Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

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US CLOUD, LC,

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Plaintiff,

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v.

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) No. 4:25-cv-01480-JMD

CVS PHARMACY, INC,

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Defendant.

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ORDER GRANTING MOTION TO DISMISS

This is a case for breach of contract—nothing more. For over a year, US Cloud

contracted with CVS to provide tech support for CVS’s Microsoft products. CVS terminated

the contract. US Cloud sued for breach of contract. CVS counterclaimed for breach of

contract but also, in the alternative, breach of an implied covenant of good faith and fair

dealing, unjust enrichment, a declaratory judgment, and an accounting. US Cloud moved to

dismiss all the counterclaims except the counterclaim for breach of contract. Because all of

CVS’s other claims are duplicative of its claim for breach of contract or otherwise fail as a

matter of law, the Court grants US Cloud’s motion to dismiss.

Background

US Cloud and CVS entered into a three-year contract. US Cloud agreed to provide

tech support for CVS’s Microsoft products. CVS paid US Cloud over $6 million for its services

during the first year of the contract. In June 2025, US Cloud sent an invoice for over $5.9

million allegedly to cover services to be rendered for the second year of the contract. CVS

refused to pay the invoice and sent a notice of termination of the contract to US Cloud.

US Cloud sued for the invoice amount. CVS counterclaimed, arguing that US Cloud

failed to render adequate services. CVS claimed not only breach of contract by US Cloud but

also many other counterclaims in the alternative. US Cloud moves to dismiss all of CVS’s

counterclaims except CVS’s breach of contract claim.

Legal Standard

At the motion to dismiss stage, the Court accepts all factual allegations in CVS’s

counterclaim as true and draws all reasonable inferences in CVS’s favor. Healy v. Fox, 46

F.4th 739, 743 (8th Cir. 2022). Although the Court “must draw all reasonable inferences from

the facts alleged in a party’s counterclaim, if a dispositive issue of law shows no claim exists

on the face of the pleadings, the court may dismiss a counterclaim.” Summers Mfg. Co., Inc.

v. Tri-Cnty. AG, LLC, 300 F. Supp. 3d 1025, 1032 (S.D. Iowa 2017). The Court need not

accept CVS’s legal conclusions, only its factual allegations. Brown v. Medtronic, Inc., 628

F.3d 451, 459 (8th Cir. 2010).

Analysis

I. Governing Law

A federal court sitting in diversity applies the substantive law of the state in which

the district court sits. Urb. Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 877 (8th

Cir. 2008). The parties brought their claims in Missouri. But when briefing the motion to

dismiss, the parties applied Delaware law without explaining why. Yes, the contract states

that Delaware law governs the contract, ECF 8-1 at 16, but all the counterclaims at issue are

noncontractual claims. Regardless, the Court need not conduct a choice-of-law analysis

because it has not discerned any meaningful conflict of laws between Missouri and Delaware.

Phillips v. Marist Soc’y of Wash. Province, 80 F.3d 274, 276 (8th Cir. 1996) (“[B]efore

entangling itself in messy issues of conflict of laws a court ought to satisfy itself that there

actually is a difference between the relevant laws of the different states.” (citation omitted)).

II. Implied Covenant of Good Faith and Fair Dealing

CVS’s counterclaim for implied covenant of good faith and fair dealing is legally

defective. All parties agree that CVS’s claim is legally viable only if the contract does not

govern the relevant issue. ECF 33 at 2–3; ECF 35 at 6. “The implied covenant of good faith

and fair dealing involves a ‘cautious enterprise,’ inferring contractual terms to handle

developments or contractual gaps that the asserting party pleads neither party anticipated.”

Nemec v. Shrader, 991 A.2d 1120, 1125 (Del. 2010). CVS argues that the implied covenant

has a gap to fill because “there is no specific provision in the Agreement addressing failure

to accept proper termination of the Agreement.” ECF 35 at 5. But there is. ECF 8-1 at 5.

The contract gives CVS “the right to terminate this Agreement” if US Cloud “materially

breache[s],” and CVS “shall have recourse to any other right or remedy under the Agreement

or under law and/or equity.” Id. CVS alleges that US Cloud materially “breached Sections

5(C) and 6(A) of the Professional Services Agreement by improperly demanding payment for

services that it did not and would not perform during Contract Year 2.” ECF 29 ¶ 33. So

because CVS has alleged US Cloud’s failure to accept proper termination of the contract is a

material breach of the contract, id., the “[e]xisting contract terms control,” Dunlap v. State

Farm Fire & Cas. Co., 878 A.2d 434, 441 (Del. 2005) (cleaned up). An “implied” covenant

“cannot be used to circumvent the parties’ bargain, or to create a free-floating duty

unattached to the underlying legal document.” Id. CVS’s counterclaim is dismissed.

III. Unjust Enrichment

CVS fails to state a counterclaim for unjust enrichment. Unjust enrichment is an

equitable theory that is available only in the absence of a contract. “A claim for unjust

enrichment is not available if there is a contract that governs the relationship between

parties that gives rise to the unjust enrichment claim.” Kuroda v. SPJS Holdings, L.L.C.,

971 A.2d 872, 891 (Del. Ch. 2009).

CVS is correct that it could plead unjust enrichment in the alternative. BAE Sys. Info.

& Elec. Sys. Integration, Inc. v. Lockheed Martin Corp., No. CIV. A. 3099-VCN, 2009 WL

264088, at *8 (Del. Ch. Feb. 3, 2009) (“In some instances, both a breach of contract and an

unjust enrichment claim may survive a motion to dismiss when pled as alternative theories

for recovery.”). But CVS can only do so plausibly by including allegations repudiating the

validity of the contract between the parties. Kuroda, 971 A.2d at 891 (“[W]hen the complaint

alleges an express, enforceable contract that controls the parties’ relationship a claim for

unjust enrichment will be dismissed.” (cleaned up)). CVS has not done this. It never disputes

a valid contract between the parties. “[R]ather, the equitable counts adopt all previous

allegations, including the existence of a valid contract.” L&F Brands, Inc. v. Crown Valley

Winery, Inc., No. 1:19-cv-134-SNLJ, 2020 WL 3447738, at *3 (E.D. Mo. June 24, 2020). As a

result, CVS’s counterclaim for unjust enrichment is dismissed.

IV. Declaratory Judgment

CVS’s declaratory judgment claim fails as a matter of law. In its response to US

Cloud’s motion to dismiss, CVS barely acknowledges let alone persuasively refutes US

Cloud’s argument that CVS’s declaratory judgment claim is duplicative of CVS’s other claims.

CVS’s failure to respond adequately to this argument constitutes a concession to dismissal.

Muller v. Blue Diamond Growers, 683 F. Supp. 3d 933, 937 (E.D. Mo. 2023). Regardless,

under Delaware law, “a declaratory count must be distinct from the affirmative counts in the

complaint such that a decision on the affirmative counts would not resolve the declaratory

count.” Loeffler v. MNTN, Inc., No. N24C-09-151 CLS, 2025 WL 1256148, at *5 (Del. Super.

Ct. Apr. 28, 2025) (cleaned up). Because CVS’s claim for declaratory judgment “adds nothing

new,” it is duplicative and must be dismissed. Id.

V. Equitable Accounting

CVS seeks an equitable “accounting” to “identify the amount due to CVS in the form

of a refund for services not performed.” ECF 29 ¶ 66. This appears to be “[a]n appeal to the

equity jurisdiction conferred on federal district courts.” Meredith v. City of Winter Haven,

320 U.S. 228, 235 (1943). The Court has discretion to “determine” whether any given suit is

“an appropriate one for the exercise of the extraordinary powers of a court of equity.” Atlas

Life Ins. Co. v. W. I. S., Inc., 306 U.S. 563, 568 (1939).

The Court declines to exercise any equitable jurisdiction over CVS’s accounting claim

because “the exercise of equitable jurisdiction” is “proper only” when there is a “lack of an

adequate remedy at law.” In re Search of 4801 Fyler Ave., 879 F.2d 385, 387 (8th Cir. 1989).

CVS likely has two adequate remedies at law. First, under the contract, CVS has a “right to

audit” US Cloud’s “business and operations as they pertain” to the contract between the

parties, “including but not limited to [US Cloud’s] billing practices and procedures and

adherence to applicable service level agreements.” ECF 8-1 at 15; see also Ellington Credit

Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F. Supp. 2d 162, 207 (S.D.N.Y. 2011) (“[A]n

equitable accounting claim cannot coexist with a breach of contract claim covering the same

subject matter.”). Second, CVS complains that US Cloud is the only party with “knowledge

of the value of the services it actually provided,” ECF 35 at 7, but CVS can obtain that

information through discovery. See, e.g., Telesco v. Neuman, No. 7:14-cv-03480-VB, 2015 WL

2330166, at *7 (S.D.N.Y. Mar. 11, 2015) (“[A]n accounting claim is unavailable because

discovery as to the measure of damages associated with the breach of contract claim provides

plaintiff the remedy he seeks.”). The Court declines to engage in the extraordinary exercise

of equitable jurisdiction.

Conclusion

For the forgoing reasons, the Court GRANTS US Cloud’s motion to dismiss, ECF 32,

and DISMISSES counts II, IV, and V of CVS’s counterclaim, ECF 29, with prejudice and

count III without prejudice.

Dated this 15th day of September, 2026

JOSHUA M. DIVINE

UNITED STATES DISTRICT JUDGE

FOR THE EASTERN AND WESTERN

DISTRICTS OF MISSOURI