![]() While the Court construes the complaint in favor of the complaining party, the Court need not accept as true legal conclusions or unwarranted factual inferences. 662, 678 (2009) (citation and internal quotation marks omitted). 3 Standard of Review To survive a motion to dismiss, the complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible upon its face.” Ashcroft v. Gravity and the third-party defendants have renewed their motion for partial dismissal of the fraud claims, seeking specifically to dismiss counts two and three of the amended counterclaim and count one of the third-party complaint. In the amended third-party complaint against Agent and Knauf, LBS asserts one count of fraud. In the amended counterclaim, LBS asserts: (1) breach of contract (2) fraud and (3) fraudulent omission. LBS responded by filing an amended counterclaim and third-party complaint in response. Gravity and the third-party defendants filed a motion for partial dismissal of the fraud claims. Of relevance, LBS filed its answer and asserted counterclaims and a third-party complaint on March 22, 2021. Since then, the parties have engaged in numerous procedural challenges. 29-2 at § 3.2), but Gravity filed its original complaint on January 7, 2021, alleging that LBS breached the Agreement and sought declaratory relief that the Agreement does not prohibit it from billing claims in-house. ![]() The Agreement provided a thirty-day cure period, (Doc. Gravity served LBS with a notice of eleven alleged material breaches of the Agreement on December 23, 2020. This caused LBS to 2 bill much fewer claims than Gravity did in-house. Gravity refused to provide LBS with claims at some point, thereafter, citing computer issues. Gravity attempted to terminate the Agreement on November 30, 2020, by serving a written notice of termination on LBS, but LBS objected to the request as untimely. When LBS noticed it was receiving fewer claims, LBS’ Director, Thomas Hirsch, contacted Gravity’s Director of Business Operations, Knauf, who told him that Gravity was handling many of the claims in-house. In early 2020, Gravity began billing many of its activities in-house. ![]() (Id.) The Agreement also provided that “LBS will be the sole provider to of all of the Services included on Schedule 1 to this Agreement.” (Id. The Agreement specified that it would automatically renew for an additional one-year term unless Gravity provided thirty days’ notice prior to the expiration or as otherwise set forth in Section 3.2. ![]() This Agreement commenced on November 29, 2016, for an initial term of two years. 1 Factual and Procedural Background On September 15, 2016, Gravity and LBS entered into a Billing Services Agreement (“Agreement”) for LBS to perform claim processing services for Gravity in exchange for a monthly fee set by the contract. The issues being ripe, the Court issues the following Memorandum Opinion and Order. The Court has carefully reviewed this matter and concludes that oral argument is unnecessary. Knauf, move for partial dismissal of Laboratory Billing Solutions, Inc.’s (“LBS”) fraud claims asserted in their amended counterclaim and third-party complaint. Gravity Diagnostics, LLC (“Gravity”) and two of its employees, Henry C. KNAUF THIRD-PARTY DEFENDANTS MEMORANDUM OPINION AND ORDER This is a breach counterclaimant/third-party of contract plaintiff case included wherein allegations the of fraud in its amended counterclaim and third-party complaint. DEFENDANT/COUNTERPLAINTIFF/THIRDPARTY PLAINTIFF VS. 2:21-CV-02 (WOB-CJS) GRAVITY DIAGNOSTICS, LLC PLAINTIFF/COUNTERDEFENDANT VS. 36 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CIVIL ACTION NO.
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