United HealthCare Services v. Merck & Co.

Background

This antitrust lawsuit arises from alleged anticompetitive conduct by defendant Merck & Co., Inc. related to the sale of its lipid-lowering drugs Zetia and Vytorin (a combination pill containing Zetia and simvastatin, the generic form of Zocor). Plaintiff United HealthCare Services, Inc. (UHS) alleges that Merck's misconduct caused UHS to overpay — i.e., incur overcharges — for branded and generic Zetia and Vytorin products prescribed and dispensed to UHS's insureds.

In 2022, UHS filed an amended complaint that added claims assigned to UHS by third-party defendant Cardinal Health, Inc. Merck answered and raised dozens of affirmative defenses, including defenses contending that the claims assigned to UHS by Cardinal Health are void or otherwise prohibited. UHS moved for partial judgment on the pleadings under Federal Rule of Civil Procedure 12(c), seeking only to eliminate certain of Merck's affirmative defenses. UHS did not seek judgment on any of its own claims.

Legal Standard

The court applied the same standard used for motions to dismiss under Rule 12(b)(6). Under that standard — drawn from the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), commonly called the Iqbal/Twombly standard — a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Labels, conclusions, and formulaic recitations of legal elements are not sufficient.

Analysis

Rule 12(c) Is Not the Proper Vehicle for Challenging Only Affirmative Defenses

The court agreed with Merck that a Rule 12(c) motion for judgment on the pleadings is not the correct procedural tool for a plaintiff seeking solely to strike or eliminate affirmative defenses. The proper mechanism is a motion to strike under Federal Rule of Civil Procedure 12(f), which specifically governs "insufficient defenses." The court noted that the deadline to file a Rule 12(f) motion had elapsed months before UHS brought its motion, and the court was careful not to allow a litigant to repackage an untimely Rule 12(f) motion as a Rule 12(c) motion.

Policy Concerns with Applying Iqbal/Twombly to Affirmative Defenses

The court quoted Chief Judge Patrick J. Schiltz's reasoning from Wells Fargo & Co. v. U.S., 750 F. Supp. 2d 1049 (D. Minn. 2010), explaining that applying the Iqbal/Twombly pleading standard to affirmative defenses would "radically change civil practice in the federal courts." In ordinary practice, affirmative defenses are listed briefly in answers; parties and courts sort out which are viable through discovery, summary judgment, and trial — not through early motion practice. Forcing defendants to plead detailed factual support for every affirmative defense at the outset would generate additional rounds of motions (e.g., motions to amend answers), increasing costs and delays for parties and courts alike.

Limited Circumstances Where Rule 12(c) May Address Affirmative Defenses

The court acknowledged that affirmative defenses can be considered in a Rule 12(c) motion where a party seeks judgment on an actual claim and the raised defenses do not create factual issues that would block entry of judgment. However, that scenario was not present here: UHS was not seeking judgment on any of its claims — it sought only to eliminate specific affirmative defenses. Under those circumstances, the motion was improper.

Disposition

Because UHS failed to move for judgment on any of its claims, and because a motion for judgment on the pleadings can only be granted when the moving party has clearly established it is entitled to judgment as a matter of law, the court denied the motion.

Ruling

The motion for partial judgment on the pleadings (ECF No. 138) is denied.