Pankey v. Aetna Life Insurance Company et al
Filing
43
ORDER granting 36 Motion to Dismiss for Failure to State a Claim; granting 39 Motion to Strike ; adopting 41 Report and Recommendations. On or before April 7, 2017, Plaintiff may file a Second Amended Complaint. Signed by Judge Roy B. Dalton, Jr. on 3/23/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JUDSON CLAY PANKEY,
Plaintiff,
v.
Case No. 6:16-cv-1011-Orl-37GJK
AETNA LIFE INSURANCE
COMPANY; and MES GROUP, INC.,
Defendants.
ORDER
This cause is before the Court on consideration of the following matters:
(1) Defendants’ Motion to Dismiss First Amended Complaint with Supporting
Memorandum of Law (Doc. 36), filed December 15, 2016; (2) Plaintiff’s
Response
in
Opposition to Defendants’ Motion to Dismiss First Amended Complaint (Doc. 37), filed
December 28, 2016; (3) Defendants’ Motion to Strike Exhibits 1 and 3, and Corresponding
References Thereto, In Plaintiff’s Response in Opposition to Defendant’s Motion to
Dismiss (Doc. 39), filed January 4, 2017; and (4) U.S. Magistrate Judge Gregory J. Kelly’s
Report and Recommendation (Doc. 41), filed February 24, 2017.
I.
BACKGROUND
Proceeding without benefit of an attorney, pro se plaintiff Judson Clay Pankey sues
defendants Aetna Life Insurance Company (“Aetna”) and MES Group, Inc. (“MES”)
under Title III of the American with Disabilities Act (“ADA”). (See Doc. 35; see also Doc. 1.)
The Court dismissed the initial Complaint as a shotgun pleading with deficient standing
-1-
allegations (Doc. 34 (“Dismissal Order”)):
Plaintiff seeks only injunctive and declaratory relief, yet he
provides an entirely conclusory and insufficient allegation
that he “will continue to be irreparably injured by the conduct
of the Defendants unless this [C]ourt grants the declaratory
and injunctive relief which he seeks.” Further, Plaintiff’s
“Prayer for Relief” seeks little more than compliance with
non-specific requirements of Title III of the ADA.
(Doc. 34, pp. 4–5.) The Court ordered Plaintiff to replead. (See id. at 5.)
Plaintiff then filed an Amended Complaint (Doc. 35), and Defendants filed a joint
motion to dismiss with supporting exhibits (Doc. 36 (“MTD”); Doc. 36-1). Plaintiff filed
a response with supporting exhibits (Doc. 37 (“Response”); Doc. 37-1 (“Response
Exhibits”)), and Defendant moved to strike the Response Exhibits (Doc. 39 (“Strike
Motion”)). Plaintiff did not respond to the Strike Motion, which was referred to
U.S. Magistrate Judge Gregory J. Kelly, who issued a Report and Recommendation
advising that the Strike Motion should be granted (Doc. 41 (“Report”)). These matters are
ripe for adjudication.
II.
THE REPORT
Because no party objected to the Report and the deadline to do so has now passed,
the Court is required to review the Report for clear error. See Fed. R. Civ. P. 72(a); Marcort
v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Having done so, the Court finds that
the Report is free of error and is due to be accepted, adopted, and made part of this Order.
(See Doc. 41.) Accordingly, in resolving the MTD, the Court has not considered the
Exhibits, which are due to be stricken.
-2-
III.
A.
LEGAL STANDARDS
Minimum Pleading Requirements and Standing
Complaints filed in this Court must comply with the minimum pleading
requirements set forth in Federal Rule of Civil Procedure 8 by including “short and plain”
statements of a claim showing that the plaintiff “is entitled to relief” and “the grounds
for the court’s jurisdiction.” Fed. R. Civ. P. 8(a). To state jurisdictional grounds, a plaintiff
must allege that he has standing under Article III of the United States Constitution—that
is, he has suffered “personal injury fairly traceable to the defendant’s allegedly unlawful
conduct and likely to be redressed by the requested relief.” See DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 340–42 (2006); Resnick v. AvMed, Inc., 693 F.3d 1317, 1323
(11th Cir. 2012). Where plaintiff’s requested relief is an injunction, he also must allege “a
real and immediate—as opposed to a merely conjectural or hypothetical—threat of future
injury.” See Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001.)
Failure to comply with the Court’s minimum pleading requirements provides
grounds for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See
Ashcroft v. Iqbal, 556 U.S. 662, 672, 678–79 (2009); Shotz, 256 F.3d 1077. When assessing the
sufficiency of a pleading, courts must limit their consideration to the complaint, its
attachments, “documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322–23 (2007); see also Laskar v. Peterson, 771 F.3d 1291, 1295 n.3
(11th Cir. 2014). Courts also must accept all well-pled factual allegations—but not legal
conclusions—in the complaint as true. See Tellabs, Inc., 551 U.S. at 322–23.)
-3-
After disregarding allegations that “are not entitled to the assumption of truth,”
the court must determine whether the complaint includes “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” See Iqbal, 556 U.S. at 663, 679 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). As to standing, courts must “not speculate concerning the existence of standing
or piece together support for the plaintiff.” See Schotz, 256 F.3d at 1081. Rather, the Court
must dismiss if the plaintiff—who bears the burden of establishing jurisdiction—fails to
establish the existence of standing. See Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190,
1210 (11th Cir. 1992).
B.
Title III of the ADA
Title III of the ADA confers a substantive right “to be free from disability
discrimination” in the “full and equal enjoyment of the [services, privileges,] facilities, or
accommodations of any place of public accommodation by any person who owns, leases,
or operates a place of public accommodation.” See Houston v. Marod Supermarkets, Inc.,
733 F.3d 1323, 1332 (11th Cir. 2013) (quoting 42 U.S.C. § 12182(a)). The ADA also prohibits
discrimination “against any individual because such individual made a charge” of
disability discrimination under the ADA. See 42 U.S.C. § 12203(a).
A person subjected to discrimination in violation of the ADA may institute “a civil
action for preventive relief, including an application for a permanent or temporary
injunction, restraining order, or other order.” See Access Now, Inc. v. SW Airlines Co.,
385 F.3d 1224, 1229–30 (11th Cir. 2004); see also 42 U.S.C. §§ 2000a-3, 12188(a)(1), 12203(c).
Plaintiffs may bring such an action only against the owner or operator of “a place of
-4-
public accommodation,” who prevents the plaintiff from fully and equally enjoying “a
privilege or advantage of [d]efendants’ public accommodation.” 1 See Rendon v. Valleycrest
Prods., Ltd, 294 F.3d 1279, 1282–83 (11th Cir. 2002) (setting forth the minimum facts that
an ADA plaintiff “must allege”); see also Morgan v. Christensen, 582 F. App’x 806, 809
(11th Cir. 2014) (affirming order dismissing ADA claim because the plaintiff did not
allege that the defendant “leased, owned, or operated a place of public accommodation”).
IV.
THE AMENDED COMPLAINT
The Amended Complaint includes four counts for alleged violations of Title 42,
United States Code: (1) section 12182(b)(1)(A)(i) for denying Plaintiff the “service of being
evaluated” for and “participating in rehabilitation programs” (“Service Claim”));
(2) section 12182(b)(2)(A)(iii) for “issuing a directive that no adaptive devices be
provided” to Plaintiff (id. ¶¶45–47 (“Directive Claim”)); and (3) section 12203(a) for
disclosing Plaintiff’s “protected health information” (“PHI”) in retaliation for Plaintiff’s
efforts to assert his ADA rights through administrative proceedings (“Retaliation
Claims”). (See Doc. 35, ¶¶45–54.)
In support of these claims, Plaintiff alleges that he is “an individual with a
disability” under the ADA because he is a “profoundly hard of hearing/deaf” person
1 Pursuant to the ADA, disability “discrimination” includes: (1) “the imposition
or application of eligibility criteria that screen out or tend to screen out an individual with
a disability . . . from fully and equally enjoying” a defendants’ services (see
42 U.S.C. § 12182(b)(2)(A)(i)); and (2) “a failure to take such steps as may be necessary to
ensure that no individual with a disability is excluded, denied services, segregated or
otherwise treated differently than other individuals because of the absence of auxiliary
aids and services” (see id. § 12182(b)(2)(A)(iii)).
-5-
who “needs the accommodations of auxiliary aids and services, i.e., adaptive devices, to
effectively communicate” (“Disability”). (See id. ¶1.) Through his employer, Plaintiff
purchased “a group life and accident and health insurance policy” (“Policy”), which is
underwritten and administered by Aetna. (See id. ¶5.) Due to his Disability, Plaintiff
applied to Aetna for benefits under the Policy (“Claim”), and in early July 2012:
(1) Plaintiff and an Aetna employee (“MCV”) “agreed to meet to evaluate [Plaintiff] for
a rehabilitation program” (“LTD Interview”); and (2) Plaintiff requested that Aetna
provide him “an accommodation of CART, an auxiliary aid and service,” for the
“proposed” LTD Interview (“CART Request”). 2 (See id. ¶¶9–11; see also Doc. 36-1, pp. 8–
19 (providing copies of the CART Request and related email string).)
After the CART Request, MCV and a “vocational rehabilitation consultant”
allegedly spent four months exchanging “more than two dozen email(s)” with Plaintiff
to “arrange CART and the LTD Interview” until November 2, 2012, when MCV advised
Plaintiff that the LTD Interview would be conducted as a conference call. (See id. ¶¶12,
13, 16; see also Doc. 36-1, pp. 2–6.) Five days after Plaintiff agreed to the conference call,
on November 9, 2012, MCV advised him that Aetna would be handling Plaintiff’s “claim
in-house for the time being and will not be employing CART services at this time.”
(Doc. 36, ¶¶9, 14, 17, 18; see also Doc. 36-1, p. 2.)
2 CART is “a machine that provides real-time translation for hearing impaired
individuals.” (See Doc. 24 (denying Plaintiff’s request that the Court provide CART to
Plaintiff for the case management conference between the parties); see also Doc. 31-1, p. 4
(explaining process for “remote CART services”).)
-6-
According to Plaintiff, “four months after denying him the service of a
LTD Interview allegedly because of his disability,” MCV wrote the following note in
Aetna’s internal notes system on March 7, 2013: “This is a very contentious claim with a
deaf claimant. There can be no interview.” (See Doc. 35, ¶19.) Further, Plaintiff alleges
that: (1) he “continues to be a customer of [Aetna] and will be a customer for the
foreseeable future;” and (2) he “is allegedly being denied” the Evaluation Service
“because of his disability.” (See id. ¶18.)
On November 13, 2012, Plaintiff filed his first administrative ADA complaint
(“First ADA Complaint”), which requested that the Department of Justice (“DOJ”)
“assist Plaintiff in having [Aetna] provide the LTD Interview with [CART].” (See id. ¶15.)
Plaintiff did not serve Aetna with the First ADA Complaint, and the DOJ “decided to do
nothing” other than notify Plaintiff that the First ADA Complaint “did not give sufficient
detail of an issue that [the DOJ was] able to address.” (See id. ¶¶7, 15.)
Plaintiff alleges that Aetna Senior Disability Risk Manager (“SDRM”) entered a
note in the System on December 19, 2013, which provides:
THIS CLAIM WAS STAFFED IN ROUNDTABLE WITH
RMD DR. SYNDER AND RON MARTIN, SDCC. AGREED
TO REFER TO VOC FOR TSA/LMA BASED ON DX OF
SEVERE BILATERIAL SENSORINEURAL HEARING LOSS.
NO ADAPTIVE DEVICES. CLAIMANT HAS THE ABILITY
TO COMMUNICATE EFFECTIVELY THROUGH EMAIL,
TEXT, WRITING, AND READING LIPS.
PLEASE CONDUCT A CURRENT TSA/LMA FOR THE
ABOVE. ROUNDTABLE RECOMMENDATION – PERHAPS
A HOME VISIT IF NEEDED. . . .
-7-
Due to complexity file is referred to vendor Coventry for
TSA/LMA.
(See id. ¶20 (emphasis added”).) Plaintiff alleges that this internal system note constitutes
Aetna’s Directive to deny him “adaptive devices,” which “Aetna’s roundtable committee
instituted.” (See id. ¶¶21, 22.) Because Plaintiff “continues to be a customer” of Aetna and
will continue to need CART for “interactions” with Aetna, Plaintiff contends that the
Directive constitutes ongoing ADA discrimination because it has and will prevent his
enjoyment of services “provided to other customers.” (See id.)
On February 26, 2014, Plaintiff filed a “Health Information Privacy Complaint”
(“HIP Complaint”) with the U.S. Department of Health and Human Services (“HHS”)
against Aetna for obtaining PHI from Plaintiff’s general practitioner (“WVMA”) without
authorization. (See id. ¶¶26, 27.) The next day, Plaintiff filed an amended ADA complaint
with the DOJ (“Second ADA Complaint”), which requested that the DOJ “open an
investigation into [Aetna’s] actions.” (See id. ¶¶7, 23.) Plaintiff alleges that: (1) he
provided Aetna with copies of the Second ADA Complaint and the HIP Complaint on
April 3, 2014; (2) Aetna then retaliated against Plaintiff by disclosing the improperlyobtained WVMA PHI to MES on May 22, 2014; and (3) MES also retaliated against
Plaintiff by disclosing WVMA PHI to a reviewing physician. (See id. ¶¶26–35, 48–50.)
On July 7, 2015, the DOJ notified Plaintiff that it would refer the Second ADA
Complaint “to its sponsored mediation program” (“Mediation Program”), and in
mid-September 2015 the director of the Mediation Program contacted Aetna concerning
-8-
mediation of the Second ADA Complaint. 3 (See id. ¶¶7, 36, 37.) Approximately one week
later, Aetna notified Plaintiff that it had mistakenly sent a compact disc containing
Plaintiff’s “personal information” (“CD”) to another Aetna customer (“Unknown
Recipient”). 4 (See id. ¶¶38, 39.) Plaintiff alleges that Aetna’s disclosure of the CD “was in
retaliation” for Plaintiff’s participation in the Mediation Program. (See id. ¶¶41, 51–53.)
Plaintiff’s “Prayer for Relief,” requests that the Court require Defendants to “purge
Plaintiff’s WVMA PHI from their files,” and order Aetna to: (1) provide “the service of a
LTD Interview” and an affidavit assuring Plaintiff that the Disclosed Information “has
been purged, not further shared, and not subject to breach;” and (2) modify its practices
by providing auxiliary aids and services . . . to Plaintiff.” (See id. ¶d; see also id. ¶2.)
Plaintiff also requests declarations that Defendant violated Title III and an award of his
litigation expenses. (See id. ¶¶a, e, f.)
V.
A.
DISCUSSION
Rule 12(b)(1)
Defendants argue that the Court should dismiss the Amended Complaint
3 The status of the parties’ mediation is unclear. Plaintiff suggests that the
mediation was ongoing when he filed this action: it “took six months for the mediator to
be assigned and the first mediation session to be scheduled . . . [and] the parties were
unable to resolve the matter prior to the four year statute of limitations being reached,
and thus, the matter was filed with this Court.” (See Doc. 35, ¶7.)
4 The CD included the following information (“Disclosed Information”):
(1) Plaintiff’s name, address, birth date, social security number, and employment history;
(2) information concerning Plaintiff’s salary, pension, social security benefits, the social
security benefit information of his dependents, and one defendant’s birth date;
(3) summaries of background investigations of Plaintiff; and (4) the names of Plaintiff’s
doctors and “detailed summaries of his medical history.” (See Doc. 35, ¶39.)
-9-
pursuant to Rule 12(b)(1) because Plaintiff again has failed to allege “facts supporting any
plausible inference” of future injury.” (See Doc. 36, pp. 7–10.) Specifically, Defendants
contend that: (1) Plaintiff’s few allegations concerning standing are too conclusory and
speculative to permit a plausible inference that Plaintiff faces a real and immediate threat
of future discrimination; and (2) Plaintiff has not alleged that the PHI or Disclosed
Information has been misused, and Plaintiff’s allegation that he is at risk for “future
harm” is insufficient as a matter of law. (See id.)
As to his Service and Directive Claims, Plaintiff counters that his more tailored
request for relief and allegations concerning the Directive and Aetna’s ongoing denial of
an LTD Interview sufficiently demonstrate standing. (See Doc. 37, pp. 2–3.) Plaintiff
further contends that he has shown standing for his Retaliation Claims based on his
allegations that Defendants’ disclosure of the WVMA PHI and Aetna’s disclosure of the
CD has created a “threat of future harm” that would be redressed by a “purge” of
Defendants’ files and an affidavit from the Unknown Recipient. (See id. at 4–5.)
After construing all inferences from the well-pled facts alleged in the Amended
Complaint in favor of Plaintiff—who is proceeding pro se—and disregarding the
speculative and conclusory allegations, 5 the Court cannot find that Plaintiff has
5 The Amended Complaint includes: (1) allegations that Plaintiff “has no plain,
adequate or complete remedy at law to redress the wrongs described” in the Amended
Complaint (see id. ¶35); (2) allegations that Plaintiff “has been and will continue to be
irreparably injured by the conduct of the Defendants unless this court grants the
declaratory and injunctive relief which he seeks” (see id.) and (3) general requests that
Defendants be enjoined from future violations of Title III of the ADA and its
implementing regulations (see id. ¶¶b, c). As noted in the prior Dismissal Order, such
conclusory allegations and generalized requests for relief are insufficient. (See Doc. 34,
-10-
sufficiently demonstrated standing with respect to any of his claims. Notably, the
Amended Complaint paints a nebulous picture from cherry-picked facts of Plaintiff’s
relationship with Aetna, the necessity of continuing communications, and Aetna’s
alleged failure to conduct the LTD Interview. (See Doc. 35, ¶¶9–11, 14, 17–22 (discussed
supra, pp. 5–7).) The specific incidents Plaintiff complains of occurred years ago, and
Plaintiff has not adequately identified a single recent or future event that could be
adversely affected by Defendant’s allegedly discriminatory conduct. Similarly, Plaintiff’s
allegation of “future harm” resulting from Defendants’ allegedly retaliatory conduct are
too conclusory and speculative to establish standing at the pleading stage in this action.6
See Torres v. Wendy’s Co., 195 F. Supp. 3d 1278, 1284–85 (M.D. Fla. 2016) (dismissing claim
for injunctive relief because speculative allegations of “future identity theft” did not
establish standing); see also Resnick, 693 F.3d at 1323, n.1 (noting that many courts have
rejected threats of future harm as sufficient for standing in data breach cases).
Accordingly, the Amended Complaint is due to be dismissed pursuant to Rule 12(b)(1).
B.
Rule 12(b)(6)
Defendants also argue that the Court should dismiss the Amended Complaint
pursuant to Rule 12(b)(6) because Plaintiff cannot allege that he was prevented from fully
pp. 4–5.)
6 Plaintiff alleged that Aetna offered him “free credit monitoring” and advised
him that the Unknown Recipient returned the CD, which was “destroyed in line with
Aetna’s privacy and security protocols.” (See Doc. 35, ¶¶40, 41.) Such allegations
concerning corrective and protective actions taken by Defendants after the unauthorized
disclosures further undermine Plaintiff’s speculative allegation that he is at risk of “future
harm.”
-11-
and equally enjoying a privilege or advantage of a physical public accommodation as
required under the ADA. (See Doc. 36, pp. 10–15 (contending that Plaintiff has not alleged
that Aetna “denied him access to their offices or to any physical place of public
accommodation”); see also supra pp. 4–5 (discussing pertinent law).) Plaintiff counters that
the LTD Interview supplies the “physical nexus” between him and a public
accommodation—Aetna’s insurance offices. (See Doc. 37, p. 7.)
For purposes of Title III, a physical “insurance office” is a place of “public
accommodation” and the owner or operator of such an office who commits acts of
discrimination under the ADA is subject to a civil action if its operations affect commerce.
See 42 U.S.C. § 12181(7)(F); see also Rendon, 294 F.3d at 1282, n.3 (noting that 28 C.F.R.
§ 36.104 defines “public accommodation” as a “place” or “facility, operated by a private
entity, whose operations affect commerce”). Although an ADA Plaintiff need not
personally appear at the insurance office, to state a plausible Title III claim, the plaintiff
must allege sufficient facts that show a nexus between the “challenged service and the
premises of the [insurance office].” See Rendon, 294 F.3d at 1284, n.8.
Here, the only allegations in the Amended Complaint concerning any public
accommodation are that: (1) Aetna operates insurance offices in Florida (“Offices”) “that
underwrite and administer insurance products;” and (2) such Offices are “public
accommodations” under § 12181. (See id. ¶5.) These allegations are far too conclusory and
attenuated to show any “nexus” between Aetna’s Offices and its alleged denial of the
LTD Interview and auxiliary services. Accordingly, the Amended Complaint also is due
to be dismissed under Rule 12(b)(6).
-12-
Because all of Plaintiff’s claims are subject to dismissal under Rules 12(b)(1) and
12(b)(6), the MTD is due to be granted and the Amended Complaint is due to be
dismissed without prejudice. Although Plaintiff has previously been afforded an
opportunity to replead, the Court will provide one additional opportunity given his pro
se status. If Plaintiff chooses to replead, his pleading must fully comport with the Court’s
minimum pleading requirements—including requirements under Rule 11(b) that, to the
best of his “knowledge, information and belief, formed after an inquiry reasonable under
the circumstances:” (1) the amended complaint “is not being presented for any improper
purpose;” (2) Plaintiff’s claims “are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for establishing new
law;” (3) Plaintiff’s “factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery.”
VI.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that:
(1)
U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 41) is APPROVED, ADOPTED, AND CONFIRMED.
(2)
Defendants’ Motion to Strike Exhibits 1 and 3, and Corresponding
References Thereto, In Plaintiff’s Response in Opposition to Defendant’s
Motion to Dismiss (Doc. 39) is GRANTED.
(3)
Defendants’ Motion to Dismiss First Amended Complaint with Supporting
Memorandum of Law (Doc. 36) is GRANTED.
-13-
(4)
The First Amended Complaint (Doc. 35) is DISMISSED WITHOUT
PREJUDICE.
(5)
On or before April 7, 2017, Plaintiff may file a Second Amended Complaint.
(6)
Plaintiff is advised that this action will be CLOSED without further notice
if he fails to file a Second Amended Complaint in the time prescribed by
this Order.
DONE AND ORDERED in Orlando, Florida, this 23d day of March, 2017.
Copies to:
Counsel of Record
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?