Willson et al v. Blue Cross/Blue Shield et al
Filing
25
ORDER granting 3 Defendant's Motion to Dismiss; denying 11 Plaintiffs' Motion to Amend the Amended Complaint as Necessary to Maintain Class Action Status (construed as a motion for class certification) and to Conduct Reasonable Discovery. Plaintiffs shall have up to and including December 19, 2011, to amend the Amended Complaint to state a claim under ERISA. Signed by Judge Virginia M. Hernandez Covington on 11/18/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD C. WILLSON, JR. and
MARIA S. WILLSON a/k/a
MARIA D. WILLSON,
Plaintiffs,
v.
CASE NO:
8:11-cv-59-T-33EAJ
BLUE CROSS/BLUE SHIELD; BLUE
CROSS/BLUE SHIELD ASSOCIATION;
and ANTHEM BLUE CROSS AND BLUE
SHIELD,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Anthem Health Plans of Kentucky, Inc., d/b/a Anthem Blue Cross
and Blue Shield's Motion to Dismiss (Doc. # 3) and Plaintiffs'
Motion to Amend the Amended Complaint as Necessary to Maintain
Class Action Status and to Conduct Reasonable Discovery (Doc.
# 11).
Plaintiffs filed a Response to Defendant's Motion to
Dismiss (Doc. # 4), Defendant filed a Reply thereto (Doc. # 7)
and Plaintiffs filed a Surreply (Doc. # 14).
a
Response
to
Plaintiffs'
Motion
to
Defendant filed
Amend
the
Amended
Complaint as Necessary to Maintain Class Action Status and to
Conduct Reasonable Discovery (Doc. # 15).
For the reasons
discussed below, Defendant's Motion to Dismiss is granted, and
Plaintiffs' Motion to Amend the Amended Complaint as Necessary
to Maintain Class Action Status and to Conduct Reasonable
Discovery is denied.
I.
Background
Plaintiff Maria Willson is a spousal beneficiary under a
self-funded group health plan offered through her husband
Richard Willson's employer, Ashland, Inc., and administered by
Defendant Anthem Health Plans of Kentucky, Inc.
Plaintiffs
bring this action based upon a denial of coverage for a
procedure known as Intensity Modulated Radiation Therapy
("IMRT") as post-operative therapy for breast cancer.
Plaintiffs,
who
are
proceeding
pro
se,
do
not
specifically identify any causes of action in their Amended
Complaint.
Instead,
after
setting
forth
their
factual
allegations, Plaintiffs demand (1) a declaratory judgment that
Defendant's denial of coverage constitutes (a) bad faith under
Florida Statutes § 624.155, and (b) breach of contract; (2)
money damages of $30,000.00; (3) punitive damages based on the
Defendant's alleged breach of Florida Statutes § 624.155; (4)
a permanent injunction preventing Defendant from denying
coverage for IMRT; and (5) a certification of a class "so that
Defendants must reveal and remedy past denials of coverage for
IMRT for other insured patients."
2
(Doc. # 2 at 3-4).
Defendant removed this action from state court pursuant
to 28 U.S.C. § 1441(b) alleging that "the Complaint asserts a
cause of action under the laws of the United States in that
the
plaintiffs'
claims
are
preempted
by
the
Employment
Retirement Income Security Act of 1974 ("ERISA")[29 U.S.C. §
1001 et seq.]."
(Doc. # 1 at 2).
Accordingly, Defendant
alleges a federal question as the basis of this Court's
subject matter jurisdiction.1
28 U.S.C. § 1331.
Defendant now moves this Court to dismiss the Amended
Complaint, arguing that all of Plaintiffs' state law claims
are preempted by ERISA.
1
The Court notes that Plaintiffs make an argument that
the case should be remanded because the amount in controversy
is below the amount necessary for diversity jurisdiction.
(Doc. # 4 at 3). Amount in controversy is relevant only to
diversity jurisdiction and is not at issue here. Accordingly,
this argument fails to present a basis for remand. Likewise,
Defendant raises a failure to plead a basis for long-arm
jurisdiction as an alternative basis for dismissal that need
not be addressed under the federal question subject matter
jurisdiction present in the case at bar. See United Elec.,
Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960
F.2d 1080, 1085 (1st Cir. 1992)("Inasmuch as the federalism
concerns which hover over the jurisdictional equation in a
diversity case are absent in a federal question case, a
federal court's power to assert personal jurisdiction is
geographically expanded.
In such circumstances, the
Constitution requires only that the defendant have the
requisite 'minimum contacts' with the United States, rather
than with the particular forum state (as would be required in
a diversity case).").
3
II.
Discussion
A.
Defendant's Motion to Dismiss
i.
Standard of Review
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.
Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
Health
&
Human
Servs.,
901
F.2d
Stephens v. Dep’t of
1571,
1573
(11th
Cir.
1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken as
true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level...
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan
v.
Allain,
478
U.S.
4
265,
286
(1986).
In
all,
determining whether a complaint states a plausible claim for
relief will “be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
ii.
Analysis
Congress specifically intended for ERISA to preempt "any
and all State laws insofar as they may now or hereafter relate
to any employee benefit plan" and expressly provided that
ERISA be the exclusive cause of action for the recovery of
benefits under an ERISA plan.
29 U.S.C. § 1144(a); 29 U.S.C.
§ 1132(a).
It is well established that each of Plaintiffs' causes of
action
is
preempted
by
ERISA.
See,
e.g.,
Reed
v.
The
Prudential Ins. Co. of Am., 4 F. Supp. 2d 1148, 1151-53 (M.D.
Fla. 1998)(breach of contract and declaratory claims for
denial
of
coverage
are
preempted
by
ERISA);
Swerhun
v.
Guardian Life Ins. Co. of Am., 979 F.2d 195, 199 (11th Cir.
1992)(bad faith claims under Florida Statutes § 624.155 are
preempted by ERISA); Thomas v. Healthplan Servs., Inc., 74 F.
Supp. 2d 1196, 1201 (M.D. Fla. 1999)(bad faith claims relating
to
employee
Accordingly,
benefit
the
plans
motion
are
to
preempted
dismiss
5
by
ERISA).
Plaintiffs'
Amended
Complaint is granted.2
Plaintiffs, however, seek leave to amend the Amended
Complaint to state a claim under ERISA.
(Doc. # 4 at 9).
Plaintiffs
such
shall
have
30
days
to
file
an
amended
complaint.
B.
Plaintiffs' Motion to Maintain Class Action Status
and to Conduct Reasonable Discovery
Plaintiffs move for a "determination under Federal Rule
23(c)(1) that they may proceed with reasonable discovery and
that this action be maintained as a class action." (Doc. # 11
at 1).
The Court construes this as a motion for class
certification.3
Plaintiffs seek to "maintain a class action limited to
insureds
of
any
Defendant,
who
were
injured
arbitrary denials of IMRT without examination."
by
similar
(Id. at 5).
They also seek to "[p]roceed with reasonable discovery to
2
Defendant also briefly raises the issue of insufficiency
of service of process in its motion.
(Doc. # 3 at 5).
However, the facts and case law submitted in support of that
portion of its motion are insufficient to support a ruling in
Defendant's favor, and the motion is denied on that ground.
3
Plaintiffs are required under Local Rule 4.04(b) to move
within 90 days following the filing of the initial complaint
for a determination under Rule 23(c)(1) as to whether the case
is to be maintained as a class action. Plaintiffs' motion was
made 87 days after the removal of this action to this Court.
6
learn the above listed information which is essential to the
administration of justice in this case e.g. which Blue Cross/
Blue Shield entities are properly to be named Defendants; and
whether
injunction
insureds."
is
required
for
future
protection
of
(Id. at 6).
i.
Standard of Review
A district court has broad discretion in determining
whether to certify a class. Washington v. Brown & Williamson
Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992); Griffin
v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985). Federal Rule
of Civil Procedure 23(a) lists the prerequisites to a class
action as:
(1)
(2)
(3)
(4)
the class is so numerous that joinder
of all members is impracticable;
there are questions of law or fact
common to the class;
the
claims
or
defenses
of
the
representative parties are typical of
the claims or defenses of the class;
and
the representative parties will fairly
and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a).
The party requesting class certification
bears the burden of proving that each of these prerequisites has
been met. Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.
1984); see also Sandlin v. Shapiro & Fishman, 168 F.R.D. 662,
665 (M.D. Fla. 1996).
7
In addition to satisfying each prerequisite, the party must
also prove that the proposed class properly falls into one of
the
subsections
of
Federal
Rule
of
Civil
Procedure
23(b).
Alabama v. Blue Bird Body Co., 573 F.2d 309, 315 (5th Cir.
1978)4.
ii.
Analysis
Plaintiffs have failed to address or establish any of the
prerequisites required for class certification under Rule 23(a)
or (b).
Because Plaintiffs fail to meet the requirements of
Rule 23(a) and (b), Plaintiffs' motion for class certification
is denied.
In addition, to the extent Plaintiffs seek class
action discovery, that too is denied in light of the denial of
the motion for class certification.
The Court notes that
Plaintiffs' discovery requests relate to potential defendants as
opposed to potential plaintiffs.
Class action discovery is
intended to gather information about potential members of the
class, not potential defendants.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
4
The case law of the Fifth Circuit prior to September 30,
1981 has been adopted as precedent in this judicial circuit.
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
banc).
8
(1)
Defendant's Motion to Dismiss (Doc. # 3) is GRANTED.
(2)
Plaintiffs shall have up to and including December 19,
2011, to amend the Amended Complaint to state a claim
under ERISA.
(3)
Plaintiffs' Motion to Amend the Amended Complaint as
Necessary to Maintain Class Action Status (construed
as a motion for class certification) and to Conduct
Reasonable Discovery (Doc. # 11) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 18th
day of November, 2011.
Copies:
All Counsel of Record
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