IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LCPS Acquisition, LLC d/b/a )

Omnicare of Chandler, )

Plaintiff, )

) C.A. No. N19C-07-195 CEB

v. )

)

Allegiant Healthcare West, LLC d/b/a )

Allegiant Healthcare of Mesa; )

AllegiantHealthcare of Phoenix, LLC )

d/b/aAllegiant Healthcare of Phoenix; )

and Allegiant Healthcare East, LLC )

d/b/a Springdale Village, )

)

Defendants. )

Submitted: July 2, 2020

Decided: July 24, 2020

Upon Consideration of Plaintiff’s Motion to Dismiss 

the Fraud Counterclaims

GRANTED

ORDER

Before the Court is a motion filed by LCPS Acquisition, LLC d/b/a Omnicare 

of Chandler (“Plaintiff”) to dismiss counterclaims filed by Allegiant Healthcare of 

Mesa, Allegiant Healthcare of Phoenix and Allegiant Healthcare East, LLC d/b/a 

Springdale Village (“Defendants”).

1

 The Court makes the following findings:

 

1 Plaintiff’s Complaint says it is owed $671,859.39 (including interest) for providing 

consulting services related to the Allegiant Mesa Pharmacy Agreement; $307,043.56 

(including interest) for the Springdale Agreement and Allegiant Phoenix owes 

Plaintiff $567,553.88 (including interest).
2

1. Plaintiff provides pharmaceutical goods and consulting services to a 

variety of customers. As briefly as can be stated, Plaintiff and Defendants entered 

into several contracts for the provision of these goods and services and invoice 

Defendants for compensation. Plaintiff filed a breach of contract claim alleging that 

it abided by the terms of the contract, but that Defendants did not pay as agreed and 

Defendant has defaulted on the contracts. 

2. Defendants have answered and counterclaimed. The counterclaims 

allege common law fraud and breach of contract by Plaintiff. Plaintiff moves to 

dismiss the fraud counterclaims, arguing that the fraud allegations fail to meet the 

“particularity requirement” of D.R.C.P. Rule 9(b). 

3. Rule 9(b) makes a specific demand on a complaint, one that is not found 

with respect to other “general allegations.” While the rest of the complaint is 

sufficient if it is a “a short and plain statement of the claim showing that the pleader 

is entitled to relief,”

2

“In all averments of fraud, negligence or mistake, the 

circumstances constituting fraud, negligence or mistake shall be stated with 

particularity.”3

4. The counterclaims here come in six counts: three allege breach of 

contract on behalf of each of the three named Defendants. The other three counts 

 

2 D.R.C.P. Rule 8(a)(1).

3 D.R.C.P. Rule 9(b). 
3

allege common law fraud, again on behalf of each of the three Defendants. The three 

common law fraud claims are substantially identical, save for the specific amount 

allegedly lost by reason of Defendant’s alleged fraud. If one fails under Rule 9(b), 

they all do as they are substantially the same in their specificity.

5. Reviewing these three pairs of complaints is telling. For example, 

Counterclaim II alleges breach of contract in that instead of billing Defendant 

according to the contract, Plaintiff “submitted deceitful, wrongful, and fraudulent 

bills.”4 Further, it is alleged that Plaintiff’s “failure to adhere to the agreed upon 

contract terms caused [Defendant] to be charged $56,254.71 in unjustified costs in 

just an 8 month period.”5 

6. Counterclaim I alleging common law fraud, seeks the same $56,254.71, 

alleging that the loss was caused by Plaintiff’s “inaccurate, deceptive and 

unconscionable billing practices.”6 Other paragraphs claim that the “payment 

amount were fraudulently determined” and that Plaintiff intended to “deceive, 

damage and mislead” Defendant, all without further explanation.7 So the allegation 

is that the Plaintiff breached the contract through “deceitful, wrongful, and 

fraudulent” conduct and committed fraud through “inaccurate, deceptive and 

 

4 Counterclaim II ¶14 D.I. 

5 Counterclaim II ¶15 D.I. 

6 Counterclaim I, ¶7, D.I. 

7 Counterclaim I, ¶¶4, 9.
4

unconscionable” conduct. It is difficult to imagine what words in Roget’s Thesaurus 

were not hauled out and added to this mix and which category they would fit – fraud 

or breach of contract. Obviously, while the terms are certainly colorful, they are 

generic and do not describe the fraud with anything like the particularity required by 

Rule 9(b). 

7. Further cementing the Court’s view that the fraud counterclaims fail 

under the heightened pleading standard of Rule 9(b) is the recent decision of Judge 

Wharton, who just recently dismissed the counterclaims in another case brought by 

an Omnicare entity against a customer who responded with allegations of fraud and 

breach of contract.

8

 In granting the motion to dismiss the fraud counterclaim, Judge 

Wharton noted there was no allegation of tortious conduct that is separate and apart 

from the damages the defendant suffered under its breach of contract claims. The 

same is equally true here. 

8. Defendants’ breach of contract counterclaims set forth all Defendant 

needs to be made whole as a result of Plaintiff’s allegedly wrongful conduct. The 

fraud counts add nothing to Defendants’ claim or their damages. There is no 

particularity in these claims, save for some choice adjectives that do not describe a 

 

8 Med World Acquisition Corp. d/b/a Omnicare of Plainview v. Friedwald Center 

for Rehabilitation and Nursing, LLC, C.A. No. N19C-06-028 FWW (Super. Ct. July

16, 2020) 
5

time, place, or content of the allegedly false statements or the specific damages 

caused. 

In light of the foregoing, Plaintiff’s Motion to Dismiss the Fraud 

Counterclaims is GRANTED.

IT IS SO ORDERED.

Judge Charles E. Butler