a controversy
involving a corporate defendant located there,” and “courts
routinely transfer suits alleging state law claims to courts in
other states.” Brooks-Williams, 2015 WL 9255327, at *8.
To the extent Waterfront argues that the prospective waiver
doctrine applies, the Court disagrees. The prospective waiver
doctrine originated when the Supreme Court wrote in a footnote,
“[I]n the event the choice-of-forum and choice-of-law clause
operated in tandem as a prospective waiver of a party’s right to
pursue statutory remedies . . . , we would have little hesitation
in condemning the agreement as against public policy.” Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637
n.19 (1985). Here, we do not have a complete waiver of statutory
remedies. Rather, the forum-selection clauses merely designate
the forum, which is permissible.
In sum, due to the forum selection clauses, Waterfront cannot
maintain its claims against Express Scripts in this Court.
Waterfront’s claims against Express Scripts must be transferred to
the Eastern District of Missouri.
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D. Severance
Rule 21 of the Federal Rules of Civil Procedure allows the
Court “[o]n motion or on its own . . . [to] sever any claim against
a party.” Fed. R. Civ. P. 21. The district court has “broad
discretion” in determining whether to sever a claim under Rule 21.
See, e.g., Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th
Cir. 2000) (citations omitted). Here, to effectuate the transfer
of the claims against Express Scripts to Eastern District Missouri,
the Court finds that severance is appropriate.
VI. CONCLUSION
For the reasons discussed above, Express Scripts’s motion to
sever and transfer is GRANTED [ECF No. 80]. The claims against
Express Scripts are SEVERED and TRANSFERRED to the United States
District Court for the Eastern District of Missouri. The motions
to compel arbitration are GRANTED [ECF Nos. 39, 45, 89, 90]. The
parties (Waterfront, Caremark, and Optumrx) SHALL arbitrate this
matter. This case is DISMISSED and STRICKEN from the Court’s
active docket. See Choice Hotels Int’l, Inc. v. BSR Tropicana
Resort, Inc., 252 F.3d 707, 709–10 (4th Cir. 2001) (“[D]ismissal
is a proper remedy when all of the issues presented in a lawsuit
are arbitrable.”). All other pending motions are TERMINATED [ECF
Nos. 31, 50].
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It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record and the United States
District Court for the Eastern District of Missouri.
DATED: March 31, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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