VANDERHORST v. BLUE CROSS BLUE SHIELD et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 4/16/2015. (lcabj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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BLUE CROSS BLUE SHIELD
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ASSOCIATION, et al.,
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Defendants.
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____________________________________)
ANNETTE M. VANDERHORST,

Civil Action No. 14-1580 (ABJ)

MEMORANDUM OPINION
Plaintiff Annette M. Vanderhorst brought this pro se lawsuit against defendants Blue
Cross Blue Shield Association (“BCBSA”) and “CMS,” which is the Centers for Medicare and
Medicaid Services, a component of the Department of Health and Human Services (“HHS”).
Plaintiff’s allegations relate to an increase in the cost of certain medications. HHS filed a motion
for a more definite statement, or in the alternative, to dismiss. BCBSA filed a motion for judgment
on the pleadings. The Court finds that plaintiff has failed to state a claim against either defendant
upon which relief can be granted, and so it will grant defendants’ motions and dismiss this case.
BACKGROUND
Plaintiff, acting pro se, filed a complaint in the Superior Court of the District of Columbia
on August 14, 2014, naming BCBSA and CMS as defendants. Compl. [Dkt. # 9-1] at 1. HHS
removed the case to this Court on September 17, 2014. Notice of Removal [Dkt. # 1].
The complaint consists of a one-page form, a two-page letter addressed to the “Civil Court”
in the District of Columbia, and many pages of correspondence between plaintiff and various
individuals, including the CEO of BCBSA, HHS Secretary Kathleen Sebelius, and personnel at

CMS, CareFirst BlueCross BlueShield, and Medi-CareFirst. Compl. Plaintiff states in the letter
to the “Civil Court” that she is “complaining of the service being given by Blue Cross Blue Shield
Insurance Company a contractual affiliate with the company Keith Glasscock (Plan D), and also
Medicare’s Appeal office.” Id. at 2. Plaintiff explains that “[i]t all started in September 12, 2013,
with an increase in the cost of medication with no notice prior to receiving the medication.” Id.
She then details the ways in which “it has gotten worse” since that time, which include:
An alleged “[f]ailure to send Explanation of Benefits (EOB) monthly regarding an
increase in the cost of medication.” Id.
“A letter (copy enclosed) dated October 23, 2013 with lots of false information.” Id.
Plaintiff further states that she has received confusing information about people who
may or may not have called and worked at a Rite Aid pharmacy, as well as whether the
manufacturer of the medications at issue sets prices for the medications. Id.
An alleged failure to provide “paperwork” to plaintiff “showing the cost increase for
Synthroid on July 3, 2013, and Prednisone on August 4, 2013.” Id. Plaintiff also states
that she did not receive timely responses to several inquiries by letter and phone with
various individuals at “Blue Cross Blue Shield.” Id. at 2–3.
Plaintiff further states that she made an appeal to “Medicare” regarding these practices,
which included complaints about:
The alleged increase in the cost of her medication. Id. at 3.
A “Personalized Booklet with wrong information of 2013.” Id.
The failure of some “contractual employees of Medicare’s Advanced Resolution” to
“follow[] up with procedures properly.” Id.
The failure of “Medicare” to respond to an inquiry plaintiff made regarding a
medication listing she received from Blue Cross Blue Shield. Id.
The failure of “Medicare” supervisors to respond to her calls. Id.
The failure of “Medicare’s Appeal department” to contact her in writing “instead of the
Appeal department having the Advance Resolution department call” her. Id.

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The statement by a Medicare supervisor named Rose that “Blue Cross Blue Shield
committee [sic] fraud” and that “she would report this to Medicare’s office in
Philadelphia.” Id. Plaintiff notes that she has “not heard further on this issue.” Id.
The complaint and all of the attachments name numerous individuals whom plaintiff
appears to believe are employees or representatives of defendants, and who she alleges were
involved in the events at issue here. See Compl.
HHS filed a motion for a more definite statement, or in the alternative, to dismiss on
September 24, 2014. Def.’s Mot. for More Definite Statement, or, in the Alternative, to Dismiss
Compl. [Dkt. # 2] (“HHS Mot.”). The Court advised plaintiff of her obligation to respond to
HHS’s dispositive motion under Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988). Fox Order
(Oct. 10, 2014) [Dkt. # 6]; Fox Order (Nov. 17, 2014) [Dkt. # 10]; see also Fox, 837 F.2d at 509
(stating that the court must take pains to advise a pro se party that failing to respond to a dispositive
motion “may result in the district court granting the motion and dismissing the case”).
On December 3, 2014, plaintiff filed a letter to the Court that the Court construed as an
opposition to HHS’s motion. Letter from Annette M. Vanderhorst, plaintiff, to the Court (Nov.
20, 2014) [Dkt. # 11] (“Opp. to HHS Mot.”). In the letter, plaintiff explained that the reason she
filed this lawsuit is that she noticed an increase in the cost of her medication in September 2013,
and that she has not received a satisfactory answer from CMS or Blue Cross Blue Shield about
why this occurred. Opp. to HHS Mot. at 1–2. Plaintiff further contended that she had received
“false information” from Wanda Lessner, an “Executive of Blue Cross Blue Shield.” Id. at 2.
HHS filed a reply on December 4, 2014. Def.’s Reply in Supp. of HHS Mot. [Dkt. # 12].
BCBSA filed an answer to the complaint on September 8, 2014, while this case was still
pending in the Superior Court. See BCBSA Answer [Dkt. # 9-1]. On December 22, 2014, BCBSA
filed a motion for judgment on the pleadings in this Court. BCBSA Mot. for J. on Pleadings

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[Dkt. # 13] (“BCBSA Mot.”). The Court advised plaintiff of her obligation to respond to BCBSA’s
dispositive motion on December 24, 2014. See Fox/Neal Order [Dkt. # 14].
On January 7, 2015, plaintiff filed a letter to the Court that the Court construed as an
opposition to BCBSA’s motion. Letter from Annette M. Vanderhorst, plaintiff, to the Court (Dec.
29, 2014) [Dkt. # 15]. In that letter, plaintiff stated: “As an American citizen, age 67, I feel that
BCBSA has a contractual agreement with Medicare to provide Part D Prescription Drug service
and has not taken the time to follow the agreement as it relates to providing me with an explanation
for the increase in the cost of my medication.” Id. at 1. Plaintiff again detailed her efforts to
“interact with BCBSA” about her concerns, noting that “[t]his issue has caused [her] a lot of
stress.” Id. BCBSA filed a reply on January 20, 2015. Def. BCBSA’s Reply in Supp. of BCBSA
Mot. [Dkt. # 16] (“BCBSA Reply”).
STANDARD OF REVIEW
The standard of review for a motion for judgment on the pleadings under Rule 12(c) “is
essentially the same as the standard for a motion to dismiss brought pursuant to Federal Rule of
Civil Procedure 12(b)(6).” Longwood Vill. Rest., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66–67
(D.D.C. 2001).
A Rule 12(c) motion may be granted “only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the allegations.” Id. at 66, citing Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984). In other words, “[i]f there are allegations in the
complaint which, if proved, would provide a basis for recovery, the Court cannot grant judgment
on the pleadings.” Nat’l Shopmen Pension Fund v. Disa, 583 F. Supp. 2d 95, 99 (D.D.C. 2008)
(citation and internal quotation marks omitted).

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“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted); accord Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two
principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S. at 678.
And “[s]econd, only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action,” id., quoting
Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. In ruling upon a motion to dismiss under Rule
12(b)(6) or Rule 12(c), a court may ordinarily consider only “the facts alleged in the complaint,
documents attached as exhibits or incorporated by reference in the complaint, and matters about
which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196
(D.D.C. 2002); see also Qi v. FDIC, 755 F. Supp. 2d 195, 199–200 (D.D.C. 2010).
Because plaintiff is proceeding pro se, the Court notes that “[a] document filed pro se is
‘to be liberally construed,’” and that “‘a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus,
551 U.S. 89, 94 (2007), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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ANALYSIS
Accepting all of plaintiff’s allegations as true, see Iqbal, 556 U.S. at 678, the Court finds
that plaintiff has failed to state a claim upon which relief can be granted, and so this case must be
dismissed. See Fed. R. Civ. P. 12(b)(6); see also Fed. R. Civ. P. 12(c). Plaintiff contends that she
did not receive proper notice of a change in the cost of certain prescription medications, and that
she has not received an adequate explanation from her insurance company or CMS as to why that
occurred. See Compl. But plaintiff has not alleged any misconduct on the part of either defendant
that violated any law, nor has she articulated facts that would give rise to a cognizable cause of
action. Plaintiff’s allegations are, in essence, a customer service complaint, which is a type of
complaint that is not redressable by this Court.
In addition, it appears that BCBSA is not a proper party to this case because it is not an
insurance company and it does not employ any of the individuals identified in plaintiff’s pleadings,
including Wanda Lessner, the “Executive of Blue Cross Blue Shield” who plaintiff contends gave
her “false information.” See Opp. to HHS Mot. at 2; Decl. of Scott P. Serota, Ex. A to BCBSA
Mot. [Dkt. # 13-1] ¶¶ 8, 12; Decl. of Deborah Bandura, Ex. A to BCBSA Reply [Dkt. # 16-1] ¶ 4.
The Court is sympathetic to plaintiff’s frustration and it understands that issues relating to
medication prices and health insurance can be confusing. But because plaintiff has not set forth a
legal basis for relief, this case must be dismissed. See Iqbal, 556 U.S. at 679 (“[O]nly a complaint
that states a plausible claim for relief survives a motion to dismiss.”).

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