Epic Reference Labs, Inc. et al v. Cigna Health and Life Insurance Company et al

Filing 83

ORDER granting in part and denying in part 51 Cigna's Motion to Dismiss. Signed by Judge Stefan R. Underhill on 9/30/2021. (Hurley, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EPIC REFERENCE LABS, et al.,
Plaintiffs,

No. 3:19-cv-1326 (SRU)

v.
CIGNA, et al.,
Defendants.
RULING ON MOTION TO DISMISS
Three Florida testing centers, Epic Reference Labs, Inc., BioHealth Medical Laboratory,
Inc., and PB Laboratories, LLC (collectively, the “Laboratories”), filed the instant case against
two insurance companies, Cigna Health and Life Insurance Company and Connecticut General
Life Insurance Company (collectively, “Cigna”) in Hartford Superior Court. The lawsuit
challenges Cigna’s failure to pay at least $32,074,089.37 for the Laboratories’ testing services.
After Cigna removed the case to this Court on the ground that the claims for relief were
entirely preempted by the Employment Retirement Income Security Act (“ERISA”), the
Laboratories moved to remand the case to Connecticut state court. Because further information
was needed to determine whether subject matter jurisdiction was present, I denied the motion
without prejudice. I directed the parties to engage in informal discovery to identify whether the
claims for reimbursement at issue were validly assigned to the Laboratories, which would render
the claims completely preempted by ERISA.
On November 5, 2020, Cigna filed a status report, noting that the parties had exchanged
certain information and further indicating that the Laboratories had received assignments with
respect to forty of the claims for reimbursement at issue. In response, the Laboratories noted that
they intended to proceed only with the claims for reimbursement for which they did not receive a

valid assignment. Following a status conference, the Laboratories filed an amended complaint,
expressly disclaiming any claims for reimbursement for services provided to beneficiaries of an
ERISA plan and only pursuing payment for services to which the Laboratories do not have a
valid assignment of benefits from the patient subscriber/beneficiary.
Now before me is the Laboratories’ motion to dismiss the amended complaint for failure
to state claim. For the reasons that follow, the motion is granted in part and denied in part.
I.

Standard of Review
A. Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed

“merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which
might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d
636, 639 (2d Cir. 1980)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the
material facts alleged in the complaint as true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007);
Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see
also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”). The plausibility standard set forth in Twombly
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and Iqbal obligates a plaintiff to “provide the grounds of his entitlement to relief” through more
than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is
nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very
remote and unlikely.” Id. at 556 (quotation marks omitted).
II.

Background
A. Allegations
The Laboratories are Florida-based health centers that provide medical testing services
pursuant to the orders and instructions of medical professionals. Am. Compl., Doc. No. 47, at ¶¶
9, 11. Since at least 2012, the Laboratories have provided testing services to patients who are
“subscribers or beneficiaries of commercial, non-Medicare health plans insured or administered
by” Cigna. Id. at ¶ 13. Prior to each test, the Laboratories confirm with Cigna that the services
are covered and obtain authorization to provide such services. Id. at ¶¶ 13–14, 21. Thereafter,
the Laboratories direct their invoices to Cigna. Id. at ¶ 15.
Despite repeated requests from the Laboratories, Cigna has failed to make timely
payments against invoices totaling at least $32,074,089.37, all of which remain due. Id. at ¶ 19.
Because the Laboratories are out-of-network providers, they do not have an express contract with
Cigna governing the provision of their services or the billing and payment thereof. Id. at ¶ 28.
B. Procedural History
The Laboratories brought suit in Connecticut Superior Court on July 25, 2019,
propounding four causes of action against Cigna: (1) failure to pay as required by Florida statutes
§§ 627.6131, 627.638, 627.64194, 627.662, 641.3154, and 641.3155; (2) breach of implied
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contract/promissory estoppel; (3) quantum meruit; and (4) unjust enrichment. Compl., Doc. No.
2-1, at ¶¶ 51–84.
Cigna removed the case to this court on August 28, 2019. In its notice of removal, Cigna
claimed that the case was removeable under federal question jurisdiction because the
Laboratories’ claims arose under and were therefore completely preempted by ERISA. See
Notice of Removal, Doc. No. 1.
A week later, on September 4, 2019, Cigna moved to dismiss the case. See Mot. to
Dismiss, Doc. No. 16. On September 27, 2019, the Laboratories moved to remand the case to
Connecticut Superior Court, arguing that this Court lacks federal question jurisdiction because
the Florida statutory and common law causes of action are not wholly preempted by ERISA. See
generally Mot. to Remand, Doc. No. 25.
On August 6, 2020, after the motion to remand was fully briefed, I held a hearing, during
which I denied without prejudice both the motion to remand and the motion to dismiss. See Doc.
No. 37. In doing so, I explained that I needed additional information to determine whether the
court had subject matter jurisdiction and, in particular, to determine whether the Laboratories had
a valid assignment of benefits for the claims for reimbursement at issue. See Tr., Doc. No. 38, at
4–5, 7, 13. I therefore directed the parties to engage in informal discovery over the course of
sixty days to “determine whether the policies at issue are governed by ERISA and contain claim
assignment provisions.” See Order, Doc. No. 37. I advised the plaintiffs to file a renewed
motion to remand if subject matter jurisdiction was still in dispute or a status report if the
jurisdictional issue had been resolved. Id.
On November 5, 2020, Cigna filed a status report, providing that on September 4, 2020,
the Laboratories produced spreadsheets reflecting certain information about the claims for

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reimbursement at issue, including patient names, dates of service, and whether the Laboratories
had an assignment of benefits from each patient. See Doc. No. 39, at 2. According to Cigna, the
spreadsheets included only a member identification number for a limited number of claims for
reimbursement and Cigna was only able to search for patients for which such information was
provided. Id. Cigna further noted that, on October 5, 2020, it provided the Laboratories with a
chart setting forth additional information about the applicable ERISA plans for forty of the
patients for whom the Laboratories claimed to have an assignment of benefits. Id.; see also Doc.
No. 39-2, at 8–11 (Cigna’s chart).
On November 17, 2020, the Laboratories replied, indicating that they had demonstrated
to Cigna that a “substantial majority” of the claims for reimbursement at issue pertain to services
for which they did not receive an assignment of benefits. See Doc. No. 40, at ¶¶ 6, 8. According
to the Laboratories, they also informed Cigna that they intended to proceed only with the claims
for reimbursement for which there were no valid assignments and requested policy documents
for such claims; Cigna, however, refused to provide such information. Id. at ¶¶ 9–10.
I scheduled a conference call for December 21, 2020, during which I again addressed the
question of subject matter jurisdiction. At the start, I explained that the defendants appeared to
have properly removed the case to federal court, given that the record substantiates that at least
some of the claims for reimbursement at issue arise out of assignments that have been provided
to the plaintiffs by beneficiaries of the insurers. See Doc. No. 45, at 1. I noted further that the
complaint, as it currently stands, broadly covers those claims for reimbursement, and therefore
denied the motion to remand. Id. I elaborated, however, that if the plaintiffs amend their
complaint to exclude the claims for reimbursement for which they have received valid
assignments, I may then be in a position to remand pursuant to Mine Workers v. Gibbs, 383 U.S.

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715 (1966), because only state law claims would remain in the case. Id. I granted the plaintiffs’
request for twenty-one days within which to file an amended complaint and noted that I expected
briefing would then follow on the issue whether I should exercise my discretion to remand. Id.
On January 11, 2021, the plaintiffs filed an amended complaint, expressly stating that the
“Laboratories do not assert any assigned or derivative claims in this lawsuit, either pursuant to a
valid assignment of benefits or otherwise,” and instead only assert “original claims in their own
right, as to which the Laboratories have a direct right of payment and as to which the
Laboratories have a direct and independent right of action and remedy.” Doc. No. 47, at ¶ 37.
The complaint adds: “Plaintiffs solely seek payment for services as to which the Laboratories do
not have a valid assignment of benefits from the patient subscriber/beneficiaries.” Id. at ¶ 39.
Significantly, the plaintiffs no longer appear to seek remand, given that the complaint states that
I enjoy diversity jurisdiction. Id. at ¶ 9.
Thereafter, on February 1, 2021, Cigna filed the instant motion to dismiss, asserting that:
(1) the claims for relief are, in whole or in part, preempted by ERISA, (2) the claims for relief
should be dismissed for failure to state a claim. See Doc. No. 51. After the motion was fully
briefed, I held oral argument on September 9, 2021.
III.

Discussion
A. ERISA Preemption
The parties disagree about both whether and, if so, how ERISA preempts the

Laboratories’ claims for relief. Compare Cigna’s Memorandum of Law in Support of its Motion
to Dismiss (“Cigna’s Mem. of Law”), Doc. No. 51-1, at 8 to Laboratories’ Brief in Opposition to
Defendants’ Motion to Dismiss (“Laboratories’ Opp’n”), Doc. No. 57, at 8. After careful

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review, I agree with Cigna that ERISA Section 514 controls and that ERISA preempts some of
the Laboratories’ state-law claims for relief.
ERISA governs any “plan, fund, or program” that is “established or maintained” by an
employer for the purpose of providing certain benefits (including medical coverage) to its
employees or their beneficiaries. 29 U.S.C. § 1002(1). The statute preempts state law in two
ways. First, Congress intended that federal law occupy the field, so ERISA completely and
offensively preempts certain state-law causes of action. 29 U.S.C. § 1132(a)(1)(B) [“Section
502”]. Second, ERISA expressly and/or defensively preempts plaintiffs from raising certain
state-law claims for relief. Id. § 1144(b)(2)(B) [“Section 514”]. Because the parties’ briefs
address both provisions, I will do so, too.
1. Complete Preemption Under Section 502
The Laboratories contend that their claims are not “completely preempted” by ERISA
because, under Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004), they have no valid
assignment of benefits and thus lack ERISA standing to pursue an ERISA remedy. See Am.
Compl., Doc. No. 47, at ¶¶ 34-43; Laboratories’ Opp’n, Doc. No. 57, at 8. But that argument
addresses jurisdictional considerations and is inapposite at this stage of the proceedings, because
diversity jurisdiction exists.
With Section 502, Congress intended to preempt state laws expanding remedies for
breached ERISA plan obligations by rendering federal civil enforcement exclusive. 29 U.S.C. §
1132(a). The relevant portion of Section 502 provides that a participant or beneficiary of an
ERISA-covered plan may sue to “recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the
terms of the plan.” Id. § 1132(a)(1)(B). Accordingly, Section 502(a) completely preempts
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certain state-law claims for relief and subjects them to removal to federal court, and it “converts
an ordinary state common law complaint into one stating a federal claim for the purposes of the
well-pleaded complaint rule.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 64
(1987).
The upshot is that Section 502 complete preemption is “really a jurisdictional rather than
a preemption doctrine,” in effect “confer[ring] exclusive federal jurisdiction in certain instances
where Congress intended the scope of a federal law to be so broad as to entirely replace any
state-law claim.” Montefiore Med. Ctr. v. Teamsters Loc. 272, 642 F.3d 321, 327–28 (2d Cir.
2011) (quoting Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare
Trust Fund, 538 F. 3d 594, 596 (7th Cir. 2008)); see also Plastic Surgery Ctr., P.A. v. Aetna Life
Ins. Co., 967 F.3d 218, 234 n.21 (3d Cir. 2020) (“Complete preemption is a separate,
jurisdictional doctrine that in this context arises out of section 502(a).”); Greenbrier Hotel Corp.
v. Unite Here Health, 719 F. App’x 168, 178 (4th Cir. 2018) (“In addition to this evolving
standard for substantive ERISA preemption, a parallel line of cases developed the law on the
related—but doctrinally distinct—issue of preemption as a jurisdictional inquiry for purposes of
removal to federal court. This distinct jurisdictional inquiry requires analysis under the ‘complete
preemption doctrine,’ as opposed to the ‘conflict preemption doctrine,’ because even a case
implicating a state law that conflicts with ERISA is not ‘properly removable to federal court’
unless that state law is also ‘completely preempted’ by ERISA’s civil enforcement provision, §
502(a).”) (emphasis original) (cleaned up); K.B. by & through Qassis v. Methodist Healthcare Memphis Hosps., 929 F.3d 795, 800 (6th Cir. 2019) (explaining that “[t]here are two forms of
ERISA preemption: express preemption (which applies broadly) and complete preemption
(which applies narrowly)”).

8

In the instant case, the Laboratories previously contested this Court’s subject matter
jurisdiction and moved to remand their state-law causes of action to state court. See
Laboratories’ Mot. to Remand, Doc. No. 25. But, in their amended complaint, the Laboratories
assert that this Court has diversity jurisdiction and seem no longer to seek remand. Am. Compl.,
Doc. No. 47, at 3. Thus, jurisdiction is no longer contested.
Consequently, the Laboratories’ reliance on Supreme Court and Second Circuit precedent
analyzing Section 502 misses the mark. Laboratories’ Opp’n, Doc. No. 57, at 8-9. For example,
the Laboratories rely on Aetna Health Inc. v. Davila to argue that that their causes of action
should survive this motion to dismiss because the Laboratories lack ERISA standing and so can
only bring their state-law claims for relief as non-ERISA claims. Id. (citing to 542 U.S. 200, 214
n.4 (2004)). Davila is inapposite, because it arose in the context of complete preemption. There,
the plaintiffs refused to amend their complaints to bring ERISA causes of action; after the federal
district court dismissed their state-law causes of action with prejudice, they appealed the trial
court’s holding that their claims were preempted and its refusal to remand. Davila, 542 U.S. at
205. The Supreme Court fashioned a test permitting certain state-law cause of action otherwise
outside federal jurisdiction to be heard in federal court. Id. at 209-10. But it nevertheless
concluded that the plaintiffs’ state-law claims were preempted, subject to exclusive federal
jurisdiction, and removable. Id. at 221. The Laboratories also rely on two Second Circuit cases,
McCulloch Orthopaedic Surgical Services, PLLC v. Aetna Inc., 857 F.3d 141 (2d Cir. 2017), and
Montefiore Medical Center v. Teamsters Local 272, 642 F.3d 321 (2d Cir. 2011), with a similar
posture and that also principally addressed whether to remand the plaintiffs’ state-law claims. 1

Cigna also seeks support from decisions with a similar posture. Cigna’s Mem. of Law, Doc., 51-1, at 9. Several of
those cases, therefore, are also inapposite. E.g., Curcio v. Hartford Fin. Servs. Grp., 469 F. Supp. 2d 18, 24 (D.
Conn. 2007) (“Accordingly, plaintiff’s quantum meruit claim . . . falls within the scope of ERISA § 502(a)(1)(B)
and is therefore completely preempted . . . , and plaintiff’s Complaint was thus removable to federal court.); Gianetti

1

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Because the Laboratories have now affirmatively asserted federal jurisdiction on the basis
of complete diversity, the reasoning of decisions addressing Section 502 preemption are not
necessarily pertinent to my decision on the motion to dismiss. Indeed, whether the Laboratories’
claims are completely preempted by Section 502 need not be resolved. The relevant preemption
provision of the ERISA is Section 514, which applies when parties raise state-law claims in
federal court that may be preempted by the ERISA.
2. Express Preemption Under Section 514
The Laboratories raise two types of state-law claims, which I will consider under Section
514. Count I raises state-law claims pursuant to Florida Statutes §§ 627.6131, 627.638,
627.64194, 627.662, 641.3154, and 641.3155 for payment for services provided by a third-party
healthcare provider. See Am. Compl., Doc. No. 47, at 8. Counts II through IV raise claims
sounding in common law. Cigna moves to dismiss the Laboratories’ claims, arguing that all or at
least some are expressly preempted by ERISA because they impermissibly “relate to” employee
benefit plans covered by ERISA. Cigna’s Mot. to Dismiss, Doc. No. 51, at 1. To the extent that
the Laboratories’ state-law statutory claims arise from claims for reimbursement for services
provided to subscribers and beneficiaries of ERISA plans, I agree with Cigna that some of the
Laboratories’ claims are preempted by ERISA.
Pursuant to the Section 514 “Preemption Clause,” ERISA “shall supersede any and all
State laws”— statutes as well as common law causes of action— “insofar as they may now or
hereafter relate to any [ERISA-covered] employee benefit plan.” 29 U.S.C. § 1144(a) (emphasis
added); id. § 1144(c)(1) (“The term ‘State law’ includes all laws, decisions, rules, regulations, or

v. Blue Cross & Blue Shield of Connecticut, Inc., No. 3:07CV01561PCD, 2008 WL 1994895 (D. Conn. May 6,
2008) (dismissing under § 502).

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other State action having the effect of law. . . .”). The “Savings Clause” excepts state laws
“which regulat[e] insurance” from ERISA preemption. Id. § 1144(b)(2)(A). But, under the
“Deemer Clause,” a state law that “‘purport[s] to regulate insurance’ cannot deem an employee
benefit plan to be an insurance company.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-45
(1987) (quoting 29 U.S.C. § 1144(b)(2)(B)).
The Supreme Court has recognized two categories of state laws expressly preempted by
ERISA. First, ERISA expressly preempts state law that has an impermissible “connection with”
ERISA plans, “govern[ing] . . . a central matter of plan administration” or “interfer[ing] with
nationally uniform plan administration.” Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001) (cleaned
up). Second, the ERISA expressly preempts state law that has a “reference to” ERISA plans,
where it “acts immediately and exclusively upon ERISA plans . . . or where the existence of
ERISA plans is essential to the law’s operation.” Gobeille v. Liberty Mut. Ins. Co., 577 U.S.
312, 319 (2016) (cleaned up). But “not every state law that affects an ERISA plan or causes
some disuniformity in plan administration” is preempted. Rutledge v. Pharmaceutical Care
Management Association, 141 S. Ct. 474, 480 (2020). Some apply in “too tenuous, remote, or
peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw v. Delta Air
Lines, Inc., 463 U.S. 85, 100 n.21 (1983).
a. “Connection With” ERISA Plans
When assessing whether a state law has an impermissible connection with an ERISA
plan, I am guided by the underlying objectives of the ERISA as well as “the nature of the effect
of the state law on ERISA plans,” Gobeille, 577 U.S. at 320 (citation omitted), and on the
“traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and

11

its beneficiaries,” Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir.
1990).
I begin with the objectives of the ERISA, a “comprehensive statute designed to promote
the interests of employees and their beneficiaries in employee benefit plans.” Ingersoll-Rand
Co. v. McClendon, 498 U.S. 133, 137 (1990) (citation omitted). Toward that end, Congress
sought to establish a “uniform body of benefits law,” reducing the administrative and financial
burden of “complying with conflicting directives” by “set[ting] various uniform standards,
including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension
and welfare plans.” Id. (citation omitted). Importantly, “ERISA does not guarantee substantive
benefits. The statute, instead, seeks to make the benefits promised by an employer more secure
by mandating certain oversight systems and other standard procedures.” Gobeille, 577 U.S. at
320. Accordingly, ERISA preempts any state law that “forc[es] plans to adopt any particular
scheme of substantive coverage,” requires plan administrators “provide any particular benefit to
any particular beneficiary in any particular way,” “govern[s] central matters of plan
administration,” or has “acute, albeit indirect, economic effects” compelling a substantive
coverage scheme. Rutledge, 141 S. Ct. at 480, 482.
Here, Count I of the amended complaint includes factual allegations that Cigna failed to
provide the Laboratories the benefits to which they are entitled under the terms of healthcare
plans in compliance with Florida’s prompt payment statute. See, e.g., Am. Compl., Doc. No. 471, at ¶ 21 (“The services provided by the Laboratories for which Defendants have failed to make
payment are covered services under the applicable commercial, non-Medicare health plans
insured or administered by Defendants.”). The salient Florida statutes regulate payments to
third-party healthcare providers. Under Section 627.64194, “[a]n insurer is solely liable for

12

payment of fees to a nonparticipating provider of covered nonemergency services provided to an
insured in accordance with the coverage terms of the health insurance policy. . . .” Fla. Stat.
Ann. § 627.64194(3). A proper electronic claim “must be paid or denied” within 90 days; if the
insurer neither pays nor denies the claim within 120 days after receipt, it incurs an
“uncontestable obligation” to pay. Fla. Stat. Ann. § 627.6131(4)(e). For non-electronically
submitted claims, the statute contemplates a deadline of 120 days for payment or denial and 140
days to incur an uncontestable obligation. Id. § 627.6131(5).
Here, like the law held preempted by ERISA in Gobeille v. Liberty Mutual Insurance
Co., the statutes interfere with uniformity of plan administration. 577 U.S. 312 (2016). In
Gobeille, a case to which Cigna cites, a Vermont law required health insurers and providers,
among other entities, to report detailed information about claims and plan members. Id. The
Supreme Court held that the Vermont law intruded on “a central matter of plan administration”
and also “interfered with nationally uniform plan administration.” Id. at 315, 323. In so holding,
the Court stressed that Congress’s imposition of reporting and disclosure requirements were
“extensive” and “fundamental components” of ERSIA’s regulation of plan administration, which
Congress expressly charged the Secretary of Labor with carrying out. Id. at 322-23.
With respect to prompt notice and payment, Congress has evinced the intent to promote
uniformity across plan administration. Under ERISA, employee benefit programs shall provide
“adequate notice” to participants or beneficiaries regarding denial of their insurance claims. 29
U.S.C. § 1333. Pursuant to the Secretary of Labor’s express authority to promulgate regulations
“necessary and appropriate” to carry out that provision, id. § 1335, federal regulations provide
that “if a claim is wholly or partially denied, the plan administrator must notify the claimant of
the plan’s adverse benefit determination within a reasonable period of time, but not later than 90

13

days after receipt of the claim by the plan,” unless “otherwise provided” or a special exception is
warranted. 29 C.F.R. § 2560.503-1(f)(1).
The Second Circuit has not directly addressed whether a state prompt payment law has an
impermissible connection with ERISA plans, but other circuit courts have. In one example, the
Eleventh Circuit concluded that Georgia’s prompt payment law overly burdened ERISA plans by
imposing administrative compliance with payment deadlines that conflict with centralized plan
administration. See Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1331 (2014). There,
Georgia required that “‘insurers’ either pay a claim for benefits, or give notice why a claim
would not be paid, within fifteen working days after receipt of a claim.” Id. at 1325. The
Hudgens court reasoned that the “timeliness requirements fl[ew] in the face of one of ERISA’s
main goals: to allow employers to establish a uniform administrative scheme, which provides a
set of standard procedures to guide processing of claims and disbursement of benefits.” Id.
(cleaned up). Accordingly, the Eleventh Circuit held that the statute’s challengers were likely to
succeed on the merits and preliminarily enjoined implementation of the Georgia statute as
applied to self-funded plans and third-party administrators. Id.
Like the Georgia law, the Florida statutes on which the Laboratories rely risk
“compel[ling] certain action (prompt benefit determinations and payments) by plans and their
administrators” and “impact the amount paid to beneficiaries in the case of late payment or
notice.” Id. The logic of Hudgens is persuasive here.
Accordingly, to the extent that the Laboratories state-law statutory claims arise from
services provided to beneficiaries of ERISA plans, those claims are preempted and dismissed
with prejudice. To the extent that the Laboratories raise state-law statutory claims arising from
services provided to insureds under privately-purchased insurance, such claims may proceed.

14

Next, in Counts II through IV, the Laboratories’ raise common law causes of action for
breach of implied contract, quantum meruit, and third-party beneficiary claims based on
purported representations by Cigna to reimburse them for services rendered to Cigna’s insureds.
At this stage in the proceedings, without the benefit of discovery, it is not clear whether the
common law claims relate to services provided to beneficiaries of ERISA plans or not.
The Supreme Court has held that ERISA does not necessarily preempt “[r]un-of-the-mill
state-claims” by non-ERISA entities even against ERISA plans. Mackey v. Lanier Collection
Agency & Serv., Inc., 486 U.S. 825, 833 (1988). Thus, I again turn to the objectives of the
ERISA to evaluate the Laboratories’ claims for relief. In the context of Section 502, the Second
Circuit has reasoned that leaving third-party providers “without a remedy to enforce promises of
payment made by an insurer” does not advance the “principal purpose” of ERISA, “protect[ing]
plan beneficiaries and participants,” because “risk of non-payment might lead medical providers
to decide not to treat, or to otherwise screen, patients who are participants in certain plans.”
McCulloch Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 148 (2d Cir. 2017).
For support, the Second Circuit cited to Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d
1529, 1533 (11th Cir. 1994), an on-point Eleventh Circuit decision. There, the Eleventh Circuit
analyzed claims under Section 514 and held that ERISA does not preempt a third-party
healthcare provider’s common law claim for negligent misrepresentation because preemption of
third-party provider claims “does not serve Congress’s purpose for ERISA.” 32 F.3d at 1533.
Specifically, preempting the claims of third-party health care providers “would defeat”
Congress’s goal of “protect[ing] the interests of employees and beneficiaries covered by benefit
plans” because “the ‘commercial realities’ of the health care industry require that health care
providers be able to rely on insurers’ representations as to coverage.” Id. (cleaned up).

15

An instructive Middle District of Florida decision recently addressed similar payment
claims brought by a third-party provider against an insurer, including ones arising under some of
the statutes at issue in this case. Sarasota Cty. Pub. Hosp. Bd. v. Blue Cross & Blue Shield of
Fla., Inc., 511 F. Supp. 3d 1240 (M.D. Fla. 2021). There, in light of the purposes underlying
ERISA, the court held that the state-law claims were not preempted. Id. at 1247. Specifically,
the court observed that “state law claims brought by health care providers against plan insurers
have too remote an effect on ERISA plans to be preempted by the Act.” Id. at 1247 (collecting
cases). The court added: “a health care provider’s claim against [an insurer] under the plan
affects the relationship between the principal ERISA entities at best only indirectly,” and
explained that preemption would negatively impact healthcare providers, highlighting that
providers were not parties to the ERISA bargain and that ERISA preemption would leave a
provider without practical recourse. See id. at 1247. The court concluded that preemption
would therefore only undermine ERISA’s stated purpose, because plan participants and
beneficiaries might become subject to “up-front payments or raised fees.” Id. at 1248.
Furthermore, the Second Circuit has reasoned that lawsuits “neither interfer[ing] with the
relationships among core ERISA entities nor tend[ing] to control or supersede their functions” do
not risk “undermining the uniformity of the administration of benefits. . . .” Stevenson v. Bank of
New York Co., 609 F.3d 56, 61 (2d Cir. 2010) (cleaned up). Accordingly, this Court has allowed
a third-party provider’s promissory estoppel claim to survive a motion to dismiss where the
claim did not “bear on any relationships between core ERISA entities,” “implicate the
substantive terms of the patient’s plan,” nor “create any ongoing legal obligations under the
plan.” Aesthetic & Reconstructive Breast Ctr., LLC v. United HealthCare Grp., Inc., 367 F.
Supp. 3d 1, 10-11 (D. Conn. 2019).

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I find the reasoning of Lordmann, Sarasota, Stevenson, and Aesthetic & Reconstructive
Breast Center persuasive with respect to the Laboratories’ common law claims. Although
ERISA expressly governs relations among its traditional entities, third-party healthcare providers
like the Laboratories “orbit the periphery.” Plastic Surgery Center, P.A., 967 F.3d at 236.
Under Section 502, Congress endowed subscribers and beneficiaries express federal causes of
action to enforce the statute’s protections. Under Section 514, Congress limited plan liability to
benefit employers and insurers. Out-of-network providers like the Laboratories “were not . . .
party to this bargain.” Id. Accordingly, lower courts have held “with near unanimity” that
“independent state law claims of third party healthcare providers are not preempted by ERISA.”
Surgery Ctr. of Viera, LLC v. UnitedHealthcare, Inc., 465 F. Supp. 3d 1211, 1221 (M.D. Fla.
2020) (citing Rocky Mountain Holdings, LLC v. Blue Cross and Blue Shield of Florida, Inc.,
6:08-cv-686-Orl-19KRS, 2008 WL 3833236, at *2 (M.D. Fla. Aug. 13, 2008); In Home Health,
Inc. v. Prudential Ins. Co. of Am., 101 F.3d 600, 606 (8th Cir. 1996); Meadows v. Employers
Health Ins., 47 F.3d 1006 (9th Cir. 1995); Hospice of Metro Denver, Inc. v. Group Health Ins. of
Okla., Inc., 944 F.2d 752 (10th Cir. 1991); Mem. Hosp. Sys. v. Northbrook Life Ins. Co., 904
F.2d 236 (5th Cir. 1990)). I agree.
Thus, Cigna’s reliance on Ingersoll-Rand Co. v. McClendon is inapposite. 498 U.S. 133
(1990). There, the state common law claim that the Court held to be preempted by ERISA
rendered it illegal for an employee to be discharged to prevent his attainment of benefits under a
plan making express reference to and covered by ERISA. 498 U.S. at 135. In reaching its
conclusion, the Court noted that, in order to prevail, a plaintiff must plead that “an ERISA plan
exists and the employer had a pension-defeating motive in terminating the employment,” such
that the “trial court’s inquiry must be directed to the plan.” Id. at 140. The Court added that

17

section 514(a) was intended to “minimize the administrative and financial burden of complying
with conflicting directives among States or between States and the Federal Government,” and
that “[a]llowing state based actions like the one at issue here would subject plans and plan
sponsors to burdens not unlike those that Congress sought to foreclose through § 514(a).” Id. at
142. But the Court further opined that, even if there was no express preemption, the cause of
action would be preempted because it conflicts directly with Section 510 of ERISA, which
renders it unlawful for any person to discharge a participant or beneficiary “for the purpose of
interfering with the attaining of any right to which such participant may become entitled under
the plan.” Id. at 484-85 (citing 29 U.S.C. § 1140).
Accordingly, I hold that the Laboratories’ claims do not have an impermissible
connection with ERISA and are not preempted, except to the extent that they raise state-law
statutory claims for reimbursement from ERISA-covered plans. Any such claims are dismissed.
b. “Reference To” ERISA Plans
Cigna also argues that Laboratories’ claims are preempted on the basis of making
impermissible “reference to” ERISA plans because I will “necessarily look to the underlying
plans themselves for the applicable coverage and payment terms.” Cigna’s Mem. of Law, Doc.
51-1, at 8-9 (citing Gobeille, 577 U.S. at 319). I am not persuaded.
To assess whether state law impermissibly makes reference to ERISA, I evaluate whether
the law “acts immediately and exclusively upon ERISA plans” or “the existence of ERISA plans
is essential to the law’s operation.” Gobeille, 577 U.S. at 319. Such law is preempted when
predicated on an ERISA plan or plan administration, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
47-48 (1987), or where the plan is a “critical factor in establishing liability,” Ingersoll-Rand, 498

18

U.S. at 139-40. In contrast, “a generally applicable statute that makes no reference to, or indeed
functions irrespective of, the existence of an ERISA plan” is not preempted. Id. at 139.
I have already determined that the Laboratories’ state-law statutory claims are preempted
to the extent that they involve services provided to beneficiaries of ERISA plans because they
have an impermissible connection with ERISA plans, but I also conclude that they make
impermissible reference to ERISA plans. The Second Circuit has held that the ERISA preempts
reimbursement claims based on state statutes that “provide an alternative cause of action to
employees to collect benefits protected by ERISA, refer specifically to ERISA plans and apply
solely to them, or interfere with the calculation of benefits owed to an employee.” Paneccasio v.
Unisource Worldwide, Inc., 532 F.3d 101, 114 (2d Cir. 2008) (citation omitted). Accordingly,
courts within the Second Circuit have dismissed causes of action arising under the New York
prompt payment scheme, N.Y. Ins. L. § 3224-a, as expressly preempted because they refer to
ERISA plans. For example, the Eastern District of New York has held that the New York
“Prompt Payment Law cause of action” is preempted because it “grounds itself in the rights and
obligations expressed in—and therefore ‘refers to’—an ERISA plan,” Neurological Surgery,
P.C. v. Aetna Health, 511 F. Supp. 3d 267, 290 (2021), and “merely seeks an alternative cause of
action for [ERISA] claims,” Neurological Surgery, P.C. v. Siemens Corp., No. 17-cv-3477
(ADS/AKT), 2017 WL 6397737, at *6 (E.D.N.Y. Dec. 12, 2017). 2

Several decisions by courts in the Second Circuit have applied similar reasoning to hold prompt payment causes of
action completely preempted under Section 502. See Neurological Surgery, P.C. v. Northrop Grumman Sys. Corp.,
No. 2:15-cv-4191, at *10 (DRH/AKT), 2017 WL 389098 (E.D.N.Y. Jan. 26, 2017) (an “attempt to circumvent
ERISA,” decided under Section 502); Beth Israel Med. Ctr. v. Goodman, No. 12-cv-1689 AJN, 2013 WL 1248622,
at *4 (S.D.N.Y. Mar. 26, 2013); Weisenthal v. United Health Care Ins. Co. of New York, No. 07-cv-0945 (LAP),
2007 WL 4292039, at *7 (S.D.N.Y. Nov. 29, 2007); Berry v. MVP Health Plan, Inc., No. 06-cv-120, 2006 WL
4401478, at *5 (N.D.N.Y. Sept. 30, 2006).
2

19

Accordingly, the Laboratories’ prompt payment claims are preempted to the extent that
they arise from claims for reimbursement for services provided to beneficiaries under ERISA
plans. Any such claims are dismissed.
With respect to Counts II through IV, the common law causes of action, Cigna argues
that the Laboratories’ claims for relief are “nothing more than an attempt to receive benefits
under health plans governed by ERISA.” Cigna’s Mem. of Law, Doc. No. 51-1, at 9.
Importantly, it is not apparent at this stage of the litigation that all— or even any— of the
disputed claims relate to services provided to beneficiaries of ERISA plans; those services could
have been provided exclusively to privately-purchased insurance. Even if ERISA plans are at
issue, however “[t]he mere fact that a claim arises against the factual backdrop of an ERISA plan
does not mean it makes ‘reference to’ that plan.” Plastic Surgery Center, P.A., 967 F.3d at 236.
At this stage of the proceedings, I am required to accept all allegations in the complaint
as true or view them in the light most favorable to the Laboratories. As out-of-network providers
without contracts and assignments of benefits, they plead that they intend for this Court to
enforce obligations— implied promises or contracts arising from coverage confirmations by
Cigna employees and Cigna’s conduct— that are independent of the express terms of ERISA
plans or other insurance policies. An “alleged promise of reasonable payment is distinct from
any obligations that [the insurer] might have had under the plan to the patient.” Aesthetic &
Reconstructive Breast Ctr., LLC, 367 F. Supp. 3d at 10; see also McCulloch Orthopaedic
Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 151 (2d Cir. 2017) (holding that a promissory
estoppel claim was not completely preempted under Section 502 because it was “simply a suit
between a third-party provider and an insurer based on the insurer’s independent promise”).

20

Cigna relies in part on Neurological Surgery, P.C. v. Aetna Health., a case in which the
Eastern District of New York held that third-party providers’ implied-in-fact contract, unjust
enrichment, and tortious interference claims were preempted by the ERISA. 511 F. Supp. 267,
289 (2021). That case is distinguishable. There, the providers predicated their claims for relief
on “pre-authorization, pre-certification, or other requirements,” the “source of [which] is an
ERISA plan,” and therefore did not “create a legal duty independent of ERISA.” Id. at 28-90
(emphasis original). Here, the policies issued by Cigna do not necessarily insure ERISA plan
participants, and the Laboratories do not rely exclusively on coverage verifications but also
Cigna’s alleged course of conduct. Cigna also cites to Cole v. Travelers Ins. Co., a case in which
this Court dismissed state-law claims as preempted. 208 F. Supp. 248 (D. Conn 2002). But, in
that case, there was no dispute that the patients had assigned benefits under an ERISA plan to the
provider and that the provider pursued reimbursement under an ERISA plan. Cole, 208 F. Supp.
2d at 251. Here, again, the Laboratories allege independent legal duties not necessarily tied to
ERISA plans. Accordingly, those decisions are distinguishable.
Setting aside the merits of the Laboratories’ allegations to focus solely on the preemption
issue, I note that the Laboratories’ common law claims for relief are based on Cigna’s oral
promises and conduct— bases for independent promises— and hold that they do not
impermissibly refer to ERISA plans. The motion to dismiss the common law claims because
they impermissibly relate to ERISA plans is therefore denied.

B. Judicial Estoppel
The defendants next argue that the Laboratories are judicially estopped from asserting
that none of their claims for relief is preempted by ERISA, in light of BioHealth Medical
21

Laboratories’ and PB Laboratories’ two prior lawsuits against Cigna alleging ERISA claims in
the United States District Court for the Southern District of Florida. See Biohealth Med. Lab.,
Inc. v. Connecticut Gen. Life Ins. Co., No. 1:15-CV-23075-KMM (S.D. Fla.) (“Biohealth I”);
Biohealth Med. Lab., Inc. v. Connecticut Gen. Life Ins. Co., No. 16-cv-20807 (S.D. Fla.)
(“Biohealth II”). I disagree.
Judicial estoppel “may prevent a party who benefits from the assertion of a certain
position, from subsequently adopting a contrary position.” Young v. U.S. Dep’t of Justice, 882
F.2d 633, 639 (2d Cir. 1989). “It is supposed to protect judicial integrity by preventing litigants
from playing ‘fast and loose’ with courts, thereby avoiding unfair results and ‘unseemliness.’”
Id. The Supreme Court has delineated several factors that inform a court’s decision regarding
judicial estoppel:
First, a party’s later position must be clearly inconsistent with its earlier
position. Second, courts regularly inquire whether the party has succeeded
in persuading a court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding would create
the perception that either the first or the second court was misled. . . . A
third consideration is whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.
Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 147 (2d Cir. 2005) (quoting New Hampshire v.
Maine, 532 U.S. 542, 750-51 (2001)). The Second Circuit has limited the application of judicial
estoppel to “situations where a party both takes a position that is inconsistent with one taken in a
prior proceeding, and has had that earlier position adopted by the tribunal to which it was
advanced.” Id. at 148 (cleaned up). It has further limited the doctrine to “situations where the
risk of inconsistent results with its impact on judicial integrity is certain.” Id.
Judicial estoppel does not bar the claims in this case. As an initial matter, Epic Reference
Labs, Inc. was not a party in the two prior lawsuits, and therefore is not judicially estopped from
22

bringing the instant claims. More fundamentally, the allegations raised here are not clearly
inconsistent with those in BioHealth I, 3 where the plaintiffs alleged that they had obtained an
assignment from the patients for every claim at issue. More specifically, in BioHealth I,
BioHealth Medical Laboratories and PB Laboratories sought to recover payments for services
allegedly provided to Cigna members and their beneficiaries since 2013 and alleged that “the
vast majority of the insurance plans” at issue are covered by ERISA. See Ex. 1, Doc. No. 51-2,
at 3. They further alleged that, for “every claim [for reimbursement] at issue,” they had
“obtained an assignment of benefits.” Id. at 7, ¶ 14.
Those allegations are not “clearly inconsistent” with any allegations asserted here.
Instead, the Laboratories are now seeking recovery for distinct claims for reimbursement for
which they were not given assignments. See Am. Compl., Doc. No. 47, at ¶ 39 (“Plaintiffs
solely seek payment for services as to which the Laboratories do not have a valid assignment of
benefits from the patient subscriber/beneficiary.”). Because the lawsuits involved different sets
of claims for reimbursement, the allegation in Bio Health I that there was an assignment of
benefits for every claim is not squarely at odds with the allegation in the instant complaint that
the Laboratories do not have a valid assignment of benefits for the services in question. The first
element of judicial estoppel is therefore not met, and the argument is without merit. Cigna’s
motion to dismiss the Laboratories’ claims as judicially estopped is denied.
C. Failure to State A Claim Arising Under State Law
Cigna also argues that I should dismiss the Laboratories’ state-law causes of action for
failure to state a claim on which relief can be granted. As an initial matter, Cigna challenges the
Laboratories’ statutory claims as providing insufficient allegations of fact and statements of law.

3

Cigna does not argue that the allegations are clearly inconsistent with any position taken in Biohealth II.

23

Next, Cigna moves to dismiss the Laboratories’ common law claims of promissory estoppel,
quantum meruit, and third-party beneficiary claims for failure to establish necessary elements. I
agree in part and disagree in part with Cigna’s arguments.
1.

The Laboratories’ Statutory Claims

In Count I, the Laboratories bring an action for payment arising under Florida insurance
law. Am. Compl., Doc. No. 47, at 8 (citing to Fla. Stat. §§ 627.6131, 627.638, 627.64194,
627.662, 641.3154, and 641.3155). Without explicitly stating so, Cigna begins by challenging
the sufficiency of the Laboratories’ statutory pleadings under Rule 8 of the Federal Rules of
Civil Procedure. Cigna’s Mem. of Law, Doc. No. 51-1, at 21.
As a threshold matter, the parties seem to disagree regarding whether Second or Eleventh
Circuit law applies when assessing the sufficiency of the pleadings. I agree with the
Laboratories that Second Circuit law controls, and I decline Cigna’s invitation to dismiss the
Laboratories’ statutory claims as inadequately pled.
In a diversity action, if a procedural issue is addressed by a valid federal law or Rule,
then the federal court will apply federal procedural law. Hanna v. Plummer, 380 U.S. 460, 465
(1965). Rule 8 requires that a complaint contain “a short and plain statement of the claim
establishing entitlement to relief.” Fed. R. Civ. P. 8. Accordingly, this Court is bound by
Second Circuit decisions interpreting Rule 8.
The Second Circuit has “repeatedly emphasized” that Rule 8 “reflects liberal pleading
standards,” defined as “simply requiring plaintiffs to disclose sufficient information to permit the
defendant to have a fair understanding of what the plaintiff is complaining about and to know
whether there is a legal basis for recovery.” Riles v. Semple, 763 F. App’x 32, 34 (2d Cir. 2019)

24

(internal quotation marks and citations omitted). Under the Second Circuit’s liberal approach,
Cigna’s facial challenges to the sufficiency of the facts and statements of law must fail.
a. Sufficiency of the Statements of Fact
First, Cigna argues that the Laboratories’ claim is too bare to put it on notice of the
Laboratories’ allegations due to “fail[ure] to identify any details regarding the claims for
reimbursement that underlie their claims for relief.” Cigna’s Mem. of Law, Doc. No. 51-1, at 21.
Cigna claims that the Laboratories were required to “specifically identify the Cigna members,
services rendered, or ‘invoices’ at issue” by, for example, including a “sampling, summary, or
chart” in its pleadings. Id. at 14, 21.
Cigna identifies such requirements in Eleventh Circuit law. E.g., BioHealth Medical
Lab., Inc. v. Connecticut General Life Ins. Co., No. 1:15-cv-23075-KMM, 2016 WL 375012, at
*5-6 (S.D. Fla. Feb. 1, 2016) (“[M]erely claiming that some of the member claims arise under
non-ERISA plans is insufficient to provide fair notice to Cigna.”); United Surgical Assistants,
LLC v. Aetna Life Ins. Co., No. 8:14-cv-211, 2014 WL 5420801, at *3 (M.D. Fla. Oct. 22, 2014)
(“At a minimum, USA should provide information identifying the patient, procedure performed,
date of the procedure, and transaction amount to allow Aetna to identify health plans at issue.”).
But Eleventh Circuit standards are inconsistent with the law in this Court.
In this Court, the state-law claims at issue do not require the level of granularity Cigna
seeks. A recent District of Connecticut decision, Aesthetic & Reconstructive Breast Ctr., LLC v.
United HealthCare Grp., Inc., is emblematic. 367 F. Supp. 3d 1 (D. Conn. 2019). There, a
medical provider brought an action for payment after the defendant insurer failed to pay for preauthorized surgeries. Id. at 3. The insurer “complain[ed]” that the plaintiff provider “should
have described aspects of the interaction between the Center and UHG with greater
25

particularity.” Id. at 11. This Court dismissed the insurer’s criticism and permitted the claim to
proceed because the provider’s claim for promissory estoppel was not “subject to the heightened
pleading standards of Rule 9(b).” Id.
Here, the Laboratories pleadings do not raise issues of fraud or mistake and thus are not
subject to the heightened pleading standards under Rule 9(b). Accordingly, the Laboratories’
pleadings are evaluated under our customary, liberal standards. In my view, the Laboratories set
forth sufficient facts to state facially plausible statutory claims in the First Amended Complaint
and to provide Cigna with adequate notice of the substance of the allegations of wrongdoing.
For purposes of evaluating a motion to dismiss the Court must accept as true all of a plaintiff’s
allegations. The Laboratories’ complaint alleges that Cigna confirmed their services were
covered, they provided the covered services to Cigna’s subscribers, they billed Cigna for such
services, and Cigna failed to pay them. Am. Comp., Doc. No. 47, at 4. Under the statutory
regime elaborated on below, those allegations are sufficient to state a claim. The factual details
of the Laboratories’ claims are an appropriate topic of discovery, but those details are not
necessary to plead a valid claim.
Accordingly, Cigna’s motion to dismiss for failure to identify the specific insurance
claims at issue is denied.
b. Sufficiency of the Statements of Law
Second, Cigna argues that the Laboratories “fail to satisfy the basic notice pleading
standard” of Rule 8 by not identifying the “specific statutory provisions” allegedly violated.
Cigna’s Mem. of Law, Doc. No. 51-1, at 16-17. I disagree.
“Under the liberal pleading principles established by Rule 8 of the Federal Rules of Civil
Procedure, in ruling on a 12(b)(6) motion ‘[t]he failure in a complaint to cite a statute, or to cite
26

the correct one, in no way affects the merits of a claim. Factual allegations alone are what
matters.’” Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (quoting
Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en banc)).
The Laboratories pled with sufficient specificity for this Court— and therefore for
Cigna— to understand their allegations. Florida Statutes Section 627.638 sets the foundation,
authorizing a provider to collect payments directly from an insurer when the provider has
complied with the procedures outlined in the insurance policy. Fla. Stat. Ann. § 627.638(2)
(“Whenever, in any health insurance claim form, an insured specifically authorizes payment of
benefits directly to any recognized [provider] in accordance with the provisions of the policy, the
insurer shall make such payment to the designated provider of such services.”). Section
627.64194 holds “[a]n insurer [] solely liable for payment of fees to a nonparticipating provider
of covered nonemergency services provided to an insured,” presumably the kinds of services at
issue here, “in accordance with the coverage terms of the health insurance policy. . . .” Fla. Stat.
Ann. § 627.64194(3); see also id. § 627.64194(2) (governing emergency services). 4
After services have been rendered and proof of loss provided, Florida law requires
prompt payment or denials of insurance claims. A proper electronic claim “must be paid or
denied” within ninety days; if the insurer neither pays nor denies the claim within 120 days after
receipt, the insurer incurs an “uncontestable obligation” to pay. Fla. Stat. Ann. § 627.6131(4)(e).
For non-electronically submitted claims, the statute contemplates a deadline of 120 days for
payment or denial and 140 days to incur an uncontestable obligation. Id. § 627.6131(5).
Under this statutory scheme, the Laboratories allege sufficient facts to provide notice of
their allegations that: they verified Cigna subscribers’ coverage of their services; subscribers
The Laboratories’ pleadings do not specify whether the Laboratories provided emergency, nonemergency, or both
kinds of services.

4

27

received covered services rendered by their laboratories; the Laboratories billed Cigna for those
services; for some of the claims at issue, Cigna received but neither paid nor denied the claims
within the statutory time limit; and thus Cigna incurred an “uncontestable obligation” to pay the
Laboratories for the outstanding claims. Am. Compl., Doc. No. 47, at 4.
Cigna cites to Bepko v. St. Paul Fire & Marine Insurance Co. to support its allegations
that the pleadings fail to meet the standards under Rule 8. No. 3:04 CV 01996 PCD, 2005 WL
3619253, at *4 (D. Conn. Nov. 10, 2005)). There, the plaintiff alleged that the defendant had
“violat[ed] ‘one or more’” subsections of the Connecticut Unfair Insurance Practices Act,
Connecticut General Statute § 38a–816 (“CUIPA”). Id. This Court dismissed, reasoning that
referring broadly to a statute with twenty-two subsections did not put the defendant “on
reasonable notice of what subsection was violated.” Id.
I perceive two problems with invoking Bepko here. First, unlike the Second Circuit’s
decisions in Northrop and Carovano, it is not binding authority. Second, it is distinguishable
from the instant matter. There, this Court had an independent basis on which to dismiss: the
plaintiff had not pled that the alleged unlawful settlement practice was a routine business
practice, an essential element of the CUIPA claim. Id. Moreover, that such settlements were not
routine suggests that CUIPA was unfamiliar to the defendant, such that the defendant did not
receive subjectively reasonable notice of its varied and discrete subsections. Id. In the instant
case, it is reasonable to infer Cigna is familiar with the statutory scheme at issue, which governs
its core industry and under which Cigna has been subject to other litigation. See N. Shore Med.
Ctr., Inc. v. Cigna Health & Life Ins. Co., No. 1:20-CV-24914-KMM, 2021 WL 3419356, at *2
(S.D. Fla. May 10, 2021) (raising claims under the Florida insurance laws at issue); Orthopaedic
Care Specialists, P.L. v. Cigna Health & Life Ins. Co., No. 20-82142-CIV, 2021 WL 389130, at

28

*1 (S.D. Fla. Jan. 15, 2021) (same); Surgery Ctr. of Viera, LLC v. Cigna Health, No.
620CV152ORL37EJK, 2020 WL 4227428, at *1 (M.D. Fla. July 23, 2020) (same). Under the
circumstances, the notice Cigna received was more reasonable than the notice the Bepko
defendant received.
Accordingly, Cigna’s motion to dismiss for failure to identify the specific statutory
subsections at issue is denied.
c. Inapposite Statutes
On the other hand, certain other statutes listed in the complaint appear to have no
connection to the Laboratories’ claims. Section 627.662 merely outlines the provisions that
apply to “group health insurance, blanket health insurance, and franchise health insurance.” Fla.
Stat. Ann. § 627.662. Sections 641.3154 and 641.3155 are also not relevant because those
statutes place obligations on “health maintenance organizations,” not insurance companies, and
the Laboratories have not alleged that Cigna is a health management organization. See Dearmas
v. Av-Med, Inc., 814 F. Supp. 1103, 1107 (S.D. Fla. 1993) (“This Court is guided by Eleventh
Circuit precedent which has held that a [health maintenance organization] is not an insurance
company. . . .”) (citing O’Reilly v. Ceuleers, 912 F.2d 1383, 1389 (11th Cir. 1990)); see also
O’Reilly v. Ceuleers, 912 F.2d 1383, 1385 (11th Cir. 1990) (“Under state law, a ‘Health
Maintenance Organization’ is any organization which provides, directly or indirectly, health care
services to persons on a prepaid, fixed-sum basis; which provides health care services which
subscribers might reasonably require to maintain good health; or which provides physician
services directly through physicians who are either employees or partners of such organization or
by arrangements with any physician or physicians.”) (citing Fla. Stat. Ann. § 641.19(6)(a), (b),
(c)).
29

Accordingly, the claims arising under Sections 627.662, 627.3154, and 641.3155 are
dismissed without prejudice. If the Laboratories wish to raise claims for relief under those
three statutes, they may amend their complaint.
2.

The Laboratories’ Common Law Claims

In Counts II-IV, the Laboratories allege violations of Florida common law under the
theories of promissory estoppel, quantum meruit, and breach of third-party beneficiary contracts.
The parties again disagree about which state’s substantive common law to apply when evaluating
whether those claims state valid claims for relief. Cigna generally marshals Connecticut
common law. E.g., Cigna’s Mem. of Law, Doc. No. 51-1, at 17 (“Under Connecticut law, the
doctrine of promissory estoppel. . . .”). In contrast, the Laboratories rely upon Florida common
law. Laboratories’ Opp’n, Doc. No. 57, at 8. I agree with the Laboratories that Florida common
law applies.
It is well-settled that “[a] federal court sitting in diversity . . . must apply the choice of
law rules of the forum state.” Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941);
Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989). Connecticut employs “the ‘most
significant relationship’ approach of the Restatement (Second) of Conflict of Laws[ ] for
analyzing choice of law issues involving contracts.” Interface Flooring Sys., Inc. v. Aetna Cas.
and Sur. Co., 261 Conn. 601, 608 (2002). Section 188 of the Restatement (Second) of the
Conflict of Laws “provides in relevant part: . . . The rights and duties of the parties with respect
to an issue in contract are determined by the local law of the state which, with respect to that
issue, has the most significant relationship to the transaction and the parties. . . .” Id. at 608–09
(quoting Restatement (Second) of Conflict of Laws § 188) (cleaned up).

30

This lawsuit addresses alleged “failure to pay invoices for testing that occurred in Florida
pursuant to Cigna’s policies issued in Florida.” Laboratories’ Opp’n, Doc. No. 57, at 8. The
Laboratories allege injuries occurring in Florida related to rights and duties affected by Florida
law. Plainly the state with the most significant relationship to the issues is Florida. Thus, the
common law claims are most appropriately governed by Florida common law.
a.

Promissory Estoppel

In Count II, the Laboratories allege that Cigna consented to their performance of services
via “express confirmation of coverage” and through the parties’ “course of dealing,” inducing its
reliance for the continued delivery of services and warranting estoppel of Cigna’s denial of
claims. Am. Compl., Doc. No. 47, at 10. Cigna argues that the Laboratories fail to allege a
“definite promise” to pay necessary to establish a claim of promissory estoppel. Cigna’s Mem.
of Law, Doc. No. 51-1, at 24. I agree with Cigna.
Florida law permits the extension of insurance coverage “where to refuse to do so would
sanction fraud or other injustice.” Morse, LLC v. United Wisconsin Life Ins. Co., 356 F. Supp.
2d 1296, 1300 (S.D. Fla. 2005) (internal citation omitted). To establish a prima facie case of
promissory estoppel, a plaintiff must prove “[1] that [it] detrimentally relied on the defendant’s
promise, [2] that the defendant reasonably should have expected the promise to induce reliance
in the form of action or forbearance by the plaintiff, and [3] that injustice can only be avoided by
enforcement of the promise.” Id.
Under the first prong, a defendant’s promise must have been “definite” and “affirmative.”
Morse, 356 F. Supp. at 1330 (“affirmative”); Peacock Med. Lab, LLC v. UnitedHealth Grp., Inc.,
No. 14-81271-CV, 2015 WL 2198470, at *5 (S.D. Fla. May 11, 2015) (quoting W.R. Grace &
Co. v. Geodata Servs., Inc., 547 So. 2d 919, 924 (Fla. 1989)) (“definite”). In addition, a
31

plaintiff’s reliance must be reasonable. Peacock Med. Lab, 2015 WL 2198470 at *5. On that
basis, the Laboratories have not adequately pled a claim of promissory estoppel.
First, the Laboratories have not alleged that Cigna made a definite promise to pay the
insurance claims at issue. They do not allege that Cigna made “affirmative” statements assuring
the Laboratories that it would pay the costs of their medical testing services, nor that Cigna made
a definite promise to pay some hypothetical price for services provided. Rather, the Laboratories
suggest that Cigna’s verification that insureds were covered for the services provided implied a
promise to pay for such services. Am. Compl., Doc. No. 47, at 10.
Under Florida law, “[a] verification of coverage, without more, is not a promise to pay a
certain rate to support a promissory estoppel claim.” N. Shore Med. Ctr., Inc. v. Cigna Health &
Life Ins. Co., No. 1:20-CV-24914-KMM, 2021 WL 3419356, at *6 (S.D. Fla. May 10, 2021).
Indeed, Florida courts have repeatedly rejected coverage verifications as the basis of promissory
estoppel claims. See, e.g., id.; Chiron Recovery Ctr., LLC v. United Healthcare Servs., Inc., No.
9:18-CV-81761-ROSENBERG/REIHNART, 2020 WL 3547047, at *8 (S.D. Fla. June 30,
2020); Peacock Med. Lab, 2015 WL 2198470, at *5; Vencor Hosps. S., Inc. v. Blue Cross &
Blue Shield of R.I., 86 F. Supp. 2d 1155, 1165 (S.D. Fla. 2000), affd sub nom., Vencor Hosps. v.
Blue Cross Blue Shield of R.I, 284 F.3d 1174 (11th Cir. 2002). Rather than a “definite promise
to pay upon which reliance would be reasonable,” Florida courts have held that confirmation of
coverage merely represents to a provider that patients are “covered for the type of treatment
proposed by the health care provider.” Peacock Med. Lab, 2015 WL 2198470, at *5 (emphasis
added). As a matter of Florida law, mere verification of coverage is insufficient to state a claim
for promissory estoppel.

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For additional support, the Laboratories cite to the parties’ prior course of dealing. But
Florida courts have also dismissed promissory estoppel claims where medical providers frame an
insurer’s course of conduct as a promise to pay. See, e.g., Variety Children’s Hosp., Inc. v.
Century Med. Health Plan, Inc., 57 F.3d 1040, 1043 (11th Cir. 1995) (“It certainly cannot be the
case that every initial certification for treatment obligates the plan to pay for any treatment that
may subsequently be proposed or provided.”); N. Shore Med. Ctr., 2021 WL 3419356, at *6;
Chiron Recovery Ctr., 2020 WL 3547047, at *8. A course of conduct is “not a promise”—
certainly not the affirmative and definite promise required by law— and thus “does not ‘raise a
right to relief above [a] speculative level.’” N. Shore Med. Ctr., 2021 WL 3419356 at *6
(quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)) (internal citation omitted).
The Laboratories attempt to distinguish their promissory estoppel claim by arguing that
the combination of confirmation of coverage and a course of dealing constituted a promise on
which they reasonably relied, but Florida courts have declined to treat the sum of verification and
course of dealing as greater than its parts. For example, in North Shore Medical Center v. Cigna,
the Southern District of Florida dismissed a medical provider’s promissory estoppel claim
alleging both verification of coverage and a prior course of dealing for “absence of any specific
or definitive promise to pay.” N. Shore Med. Ctr., 2021 WL 3419356 at *6.
Furthermore, the Laboratories’ argument fails as a matter of common sense, because the
parties’ course of conduct could not reasonably have justified the Laboratories’ reliance.
According to the Laboratories’ allegations, Cigna failed to pay almost as much as it actually paid
for “identical” services billed with “identical” invoices. Compl., Doc. No. 46, at 10
($37,687,349.19 paid, $32,074,089.64 unpaid). The Laboratories allege no reason to distinguish
the paid from unpaid claims for reimbursement that might justify reasonable reliance. On the

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allegations in these pleadings, it would not have been reasonable for the Laboratories to rely on
Cigna’s record of intermittent payment.
Due to the absence of an allegation of a definitive promise to pay and reasonable reliance,
the Laboratories’ promissory estoppel claim fails and is dismissed without prejudice.
b. Breach of Implied Contract
In Count II, the Laboratories also allege breach of an implied contract, though they do not
specify whether the contract was implied in fact or law. Cigna asserts, either way, that the
Laboratories fail to establish any “actual agreement to pay Plaintiffs,” which is necessary for a
contract. Cigna’s Mem. of Law, Doc. No. 51-1, at 18. Here, too, I agree with Cigna.
i. Breach of Implied-in-Fact Contract
First, the Laboratories fail to state a claim for breach of implied-in-fact contract. An
implied-in-fact contract entails the same legal elements as an express contract: offer, acceptance,
and consideration. Any valid contract requires a manifestation of mutual assent, even if implied
by conduct. Rest. (Second) of Contracts § 24 (1981). The key point is that an implied-in-fact
contract “rest[s] upon the assent of the parties.” Peacock Med. Lab, WL 2198470 at *5 (quoting
Gem Broad., Inc. v. Minker, 763 So. 2d 1149, 1150 (Fla. 4th DCA 2000)).
Neither coverage confirmations nor the parties’ course of conduct give rise to an
inference that Cigna manifested its assent. Under Florida law, a confirmation of coverage does
not constitute assent to some undefined terms. 5 For example, in RMP Enterprises, LLC v.
Connecticut Gen. Life Ins. Co., the plaintiffs were out-of-network healthcare providers for whom
Cigna had provided oral verifications of coverage. No. 9:18-CV-80171, 2018 WL 6110998, at

Connecticut law departs on this point, holding verification sufficient. See, e.g., Aesthetic & Reconstructive Breast
Ctr., LLC v. United HealthCare Grp., Inc., 367 F. Supp. 3d 1, 11 (D. Conn. 2019).
5

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*8 (S.D. Fla. Nov. 21, 2018). The Southern District of Florida dismissed the providers’ claim,
again reasoning that “an insurer’s verification of coverage is not a promise to pay a certain
amount” and concluding that verification “cannot be construed as a binding contractual
agreement.” Id. (citation omitted). The court dismissed the breach of implied contract claim for
want of the most essential element, an agreement. Id.
Second, Florida courts have rejected combining coverage verifications with a course of
conduct, because the combination is insufficient to give rise to a promise to pay. See, e.g.,
Chiron Recovery Ctr., 2020 WL 3547047, at *8 (“[Provider] has alleged that routine course of
dealing and routine coverage verification formed a contract, but this is a proposition solidly
rejected by courts throughout the country, and this Court has rejected such a contention in the
past.”).
Relying wholly on verification of coverage and the parties’ course of dealing, the
Laboratories have failed to allege that Cigna manifested assent to pay for the disputed claims.
Thus, the Laboratories have failed to allege the contract necessary to give rise to a breach of
contract claim. The Laboratories’ claim for breach of implied contract is dismissed without
prejudice.
c. Quantum Meruit
In Count III, the Laboratories raise a claim of quantum meruit. Am. Compl., Doc. No.
47, at 11. The Laboratories allege that they provided services to Cigna subscribers, id., and
propose that Cigna benefitted because it would have been obligated to pay a different testing
services provider, thus retaining a benefit by not evading such financial obligations,
Laboratories’ Opp’n, Doc. No. 57, at 21. Cigna moves to dismiss this claim, arguing that it did
not benefit from the Laboratories’ services and, citing to Connecticut law, that it did not
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“knowingly accept” nor indicate intent to compensate the Laboratories for such services.
Cigna’s Mem. of Law, Doc. No. 51-1, 18-19. The Connecticut standard is inapplicable to this
case, and I decline the invitation to dismiss the Laboratories’ quantum meruit claim.
To plead a theory of quantum-meruit, a plaintiff must allege that “(1) it conferred a
benefit on the defendant; (2) the defendant had knowledge of the benefit; (3) the defendant
accepted or retained the benefit; and (4) the circumstances are such that it would be inequitable
for the defendant to retain the benefit without paying its fair value.” Martin Energy Servs., LLC
v. M/V BRAVANTE IX, 733 F. App’x 503, 506 (11th Cir. 2018).
There is a “clear split of authority” in Florida courts regarding whether an insurer benefits
when a provider serves its subscribers. Surgery Center of Viera, LLC v. Cigna Health and Life
Ins. Co., No. 6:19-cv-2110-Orl-22DCI, 2020 WL 686026, at *8 (M.D. Fla. Feb. 11, 2020); see
also Baycare Health Sys., Inc. v. Medical Sav. Ins. Co., No. 8:07-cv-1222-T-27TGW, 2008 WL
792061 (M.D. Fla. Mar. 25, 2008) (“Whether healthcare treatment to insureds constitutes a
‘direct’ benefit to the insurance company, or a benefit at all, is unclear, and is a source of
disagreement in courts within the Middle District of Florida.”). Some Florida courts have held
that the provision of medical services to a subscriber does not benefit the insurer. E.g., Peacock
Med. Lab, 2015 WL 2198470 at *5 (“[A] healthcare provider who provides services to an
insured does not benefit the insurer.”); Hialeah Physicians Care, LLC v. Connecticut Gen. Life
Ins. Co., No. 13-21895-CIV, 2013 WL 3810617, at *4 (S.D. Fla. July 22, 2013) (“[A medical
practice] can hardly be said to have conferred any benefit, even an attenuated one, upon the
Plan’s insurer by providing Plan beneficiaries with health care services.”); Adventist Health Sys./
Sunbelt, Inc. v. Med. Sav. Ins. Co., No. 6:03-CV-1121-ORL-19, 2004 WL 6225293, at *6 (M.D.
Fla. 2004) (“[A] third party providing services to an insured confers nothing on the insurer

36

except, a ripe claim for reimbursement, which is hardly a benefit.”). On the other hand, other
courts have decided the issue differently. E.g., Surgery Ctr. of Viera, LLC v. Meritain Health,
Inc., No. 619CV1694ORL40LRH, 2020 WL 7389987, at *12 (M.D. Fla. June 1, 2020), report
and recommendation adopted, No. 619CV1694ORL40LRH, 2020 WL 7389447 (M.D. Fla. June
16, 2020) (holding that allegations that a provider “conferred a direct benefit upon Defendants by
providing Defendants’ insured/member . . . with medical services . . . entitled under the Plan
document/insurance policy as evidenced by the partial compensation tendered” were sufficient to
state a claim); Surgery Center of Viera, LLC v. Cigna Health and Life Ins. Co., No. 6:19-cv2110-Orl-22DCI, 2020 WL 686026, at *8 (M.D. Fla. Feb. 11, 2020) (“Thus, this Court finds it is
not necessary at this stage of the litigation to allege more than what Surgery Center has already
alleged—that it provided services that allegedly conferred a benefit, it was not paid the entire
balance due for the services, and that it would be inequitable for Surgery Center to not be paid
for the services rendered.”). Given the unsettled nature of Florida law, I am inclined to let this
claim survive at this early stage of litigation.
Accordingly, Cigna’s motion to dismiss the Laboratories’ claim for quantum meruit is
denied.
d. Third Party Beneficiary Claims
The Laboratories claim that they are the intended third-party beneficiaries of the
insurance contracts between Cigna and its subscribers. Am. Compl., Doc. No. 47, at 12. In
effect, they argue that Cigna breached its insurance contracts with its own subscribers by failing
to pay for the Laboratories’ services. Id. Cigna argues that the Laboratories fail to allege that
there was a clear or manifest intent by it and its subscribers that the contract directly benefit the
Laboratories. Cigna’s Mem. of Law, Doc. No. 51-1, at 19. In addition, Cigna invokes
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Connecticut law in arguing that the Laboratories must show that Cigna had “knowingly”
accepted the Laboratories’ services. Id. I reject the scienter standard arising from inapplicable
law, and I turn to the core issue of the parties’ intent.
To plead a claim for breach of a third-party beneficiary contract, a plaintiff must allege
the following four elements: “(1) existence of a contract; (2) the clear or manifest intent of the
contracting parties that the contract primarily and directly benefit the third party; (3) breach of
the contract by a contracting party; and (4) damages to the third party resulting from the breach.”
Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 194–95 (Fla. 2006) (internal citations
omitted). Under Florida law, a non-participating provider may be acknowledged as “primarily
and directly benefit[ing]” from an insurance contract between an insurer and insured. Id. at 198
(holding that nonparticipating providers are not precluded from alleging that an insurance
contract evinces the clear and manifest intent required to be recognized as third-party
beneficiaries)); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 680 (11th
Cir. 1999). However, providers still have the burden to plead the “clear or manifest intent” of
the contracting parties. Columna, Inc. v. Aetna Health, Inc., No. 9:19-CV-80522, 2019 WL
4345675, at *3 (S.D. Fla. Sept. 12, 2019) (dismissing a breach of third-party beneficiary claim
where the provider failed to allege sufficient facts to infer the insurer and insured intended to
benefit it).
Here, the Laboratories successfully state a claim. They admit that they have no direct
contract with Cigna, Am. Compl., Doc. No. 47, at 5, and they submit no contractual language in
insurance policies illustrating that providers such as themselves are the intended beneficiaries of
subscribers’ policies. But the Laboratories persuasively argue that the Cigna’s subscribers’

38

policies incorporate Florida Statutes Section 627.6131, requiring insurers to pay benefits after
being provided written proof of loss.
I find the reasoning of the Peacock Medical Laboratory court persuasive. There, a
medical testing laboratory sued to recover for unpaid urinalyses. Peacock Med. Lab, 2015 WL
2198470, at *1. Although the testing service similarly did not rely on contractual language
identifying it as a third-party beneficiary, the court constructively recognized that the insurer had
breached its contracts with its subscribers. Id. at *4. “[W]here parties contract upon a subject
which is surrounded by statutory limitations and requirements,” those parties are “presumed to
have entered into their engagements with reference to such statute” such that the statutes “enter[]
into and become[] a part of the contract.” Id. at *4. As a result, the plaintiff plausibly alleged
that the insurer was bound to pay.
Here, Florida law— including Florida Statutes Section 6131(1)— governs the
transactions at issue, including the policies Cigna issued to its subscribers. As a result, I will
read into the insureds’ policies a default rule that Cigna was constructively bound by the terms of
Section 627.6131. On that basis, the Laboratories have stated a plausible claim for relief.
Accordingly, Cigna’s motion to dismiss the Laboratories’ third-party beneficiary claims
is denied.
IV.

Conclusion
For the foregoing reasons, I grant in part and deny in part Cigna’s motion to dismiss,
Doc. No. 51.
(1) To the extent that the Laboratories state-law statutory claims arise from services
provided to beneficiaries of ERISA plans, those claims are preempted and dismissed with
prejudice. To the extent that the Laboratories raise state-law statutory claims arising from
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services provided to beneficiaries of non-ERISA plans, such claims are not preempted and may
proceed.
(2) To the extent that the Laboratories’ common law claims arise from obligations
independent of the express terms of ERISA plans or other insurance policies, those claims are
not preempted and may proceed.
(3) Cigna’s motion to dismiss the Laboratories’ claims as judicially estopped is denied.
(4) Cigna’s motion to dismiss the Laboratories’ claims as insufficiently pled for failure to
identify the specific claims for reimbursement at issue is denied.
(5) Cigna’s motion to dismiss the Laboratories’ claims as insufficiently pled for failure to
identify the specific statutes at issue is denied. To the extent that the Laboratories’ raise causes
of action under Florida Statutes §§ 627.662, 627.3154, and 641.3155, those claims are dismissed
without prejudice.
(6) The Laboratories’ promissory estoppel claim is dismissed without prejudice.
(7) The Laboratories’ breach of implied contract claim is dismissed without prejudice.
(7) Cigna’s motion to dismiss the Laboratories’ quantum meruit claim is denied.
(8) Cigna’s motion to dismiss the Laboratories’ third-party beneficiary claims is denied.
Accordingly, the Laboratories’ surviving causes of action are: (1) Count I (statutory
claims), except to the extent those claims seek reimbursement under ERISA-covered plans or
arise under Florida Statutes §§ 627.662, 627.3154, and 641.3155; (2) Count III (quantum
meruit); and (3) Count IV (third-party beneficiary claims).
The plaintiffs may file a further amended complaint within 30 days. The dismissals
without prejudice will become dismissals with prejudice unless the plaintiffs file an amended
complaint curing the noted pleading deficiencies.

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So ordered.
Dated at Bridgeport, Connecticut, this 30 day of September 2021.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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